Unjust Dismissal under the Canada Labour Code

In the matter of an Adjudication under Division XIV of Part III of the Canada labour Code (Complaint of Alleged Unjust Dismissal) BETWEEN: JUSTIN SNYDER, Complainant AND: HMY AIRWAYS INC (”HMY” or the “Employer”), Respondent

I.S. Petersen

Judgment: January 9, 2007

Docket: YM2707-7175

 

  1. PETERSEN:

 

  1. Petersen, Adjudicator

 

AMENDED PRELIMINARY DECISION

 

1      This is a preliminary decision arising out a complaint of unjust dismissal before me. A hearing has been scheduled in this matter for March 6, 7 and 8 2007. As these dates are fast approaching, this decision is brief.

 

2      Mr. Snyder alleges that he was unjustly dismissed from his employment as a fight dispatcher with the Respondent on or about February 2, 2006. In the Complaint Registration Form, Mr. Snyder states briefly that his dismissal was “done unjustly.” He also states that he was terminated while on sick leave. The Respondent has taken the position that Mr. Snyder was terminated for cause, including incompetence and breach of trust in the performance of his duties.

 

3      By letter dated November 2, 2006, counsel for HMY sought disclosure and production of “reliance documents and particulars.” The Complainant did not respond to this request. On November 29, 2006, counsel again wrote to the Complainant, this time seeking production of relevant documents and particulars. In particular, the November 29 demand noted that HMY had reason to believe that Mr. Snyder would rely on alleged drug-use in relation the termination and, further, that HMY had knowledge of the alleged drug-use. The demand was sent via courier and delivery was confirmed. Mr. Snyder did not respond to the request and the Respondent, as it had advised Mr. Snyder in the demand letter, made an application for production of documents and particulars.

 

4      By consent, I convened a pre-hearing conference by telephone to deal with the application for 10:00 AM, January 9, 2007. The date was set in agreement with the parties. Notices of the pre-hearing telephone conference, together with instructions, were delivered by email to the parties and receipt confirmed by return email, in case of counsel for the Employer, and by telephone, in case of Mr. Snyder.

 

5      Despite being duly notified of the pre-hearing conference, Mr. Snyder failed to participate. I made one attempt to contact him, without success, and commenced the telephone conference approximately 10:15 AM.

 

6      Based on the arguments and submissions at the pre-hearing conference, I order that Mr. Snyder provide the following particulars to counsel for the Respondent as follows:

  1. What, in his view, was it specifically that made the termination allegedly unjust?
  2. Through the complaint form, Mr. Snyder alleged that HMY unjustly terminated his employment on February 2, 2006, while he was on “sick leave.” HMY s records indicate that Mr. Snyder called in sick on January 30 & 31, 2006. Is this two-day absence from work what he is referring to when he states that he was on “sick leave?” If not, please explain the factual details surrounding the alleged “sick leave” that his complaint references?
  3. Is Mr. Snyder alleging that there is a drug-use issue that is relevant to this case? If so, provide the following information:

 

7      a. What type of alleged drug-use is involved?

 

8      b. When did he allegedly start using the drug(s) in question?

 

9      c. How frequently does he allegedly use the drug(s) in question?

 

10      d. What medical attention, if any, has he received regarding the alleged drug-use?

  1. If Mr. Snyder has received medical attention or treatment regarding the alleged drug-use, when and where did he receive this attention/treatment?
  2. If Mr. Snyder received medical attention/treatment regarding the alleged drug-use, what are the name(s) and addresses of the medical and other professionals who treated him?
  3. Is Mr. Snyder alleging that anyone at HMY was aware of your alleged drug-use? If so, provide the following information:

 

11      a. Did he tell anyone at HMY about his alleged drug-use issue?

 

12      b. If so, who did he tell about your alleged drug-use issue?

 

13      c. When, how and under what circumstances did he tell this person(s) about his alleged drug-use issue?

 

14      d. What did he actually tell this person(s) about his alleged drug-use issue?

 

15      e. If he did not tell anyone at HMY about his alleged drug-use issue, how, where, when and under what circumstances did HMY allegedly become aware of the issue? Who was aware of his alleged drug-use issue?

  1. For the period following Mr. Snyder’s termination from HMY, any and all information relating to his efforts to mitigate, including any information relating to any effort to seek and obtain employment, employment obtained, dates of employment, names and addresses of employers, and any earnings from such employment.
  2. Mr. Snyder must provide the information, set out under items 1 through 7, inclusive, no later than seven (7) days from the date of receipt of this order. The order will be forwarded by email, copy by regular mail.
  3. The application for production of documents is held abeyance pending production of particulars as set out above.

 

16      In order to facilitate and orderly and efficient use of hearing time, and to avoid costly and unnecessary adjournments, I encourage both parties to disclose and produce relevant documents, including, but limited to such documents as the parties intend to rely on at the hearing, and the names of witnesses, to the extent possible.