The principled analysis of deference given to the first level hearing based on the standard of reasonableness is found here.

The adjudicative award was set aside on this basis in a Federal Court of Appeal decision in 2020. ¹ The employee had been terminated for just cause based on allegations of acts of intimidation in the workplace. The adjudicator found for the complainant and awarded 8 months compensation. The employer’s first review failed, a decision which was reversed by the Court of Appeal. This court found that the adjudicator had acted unreasonably because:

1. The adjudicator had failed to refer to the employer’s statutory obligation to prevent workplace violence;
2. The adjudicator did not consider the definition of workplace violence in the Code;
3. The adjudicator erred in drawing an adverse inference from the failure of the employer to tender written statements from relevant witnesses, even though these persons were called as witnesses;
4. The adjudicator failed to explain what the adverse inference was;
5. There was no coherent rational chain of analysis for his conclusion that in the circumstances he found took place some discipline, but not dismissal, was warranted.

The decision was set aside and remitted to another adjudicator for a new hearing.

A further case reviewed the standard of deference afforded to the adjudicator. In this case, the employee succeeded in his unjust dismissal complaint. This decision was set aside on first review. The Federal Court of Appeal then considered whether the correct test of deference was applied on the first review. ²

The court first determined whether the reasons of the adjudicator allowed the reader to understand the basis of the decision and then to assess whether the conclusion was within the range of acceptable outcomes. This test was met. ³

The Court of Appeal determined that the first review decision had incorrectly applied the law on the question of the standard of reasonableness afforded to the adjudicator. The reasons for this were as follows:

1. The judge erred in the interpretation of the law on the issue of conflict of interest. The adjudicator applied the correct test;
2. The judge erred in not showing proper deference to the facts found by the adjudicator; The judge incorrectly substituted his view of the facts;
3. The judge was also wrong in intervening with respect to the question of the employee’s alleged insubordination. The adjudicator considered this argument and made an reasoned ruling. This was reasonable and should not be interfered with.
4. The adjudicator reviewed the evidence and made an assessment that the dismissal could not be justified. This demands deference.

The adjudicator’s decision was allowed to stand and the first review was set aside.

A case in which the Federal Court determined that the original award was unreasonable was decided in 2021 ^{4 5}

The Federal Court in first instance had found that the decision was unreasonable for three reasons. The adjudicator had used the wrong date to determine the first date on which the employee had been aware of the possibility that she may have been fired. Other reasons given were that the adjudicator had improperly relied upon a precedent decision. The third was that the speculative nature of the conclusion reached by the adjudicator that the employer’s internal appeal process was of no value.

The Court of Appeal agreed that there was merit in the first of these three reasons. The Court of Appeal determined that a warning given to the employee was an important issue, in either culpable or non-culpable conduct. Thus, the date of the employee’s first awareness of the need to improve was foundational for the just cause argument. As the mistake made on this date was critical, the FCA agreed that the original decision, erring in this determination, was unreasonable.