In the Matter of a Complaint of Alleged Unjust dismissal and a Wage Recovery Appeal under Part III of the Canada labour Code
Gurpreet Sandhu, Complainant and G.P.G. Transportation Ltd., Respondent
Sandhu v. G.P.G. Transportation Ltd.
Heard: November 4, 2014
Judgment: November 6, 2014
Counsel: Gurpreet Sandhu, for herself
No one for G.P.G. Transportation Ltd.
Ib S. Petersen Adjud.:
1 By letter dated September 3, 2014, I was appointed by the Minister of Labour to hear and adjudicate the unjust dismissal complaint filed by Ms. Sandhu under the Canada Labour Code, R.S.C. 1985, c. L-2 (the “Code”), dated January 24, 2014. The employer named in the appointment letter was G.P.G. Transportation Ltd. (”GPG” or the “Employer).
2 I wrote to the parties September 9, 2014, October 12 and 21, 2014 to schedule a hearing. The Employer did not respond to any of the correspondence. As well, I contacted the Employer’s representative, its president, Mr. Parminder Gill, by telephone to request an email contact address and availability for the hearing. Mr. Gill did not provide an email address or offer any available dates for a hearing. Accordingly, I scheduled a hearing on November 4, 2014 in consultation with Ms., Sandhu, and sent a hearing notice to both parties on October 30. I sent the hearing notice to the Employer by mail and courier. The courier confirmed delivery.
3 The hearing was held on November 4, 2014. Ms. Sandhu and her husband, Mr. Tiribhawan Singh Gill, attended. Despite having notice of the hearing, the Employer did not attend.
4 Ms. Sandhu and her husband testified under affirmation.
5 Ms. Sandhu worked for GPG from February 19, 2008 until her termination on January 7, 2014. She was employed as a bookkeeper. She was paid $19.00 per hour and worked 40 hours per week. Between December 31, 2012 and January 5, 2014, she was on maternity leave, returning – briefly – to work January 6 and January 7, 2014.
6 During her absence, Mr. Gill gave her no indication that her employment was in jeopardy. During her leave, Mr. Gill several times confirmed her return to work. In fact, Mr. Gill promised Ms. Sandhu a $2.00 an hour raise upon her return. She returned to work on January 6, 2014. However, on January 7, she was abruptly and summarily dismissed. Ms. Sandhu was given no notice or pay in lieu whatsoever. The Employer provided no reason for the dismissal. The Employer did not even pay for the two days she worked. The Employer failed to issue a Record of Employment as required by law.
7 Ms. Sandhu’s pay cheque came from GPG. When she went on maternity leave, her ROE was issued by GPG. However, during her employment she provided bookkeeping services to GPG and Heartland Transportation Ltd. (”Heartland”), a related company. Ms. Sandhu worked for both companies. At some point around August 2013, the Employer transferred some of its assets, including trucks, and employees over to Heartland, apparently in response to a failed Transport Canada audit and tax issues with Canada Revenue Agency. Prior to the transfer, all employees were paid through GPG, whether they worked for one or the other. Mr. Gill managed both companies. Both companies operate out of the same address. Ms. Sandhu testified that they were “operating like one company.”
8 Ms. Sandhu testified that she completed a (separate) complaint form, naming Heartland. She said she filed the separate complaint form against Heartland. My appointment letter, however, names only one employer, GPG. As mentioned GPG has been given notice of the complaint and the hearing. There is nothing before me to suggest that Heartland has been involved in the complaint.
9 After her dismissal, Ms. Sandhu found alternate employment from January 20, 2014. Her rate of pay in her new employment was at a lower rate of pay, $17.00 per hour. She also worked 40 hours per week in her new job.
10 After the dismissal, Ms. Sandhu and her husband received telephone calls from Mr. Gill, which she perceived as threatening, discouraging her from filing a complaint of unjust dismissal.
11 I have no difficulty concluding that the Employer’s dismissal of Ms. Sandhu was “unjust” within the meaning of the Canada Labour Code.
Section 242(2) of the Code provides the adjudicator with broad remedial powers:
(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.
12 In my view, the remedy for an unjust dismissal is to “make” the employee “whole” and compensate her for the losses flowing from the Employer’s breach of the Code. Ms. Sandhu found alternate work quickly and was only unemployed for eight (8) days. Ms. Sandhu is, therefore, entitled to eight (8) days’ pay plus pay for the two days she worked, and for which she was not paid. In my view, on the evidence, the Employer agreed to pay her at an increased rate of pay ($2.00 per hour) following her return to work. I would include that increase in my award, for a total gross weekly pay of $840.00. Ms. Sandhu’s employment is a little shy of six (6) years. In this case, therefore, the Code provides for vacation pay of 4%. For the period January 6-19, Ms. Sandhu is entitled to $1,680.00 plus vacation pay of $67.20, a total of $1,747.20, less applicable statutory deductions.
13 In addition, I award Ms. Sandhu the difference between the amount she earned in her new employment and her employment with the Employer ($4.00 per hour) from January 20, 2014 until the hearing of the complaint, November 4, 2014, or $160.00 per week, for a total of 41 weeks and two days. The amount on account of the wage differential comes to $6,624.00 plus vacation pay at rate of 4% in the amount of $264.96, for a total of $6,888.96, less applicable statutory deductions.
14 I order GPG to pay Ms. Sandhu $8,636.16, less applicable statutory deductions.
15 Under Part III of the Code, employment may be deemed continuous if a business, or part of it has been transferred to another employer (section 189(1)). As well, the Minister may, after affording to the employers a reasonable opportunity to make representations, declare that one or more employers be treated as a “single employer” for the purposes of Part III (255(1)).
16 At this point, I need not address these two provisions. Assuming that I have the jurisdiction to make a finding under section 189(1), the evidence before me is insufficient to find that Heartland is a “successor” employer. With respect to section 255(1), a “single employer” declaration, the statute is clear that the power or jurisdiction to make such a declaration is the Minister’s, at least in the first instance. In any event, in my view, fundamental principles of natural justice require that Heartland be given notice of any process. Despite the fact that the two companies, Heartland and GPG operate out of the same premises, and may have overlapping ownership and management, Heartland has not, in my view, been given proper notice.
17 Concerns about satisfaction of the order may be addressed through director’s liability under Part III. The Code provides in section 251.18:
251.18 Civil liability of directors
Directors of a corporation are jointly and severally liable for wages and other amounts to which an employee is entitled under this Part, to a maximum amount equivalent to six months’ wages, to the extent that
(a) the entitlement arose during the particular director’s incumbency; and
(b) recovery of the amount from the corporation is impossible or unlikely.
18 I retain jurisdiction with respect to the implementation of this award. A copy of this award will be sent to both GPG and Heartland.
19 The Code provides that this order may be filed in Federal Court and is enforceable as an order of the Court:
244(1) Enforcement of orders
Any person affected by an order of an adjudicator under subsection 242(4), or the Minister on the request of any such person, may, after fourteen days from the date on which the order is made, or from the date provided in it for compliance, whichever is the later date, file in the Federal Court a copy of the order, exclusive of the reasons therefor.
On filing in the Federal Court under subsection (1), an order of an adjudicator shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order were a judgment obtained in that Court.
20 I attach a certified copy of my order, exclusive of the reasons, for filing in the Federal Court.
I MAKE THE FOLLOWING ORDERS:
- The Respondent, G.P.G Transportation Ltd. shall forthwith pay $8,636.16, less applicable statutory deductions, to Gurpreet Sandhu;
Ib S. Petersen Adjud.:
THE ADJUDICATION under Division XIV, PART III of the Canada labour Code, R.S.C. 1985, c. L-2, of a Complaint of Alleged Unjust Dismissal by Gurpreet Sandhu against G.P.G Transportation Ltd. coming on for hearing on November 4, 2014, and on hearing Gurpreet Sandhu, on behalf of herself, and no one appearing on behalf of the Respondent, despite having received notice of the hearing;
I MAKE THE FOLLOWING ORDERS:
- The Respondent, G.P.G Transportation Ltd. shall forthwith pay $8,636,16, less applicable statutory deductions, to Gurpreet Sandhu;