Pachowski v. Canada (Treasury Board), docket T-1798-99

Date: 20001016

Docket: T-1798-99

BETWEEN:

     LINDA PACHOWSKI

     Applicant

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

     AS REPRESENTED BY TREASURY BOARD

     Respondent

     REASONS FOR ORDER AND ORDER

BLAIS J.

[1]      This is an application for judicial review of the decision rendered on September 9, 1999 (file number 166-2-28543) by Joseph Potter, Deputy Chairperson of the Public Service Staff Relations Board, sitting as an Adjudicator appointed under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, wherein the applicant's grievance arising out of the termination of the applicant's employment as secretary with Revenue Canada, Customs and Excise was dismissed.

FACTS

[2]      The applicant commenced her employment in the Federal Public Service in 1988. In April 1993, she went to Pearson International Airport, Terminal 2, with Revenue Canada as a secretary in the administration office.

[3]      On January 12, 1994, the applicant advised her supervisor that Ms. Stott, a fellow employee, was harassing her by making disparaging comments and by smoking in the front sitting area of the office. She claimed that the smoke negatively affected her. Two days later, she again wrote to her supervisor claiming that another colleague was smoking in the office area and also noted that her past complaint had not resulted in any action being taken to stop this practice. She advised that she was proceeding to the doctor. She went on sick leave for a period of one year.

[4]      The department investigated the applicant's allegations of harassment and found, on May 10, 1994, that on one occasion Ms. Stott's conduct constituted "... a form of harassment of a personal nature...". The allegations of harassment against the applicant's other colleague were considered to be unfounded.

[5]      Feeling that the internal investigation was biased, the applicant referred the matter to the Public Service Commission ("PSC") for investigation. In the interim, and with the understanding that the applicant was fit to return to work, the respondent, on October 5, 1994, offered the applicant a temporary position outside of the airport. The applicant turned down the offer as she was not medically ready to return to work. Her doctor estimated she could return on January 1, 1995. However, the applicant indicated an interest in being transferred to Niagara Falls.

[6]      The respondent investigated the possibility of transferring the applicant to Niagara Falls but told her in a letter dated December 20, 1994, that they could not deploy her there.

[7]      The applicant remained off work. The PSC attempted to mediate the dispute before beginning a formal investigation, and on April 20, 1995, the PSC faxed the applicant's proposed solution to the respondent. The proposal called for the applicant's relocation to an indeterminate position at one of six different locations, the preferable location being Barrie.

[8]      On May 1, 1995, the respondent sent its reply to the PSC. While most of the elements of the agreement could be agreed to, the issue of finding a suitable position elsewhere proved difficult. The respondent, believing that the applicant lived in the Toronto area, proposed a position within the Tax Services side of the Department within the Greater Toronto Area. The applicant made a counter-offer to the respondent, listing Barrie, Brantford, Sarnia or Fort Erie as possible alternate locations.

[9]      In it's reply to the proposal on May 12, 1995, the respondent explained why none of the suggested locations were feasible and stated that it was prepared to give the applicant her choice of one of five locations: her substantive position or one of the four Taxation Services offices in the Greater Toronto Area.

[10]      The applicant rejected the counter-offer and authorized the PSC to formally investigate her complaint. The PSC investigator, Ms. Anna Perto, on November 15, 1995, found that the record showed no trace of follow-up or implementation of corrective measures by management with respect to Ms. Stott's harassing behaviour towards the applicant. Ms. Perto concluded that the respondent had failed to conduct proper investigation into the original complaints and wondered whether all that could have been done had been done with respect to the identification of an alternate placement for the applicant.

[11]      In December 1995, the PSC, who was still involved in trying to mediate the dispute after the release of the PSC's report, sent to the respondent a proposed memorandum for agreement which stated:

Provide Ms. Pachowski with a fresh start by appointing her on an indeterminate basis to the position of --....

The document did not specify a position nor a location.

[12]      A counter-offer was received which proposed that the applicant be appointed as a counter clerk cashier position with salary protection in Niagara Falls. The position required shift work.

[13]      On January 17, 1996, the applicant replied to the offer and explained that she was no longer interested in relocating to Niagara Falls because her husband no longer had a specific job in Niagara Falls to transfer into and also because she found shift work unacceptable.

[14]      On March 12, 1996, the PSC wrote to the respondent stating that the applicant had indicated non acceptance of a memorandum of agreement which, in light of the investigation findings, it considered to represent a reasonable settlement to the complaint. The PSC accordingly closed its file in the matter and stated that it had advised the applicant.

[15]      On April 17, 1996, the respondent gave the applicant three options: (1) return to her substantive position; (2) accept a general services clerk position in Hamilton; or (3) resign. She was to report for work by May 6, 1996, failing which her employment would be terminated.

[16]      The applicant did not accept the alternatives presented to her, but before termination action was undertaken, her bargaining agent representative, Mr. Tom Hamilton, is alleged to have intervened and called management indicating that the applicant wished to return to her substantive position.

[17]      On June 21, 1996, the Assistant Deputy Minister, Southern Ontario Region, wrote to the applicant informing her that Mr. Hamilton had indicated she had chosen to return to her substantive position. She was to report on July 22, 1996. She did not report to Terminal 2 on July 22, 1996 as required, and the respondent did not terminate her employment.

[18]      On December 5, 1996, the respondent offered the applicant a six-month term assignment in St. Catharines and was told that should she decline this, she would have to report to her substantive position on December 16, 1996 or her employment would be terminated.

[19]      The applicant and her husband travelled to St. Catharines to speak to staff there about the position. She stated that she was told there was no full-time position available.

[20]      Her bargaining agent representative at the time, Mr. King, advised the respondent that the applicant would accept the St. Catharines relocation only if the position was a St-SCY-02 permanent position. Mr. King also indicated that Barrie was the applicant's first preference as far as work location was concerned.

[21]      Mr. King later learned that another employee was being deployed to Barrie. He sent an e-mail to management objecting to the deployment, saying the applicant should be the one moved.

[22]      On December 21, 1996, the applicant was offered a six-month assignment in Barrie. The applicant reported for work in Barrie, on January 27, 1997. The next day she did not report to work because she felt she had not been made to feel welcome. She did not report again to the Barrie job.

[23]      On January 28, 1997, the applicant wrote to Ms. Howard and complained she was harassed by her supervisor on her first day at work in Barrie. The matter was investigated and ultimately found to be without merit.

[24]      On February 14, 1997, Ms. Howard wrote to the applicant saying that Mr. King had advised the respondent that the applicant had terminated the Barrie assignment and wished to be reinstated at the Pearson airport. She was advised that failure to report to Pearson Airport by February 21, 1997 would result in termination. She did not report and the respondent did not terminate her employment.

[25]      On August 18, 1997, the respondent sent a follow-up letter to their February 14, 1997 letter, again instructing the applicant to report to Pearson Airport on September 2, 1997 or else her employment would be terminated. The evidence show that both the applicant and Mr. Hamilton knew that this statement about terminating the applicant's employment was serious.

[26]      Instead of reporting to Terminal 2 as instructed, on September 18, 1997, the applicant signed a settlement document that was faxed to the respondent. The document stated that the applicant was to be given a similar position with salary protection, in Barrie or Niagara Peninsula (excluding Revenue Canada Taxation).

[27]      The respondent did not accept the document and advised the applicant verbally. The applicant did not report to work. She testified she believed she was too late to return to her substantive position but the respondent had not issued a termination notice when it indicated its refusal of the settlement offer. Ms. Cattelan contacted Mr. Hamilton and stated that the respondent would not accept the proposed settlement and that they were going to proceed with the termination of her employment.

[28]      On September 29, 1997, the respondent sent a letter of termination to the applicant.

THE ADJUDICATOR'S DECISION

[29]      The Adjudicator found that it was reasonable for management to assume, based on Mr. Hamilton's statement, that the applicant wished to return to her substantive position at Terminal 2. The Adjudicator found that if the applicant did not wish to return to her substantive position, she should have written back to the respondent and said as much.

[30]      The Adjudicator concluded that the lack of administrative action by the respondent following the letter dated December 5, 1996 which stated that the applicant's failure to report to work on December 16, 1996 would result in termination of employment, was understandable since Mr. King became involved as the applicant's bargaining agent representative and intervened on her behalf.

[31]      The Adjudicator further concluded that it was reasonable for management to conclude, as of February 14, 1997, that the applicant wanted to return to her substantive position in light of Mr. King's statement to that effect. The Adjudicator found that the applicant should have written to the respondent to dispute this claim if she was adamant in not wanting to return to her substantive position.

[32]      Despite the respondent's past statements that it would terminate the applicant's employment if she did not report to work and the respondent's failure to do so when the applicant failed to report to work, the Adjudicator found that the respondent was serious when it stated in its letter of August 18, 1997, that the applicant's employment would be terminated should she fail to report to work. The Adjudicator also concluded that the applicant understood the seriousness of the respondent's statement. The Adjudicator based his conclusion on the evidence that indicated that Mr. Hamilton, the applicant's bargaining agent representative, took the letter very seriously and said as much to the applicant.

[33]      The Adjudicator stated that it would have been better if the respondent had advised Mr. Hamilton in writing as to why the applicant's proposal of September 18, 1997 was not acceptable, but the Adjudicator concluded that ultimately nothing of significance turned on the failure of the respondent to do so.

[34]      The Adjudicator further concluded that the applicant put herself in jeopardy of having her employment terminated when she failed to return to work after being advised that the respondent could not accept her proposal.

[35]      The Adjudicator concluded that the respondent had put the applicant on notice that she must report to work or risk termination of her employment and that the notice to do so was not illegal, immoral, or unsafe. The Adjudicator found that the applicant was aware of the consequences of failing to obey the notice and that the applicant had received independent advice from her bargaining agent representative with regard to the seriousness of the notice.

[36]      The Adjudicator found that the applicant knew, or ought to have known, that even after the proposed settlement was rejected, she could have obeyed the instruction to return to work but chose not to.

[37]      The Adjudicator stated that he was not made aware of any other factors which the respondent should have considered before terminating the applicant's employment. The Adjudicator further found that he was not presented with any mitigation factors which would be sufficient to warrant his intervening in the action taken. The Adjudicator found that the respondent's action in terminating the applicant's employment was justified.

THE APPLICANT'S POSITION

[38]      The applicant submits that the Adjudicator acted outside of his jurisdiction in concluding that the discharge of the applicant was justified for disciplinary reasons under paragraph 11(2)(f) of the Financial Administration Act, R.S.C. 1985, c.F-7 [FAA] even though the discharge was effected for non-disciplinary reasons pursuant to paragraph 11(2)(g) of the FAA.

[39]      The applicant alleges that where the respondent maintains that it was entitled to terminate an employee for reasons other than breaches of discipline or misconduct under paragraph 11(2)(g) of the FAA, the respondent is required to demonstrate that it had cause for doing so under this provision. It is not entitled to justify the termination of employment for any other ground, including breaches of discipline or misconduct which are governed by paragraph 11(2)(f) of the FAA.

[40]      The applicant alleges that the Adjudicator adopted the analysis for sustaining a disciplinary discharge under paragraph 11(2)(f), an analysis which is substantially different from that required under paragraph 11(2)(g). The applicant submits that by characterizing the action as such, and ruling that the employer was justified in terminating the applicant's employment for reasons that it never relied upon at that time, the Adjudicator exceeded his jurisdiction under the PSSRA.

[41]      In the alternative, the applicant submits that the Adjudicator committed a patently unreasonable error of law by failing to account for the fact that the employer never applied the principle of progressive discipline and, indeed, condoned the very behaviour which it maintains justified its termination of the applicant.

[42]      The applicant further contends that there is no evidence upon which an Adjudicator could reasonably conclude that the applicant should have known that the letter of August 18, 1997 would lead to termination if she did not attend at work.

[43]      The applicant submits that the Adjudicator erroneously assumed that the applicant was aware that she had the right to return to her substantive position, long after the "deadline" of September 2, 1997, had come and gone.

[44]      Alternatively, the applicant submits that the Adjudicator's decision was based upon an erroneous finding of fact made in a perverse of capricious manner or without regard for the material before him.

THE RESPONDENT'S POSITION

[45]      The respondent submits that the applicant's argument that the Adjudicator's decision is within an "analytical framework" of "disciplinary discharge under paragraph 11(2)(f) of the FAA" is without foundation. The respondent contends that the Adjudicator, in his "Reasons for Judgment", did not mention the word "discipline" and that there is nothing in the evidence or argument, or in the reasons issued by the Adjudicator, to suggest that this case was considered within an "analytical framework" of a disciplinary discharge.

[46]      The respondent submits that all the evidence and argument before the Adjudicator focussed on the termination being a termination under paragraph 11(2)(g) of the FAA. The respondent further alleges that the Adjudicator was not patently unreasonable in finding that the respondent had established, on a balance of probabilities, that it had the authority to terminate the applicant under section 11(2)(g) of the FAA.

ISSUES

1.      Did the Adjudicator act outside his jurisdiction or err in law in failing to distinguish between disciplinary and non-disciplinary discharge, resulting in a failure to establish termination of employment for cause pursuant to subsection 11(2)(g) of the FAA?

2.      Did the Adjudicator err in failing to conclude that the employer had waived its right to dismiss the applicant by condoning her behaviour in refusing to meet four separate ultimatums that she attend at work or be terminated?

---

ANALYSIS

1.      Did the Adjudicator act outside his jurisdiction or err in law in failing to distinguish between disciplinary and non-disciplinary discharge, resulting in a failure to establish termination of employment for cause pursuant to subsection 11(2)(g) of the FAA?

[47]      Paragraph 11(2)(f) of the FAA provides for disciplinary termination of an employee, for cause:

(2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10, (f) establish standards of discipline in the public service and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct, and the circumstances and manner in which and the authority by which or whom those penalties may be applied or may be varied or rescinded in whole or in part;

(2) Sous réserve des seules dispositions de tout texte législatif concernant les pouvoirs et fonctions d'un employeur distinct, le Conseil du Trésor peut, dans l'exercice de ses attributions en matière de gestion du personnel, notamment de relations entre employeur et employés dans la fonction publique: f) établir des normes de discipline dans la fonction publique et prescrire les sanctions pécuniaires et autres y compris le licenciement et la suspension, susceptibles d'être appliquées pour manquement à la discipline ou pour inconduite et indiquer dans quelles circonstances, de quelle manière, par qui et en vertu de quels pouvoirs ces sanctions peuvent être appliquées, modifiées ou annulées, en tout ou en partie;

        

[48]      Paragraph 11(2)(g) of the FAA authorizes a non-disciplinary termination of an employee, for cause:

(g) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed in the public service, and establishing the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;

g) prévoir, pour des raisons autres qu'un manquement à la discipline ou une inconduite, le licenciement ou la rétrogradation à un poste situé dans une échelle de traitement comportant un plafond inférieur des personnes employées dans la fonction publique et indiquer dans quelles circonstances, de quelle manière, par qui et en vertu de quels pouvoirs ces mesures peuvent être appliquées, modifiées ou annulées, en tout ou en partie;

[49]      Subsection 11(4) states:

(4) Disciplinary action against, and termination of employment or demotion of, any person pursuant to paragraph (2)(f) or (g) shall be for cause.

(4) Les mesures disciplinaires, le licenciement ou la rétrogradation effectués en application des alinéas (2)f) ou g) doivent être motivés.

[50]      The applicant contends that the Adjudicator failed to distinguish between disciplinary discharge and non-disciplinary discharge under section 11(2) of the FAA.

[51]      The applicant submits that the Adjudicator accepted the standard for disciplinary discharge and focussed exclusively on whether or not the applicant had disobeyed several direct orders that she report for work - an issue which, the applicant suggests, was clearly related to a breach of discipline or misconduct.

[52]      The applicant contends that the Adjudicator approached the issue as a disciplinary matter when it examined whether the applicant was aware of the consequences of failing to obey the notice, whether she had received independent advice from her bargaining agent, and the fact that she chose not to return to work.

[53]      As stated in the Treasury Board policy on Non-Disciplinary Demotion or Termination of Employment for Cause (the "Policy"), when employees do not meet the requirement of their position, departments may consider demoting them or terminating their employment for cause.

[54]      I agree with the respondent that in the case at bar, it was a requirement of the applicant's position that she report to work.

[55]      The Treasury Board Policy also establishes principles of fairness that will govern the exercise of authority to terminate the employment of an employee for cause:

     3. Procedure/Principles

When employees do not meet the requirement of their position, departments may consider demoting them or terminating their employment for cause.

As applicable, the following principles of fairness will govern the exercise of authority to demote or terminate the employment of an employee for cause:

-      the duty to act in good faith;

-      the duty to fully inform the employee of what is required from him or her;

-      the duty to inform the employee that she or he is not meeting the requirement of the position, and to inform him or her of the nature of the deficiency and what the consequences will be if she or he continues to fail in meeting the requirements of the position;

-      the duty to provide the employee with the opportunity to make the necessary adjustments to meet requirements;

-      the duty to assist the employee in making these adjustments and;

-      the duty to explore alternative solutions before demoting the employee or terminating his or her employment.

[56]      It is interesting to note that similar criteria were established in Re Edith Cavell Private Hospital and Hospital Employees' Union, Local 180 (1982), 6 L.A.C. (3d) 229. At page 233, the Arbitration Board stated the following test:

An employer who seeks to dismiss an employee for a non-culpable deficiency in job performance must meet certain criteria:

(a)      The employer must define the level of job performance required;

(b)      The employer must establish that the standard expected was communicated to the employee;

(c)      The employer must show it gave reasonable supervision and instruction to the employee and afforded the employee a reasonable opportunity to meet the standard;

(d)      The employer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and reasonable efforts were made to find alternate employment within the competence of the employee;

(e)      The employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in dismissal.

[57]      D.J.M. Brown & D.M. Beatty in Canadian Labour Arbitration, (3d ed.), (Aurora: Canada Law Book, 1999) explained the scope of arbitral review in non-disciplinary cases at 7:3546:

In contrast to the broad powers of review exercised in discipline grievances, in pure demotion cases, as in cases of promotion, transfer, lay-off, and non disciplinary suspension, arbitrators usually limit their inquiry to ensuring that the employer's judgment with respect to the grievor's ability was not arbitrary, discriminatory, or unreasonable, and that it was made in good faith.

[58]      Thus, the Adjudicator, in establishing whether the respondent was justified to terminate the applicant, had to take into consideration the principles stated in the Policy.

[59]      The applicant submits that the Adjudicator did not evaluate the reasonableness of the respondent's decision to terminate the applicant's employment on the principles stated in the Policy but that instead the Adjudicator addressed the disciplinary discharge standard.

[60]      The applicant submits that the Adjudicator approached the issue as a disciplinary matter when it examined whether the applicant was aware of the consequences of failing to obey the notice, whether she had received independent advice from her bargaining agent, and the fact that she chose not to return to work.

[61]      I cannot agree with the applicant's contention. In order to assess whether the respondent acted reasonably and respected the principles stated in the Policy for non-disciplinary discharge, the Adjudicator had to evaluate the evidence relating to the applicant's failure to meet the requirement of her position which is to report to work. In the context of a disciplinary discharge, an adjudicator may also be required to assess similar evidence and apply similar principles. However, this does not mean that the Adjudicator applied the wrong standard.

[62]      As was stated in Re Crane Canada Inc. and U.A., Loc. 170 (1990), 14 L.A.C. (4^th) 253 (B.C.) at page 273:

Fairness may demand that perceived deficiencies be drawn to the employee's attention so that the employee is given an opportunity to address the employer's concerns. That, we note, is a consideration that appears to be equally applicable whether the cause of the employer's dissatisfaction is culpable or non-culpable conduct on the employee's part: see Re City of Vancouver and V.M.R.E.U. (1983), 11 L.A.C. (3d) 121 (Hope) at pp.123, 135-6, 137-9, 140; Re Fording Coal Ltd. and U.S.W.A., Loc. 9702, B.C. Ministry of Labour, No. A-350/87 at p.7 et seq; and Re Brithish Columbia Railway Co. and Teamsters Local Union No. 31 (Singh arbitrations), October 5, 1987 (Hope at p.13).

     (Emphasis added)

and at page 180:

There are other similarities between the treatment of misconduct and non-culpable forms of unacceptable job performance. It is now well established, for example, that in both situations the employer should notify the employee of its dissatisfaction and give him or her the opportunity to respond: see Re British Columbia Railway Co. and Teamsters Local Union No. 31, supra, at p.13; Re Fording Coal Ltd. and U.S.W.A., Loc. 9702, supra, and Re City of Vancouver and V.M.R.E.U., supra at pp.130-1.

[63]      In Re City of Vancouver and V.M.R.E.U. (1983), 11 L.A.C. (3d) 121 at pages 138 & 139, the Arbitrator Hope stated:

If an employer is obligated to apply progressive discipline to culpable misconduct and is required to give notice that continued non-culpable conduct may lead to dismissal, the needs of both parties are met within the principles of fairness contemplated by the arbitral authorities. An employee put on notice will be in a position to challenge the factual base upon which discipline or a non-disciplinary warning is given. Alternatively, the employee can accept the discipline or warning and take appropriate steps to correct the problem. In the event the employer has been afforded a reasonable opportunity to correct the perceived deficiencies and reasonable steps have been taken by the employer to address the deficiencies in remedial terms, an arbitrator will have before him a basis on which to draw the inference that the employee is unwilling or incapable of performing to an acceptable standard. There is no reason why the obligation to afford an employee an opportunity to defend his employment should differ between conduct perceived as non-culpable as opposed to culpable.

[64]      Thus, in examining whether the applicant was aware of the consequences of failing to obey the notice, the Adjudicator was assessing whether the respondent respected its duty of fairness and the Policy principle which imposes on the employer the duty to inform the employee that she or he is not meeting the requirement of the position, and to inform him or her of the nature of the deficiency and what the consequences will be if she or he continues to fail in meeting the requirements of the position. [Emphasis added]. Whether the applicant had received independent advice from her bargaining agent was a relevant element in the Adjudicator's assessment that the applicant had been warned of the consequences of failing to report to work and that she understood the consequences.

[65]      The only way the Adjudicator could determine if the respondent respected the Policy and acted reasonably and in good faith was to examine the respondent's orders that the applicant report for work and the respondent's statements that the applicant's employment would be terminated if she did not report to work. The fact that the respondent had failed to take action when the applicant failed to report to work was pertinent in order to establish whether the applicant had been properly informed of the consequences of failing to report to work.

[66]      This duty of the Adjudicator to assess the warnings given to the employee is required to establish the reasonableness of the respondent's action in a non-disciplinary discharge. It may also be required when assessing a disciplinary discharge case but the Adjudicator cannot be held to have misapplied the test in this particular case.

[67]      The Adjudicator also assessed the evidence regarding the various offers received by the applicant and the applicant's actions subsequent to those offers. In doing so, the Adjudicator was evaluating whether the respondent had provided the applicant with the opportunity to make the necessary adjustments to meet requirements and that the respondent had assisted the employee in making these adjustments.

[68]      The fact that the applicant chose not to return to work was relevant in the Adjudicator's determination that the respondent acted reasonably and in good faith. In considering whether the department's demand that the applicant return to her substantive position was illegal, immoral or unsafe, the Adjudicator was assessing whether the respondent's demand was not arbitrary, discriminatory or unreasonable, which is the applicable test in the case at bar.

[69]      Thus, it is my conclusion that the Adjudicator applied the test relating to non-disciplinary discharge correctly. The Court's intervention is not required in this case.

2.      Did the Adjudicator err in failing to conclude that the employer had waived its right to dismiss the applicant by condoning her behaviour in refusing to meet four separate ultimatums that she attend at work or be terminated?

    

[70]      The applicant submits alternatively that the Adjudicator committed a patently unreasonable error of law by failing to account for the fact that the respondent never applied the principle of progressive discipline and, indeed condoned the very behaviour which it maintains justified its termination of the applicant.

[71]      The standard of review applicable to the Public Service Staff Relations Board was stated by MacKay J.in Teeluck v. Canada (Treasury Board), (October 6, 1999) T-1825-98 (F.C.T.D.) at paragraph 19:

As the decision of Rothstein J. finds, relying upon the Court of Appeal, this Court has clearly recognized the high standard of deference to be accorded to the Board's decisions on matters within its special expertise, as concerned the adjudicator in this case. The Court will not intervene unless it finds the decision patently unreasonable.

[72]      It has been held in Re Crane Canada Inc and U.A. Loc. 180, supra, that the principle of progressive discipline is not applicable in cases of non-disciplinary discharge:

The thrust of the labour relations board's comments in the cases referred to above was not that the doctrine of the culminating incident in the broad sense was inapplicable, but that the notion of progressive discipline had no place in circumstances where no culpability is involved. The object of progressive discipline is to bring home to the employee the inadequacies of his performance and to encourage an improvement by applying an escalating tariff of penalties. Punishment had no place in non-culpable situations. Punishment will not result in improved attendance or performance, if the deficiency is due to circumstances beyond the employee's control. Nothing will be accomplished by penalizing the employee: see the MacMillan Bloedel cases, supra. That is a proposition that is also well established in the arbitral jurisprudence. There is an abundance of authority for the proposition that punishment is an inappropriate response to blameless absenteeism or inability to perform: see above.

[73]      In the present case, since I found previously that the dismissal was a non-disciplinary dismissal, the principle of progressive discipline is not applicable.

[74]      However, the principle of progressive discipline can be pertinent when assessing whether the respondent condoned the applicant's failure not to report to work and lulled her into a false sense of security by not taking action immediately after the applicant's first failure to report to work. On the subject of progressive discipline, D.J.M. Brown & D.J. Beatty, Canadian Labour Arbitration, 3rd ed., (Aurora: Canada Law Book Inc., 1999) stated at 7:4416:

Where it can be established that the failure of the employer to advise an employee (including a probationer) that it would no longer tolerate certain less obvious forms of misbehaviour (or even non-culpable behaviour such as innocent absenteeism), which had been engaged in by that employee, and had actually lulled him into a false sense of security, that fact, may, in certain circumstances, be relied on by an arbitrator to ameliorate the discipline imposed by the employer.

     [Emphasis added]

[75]      It is my opinion that the Adjudicator's conclusion that, on August 18, 1997, the respondent was serious about terminating the applicant should she fail to report to work, was not patently unreasonable. The evidence showed that the bargaining unit representative had talked to Ms. Catellan about the letter and that both the applicant and the bargaining unit representative took the respondent's statement seriously. In light of this evidence, it is reasonable to conclude that the claimant was not lulled in a false sense of security.

[76]      Furthermore, the Adjudicator's conclusion about the prior events where the respondent had failed to act upon its statements is reasonable and supported by the evidence.

[77]      I find that the Adjudicator's conclusion was not patently unreasonable. Therefore, this application for judicial review is dismissed.

                         Pierre Blais

                         Judge

OTTAWA, ONTARIO

October 16, 2000