In the Matter of a Complaint of Alleged Unjust dismissal and a Wage Recovery Appeal under Part III of the Canada Labour Code
Darcy B. Coonfer, Complainant and Orca Airways Ltd., Respondent
Coonfer and Orca Airways Ltd., Re
Heard: December 17, 2014; December 18, 2014
Judgment: December 29, 2014
Docket: YM2707-9489, YM2727-3316
Counsel: Andrew Naysmith, for Orca Airways Ltd.
Ib S. Petersen Adjud.:
1 The Minister of Labour has appointed me to adjudicate the unjust dismissal complaint and the appeal of a Notice of Unfounded Complaint filed by Mr. Darcy Coonfer (”Coonfer”) under the Canada Labour Code, R.S.C. 1985, c. L-2 (the “Code”).
2 Coonfer was employed with Orca Airways Ltd. (”Orca” or the “Employer”) between January 2010 and early February 2012, initially as Chief Pilot. From July 15, 2011, his job title was Operations Manager. On January 16, 2012, he resigned Orca, giving 21 days’ working notice. Coonfer filed an unjust dismissal complaint alleging that he had been constructively dismissed, because the Employer had changed the terms and conditions of his employment. Coonfer alleged that Orca failed to pay wages, a percentage of the profit for 2011. A Labour Canada inspector investigated the wage claim and issued a Notice of Unfounded Complaint (December 27, 2012).
Analysis and Decision
3 In addition to the merits of the wage recovery appeal and the unjust dismissal complaint, Coonfer applied to adjourn the hearing for other mutually agreeable dates. For the reasons set out, I dismiss Coonfer’s application for an adjournment, as well as the wage recovery appeal and unjust dismissal complaint.
16 The hearing was scheduled to proceed on December 17-19, 2014. For quite some time, it had proved difficult to get the parties to agree to mutually agreeable dates. The Employer did not respond in a timely manner to the emails with respect to dates and I scheduled the hearing to proceed on December 17 – 19, 2014. The Employer then opposed the December dates as inconvenient for business reasons. December was a busy time for the Employer. However, Coonfer insisted that the hearing proceed on those dates. Coonfer said he intended to call several witnesses, and had arranged their attendance on those dates. Ultimately, and over the Employer’s objections, I ordered the hearing to proceed on December 17-19. I issued a hearing notice, and both parties acknowledged receipt.
17 Coonfer contacted me by telephone in the late afternoon of December 16. He indicated to me that he believed the Employer would not show up at the hearing. I told him that I did not wish to discuss the matter in the absence of the Employer and that any concern could be addressed at the opening of the hearing on December 17.
4 At 5:19 AM, December 17, 2014, Coonfer emailed me (and the Employer). He stated that due to “issues” relating to a “distressed employee” he was unable to attend the hearing. Coonfer is employed as a captain with Pacific Coastal Airlines (”Pacific Coastal”). He stated that he could not provide details for privacy reasons. He requested an adjournment to mutually agreeable dates. I was not aware of the email until I attended the hearing, the morning of December 17.
5 The Employer’s representative, Naysmith, Orca’s President and CEO, attended on December 17. He opposed the adjournment.
6 A scheduled hearing may be adjourned for valid and proper reasons. It was unclear to me why “issues” with respect to a “distressed employee” had any bearing on Coonfer’s ability to attend the hearing. There was no evidence before me to support the application for an adjournment. I did not accept Coonfer’s reasons for the adjournment and I denied Coonfer’s application for an adjournment. I stood the hearing down until the following morning, December 18, at 10:00 AM and requested by email that Coonfer, if he was still seeking an adjournment, to provide proper reasons supported by evidence. Failing a successful application for an adjournment, I ordered that the hearing would proceed.
7 Coonfer responded by email on December 17, at 7:49 PM (copy to the Employer). He applied for an adjournment again. Essentially, he elaborated on the earlier reasons for the adjournment. He claimed that he had “no option” but to fly because another unnamed pilot was off work due to a death in the family. He provided three documents in support of the application: a redacted daily crew log for Pacific Coastal, a redacted flight schedule of an (unnamed) pilot (Captain) for December 18, and Coonfer’s own flight schedule for December 17. The redacted documents did not provide the names of crew or the person(s) who created the records.
8 I reconvened the hearing at 10:00 AM on December 18. Naysmith attended; Coonfer did not. I requested that the Employer address the adjournment application.
9 Orca opposed the adjournment application. Naysmith submitted that he attended the hearing at great inconvenience and cost. He did not accept that Coonfer had “no option.” Pacific Coastal is a large company with some 400 employees, including 120 pilots, operating 125 daily flights. Pilots “book off” by notifying dispatch, not other pilots. Dispatch then assigns pilots on “stand by.” Pilots on “stand by” are paid and may be called to work when other pilots are absent. Pilots “booked off,” for example on vacation, cannot be called in. He noted that working time for pilots is strictly regulated by Transport Canada and other agencies. He took issue with the veracity of Coonfer’s explanations, and suggested that Coonfer had not booked time off for the hearing and found himself in a bind when he was called to work on the scheduled hearing dates. Coonfer was the author of his own misfortune.
10 I considered Coonfer’s written submissions, the documents submitted in support, and the Employer’s oral submissions.
11 Coonfer’s submissions emphasize the alleged absence of a fellow pilot due to a death in the family. According to Pacific Coastal’s crew log, there was a death in a “crew” member’s family, and was he unable to work: “[name redacted] will be booking off for 18 and 21 Dec due to death in the family and must travel for funeral.” The [name redacted] “crew” member booked off with dispatch at 7:23 AM on December 16. Coonfer also provided a redacted flight schedule for a [name redacted] Captain for December 18. The documents are redacted and it is not possible to even verify if the two documents refer to the same “crew.” In any event, assuming the crew log refers to the [redacted] captain that only accounts for one of the scheduled hearing dates, namely December 18. There is no documentary evidence to support that Coonfer was or would be flying December 18 and 19, as he claims. Coonfer flight schedule for December 17 confirms that he was flying on that day. However, there is no documentary evidence to support that he was required to fly on December 17, as he claims.
12 The crew log indicates that two other [name redacted] “crew” booked off sick on December 16 at 6:30 AM and 4:57 PM, for December 17. However, there is nothing in the documents to support why the absences of these two other unnamed and unspecified “crew” had any bearing on his ability to attend the hearing on the dates scheduled.
13 Coonfer claims that he received a telephone call from the unnamed captain at 5:00 AM on December 16 that “they were unfit to fly.” Coonfer submits that “there was no other option but for [him] to fly in their place.” “They” and “their” refer to a plurality of persons. It is not credible, in my view, that an unnamed captain would call Coonfer, a fellow employee, to inform him that he (and perhaps other crew) were unfit to fly, or in other words not coming to work, in place of, or before, calling the employer’s dispatch about being “unfit to fly,” particularly in a large company like Pacific Coastal. It is not credible that, as a result of such a call, Coonfer would have “no option” but to fly. Working time for pilots is regulated by Transport Canada and other agencies for safety and other reasons, and it is more likely, therefore, that the employer’s dispatch assigns work to its pilots. Coonfer’s submissions fail to address how, when and why Pacific Coastal’s dispatch assigned him to work those dates.
14 Coonfer provides no explanation why there was “no option” but him to fly on the three scheduled hearing dates — for example, whether Pacific Coastal required him to fly, whether there were other pilots qualified to fly the particular plane, whether he was on “stand by”, whether he had booked time off for the hearing, etc. Based on Coonfer’s submissions, it is not clear to me why “there was no other option but for [him] to fly.” The allegation that “severe disruption and financial impact to commercial operations” would result (presumably to his current employer, Pacific Coastal) is not supported by any particulars or evidence, and is nothing but bald speculation and conjecture.
15 It may be, as suggested by the Employer, that Coonfer was on “stand by,” and had not booked the time off, perhaps expecting not to be called in. In any event, in all of the circumstances, I am not satisfied that Coonfer has provided satisfactory reasons for an adjournment. I emailed Coonfer that his application for an adjournment was denied, and that the hearing would proceed in his absence.
16 I now turn to the wage recovery appeal and unjust dismissal complaint.
17 Naysmith testified under oath. Naysmith denied that he changed Coonfer’s terms and conditions of employment. Naysmith testified that Coonfer resigned in writing on January 16, 2012, giving three weeks’ working notice. His last day at work was February 7, 2012.
18 Orca initially employed Coonfer as its Chief Pilot at an annual salary of $73,500 plus a bonus of 2% of “annual profits.” In mid July 2011, he became Orca’s Operations Manager. The salary remained the same, but the bonus was increased to 4%. There is no dispute about the percentage, the 4%, but the parties subsequently disagreed, among others, as to whether the 4% applied to all of his employment in 2011, or only applied to his employment as Operations Manager from mid July 2011.
19 The parties did not enter into a written employment contact for the Operations Manager position in July. Later, on November 17, 2011, they signed a two page written contract, drafted by Coonfer. The contract contained a provision reflecting that Coonfer was entitled to a 4% bonus from July 15, 2011, payable at the end of January 2012. Coonfer crossed out that provision (leaving the reference to 4%) and inserted “2011-01-01 – 2011-12-01.” Coonfer claimed he amended the contract with Naysmith’s consent. Coonfer claimed that he and Naysmith initialed the amendment. Naysmith denied that he agreed to the amendment; and he denied that he initialed the amendment. In fact, he stated that he did not see the “initialed” contract until Coonfer filed his complaint with Labour Canada. As it happened, Naysmith testified that Coonfer by mistake was paid the 4% bonus for his entire employment in 2011.
20 Coonfer resigned from Orca on January 16, 2012. In his written resignation he referred to the Employer’s “breach of contract and interference.” He did not specify the nature of the “breach of contract and interference.” Thus it is not clear what the basis for the alleged constructive dismissal claim is. Similarly, it is not clear when the alleged breach occurred. In fact, the disagreement over the bonus did not surface until after Coonfer had resigned.
21 When Coonfer left Orca’s, he was paid $5,006.03 based on the company’s 2011 interim financial statement. The year-end for Orca is December 31. Naysmith testified that the Employer’s practice is to pay bonuses based on the interim financial statements available at year-end, rather than the audited financial statements available later the following year, in August. Shortly after Coonfer left Orca, he wrote to Naysmith claiming that the amount paid was insufficient. Coonfer was of the view that the bonus should be based on the audited financial statements. Naysmith testified that Coonfer had, in fact, been overpaid because the 4% bonus payout was not prorated to reflect that he was not an Operations Manager for his entire employment in 2011.
22 Based on the evidence and submissions, the unjust dismissal complaint and the wage recovery appeal are without merit. There is nothing to substantiate that the Employer changed the terms and conditions of his employment such that Coonfer was constructively dismissed. Rather, Coonfer resigned from his employment and is not entitled to severance. There is similarly nothing to substantiate that the Employer did not pay Coonfer in accordance with his contract.
I make the following orders:
- the unjust dismissal complaint is dismissed; and
- the wage recovery appeal is dismissed.
Complaint dismissed; Appeal dismissed.