Court

The appellant city hired a temporary employee through a personnel agency to work for 6 weeks as a receptionist and then for 18 weeks as a clerk. During the two work assignments, the employee’s wages were determined and paid by the agency, which submitted an Invoice to the city. The employee performed her work under the direction and supervision of a manager working for the city, The general working conditions, such as hours of work, breaks and statutory holidays, were dictated by the city.

If the employee had not been qualified or had experienced problems in adapting, the city would have informed the agency, which would have taken the appropriate action. The respondent union, which holds the certification certificate for most of the city employees, submitted a request to the office of the labor commissioner general under s. 39 of the Labor Code seeking, inter alai, to have the temporary employee included in the union’s bargaining unit.

The labor commissioner found that the city was the employee’s real employer during the two assignments and granted the union’s request. On appeal, the Labor Court affirmed the decision. It acknowledged that the agency recruited, assigned positions to, evaluated, disciplined and paid the temporary employees, but concluded that the city as the real employer by focusing on the question of which party had control over the temporary employee’s working conditions and the performance of her work.

The Labor Court also noted that there was a relationship of legal subordination between the city and the employee because the city managers directed and supervised how she did her day-to-day work. The Superior Court dismissed the motion in evocation brought by the city, finding that the Labor Court’s decision was not patently unreasonable. The Court of Appeal affirmed that Judgment in a majority decision. Held (Lurker’s-Dub© J. Assenting): The appeal should be dismissed. Per Lamer C. J. And La Forest, Ignition and Core J. To determine whether the Labor Court’s decision is patently unreasonable, it must be asked whether the decision was based on the evidence adduced and whether the Labor Court’s interpretation of the legislative provisions was patently unreasonable. The Labor Code provides few indications of how to determine the real employer in a tripartite relationship, and the definitions of the terms “employer” and “employee” found in the Code have had to be interpreted by specialized administrative tribunals.

To identify the real employer in a tripartite relationship, a comprehensive approach must be taken. The criterion of legal subordination, which basically encompasses the notion of actual control by a party over the employees day-to-day work, and the criterion of Integration Into the a context of collective relations governed by the Labor Code, it is essential that temporary employees be able to bargain with the party that exercises the greatest control over all aspects of their work?and not only over the supervision of their day-to-day work.

Moreover, when there is a certain splitting of the employer’s identity n the context of a tripartite relationship, a comprehensive approach has the advantage of allowing for a consideration of which party has the most control over all aspects of the work on the specific facts of each case. This approach requires a consideration of the factors relevant to the employer-employee relationship, including: the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business.

Here, the Labor Court used a comprehensive approach by not basing its decision solely on the criterion of legal subordination. It certainly gave greater probative value to working conditions and the criterion of legal subordination, but it also considered other factors that define the employer-employee relationship, such as the role of the agency and the city with respect to remuneration and discipline, and the specific facts of the employee’s case. Nor did the Labor Court ignore the agency’s role in recruiting, training and evaluating the employee.

However, it Justified giving predominant weight to working conditions and the legal subordination test by relying on the ultimate objective of the Labor Code. The purpose of certification is to promote bargaining between the employer and the union in order to determine the employees’ working conditions. According to the Labor Court, those conditions are “essential aspects of an employee’s experience”. The reasoning of the Labor Court, a highly specialized agency that has expertise in labor law and is protected by a privative clause, was not patently unreasonable.

The Labor Court’s conclusion that the city was the employee’s employer for the purposes of the Labor Code does not lead too patently unreasonable result. The applicability of the city collective agreement to the employee during her assignments does not raise any major difficulties. Moreover, although the agency was the employee’s employer for the purposes of the Act respecting labor standards, no inconsistency can be found in the application of the Code and that Act.

Each of the labor statutes has a distinct object and its provisions must be interpreted on the basis of their specific purpose. Moreover, this case relates to provisions of the Labor Code, specifically whether the Labor Court’s decision was patently unreasonable, and not to the Act respecting labor standards. The arrangement is not perfect. However, the relationship in question here is not a traditional bipartite relationship, but a tripartite one in which one party is the employee and the other two share the usual attributes of an employer.

In such a situation, it is thus natural that labor legislation designed to govern bipartite After an analysis of the facts, the legislation and the cases, there is a basis for the Labor Court’s decision in the Labor Code and the evidence, and it is therefore not patently unreasonable. Per Lurker’s-Dub© J. (dissenting): Given the Labor Court’s exclusive and peccadillo Jurisdiction to determine whether an employee should be included in a bargaining unit, as well as the privative clause in the Labor Code, a reviewing court may only intervene if the Labor Court’s decision is patently unreasonable.

While a high degree of deference is warranted in reviewing the Labor Court’s decision, if such a decision fundamentally contradicts the underlying principles and intended outcomes of the enabling legislation and interferes with the effective implementation of other statutes which support and protect employees, intervention by the reviewing court is in order. Here, the Labor Court was asked to interpret the “employer-employee relationship” within the scope of the Code’s regime governing certification and the collective bargaining process in the context of a tripartite arrangement.

The modern rule of statutory interpretation holds, inter alai, that a court must adopt an interpretation that is appropriate in terms of its acceptability ? namely, the reasonableness of its outcome. Where an administrative tribunal contrives an absurd interpretation, it commits an error of law that warrants Judicial intervention pursuant to any standard of review.

According to an Associated Press story dated October 29, 2007 Pompano Helicopters has filed two separate suits against media giant Westwood One alleging the defendant and its subsidiary Metro Networks Communications, Inc. Pompano alleges the defendant “conspired to take over Pompano’s contracts to provide broadcast stations with helicopters” (AP 1). The second lawsuit alleges defendant “tortuous interference with contracts that Pompano ultimately to Westwood’s subsidiary” (Transmedia 1). Pompano also alleges the defendants also gained access to confidential Pompano documents as part of a broader scheme to prevent Pompano’s planned merger with another company.

These are civil actions filed in the Florida 17^th Circuit Court in Broward County. The plaintiff will be required to prove the various elements of the allegations by the “preponderance of the evidence” standard, a lesser standard than the criminal trial burden of proving the case “beyond a reasonable doubt”.

These elements include establishing the Pompano contracts, Westwood’s knowledge of the contracts, and action(s) taken by Westwood to damage Pompano’s contractual obligations. Pompano will also have to show Westwood gave out information regarding Pompano that defendant knew was not true, that the recipients of the information were involved with Pompano and relied on the information to Pompano’s detriment, and Westwood did so with knowledge and intent to harm Pompano’s business relationships.

This action will fit in well with the typical civil action legal and court procedures. The defendants must file an answer to Pompano’s petition, and then the parties will begin the discovery phase of the proceedings, as well as begin filing and arguing any relevant motions. It is very likely the court will hold a series of pre-trial conferences with the parties in an effort to bring about a settlement. Due to the nature of the action, this case could be extremely complex, lengthy and expensive. As the courts prefer the simple to the complex, particularly if a jury is involved, as well as brevity and economy the parties can expect a great deal of pressure from the court to settle the matter.

To that effect the court may also offer alternative dispute resolution instead of a trial. If the case goes to trial it will be up to the defendant to request a jury trial, although it is conceivable Florida rules of practice may allow for either party to demand a jury trial, with motions to argue accordingly.  The jury would be given jury instructions and required to determine if the allegations were proven by the preponderance of the evidence. They may also be required to determine what, if any damages defendant is required to pay plaintiff, according to Florida rules of procedure. The judge may also have the authority to set aside the jury’s decision as well as alter any monetary damages determined by the jury.

As stated above this action is civil in nature. However, if there was the possibility of any criminal action it would have to be based on Florida statutory criminal code pertaining to business transactions. If a case has both civil and criminal components then two procedures can result. The civil court action will determine allegations have been proven according the “preponderance” action. The criminal court action will determine if the defendants are guilty as charged, beyond a reasonable doubt.

Both civil and criminal will have very similar discovery, motion, and pretrial conference procedures. However, in the criminal action there will be no pressure from the court to “settle” as a settlement in a criminal action is a plea bargain and involvement of the court is prohibited. The judge can only accept or not accept the plea bargain agreed to by the prosecuting attorney and defendant and defendant’s attorney.

The civil action will have the possibility of an award for damages due to it’s’ “tortuous” conduct. There will be no such component in criminal law. Depending on state statute the criminal court may impose fines, recoupment of money expended by the state for the trial, and restitution to the victim. There are also a variety of constitutional rights enjoyed by the defendant in a criminal case which may or may not have a parallel in the civil court system.

Notably a criminal defendant cannot be forced to testify at trial, while in a civil procedure his testimony could be compelled by the court. Additionally, the criminal defendant is entitled to legal counsel, which is not the case for the civil case defendant. The criminal court may have a “preliminary hearing” to determine if the standard of “probable cause” is met, in order to proceed to trial. No such hearing is set in a civil case, although the plaintiff may move for a “summary judgment” if there are no factual disputes in the light most favorable to the defendant.

Although parallels exist in the actions, they are not bound together and the result in one will usually not carry any weight in the other. However, certain actions that occurred in one but not the other could cause a profoundly different result, such as a witness testifying to certain things in one case and then gives conflicting statements in the other.

Therefore, the plaintiff could prevail in the civil suit, in both, or in the criminal case alone. If the plaintiff wins in the civil action but there is no criminal conviction it is often due to the less-stringent burden of proof in the civil action. If it is the other way around it may be a result of the jury instructions. In either case the appeals process if available.

References

Associated Press: “Westwood One Target of Lawsuit”. October 29, 2007.

http://money.aol.com/news/articles/_a/westwood-one-target-of-lawsuit/n

            Transmedia Group: “Pompano Helicopters Retains PR Firm in Connection With its $362 Million Lawsuit Against Westwood One, America’s Largest Radio Network”.

October 29, 2006. http://www.prnnewswire.con/cgi-bin/stories