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    *                        UNJUST DISMISSAL                           *
    *                                                                   *
    * Produced by : Human Resources Development Canada                  *
    * Provided by : Canadian Centre for Occupational Health and Safety  *
    * * * * * * * * * * * * * * * * * * * * * * *  (99-1) November 1998 *

ADJUDICATION DECISION REFERENCE NUMBER : 0721-NFLD
INDUSTRY TYPE                    :   12  Mining and Mineral Processing
EMPLOYER'S NAME                  : SEDPEX INCORPORATED
LOCATION OF EMPLOYMENT           : St-John's, Newfoundland
COMPLAINANT'S NAME               : DEVEREAUX, John
COMPLAINANT'S SEX                : Male
COMPLAINANT'S OCCUPATION         : Assistant Driller
COMPLAINANT'S DATE OF EMPLOYMENT : 1983/07/01
COMPLAINANT'S DATE OF DISMISSAL  : 1986/03/31
COMPLAINANT'S LENGTH OF SERVICE  :  2 years and  8 months
HRDC OFFICE WHERE THE COMPLAINT WAS FILED :
   ASA  NEWFOUNDLAND REGION
        Newfoundland Region
STAGE AT WHICH COMPLAINT WAS RENDERED INACTIVE :
    110  Reviewed by Federal Court of Appeal
REASONS FOR DISMISSAL :
       3.1200  Lack of work
COURT OF FIRST DECISION : Adjudicator
PRELIMINARY OBJECTIONS :
    61.5311  LACK OF WORK
DISPOSITIONS :
     0.0210  Preliminary objection - Dismissed
NUMBER OF WEEKS AWARDED     :     0 Weeks
DOLLAR AMOUNT AWARDED       :         0 $
END DATE OF FIRST DECISION  : 1988/01/01
COURT OF SECOND DECISION    : Federal
NUMBER OF WEEKS AWARDED     :     0 Weeks
DOLLAR AMOUNT AWARDED       :         0 $
END DATE OF SECOND DECISION : 1988/11/18
AWARD SUMMARY :
   FACTS:
    - The Complainant had been off work due to a non work-related accident.
    - The Complainant had received several evaluations which highlighted deficiencies in his work.  His performance was rated as the lowest of those in the same position.
    - Another individual with experience was hired from within the Employer's parent company and eventually preferred over the Complainant when one Employees was to be laid off.
    - The Complainant was given two weeks' pay in lieu of notice and six days severance pay upon termination.
    PRELIMINARY OBJECTION:  Lack of Jurisdiction - "Laid off due to lack of work"... Dismissed...
    ADJUDICATOR'S COMMENTS AND FINDINGS ON PRELIMINARY OBJECTION:
    - The burden was on the Employer to establish a lack of work.
    - Where an Adjudicator cannot decide on a balance of probabilities whether a lack of work exists, the employee must be given the benefit of the doubt.
    - The lack of work must be established by objective evidence.
    - There was no discontinuance of a function and no position had been abolished.
    - There was no evidence of a slow-down in the area in which the Complainant had worked.  He was the only Employee affected.
    - The termination based on a lack of work was a sham.
    - The Adjudicator retained jurisdiction to hear and rule on the substantive issue at a later date.
    DECISION OF FEDERAL COURT (TRIAL DIVISION):  November 18, 1988.
    - Emloyer sought a writ of prohibition to preven adjudicator from hearing merits of complaint since adjudicator's finding that Complainant not dismissed due to lack of work involved errors of fact and law.
    - Adjudicator must have opportunity to hear all evidence and make final decision before that decision can be reviewed by Federal  Court of Appeal pursuant to s.28 of Federal Court Act.
    - Inconsistent with purposes of s.61.5 (now s.240) if Federal Court were to make de novo & routine factual decisions as to whether lay off due to lack of work prior to Adjudicator making final decision.
    - Adjudicator has jurisdiction to hear complaint since he committed no reviewable error of law or of fact.
    - See discussion on Scope & Criteria for Judicial Review (pp. 5-9).
SPECIAL ISSUES DISCUSSED :
    3.5010 Sick leave - Position Filled While Absent
     5.2100  Nature of employer
     1.3000  Burden of proof
    12.0100  Employer's section criteria used to lay-off employees
             Damage to employer's image
ADJUDICATOR'S NAME : BROWNE, Dennis M.