In a recent decision of the Federal Court of Canada, the Court had occasion to apply the Supreme Court of Canada’s decision in Wilson v Atomic Energy of Canada ltd (Wilson) for one of the first times. In his decision, Justice Diner found that it was unreasonable for an adjudicator not to consider both the proportionality of termination and the use of progressive discipline when determining whether the termination of an employee was unjust, within the meaning of subsection 240(1) of the Canada Labour Code.

Although it might seem obvious that proportionality and progressive discipline should be considered, the facts in this case made it less obvious.  The adjudicator found that the applicant, a school principal, was incompetent, insubordinate, had financially mismanaged the school and engaged in sexual harassment.

The respondent argued that given the applicant’s proven conduct, there was no need to consider progressive discipline. However, Justice Diner did not accept this argument. Referring to Wilson, Justice Diner concluded that even in such circumstances, an adjudicator has a duty to turn his or her mind to whether the dismissal was just, which entails a consideration of the mitigating factors, including progressive discipline. Even when confronted with conduct that seems egregious enough to obviate the need for a consideration of the mitigating factors, the adjudicator still has the obligation to explain his/her reasoning in finding the termination “just”.

In other words, Justice Diner found that in light of the SCC decision in Wilson, an adjudicator must now demonstrate that he or she has seriously considered whether the employer used progressive discipline with the employee. If the employer did not, the adjudicator must explain why such a decision was justified. If progressive discipline and the proportionality of the disciplinary measure are not considered by the adjudicator, there is high risk that the decision will be found unreasonable, and as was done in this case, re-adjudication will be ordered.

Written with the assistance of Charles-Émile Morin, summer student.

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