Date: 20010927
Docket: A-567-00
Neutral citation: 2001 FCA 285
CORAM: DESJARDINS, J.A.
DÉCARY, J.A.
BETWEEN:
RONALD STUART FABBRIE
Appellant
and
TSI TERMINAL SYSTEMS INC.
Respondent
Heard at Vancouver, British Columbia, on September 26, 2001.
Judgment delivered at Vancouver, British Columbia, on September 26, 2001.
REASONS FOR JUDGMENT BY: SEXTON, J.A.
CONCURRED IN BY: DESJARDINS, J.A.
DÉCARY, J.A.
Date: 20010927
Docket: A-567-00
Neutral citation: 2001 FCA 285
CORAM: DESJARDINS, J.A.
DÉCARY, J.A.
SEXTON, J.A.
BETWEEN:
RONALD STUART FABBRIE
Appellant
and
TSI TERMINAL SYSTEMS INC.
Respondent
REASONS FOR JUDGMENT
[1] The Applicant seeks judicial review of the decision of the Canada Industrial Relations Board that his employment with the Respondent was not terminated as a result of refusal of the Appellant to work, contrary to Section 128 of the Canada Labour Code.
[2] The evidence before the Board was to the effect that there was a history of conflict between the Applicant and his employer. There had been a number of incidents which indicated that the employer's foreman considered the Applicant to be guilty of unacceptable work habits, disruptive behaviour, repeated tardiness and booking off the job with insufficient notice. There was also evidence of a refusal to work because of safety concerns on the part of the Applicant. The Board concluded that the Applicant had been terminated for being seven minutes late by the foreman, because the foreman, in effect, wanted the Applicant gone. However, the Board concluded that the termination did not take place due to any refusal to work.
[3] It is important to point out that this is not a case of unjust dismissal and hence the refusal of the Board to accept the employer's position that the termination was due to the Applicant's bad work history, does not really assist the Applicant. It was incumbent on the Applicant to show that the termination was due to a refusal to work.
[4] We are not persuaded that there was no evidence on which the Board could conclude that termination of the Applicant was not motivated by a refusal to work on the part of the Applicant. Further it cannot be said that the evidence, viewed rationally, is incapable of supporting the Board's finding. We therefore are unable to find that the decision of the Board was patently unreasonable.
[5] This application will be dismissed with costs.
(Sgd.) "J. Edgar Sexton"
J.A.
Vancouver, British Columbia
September 27, 2001
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-567-00
STYLE OF CAUSE: Ronald Stuart Fabbrie v. TSI Terminal Systems Inc.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 26, 2001
REASONS FOR JUDGMENT BY SEXTON, J.A.
CONCURRED IN BY: DESJARDINS, J.A.
DÉCARY, J.A.
DATED: September 27, 2001
APPEARANCES:
Geoffrey Litherland FOR THE APPLICANT
Matthew Cooperwilliams FOR THE RESPONDENT
SOLICITORS OF RECORD:
Harris & Company FOR THE APPLICANT
Vancouver, BC
Ogilvy Renault FOR THE RESPONDENT
Vancouver, BC