The Court of Appeal dismissed an appeal by an employee from a decision setting aside an adjudicator’s order reinstating him to his former position, finding that the Province retained the right to dismiss non-unionized civil service employees for cause or with reasonable notice.

Administrative law – Employment law – Termination of employment – Government employees – Decisions of administrative tribunals – Adjudications – Judicial review – Jurisdiction – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter

New Brunswick (Board of Management) v. Dunsmuir, [2006] N.B.J. No. 118, New Brunswick Court of Appeal, March 23, 2006, W.S. Turnbull, J.Z. Daigle and J.T. Robertson JJ.A.

The Appellant, a full-time employee with Court Services Division of the Department of Justice, was terminated from his employment with 4-1/2 months’ notice. He initiated a grievance under a provision of the Public Service Labour Relations Act, R.S.N.B. 1973, c.P-25, which allowed non-unionized employees of the provincial government to file a grievance with respect to a “discharge, suspension or financial penalty”. An adjudicator appointed to hear the grievance found that the Appellant had been reprimanded on 3 occasions prior to his dismissal but that the Province had never articulated the reasons for its dissatisfaction and the Appellant had not been given an opportunity to change his work performance. As a result, he had been denied procedural fairness and the dismissal was void ab initio. The adjudicator went on to make a provisional finding that the appropriate notice period was 8 and not 4-1/2 months.

On judicial review, the reviewing judge held, on a correctness standard, that the adjudicator lacked the jurisdiction to enter into an inquiry as to the true nature of the Appellant’s dismissal and was restricted to assessing the reasonableness of the notice period. The reviewing judge also held that the adjudicator lacked the jurisdiction to determine whether the Appellant had been denied procedural fairness and that he could not reinstate the Appellant to his former position. Finally, the judge found the adjudicator’s award with respect to the notice period “high in the circumstances” but not “patently unreasonable”. The Appellant appealed this decision.

The appeal was dismissed. The reviewing judge erred in concluding that the adjudicator’s preliminary ruling on the jurisdiction to consider the reason for the dismissal was correctness. The proper review standard, given the relative expertise of the adjudicator and full privative clause, was reasonableness. The adjudicator’s decision failed to meet the reasonableness standard of review. As a matter of statutory interpretation, the Province retains the right to dismiss non-unionized employees within the civil service for cause or with proper notice. If the Province elects to terminate an employee with notice, the adjudicator’s jurisdiction is limited to assessing the reasonableness of the notice period, unless discrimination is alleged. Otherwise, the reasons which prompted the Province to issue the notice are to be deemed irrelevant for the purpose of adjudication. The issue of procedural fairness does not arise in this case. The Appellant’s employment was terminated with notice and he exercised his right to grieve, albeit with respect to the length of the notice period. In these circumstances, the adjudicator’s finding that the fairness duty had been breached had no legal foundation.

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