Atomic Energy of Canada Ltd. v. Jindal
A-336-96
Létourneau J.A.
16/6/98
8 pp.
Appeal from Trial Division decision (1996), 110 F.T.R. 221, on application for judicial review, quashing finding of adjudicator appellant had been wrongfully dismissed from employment under Code, s. 242(2), (3)-Appellant lost employment upon AECL's re-structuring-At outset of hearing of complaint for unjust dismissal, adjudicator dismissed respondent's objection to his jurisdiction, under Code, s. 242(3.1) on basis appellant had been laid off because of lack of work or discontinuance of function-Adjudicator found appellant's employment terminated and not subject to recall; termination not lay-off within meaning of Code, s. 242(3.1)-Then found no just cause for dismissal, and appellant's employment wrongfully terminated-Motions Judge reversed adjudicator's finding on basis appellant had lost employment through massive reorganization, and adjudicator therefore had no jurisdiction to proceed to decide merits of complaint-Appeal dismissed-Adjudicator gave erroneous interpretation to concept of lay-off in Code, s. 242(3.1)-Permanent discontinuance of position constituting lay-off-In few cases, adjudicators have been giving "layoff" narrow meaning of "temporary cessation of work with prospect of recall in future": Christie et al., Employment Law in Canada, 2nd ed., Toronto, Butterworths, 1993-Such restrictive interpretation not warranted by text of Code, s. 242(3.1) as not limiting it to temporary lay-off, but such narrow interpretation setting dangerous precedent which might have encouraged employers to classify employees as "laid off" in circumstances where, in fact, no hope of recall: Grosman, Federal Employment Law in Canada, Toronto, Carswell, 1990-Termination of employment herein amounted to lay-off within meaning of Code, s. 242(3.1)-Adjudicator failed to properly consider notion of "discontinuance of function" in Code, s. 242(3.1)-Motions Judge correctly pointed out "discontinuance of function" occurring not only when function no longer carried out but also when activities forming part of bundle of activities divided amongst other people-Motions Judge's conclusion discontinuance of appellant's function as result of reorganization of sales division, suppression of appellant's position and division of his activities among other people supported by evidence before adjudicator who failed to apply appropriate legal principles to notion-Canada Labour Code, s. 242(2), (3.1) (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16).