Melissa A.V. Bernon v WestJet, an Alberta Partnership, 2022 CIRB 1008 (CanLII)
In that case, the complainant filed an unjust dismissal complaint. Initially, she believed that she had been dismissed due to her role in a union organizing campaign. The union filed an unfair labour practice complaint under Part I of the Canada Labour Code. the union filed an unfair labour practice complaint with the Board pursuant to section 97(1). It alleged that WestJet’s decision to dismiss the complainant was motivated by her involvement in the union’s organizing activities and that, therefore, the termination was tainted by anti-union animus.
The complainant had been terminated after an investigation into her conduct relating to a ring that a customer had found at the airport, as per the termination letter.
The employer objected to the Board’s jurisdiction.
The Code provides:
242 (3.1) No complaint shall be considered by the Board under subsection (3) in respect of a person if
…
(b) a procedure for redress has been provided under Part I or Part II of this Act or under any other Act of Parliament.
Among others, the Board considered the decision of the Federal Court of Appeal (FCA) in Byers Transport Ltd. v. Kosanovich, 1995 CanLII 3515., where the Court considered whether section 242(3.1)(b) ousted the jurisdiction of an unjust dismissal adjudicator in circumstances where the complainant had also filed a complaint under Part I of the Code. The Board noted that the Code may apply to oust the Board’s jurisdiction to consider an unjust dismissal complaint, provided that the unjust dismissal complaint and the Part I complaint are, in essence, factually the same.
However, on the facts of this case:
[36] Although the unjust dismissal complaint initially set out the complainant’s belief that she had been dismissed due to her union activities, when the ESDC referred the complaint to the Board, this statement had been amended. Through this amendment, the complainant had expressly withdrawn her claim that the dismissal was motivated by anti-union animus. She submits that in reviewing WestJet’s response to the Part I complaint and interim relief application, she learned the details of its investigation into the lost ring incident and concluded that her union involvement was not a factor in her termination…
The Board did not accept WestJet’s argument that the amendment was no credible. Accordingly, no procedure for redress is available to her under Part I of the Code, noting that the complainant’s unjust dismissal complaint was wholly devoid of any allegations or evidence related to her union activity. In the case at hand, the complainant and the union did not believe that redress was available under Part I once they had reviewed WestJet’s response to the Part I complaint and interim relief application. The complainant explicitly states that the Part I complaint was withdrawn based on this conclusion.
The Board concluded that that the two complaints related to the termination of the complainant’s employment were not essentially the same. The Board had jurisdiction to hear the complaint.