Date: 20080219
Docket: T-522-07
Citation: 2008 FC 209
Ottawa, Ontario, February 19, 2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
WALTER
OLSON
Applicant(s)
and
ATTORNEY
GENERAL OF CANADA
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Dr. Walter Olson from an
Adjudicator's decision
made under section 92 of the Public Service Staff Relations Act, R.S.C
1985, c. P-35 (Act). By that decision, Dr. Olson's grievance concerning his
layoff from the Canadian Food Inspection Agency (Agency) was dismissed. On
this application, Dr. Olson contends that the Adjudicator erred by failing to
apply the appropriate burden of proof and by incorrectly co-mingling the issues
pertaining to disciplinary and non-disciplinary terminations. He also asserts
that the Adjudicator erred by deferring to the Agency on the issue of whether
it had complied with the provisions of the collective agreement dealing with
retraining.
I. Background
[2]
Dr.
Olson had been an employee of the Agency for 19 years when he was told that his
position as an Animal Care Veterinarian and Theriogenologist in the Animal
Diseases Research Laboratory near Lethbridge was declared surplus.
[3]
Under
the terms of the Employment Transition appendix of the collective agreement,
the Agency had a duty to look for alternate employment opportunities for Dr.
Olson. If a vacant position was available, the Agency also had an obligation
to facilitate Dr. Olson's appointment to it by providing
appropriate retraining if necessary. During such retraining, a surplus
employee like Dr. Olson would continue to be employed by the Agency but under
the terms of the prior appointment. The collective agreement also provides
that in cases where retraining was not successful, the surplus employee could
be laid off. In other words, the new appointment was not effective until the employee
successfully completed the retraining plan.
[4]
The
record indicates that the Agency did identify a potential employment
opportunity for Dr. Olson as the veterinarian-in-charge at a meatpacking plant
in Fort
MacLeod,
Alberta. This new position carried responsibilities that were very different
from those pertaining to Dr. Olson's work in the Lethbridge laboratory.
A six-month retraining plan was therefore created which, for the most part,
involved supervised, hands-on technical training. This plan was reduced to
writing and signed by the Agency and by Dr. Olson.
[5]
The
Adjudicator summarized Dr. Olson’s retraining experience in the following passage
from his decision:
[23] The grievor accepted the
position at the Fort MacLeod plant and engaged in
the training plan. He had fully completed the first four months of the
training program by April 23, 2004. The training program consisted of his shadowing
Dr. Meszaros on the job at the Maple Leaf pork plant in Brooks. Dr. Meszaros
was familiar with the HR and operational issues at the Fort MacLeod plant, as she was handling leave
applications from that plant and had worked there in an ad hoc capacity.
The grievor engaged in self-study of modules of the training programs.
[24] The grievor then shadowed Dr.
Fletcher, the supervising VM-02 veterinarian-in-charge at the Fort MacLeod plant, on the job for about four
weeks, commencing on April 21, 2004. He was then on his own to run the plant
as the acting veterinarian-in-charge. The grievor found the work at the Fort MacLeod plant to be difficult. There was a
heavy workload and he was routinely working 50 hours per week. He had concerns
about the plant’s compliance with regulations. In some areas the plant was
deficient, and in other areas its operation was marginal. The grievor had
extreme anxiety about being left on his own, as he was unfamiliar with the
audit and paperwork requirements at the Fort MacLeod plant. Dr. Fletcher came back
on one occasion to assist him with the month-end reports.
[25] Further, the Fort MacLeod plant appears to have had some HR
difficulties. One of the difficulties was that there had not been much
continuity in the VM-02 position and that the position had been filled on a
rotational basis out of Lethbridge. There were difficulties in
the relationships among the inspectors, the ad hoc supervising veterinarians
who visited on a rotational basis and staff at the plant. At the time of the
grievor’s arrival, the plant was staffed with five inspectors. However, one
inspector retired and was not replaced. The grievor found the work environment
to be tense and lacking in collegiality. There were instances of
insubordination by inspectors. It was the grievor’s view that the lack of a
permanent VM-02 at the plant had created a situation where the inspectors
became self-supervising. There were conflicts between the inspectors due to
differing personalities. The grievor felt that he had little or no support
from Mr. Hwozdecki, who office is located in Calgary. The grievor found Mr. Hwozdecki
difficult to contact. He was given no training in how to handle HR issues that
could arise in the plant.
[26] Dr. Fletcher described the
inspectors as extremely resistant to taking direction from visiting
veterinarians, particularly about the requirement to have two inspectors on the
floor during processing. Dr. Fletcher described the HR situation at the Fort MacLeod plant as “a bit of a mess and
the inspecting staff were difficult and there was a lack of support from HR and
the inspection manager.” He described the VM-02 position at the Fort MacLeod plant as a very busy VM-02 position,
which he enjoyed.
[27] It is apparent from the
evidence that the grievor had no difficulties with the technical aspects of the
VM-02 veterinary work. Dr. Meszaros noted that the grievor appeared to be
unenthusiastic about the work.
[6]
There
seems to be little doubt that Dr. Olson's transition to the proposed new
position in Fort
MacLeod was far from
smooth and that a large part of the difficulty had to do with his inability to
deal effectively with the challenging labour relations environment at that
location. The problems at Fort MacLeod were well known to the Agency.
Included in the documentary record are references to the unfair distribution of
work, inappropriate shift changes, arguing amongst the inspectors and
insubordinate conduct by inspection staff directed at the veterinarian-in-charge.
Dr. Olson was sufficiently bothered by these problems that he submitted a
request to take an unpaid leave of absence but his request was denied by the
Agency. For a time he was also away from work on sick leave.
[7]
Shortly
after the completion of the retraining program, the Agency determined that
Dr. Olson was not suitable for supervisory employment. The Agency wrote
to Dr. Olson on July 20, 2004 advising him that he had failed to
demonstrate the required level of competency for supervision and that he would
not be appointed as the veterinarian-in-charge at Fort MacLeod. In the
result, he reverted to surplus status and was subsequently laid off.
[8]
Dr.
Olson initiated a grievance on October 13, 2004 seeking to be restored to
appropriate re-employment. His grievance was framed as follows:
On approximately Sept. 14, 2004, I
received a letter from my employer advising me that my services were no longer
required. I believe that this action is disciplinary and was undertaking in
bad faith. Furthermore, the actions of the Employer in relation to my
employment status constitute unfair and unjust termination of my employment.
All of the Employer's actions in this regard violate Appendix B of the
Collective Agreement, Art. D.12 of the Collective Agreement and section 13 of
the C.F.I.A. Act.
II. The Process
Below
[9]
In
the adjudication below, Dr. Olson's grievance appears to have been somewhat
oddly characterized and presented. Considerable emphasis was placed on the
Agency's decision to lay off Dr. Olson. The layoff was asserted to be in
violation of the collective agreement or carried out as disguised discipline.
The Agency, in turn, took the position that Dr. Olson's layoff was
not justiciable unless it was proven to be disciplinary in nature.
[10]
Little
if any evidence was tendered by Dr. Olson to show that the layoff was
disciplinary and the Adjudicator reasonably found that it was not so motivated.
[11]
Dr.
Olson also contended that the adequacy of the training program was in issue and
it is apparent that some evidence was put forward in support of that position.
However, instead of advancing this issue as a simple point of contractual
interpretation, Dr. Olson argued that the Agency had a general legal duty to
afford a training program to him equivalent to that which would be required
before effecting a performance-based discharge.
[12]
The
Agency responded by asserting that the Adjudicator had no authority to consider
the adequacy of the training program because such matters fall solely within
its statutory mandate to organize the workplace and also because Dr. Olson's
grievance was not adequate to support his allegation of a contractual breach.
[13]
The
Adjudicator held that Dr. Olson's grievance was adequately framed to
support the allegation of a breach of the collective agreement and he accepted
jurisdiction to rule on that matter under section 92(1)(a) of the Act.
Nevertheless he dismissed Dr. Olson's grievance on the basis that "the
adequacy of a training program is a matter that is purely within the purview of
the Agency". The pertinent passage from the Adjudicator's decision on
this issue is the following:
[97] In my view, the adequacy of a
training program is a matter that is purely within the purview of the Agency.
The PSSRA does not remove the agency’s right or authority to determine
its organization, to assign duties or to classify positions. Dr. Turner, in my
view, appears to have put careful effort into determining what training the
grievor needed in order to be successful in a transition from a position as a research
scientist to a position as veterinarian-in-charge of a meat packing plant. The
grievor has not established a breach of the collective agreement.
[98] The inadequacy of a training program
was argued as a basis for finding a disciplinary element and rejected in Earle.
This argument, however, is difficult to make in light of the authorities. In
light of Note 15 in Rinaldi, where an employee fails to prove that the
conditions required to terminate a position were not present, and the
employer's decision is unchallenged, it may be difficult to prove disguised
discipline based on inadequate training. Earle was a
rejection-on-probation case from a central government department where the
former PSEA applied and is of persuasive value only. I note that Rinaldi
was a case that involved the former PSEA and the layoff provisions of that Act
(section 29) and is also of persuasive value only.
[99] As a theoretical possibility, an
inadequate training program may be some evidence of disguised discipline. It
may be part of a set-up designed to ensure that the employee fails and then is
terminated. I cannot say, in looking at the training plan agreed to by all
parties, that it was so grossly inadequate as to constitute a sham or
camouflage for discipline. I see no basis for me to conclude that it was part
of a set-up designed to ensure that the grievor failed. The contrary seems to
be true; Mr. Hwozdecki would have liked the grievor to succeed in a training
plan, as it would have solved the problem at the Fort MacLeod plant.
[14]
It
is with respect to this aspect of the Adjudicator’s decision that this
application for judicial review arises.
III. Issue
[15]
Did
the Adjudicator err by holding that the adequacy of the Agency’s Employment
Transition training program was a matter that fell solely within the Agency’s
discretion to manage the workplace and, absent disciplinary motivation, could
not be the subject of adjudicative relief?
IV. Analysis
[16]
Both
of the parties took the position before me that the standard of review was that
of patent unreasonableness. While that is undoubtedly correct for challenges
to the Adjudicator’s factual findings, I do not agree that it applies to the
issue framed above. The refusal by the Adjudicator to determine whether the
Agency had breached the collective agreement turns on a point of law which
effectively goes to the Adjudicator’s jurisdiction. For such an issue, the
standard of review is correctness: see Canada (Attorney
General) v. Frazee, 2007 FC 1176, 161 A.W.C.S. (3d) 747 at paras.
14 and 15.
[17]
I
do not agree that the adequacy of the retraining program created under the
transition provisions of this collective agreement was a matter purely within
the purview of the Agency and that the only basis for the Adjudicator to look
behind that program was to determine whether it was surreptitiously set up to
fail.
[18]
The
Employment Transition provisions of the collective agreement impose significant
positive duties on the Agency to provide "reasonable" and
"appropriate" retraining with a view to facilitating the continued
employment of its surplus employees. Article 1.1.1 of the Employment
Transition Appendix requires the Agency to give "every reasonable
opportunity" to surplus employees to continue their careers; Article 4.1.1
stipulates that the Agency "shall make every reasonable effort to retrain"
its surplus employees; Article 4.1.3 allows for up to two years of retraining;
and, finally, Article 4.2.2 imposes upon the Agency the responsibility
"for ensuring that an appropriate retraining plan is prepared".
[19]
While
I agree with the Adjudicator that the final determination as to whether a
retrained employee is suitable for re-appointment is the employer’s judgment
call I do not accept that it is outside of the Adjudicator's mandate to determine
if a particular retraining program fulfilled the employer's contractual
obligations to a surplus employee. This distinction was recognized by the
Supreme Court of Canada in Voice Construction Ltd. v. Construction &
General Workers' Union, Local 92, 2004 SCC 23, [2004] S.C.J. No. 2, where
Justice John Major noted at para. 32:
32 Generally management has a
residual right to do as it sees fit in the conduct of its business. This right
is subject to any express term of a collective agreement or human rights and
other employment-related statutes providing otherwise: see Parry Sound
(District) Social Services Administration Board v. O.P.S.E.U., Local 324,
[2003] 2 S.C.R. 157, 2003 SCC 42, at para. 28. Here, art. 7.01 affirms the
respondent's broad right to hire and select workers. However, this recognition
is prefaced by the clause "Subject only to the terms of this
Agreement".
[20]
I
accept that the burden of showing that the employer breached the collective
agreement rests upon the affected employee. Nevertheless, the Adjudicator has
a responsibility to decide, on the evidence, whether the retraining program was
"reasonable" and "appropriate" to permit the employee to
meet the expectations for the new position. Such a retraining program is not
expected to be perfect but the Adjudicator must assess whether the program was
objectively adequate, in the circumstances, to facilitate the reappointment of
the surplus employee. In short, when an employer makes specific contractual
promises to its employees of the sort made here by the Agency, it does not
enjoy an unfettered, unilateral discretion to determine how those promises will
be executed.
[21]
Here,
the Adjudicator identified a "gap" in the training program dealing
with labour relations management issues. He also noted that the Agency
essentially adopted a "sink or swim" approach to the serious labour
relations problems confronting Dr. Olson at Fort MacLeod.
Whether Dr. Olson bore some responsibility for identifying the weaknesses in
the retraining program does not afford absolution to the Agency if, as it
appears, the Agency was also aware of those difficulties and did nothing to
address them.
[22]
In
summary, I am satisfied that the Adjudicator erred in law by holding that he
was not required to determine whether the Agency breached the collective
agreement in the design and implementation of the retraining program afforded
to Dr. Olson. The employer had a contractual obligation to provide
"reasonable" and "appropriate" retraining to Dr. Olson and
which could have led to his appointment at Fort MacLeod. Whether it
did so has yet to be determined. In the result, Dr. Olson's grievance must be
redetermined by a different adjudicator on the merits.
[23]
In
the result, this application for judicial review is allowed with costs payable
to the Applicant under Column III.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be remitted to a different adjudicator for redetermination on the merits.
THIS COURT
FURTHER ADJUDGES that the Applicant shall have his costs payable under
Column III.
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