Date: 20071128
Docket: T-821-06
Citation: 2007 FC 1250
Ottawa, Ontario, November 28,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
FERMIN
GARCIA MARIN
Applicant(s)
and
TREASURY BOARD OF CANADA
(PUBLIC WORKS AND GOVERNMENT SERVICES CANADA)
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Fermin Garcia Marin from an Adjudicator's decision
rendered under section 92 of the Public Service Staff Relations Act,
R.S.C. 1985, c. P-35 (Act).
Background
[2]
Mr.
Marin has been employed with Public Works and Government Services Canada
(Department) since 1977. By all accounts, he has been a valued employee and
throughout his career he has held a number of significant management positions
in the Department. In 1995, Mr. Marin was appointed to the position of Manager
of the Clothing and Textiles Division at a classification level of PG-06. The
Clothing and Textiles Division was, at the time, working closely with the
Department of National Defence (DND) on procurement matters; however, that
relationship appears to have deteriorated over time.
[3]
In
late 2001, Mr. Marin's immediate supervisor, John Holinsky, decided to move Mr.
Marin into a 9-month temporary special projects position. This was intended to
improve the relationship between the Department and the DND. Unfortunately, this
reassignment seems to have been carried out without any consultation with Mr.
Marin. Needless to say, Mr. Marin was not pleased with this change in the
terms of his employment. He felt that he was singularly being held accountable
for a problem for which he was not responsible. He made his feelings known to
Mr. Holinsky and to others in the Department and went so far as to hire a
lawyer to communicate his displeasure to the Deputy Minister.
[4]
On
December 17, 2001, Mr. Marin went on extended sick leave. He did not return to
work until September 3, 2002; when he did return, he requested reinstatement to
his former position. Mr. Holinsky declined that request and, instead, assigned additional
special project tasks to Mr. Marin. This led to an exchange of rather blunt
e-mails between Mr. Marin and Mr. Holinsky, the contents of which disclose a
dysfunctional working relationship.
[5]
Throughout
late 2002 and early 2003, Mr. Marin and Mr. Holinsky continued to communicate
by e-mail. Mr. Holinsky was attempting to promote Mr. Marin's work on the
special projects he had assigned. Mr. Marin responded by expressing his
dissatisfaction with the scope of the assigned work and by continuing to assert
his claim to be returned to his former position. The record does provide some
substantiation for Mr. Marin's complaint that he had been sidelined by Mr.
Holinsky but it also reflects an increasing level of insubordinate commentary
by Mr. Marin.
[6]
Later
in 2003, Mr. Marin's former responsibilities as Manager of the
Clothing and Textiles Division were assigned to another person under the new
title of Manager, Supply. This led to a complaint by Mr. Marin under section 34.3(1)
of the Public Service Employment Act, R.S.C. 1985, c. P-33 which
culminated in an inquiry and in a report favourable to Mr. Marin.
[7]
In
July 2003, Mr. Marin also made a complaint to the Acting Director of the
Department, Normand Masse, with respect to the issue of outstanding performance
pay. When he did not receive a satisfactory response, he filed a grievance with
respect to the Department's failure to provide him with a performance review
for 2002-2003 and the resulting failure to award performance compensation. Mr.
Marin's grievance
was framed as follows:
Department has failed to properly assess
performance pay award for ‘2002/2003’ period.
Department has failed to do performance
rating for 2002/2003 period.
[8]
The
above-noted grievance was denied at the final level by the Assistant Deputy
Minister. It is apparent from the evidence that the Department's explanation
for its failure to conduct a performance evaluation was that Mr. Marin had
failed, when asked, to provide any information about what he had accomplished
during his special project assignments. Mr. Marin also confirmed that at the
final stage, when he was asked by the Assistant Deputy Minister to provide an
outline of the work he had carried out, he refused to do so. This impasse left
the Department with no information upon which it could carry out a performance
assessment and no corresponding basis to award performance compensation.
[9]
Mr.
Marin was not satisfied with the resolution of his grievance and sought to have
it formally adjudicated under section 92(1) of the Act. The Public Service
Staff Relations Board requested clarification from him to ascertain whether the
grievance came within the Board's jurisdiction to hear matters involving
discipline resulting in a suspension or a financial penalty. Mr. Marin responded
by asserting, for the first time, that the Department's denial of performance
compensation was part of a long-standing pattern of barely disguised discipline
beginning with his wrongful reassignment in 2001.
The Adjudicator’s
Decision
[10]
The
Adjudicator dismissed Mr. Marin's grievance on jurisdictional grounds and
on its merits. He found that Mr. Marin had failed to allege at any previous
stage of the grievance that the denial of a performance assessment and the
resulting loss of performance compensation were the consequence of disguised
discipline. He also found that Mr. Marin had never previously linked his
grievance to the earlier history concerning his employment reassignment. Mr.
Marin's attempt at the adjudication stage to characterize the Department’s
conduct as disciplinary was thus found to constitute a modification of the
grievance which, according to the authority of Burchill v. Canada (Attorney
General),
[1981] 1 F.C. 109, 37 N.R. 530 (F.C.A.) at para. 5, is impermissible. The
Adjudicator concluded, therefore, that he had no jurisdiction to deal with Mr.
Marin's claim.
Nevertheless, having heard all the evidence, the Adjudicator went on to decide
the case on the merits and he concluded that Mr. Marin had failed to
establish that the Department's treatment of him constituted discipline. In
dismissing Mr. Marin's various allegations, the Adjudicator made the
following factual findings:
[87] In the present case, the
actions of the employer in assigning the grievor to Special Projects on November
7, 2001, and in reorganizing the Division on April 1, 2003, were not taken in
response to voluntary malfeasance by the grievor. The evidence convinced me
that those decisions were taken to improve the department’s ability to
communicate with the DND and not as a reproach to the grievor. I accept the
testimony of Mr. Holinsky to this effect. Those actions were taken pursuant to
the employer’s right to determine the organization of the public service to
assign duties to employees to improve the services provided by the PWGSC,
particularly to the DND, pursuant to section 7 of the PSSRA. I agree
with the adjudicator in Veilleux (supra) that unless the adjudicator is
satisfied that the matter involves disguised disciplinary action, the
adjudicator cannot take the place of the employer in matters respecting the
organization of work or the assignment of duties to positions. The evidence
leads me to conclude that the assignment to Special Projects was a decision of
an administration nature, not a disciplinary one.
…
[95] […] The evidence demonstrates
that the employer requested reports on the tasks performed and a plan to
resolve the issues involving Corcan but the grievor did not respond. It is
understandable that, under these circumstances, Mr. Holinsky stated that he was
unable to assess the grievor’s performance. The absence of response from the
grievor to Mr. Holinsky’s requests to follow-up on the new tasks brings me to
reject his argument founded on the default of management to ask him to provide
information prior to stating that his performance was unable to be assessed.
Further, any such error on the part of management was corrected at the final
level of the grievance process when management asked him again to provide a
list of work accomplished during the year but the grievor refused.
…
[98] The Performance Pay
Administration Policy of the Treasury Board was not applied by management when
it failed to complete performance appraisals for 2000/2001, 2001/2002 and
2002/2003. This was a mistake of an administrative nature. No evidence showed
that there was a link to a desire to discipline the grievor or that there was a
link between the threat of retaliation stated to the grievor by Mr. Holinsky at
the October 17, 2002, meeting and Ms. Fyfe-Fortin’s conclusion that she was
unable to assess the grievor’s performance for the 2002-2003 period. Even
though Ms. Fyfe-Fortin testified and was cross-examined by the grievor, the
issue of discipline and retaliation was never raised by the grievor and I am
left only with her evidence to the effect that she was unable to assess the
grievor’s performance as she was unable to gather evidence regarding the
grievor’s work during the period in question. The grievor has not proven
discipline as he produced no evidence allowing me to conclude that, on a
balance of probabilities, he had been disciplined for any culpable act on his
part for that period.
Issues
[11]
(a) What
is the appropriate standard of review for the issues raised by the Applicant?
(b) Does
the Adjudicator’s decision reflect a reviewable error?
Analysis - Standard of
Review
[12]
It
is clear from the recent authority of Shneidman v. Canada (Customs and
Revenue Agency), 2006 FC 381, 289 F.T.R. 256, aff’d 2007 FCA 192, 365 N.R.
285, that the standard of review for the Adjudicator's jurisdictional ruling in
this case is correctness. In the Shneidman case the adjudicator took
jurisdiction over an issue of due process involving a collective agreement and
was found by Justice Sandra Simpson to have strayed outside of the
jurisdictional boundaries set by section 92(1) of the Act. Justice Simpson's decision
was upheld on appeal for the following reasons at para. 24:
In my view, however, before considering
the breadth of the grievance, it was necessary to ask whether Ms. Shneidman
“presented a grievance” regarding the violation of her rights under article
17.02 of the collective agreement to the final level within the meaning of the
opening words of subsection 92 (1) of the PSSRA. Whether or not the language
of the grievance is potentially broad enough to include a complaint that the
collective agreement has been violated, the complaint will not be permitted to
proceed to adjudication, and thus will not be in the adjudicator's
jurisdiction, unless it has been specifically raised at the final level.
Neither the Adjudicator nor Justice Simpson considered this preliminary
question of whether the specific claims relied upon by Ms. Shneidman before the
Adjudicator had been raised at the final level. After considering this
question, I find no basis for interfering with Simpson J.'s conclusion that the Adjudicator erred
in taking jurisdiction over Ms. Shneidman's complaint that her collective agreement
rights were violated.
[13]
It
is very clear that the above holding applies equally to the circumstances of
Mr. Marin's grievance.
It was only at the adjudicative stage that Mr. Marin characterized his
complaint in a manner that would invoke the adjudicative jurisdiction conferred
by section 92(1) of the Act and, as in Shneidman, above, this is an
issue for which the standard of review is correctness.
Analysis - Merits
[14]
There
is no dispute in this case that Mr. Marin did not expressly raise the issue of
"disguised discipline" at any of the earlier stages of his
grievance. He argues now, though, that this allegation was
"intrinsic" to his grievance. He says that the Adjudicator ought to
have looked beyond the language of the grievance, behind the Department's
ostensible motivation for its actions and into the entire history of his
employment complaints. He also relies on the case of the Gingras v.
Treasury Board, 2002 PSSRB 46, [2002] C.P.S.S.R.B. No. 36 where the failure
to explicitly allege the disciplinary nature of the grievance was found not to
be an obstacle to its later adjudication.
[15]
The
fundamental problem with Mr. Marin's argument is that it flies in the face of
his own admission that the issue of disguised discipline had not been raised before
by him either in writing or during his oral submissions to the Department.
Those undisputed facts take Mr. Marin's case outside of the holding in Gingras,
above, and place it squarely within the holding of the Federal Court of Appeal
in Burchill, above, and in Shneidman, above. In Burchill,
Justice Arthur Thurlow discussed the problem of modifying a grievance at the
adjudication stage at para. 5 as follows:
In our view, it was not open to the
applicant, after losing at the final level of the grievance procedure the only
grievance presented, either to refer a new or different grievance to
adjudication or to turn the grievance so presented into a grievance complaining
of disciplinary action leading to discharge within the meaning of subsection 91
(1). Under that provision it is only a grievance that has been presented and
dealt with under s. 90 and that falls within the limits of paragraph 91(1)(a)
or (b) that may be referred to adjudication. In our view the applicant having
failed to set out in his grievance the complaint upon which he sought to rely
before the Adjudicator, namely, that he is being laid off was really a
camouflaged disciplinary action, the foundation for clothing the Adjudicator
with jurisdiction under subsection 91 (1) was not laid. Consequently, he had
no such jurisdiction.
[16]
In
my view, the Burchill case is indistinguishable from the circumstances
of Mr. Marin's claim and
the Adjudicator was correct to apply it to the undisputed facts before him. Mr.
Marin's case is not comparable to Gingras, above, where the issue of
discipline had previously been raised at the final stage of the grievance and
where the adjudicator found that the employer fully understood the case it was
facing. There is, therefore, no basis on this record for setting aside the
Adjudicator’s jurisdictional ruling in this case.
[17]
In
light of the above finding, it is unnecessary to decide whether the Adjudicator
erred in rejecting Mr. Marin's claim on the merits. Suffice it to say
that the Adjudicator's factual findings are amply supported by the evidence
presented.
[18]
The
record does disclose that Mr. Marin was, in some measure, the author of his own
misfortune. Notwithstanding the questionable treatment that was accorded to
him in connection with his reassignment in 2001, his responses to Mr. Holinsky
and later to the Assistant Deputy Minister reflect a degree of defiance that
could not have but worsened an already strained employment relationship. Had
Mr. Marin simply responded appropriately to the Assistant Deputy Minister's request for
an outline of his accomplishments, he would undoubtedly have received the
performance appraisal to which he was entitled and, if appropriate, an award of
performance pay. The Adjudicator found this aspect of Mr. Marin's conduct to
be troubling and, indeed, it was.
[19]
After
reviewing the record, I can find nothing which would support Mr. Marin's complaints
concerning the Adjudicator's various procedural and evidentiary rulings. All
of those rulings appear to me to be fair and appropriate and well within the
Adjudicator's procedural
discretion.
[20]
In
the result, this application for judicial review is dismissed. Having regard
to the circumstances of the underlying dispute, I will limit the costs payable
by Mr. Marin to the Respondent to the amount of $500.00 inclusive of
disbursements.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed with costs
payable by Mr. Marin to the Respondent in the amount of $500.00 inclusive of
disbursements.
“ R. L. Barnes ”