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Employment Issues in the Transportation Sector
Published in the November 2009 issue of Transportation Notes - View Article
In the month of November the Federal Court of Canada released two decisions which explore aspects of the employment relationship in the transportation sector. AZ Bus Tours Inc. v. Tanzos involves the question of accommodation of a person with a disability while Bhatthal v. Attorney General explores the circumstances in which an employee can be dismissed for cheating on a work related examination.
Barbara Tanzos was a bus driver who took sick leave after approximately five months of work with AZ Bus Tours. She returned under medical restrictions which prevented her from working more than three days a week. She also maintained she could not work night shifts. AZ maintained a policy which required all its full time drivers to be available for work 24 hours a day, seven days a week. Given that Tanzos could not meet the requirements of this policy she was placed on part-time status. After some experimenting with working on this basis she quit and brought a claim before the Canadian Human Rights Commission which eventually referred the matter to Tribunal for hearing. In a decision which clearly should have been anticipated by anyone familiar with the facts and law, Tanzos’ claim was vindicated and AZ was required to pay damages.
AZ then sought judicial review of the decision in the Federal Court and, just as predictably, lost. Its position throughout was simply that it had a policy and Tanzos could not be accommodated within the requirements of that policy. It has been a long time since such a position could be seriously maintained in Canada.
The first question which arose on the judicial review was that of standard of review. How should the Court approach the decision of the Tribunal? Should it demand correctness in that decision or would it rather ask whether the decision was reasonable? Although AZ was prepared to accept that the test should be one of reasonableness, the Court analyzed the applicable cases and concluded that it should make a distinction between the legal approach taken by the Tribunal and the findings of the Tribunal in applying the approach. In defining the legal approach, the Tribunal should be held to a correctness standard whereas only reasonableness could be required of it when it applied the legal approach to reach its particular conclusions.
Having thus analyzed the question of standard of review, the Court found the Tribunal applied the correct legal approach and did so in a reasonable fashion. Thus the application for review was dismissed. There can be no doubt that the Court was correct on both counts. The settled law in Canada requires an employer who wishes to impose a work standard to justify the standard by establishing three conditions. First, the standard must be one which is rationally connected to the performance of the job. This is normally not difficult to do and AZ was able to pass the first hurdle. Having done so, it was also required to show that the standard was adopted honestly and in good faith. This again AZ was able to do. AZ stumbled, as so many do, on the third step. It was required to show that it could not accommodate Tanzos short of “undue hardship”.
The last of these three requirements is notoriously difficult to satisfy and AZ made no effort to do so. It simply argued that the standard was useful to it. This falls very short of the requirement and AZ’s application was dismissed with costs. As Tanzos was self represented her costs were limited to $500.
The case of Bhatthal v. Attorney General arose from the decertification of a previous employee of a company under contract to provide security screening services at public airports. Tejinder Kaur Bhatthal was employed to screen passengers prior to boarding. She was certified by the Canadian Air Transport Security Authority (CATSA) and employed by GARDA. In December 2007 she underwent testing for recertification in explosives detection. At the completion of her examination the individual responsible for administering the testing (Ms Hammill) noted that she had words written on the back of her left hand. Hammill stated that the words written on Bhatthal’s hand were “high”, “contrast” and “grayscale”. These words were relevant to the test she had been undergoing. Of crucial importance to the ultimate conclusion of the case, Bhatthal admitted that she had written something on her hand—she never did say what—for the purpose of studying for the test.
A National Decision Board concluded she had cheated on the test and Bhatthal was de-certified by CATSA. She then sought judicial review in the Federal Court. The Court considered closely the standard of review to be applied and concluded that “it is clear deference should be given to this decision”. In coming to this conclusion it considered that the mandate of CATSA involved the public interest and noted that the decision turned very much on the particular facts of the case. The Decision Board member was a seasoned CATSA employee with expertise in the workings of the organization. All of these factors pointed to a high degree of deference and the conclusion that the decision should be reviewed on a reasonableness standard.
In accordance with existing law, the Court then turned to consider the decision to determine whether it was justified, transparent and intelligible. There really was only one issue before the adjudicator below: what was it that Bhatthal had written on her hand?
There were inconsistencies on both sides. The key witness, Ms Hammill, gave contradictory evidence concerning the sequence of events, in particular whether Hammill first informed Bhatthal that she had passed the exam before discovering the writing. A number of individuals saw that something was written on Bhatthal’s hand but no one other than Hammill was able to say what the words were. It is possible that Bhatthal began to efface the writing soon after it was first seen by Hammill.
Bhatthal’s evidence was also marked by inconsistencies. It was Bhatthal who sealed her own fate. In a letter written to explain her actions, she admitted committing a “grievous error”. She variously admitted writing one word and “words” on her hand as part of her study in advance of the test. Given this fact, it was reasonable for the first level adjudicator to prefer Hammill’s evidence and find against Bhatthal.
Thus it was reasonable to find that Bhatthal’s Personal Conduct Endorsement should be revoked and with it her certification. The application for judicial review was denied with costs fixed at $1,000.
Bhatthal v. Attorney General of Canada
2009 FC 1182 (CanLII)