Arbitrator did not have power to reinstate applicant into different position

Applicant employee, who had received various conduct warnings during employment with bank, went on sick leave after incident with manager. Applicant was terminated after making accusations of bullying and harassment against manager. Applicant’s complaint for unjust dismissal led to arbitration award finding that, although bank had not established just cause, termination was necessary and appropriate remedy was severance compensation of quantum to be determined after further hearing. Applicant applied for judicial review. Application dismissed. There was nothing wrong with arbitrator first finding that bank did not establish just cause for dismissal and then articulating reasons why applicant was partly to blame for disruption in employment relationship as relevant to appropriateness of reinstatement as remedy. Reinstatement was not right or default position but was simply one of remedies available to arbitrator. Arbitrator was not unreasonable in deciding that applicant’s conduct, attitude and past behaviour, made reinstatement untenable. As reinstatement was not right, it was not matter of bank meeting burden of proof but of arbitrator weighing evidence following proper consideration of all testimony and evidence as he did in this case. Arbitrator did not have power to reinstate applicant into different position. While arbitrator found that applicant was not in wrong in specific incident, he made clear finding that his behaviour was not condoned but only reluctantly tolerated and it was squarely within arbitrator’s discretion to find that reinstatement was not viable. Decision as whole led to conclusion that arbitrator’s unfortunate reference to “severance” meant that next hearing would determine what compensation was owed on account of rupturing of employment relationship and challenge to as-yet undetermined quantum was premature.

Kouridakis v. Canadian Imperial Bank of Commerce (2019), 2019 CarswellNat 4936, 2019 FC 1226, Peter G. Pamel J. (F.C.); application for judicial review refused (2018), 2018 CarswellNat 5219, Mark Abramowitz Referee (Can.Adjud.(CLC Part III)).

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