Service time with second employer didn't meet minimum for unjust dismissal complaint
A Bell Mobility worker’s prior service with another Bell-owned company was not continuous service under a common employer, the Canadian Industrial Relations Board has ruled in dismissing the worker’s unjust dismissal complaint.
The worker began work as a technician for Bell Technical Solutions (BTS) in March 2019. BTS operates in the electrical work sector installing and repairing telephone systems, commercial wiring, networking, and data transmission. It is a subcontractor of Bell Canada, installing and repairing the internet, telephone, and television services that Bell Canada provides to residential customers.
The worker had a six-month probationary period with BTS. Shortly after he completed his probation, the worker was offered a full-time permanent position as an outdoor wireless network technician with Bell Mobility.
Bell Mobility sells smartphones and wireless services to consumers and business customers, as well as the installation and repair of its own wireless network. Bell Mobility is a separate business entity from BTS, although both companies are owned by BCE Inc., formerly Bell Canada.
A BC worker wasn’t exempt from unjust dismissal protection under the CLC, but his job was eliminated due to legitimate restructuring, an adjudicator found.
Service credit with previous employer
Upon offering the worker the job, Bell Mobility agreed to recognize his service time with BTS for the purposes of vacation, benefits, and pension plan eligibility. The worker was once again subject to a six-month probationary period, which was extended for another two months due to the redeployment of teams to telework during the pandemic.
The worker accepted the job offer and tendered his resignation to BTS on Oct. 1, indicating his understanding that his service with BTS would be recognized by Bell Mobility and he would transfer to Bell Mobility’s group pension plan/RSP under a reciprocal agreement between the two companies.
On June 5, 2020, at the end of the worker’s probationary period, Bell Mobility informed the worker that he didn’t meet the requirement of the position and his employment was being terminated.
The worker filed an unjust dismissal complaint under the Canada Labour Code (CLC).
Bill C-44 transferred the powers, duties, and functions of adjudicators for unjust dismissal under the CLC to the Canada Industrial Relations Board.
Minimum service requirement
Bell Mobility objected to the complaint, pointing out that the CLC only provided a remedy for unjust dismissal for employees who completed 12 consecutive months of continuous employment by the employer. It maintained that even though it and BTS were controlled by a common shareholder in BCE, they were separate legal entities with their own names, enterprise numbers, addresses, registration date, and presidents. They also operated in separate industries with their own employees, and BTS did not provide installation or repair services in connection with its wireless network, Bell Mobility said.
Bell Mobility also pointed out that the reciprocal agreement with BTS allowed it to recognize the worker’s service exclusively for vacation, benefits, and pension plan eligibility, but his start date with BTS was never applicable for the purpose of calculating the length of his employment with Bell Mobility.
The worker disagreed, arguing that Bell Mobility and BTS should be considered a common employer since both entities are subsidiaries of BCE. He also claimed that he didn’t resign from BTS but he was internally transferred within Bell Canada/BCE, making it continuous employment – which also made his probationary period and new employment contract with Bell Mobility invalid since he was not a new employee.
The worker pointed out that BTS started out as a subcontractor to Bell Canada and the parent company previously employed its own technicians to do the work BTS currently did. In addition, his employment contract with BTS referred to “Bell Technical Solutions and its affiliates,” which should be interpreted as referring to the entire Bell Canada group, he said.
An employee cannot agree to give up their right to pursue an unjust dismissal complaint under the CLC, even in a release, according to a lawyer.
No power to declare single employer
The board referred to the Federal Court’s interpretation of the CLC that “employees must have worked for 12 months for the employer against whom they bring a complaint” and the CLC, Part III – under which the unjust dismissal remedy lies - which doesn’t expressly grant the board the power to make a single employer declaration. In addition, the CLC provides that the Minister may declare by order that employers for the purposes of Part III constitute a single employer if they have “common control or direction.” These two elements, absent an express provision giving jurisdiction to an adjudicator to make such a declaration, left the board without jurisdiction to declare a single employer, said the board.
The board determined that the worker was continuously employed by Bell Mobility for eight months and resigned from his position with BTS prior to that. As a result, he didn’t meet the 12-month minimum for continuous employment required to make an unjust dismissal complaint.
Bell Mobility’s objection was upheld and the worker’s complaint was dismissed. See Quenet et Bell Moblité Inc., Re, 2023 CIRB 1064.
