Date: 20080418
Dockets: T-903-07
Citation: 2008
FC 510
Ottawa, Ontario, the
18th day of April 2008
Present: The Honourable
Mr. Justice
Beaudry
BETWEEN:
CLAUDE
ROBILLARD
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
present case consists of two joined and consolidated applications for judicial
review, contesting two decisions rendered by an adjudicator under the Public
Service Labour Relations Act, R.S.C. (1985), c. P-35. In both decisions,
the adjudicator dismisses the grievances and confirms that the applicant’s
dismissal is justified.
ISSUES
[2]
In docket
T-904-07 (decision 2007 PSLRB 40), the issue is the following:
- Did
the adjudicator make an unreasonable error in concluding that the meeting of December 7,
2004, was administrative and not disciplinary in nature?
[3]
In docket
T-903-07 (decision 2007 PSLRB 41), the issue is the following:
- Did the
adjudicator make an unreasonable error in concluding that there had been
intimidation and threats, justifying the applicant’s suspension and dismissal?
FACTUAL BACKGROUND
[4]
The
applicant was hired by the Department of Finance in 2000 as an IT Solutions
Analyst, group and level CS-01. In 2001, he was promoted to CS-02. He was part
of the Information Management and Technology Directorate within the Corporate
Services Branch.
[5]
Throughout
2004, there was a degree of unease among the Directorate’s employees.
Management was concerned about the disappearance of $24,000 worth of computer
equipment from the warehouse. Some bottles of wine and $100 belonging to the
employees’ social committee had also gone missing.
[6]
Various
employees approached their respective managers to inform them of rumours
concerning people who might have been involved in the thefts. Helen O’Kane,
Director of the Directorate, and Marilyn Dingwall, Director of Human Resources,
agreed to meet with ten employees on December 7 and 8, 2004, to gather as much
information as possible regarding the disappearance of the equipment.
[7]
Paul
Levecque and Joseph Boushey were the first employees to meet with Ms. O’Kane
and Ms. Dingwall. During their meetings, they mentioned certain facts that
implicated the applicant as well as an employee identified as Mr. “A”.
[8]
The
applicant was the third person with whom they met (meeting of December 7,
2004). Ms. O’Kane and Ms. Dingwall explained to him that the purpose of
the meeting was for fact-finding. They asked him general questions about the
disappearance of the equipment. They also asked specific questions, in particular
whether Mr. “A” had a copy of the key to the warehouse, and whether the
applicant himself had used it. They then proceeded to ask him questions about
the use of taxi chits.
[9]
Ms. O’Kane
and Ms. Dingwall instructed the applicant not to speak with other employees
about what had been discussed at the meeting, as they had already instructed
Mr. Levecque and Mr. Boushey.
[10]
On
December 7, 2004, at about 3:20 p.m., a series of e-mails was exchanged by
employees within the Directorate. The first contained a photo of a computer
dating from 1983 with which the employee in question had previously worked. The
second, in response to the first, contained a photo of an old telegraph machine
that the sender had used when she had been in the Armed Forces. The author of
the second e-mail wrote that she could take it apart and reassemble it, and
that the telegraph was operational. The applicant sent the third e-mail in the
series. That e-mail showed photos of firearms, such as a submachine gun and
some rifles, including a precision rifle used by snipers; he indicated that
these weapons worked very well and that he knew how to use them.
[11]
About 15
minutes later, he walked up to Mr. Boushey’s workstation and asked him if
he had seen the e-mail. Mr. Boushey replied that he had minimized it on
his screen. The applicant asked him to maximize it. He stated that
Mr. Boushey had expressed interest in his Armed Forces training, wanting
to know in particular whether he could shoot from the building across the
street. Mr. Boushey, on the other hand, stated that he had asked those
questions to lighten the tone of the conversation. Despite any disagreement
regarding the interpretation to be given to these exchanges, both parties
agreed that the applicant then said, [TRANSLATION] “I wouldn’t miss you.”
[12]
At that
moment, Mr. Choiniere-Bélanger, another employee, approached
Mr. Boushey’s workstation. The applicant told him with an aggressive tone,
[TRANSLATION] “I would not miss you either.”
[13]
The
morning of December 8, 2004, Mr. Boushey reported the incident to
Ms. O’Kane. He told her that he had felt threatened and had slept very
badly. Ms. O’Kane informed Ms. Dingwall, and both of them took measures to
inform security and then the police. Two officers came to take statements from
Mr. Boushey, Mr. Choiniere-Bélanger and Mr. Levecque.
[14]
The
applicant was summoned to a disciplinary meeting on December 8, 2004. He
was accompanied by a union representative. He was informed that management
would be investigating the allegations of theft and of uttering threats and
that he would be suspended during the investigation.
[15]
On
December 20, 2004, he was summoned a second time and dismissed for theft and
for uttering threats.
[16]
On
December 23, 2004, he filed a grievance to contest his suspension and
dismissal.
[17]
On January
12, 2005, he filed another grievance, claiming that his employer had not
respected his right to union representation during the meeting of
December 7, 2004.
IMPUGNED DECISION
[18]
The
reasons invoked by the adjudicator to conclude that the meeting of December 7,
2004, was administrative and not disciplinary in nature are the following:
a) He found that the terms of
clause 36.03 of the collective agreement signed by the Treasury Board and the
Professional Institute of the Public Service of Canada on June 3, 2003,
for the Computer Systems Administration bargaining unit were precise and
unequivocal. That clause deals with disciplinary meetings and not fact-finding
meetings. To interpret the provision otherwise would have the effect of
modifying the wording of the clause. That would represent an excess of
jurisdiction.
b) In his assessment of the facts
and the context of the meeting in question, the adjudicator mentioned that
Ms. O’Kane and Ms. Dingwall had indicated in their testimonies that
they wanted to meet with the employees to obtain more precise information about
the rumours that were circulating. He noted that the applicant had been
questioned about his knowledge of the thefts, his use of taxi chits, and any
use he may have made of duplicate keys. The applicant was not personally
targeted or under any specific suspicion by the employer at that time. The
adjudicator acknowledged that he had been suspended the next day, but he noted
that a significant event occurred on December 7, 2004, between the
meeting and his suspension, namely the sending of the e-mail and his comments
to Mr. Boushey and Mr. Choiniere-Bélanger.
[19]
As for the
grievance related to the suspension and dismissal, the adjudicator found for
the employer and considered the suspension and dismissal appropriate under the
circumstances. The reasons for upholding that decision are summarized
succinctly in the following paragraphs.
[20]
Regarding
the decision to dismiss:
a) The taxi chits: the evidence
indicates that the employer filed a record of 11 taxi chits for the period from
October 7, 2002, to July 14, 2004. Only one of these was authorized.
The applicant justified the use of six or seven chits. The adjudicator
therefore found that there remained three or four chits whose use was not justified.
b) The unauthorized use of
duplicate keys: the applicant admitted to having used Mr. “A”’s key a
number of times to gain access to the warehouse. The adjudicator found this to
be contrary to the established procedure.
c) In his view, these two
breaches are not in themselves sufficient to justify a dismissal, but they must
be considered in the global context of the analysis of the principal complaint,
namely intimidation or the uttering of threats.
d) In his summary of the evidence
regarding the incident that occurred on the afternoon of December 7, 2004,
the adjudicator noted that the applicant’s three co-workers had already worked
in the Armed Forces. Indeed, he had already shown his co-workers photos taken
during his Armed Forces missions. He also noted that the e‑mail in
question was the third in a chain of e-mails regarding equipment used by those
employees during their previous careers. He therefore found that the sending of
the e‑mail did not in itself constitute inappropriate behaviour in the
workplace.
e) More problematic are the words
[TRANSLATION] “I wouldn’t miss you,” spoken to Mr. Boushey and
Mr. Choiniere-Bélanger. The adjudicator noted that Mr. Boushey had
distanced himself from the applicant, and that they had spoken little during
the previous months. He considered the applicant’s claim that he had only been
joking but took into account the context in which the words were spoken. He
found that the fact that they were made shortly after information was provided
about the precision of the firearms and his ability to use them rendered the
comments inappropriate. He also found that in that context, the phrase
[TRANSLATION] “I would not miss you either with this” constituted intimidation
and a threat. He did not believe the applicant’s claim that it had been a joke
on the basis that the comment had been repeated to Mr. Choiniere-Bélanger.
According to the adjudicator, this contradicts the applicant’s explanation. The
adjudicator, Jean-Paul Tessier, wrote the following at paragraph 131:
[TRANSLATION]
After reviewing all of the documents and
the evidence filed, I have concluded that the grievor suspected that Mr.
Boushey might have made some statements concerning Mr. “A”’s key and might have
given some information concerning the grievor. He could not stop himself from going
to see him on the afternoon of December 7, 2004. He tried to find out how Mr.
Boushey would behave if he showed him the photos of firearms. He made
intimidating comments to him. I do not believe this was a direct threat such as
“I’ll shoot you,” but in my opinion the use of the conditional tense
constitutes a form of intimidation intended to make Mr. Boushey feel
uncomfortable. I find that the same holds true for the comments made to Mr.
Choiniere-Bélanger.
[21]
As for the
decision to suspend, the adjudicator rejected the grievance and found for the
employer. Having reviewed the jurisprudence, he analyzed the credibility of the
applicant’s explanations, the context of the workplace, and the fact that the
threats had been made in front of a number of people:
a) He noted that the applicant
had failed to provide a reasonable explanation concerning his presence at
Mr. Boushey’s workstation. He did not indicate why he had asked
Mr. Boushey to look at the e-mail containing photos of firearms. The
applicant tried to justify his comments by alleging that Mr. Boushey had
asked him questions, but he never explained why he repeated these remarks to
Mr. Choiniere-Bélanger.
b) The adjudicator considered the
workplace context: an investigation was being conducted, rumours were circulating,
and the applicant had been questioned.
c) The adjudicator found credible
the testimony by Mr. Boushey and Mr. Choiniere-Bélanger to the effect
that they were disturbed by the threats. The threats created an atmosphere of
fear among the employees, and protecting the health and safety of the employees
is one of the functions of the employer. The applicant’s reinstatement could
lead to a loss of trust among the staff of the Directorate. The adjudicator
wrote the following at paragraph 152:
[TRANSLATION]
I do not believe that the grievor
intended to suggest that he would use firearms. However, I am convinced that he
wanted to intimidate his co-workers. Unfortunately, when intimidation takes
place in front of a computer screen showing firearms, an atmosphere of fear is
created. The decision to separate the grievor from his co-workers is
appropriate in the circumstances. I share the employer’s opinion that, in the
circumstances, the relationship of trust needed to maintain the grievor’s
employment has been irreparably broken.
RELEVANT LEGISLATION
[22]
Agreement
between the Treasury Board and The Professional Institute of the Public Service
of Canada,
Group: Computer Systems Administration, Code 303, June 3, 2003.
|
Article
36
Standards of Discipline
36.03
Where an employee is required to attend a meeting on disciplinary matters,
the employee is entitles to have a representative of the Institute attend a
meeting where the representative is readily available. Where practicable,
the employee shall receive in writing a minimum of two (2) working days
notice of such meeting.
|
Article 36
Normes de discipline
36.03
Lorsque l’employé est tenu d’assister à une réunion concernant une mesure
disciplinaire, il a le droit de se faire accompagner par un représentant de l’Institut
lorsque celui-ci est facilement disponible. Autant que possible, l’employé
est prévenu par écrit au moins deux (2) jours ouvrables avant la tenue d’une
telle réunion.
|
ANALYSIS
Standard of review
[23]
In the
past, the standard applicable to a decision on a question of fact would have
been the standard of patent unreasonableness. According to the recent Supreme
Court decision in Dunsmuir v. New Brunswick, 2008 SCC 9, the standard of
reasonableness applies. Considering that we are dealing with questions of mixed
fact and law and that the adjudicator’s level of expertise is relatively high,
the Court should show deference to the decision of the adjudicator in this
case.
[24]
According
to Dunsmuir, the Court must not interfere if the decision of the
administrative tribunal is reasonable:
[47] Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
Did the adjudicator make an unreasonable
error in concluding that the meeting of December 7, 2004, was
administrative and not disciplinary in nature?
[25]
The
applicant claims that the adjudicator committed a reviewable error in
concluding that the meeting of December 7, 2004, was administrative and
not disciplinary in nature and that clause 36.03 of the collective
agreement was not applicable. In particular, the applicant argues that the
adjudicator failed to consider the English version of the provision. According
to him, there is a discrepancy between the English version, which says “meeting
on disciplinary matters,” and the French version, which says “réunion concernant une mesure
disciplinaire.”
He argues that the English version conveys the idea of “affaires disciplinaires,” and that according to the
rules of interpretation, differing versions must be interpreted so as to give a
meaning common to both.
[26]
The
applicant claims that the interpretation common to both supports his case in
the sense that if he is summoned to a meeting and there is a possibility of
disciplinary measures being taken, he is entitled to be accompanied by a union
representative.
[27]
The
respondent, on the other hand, rejects that proposition. He adds that the issue
was never raised before the adjudicator. According to him, clause 36.03
only applies when disciplinary measures are raised during a meeting between the
employer and employee.
[28]
I find the
adjudicator’s decision reasonable on this point. His interpretation of the
clause is acceptable and justifiable in light of the facts that were before
him. In fact, Adjudicator Léo-Paul Guindon came to the same conclusion as the
adjudicator in the present case regarding clause 36.03 in Arena v. Treasury
Board (Department of Finance), [2006] C.P.S.S.R.B. no 103, 2006 PSLRB 105.
[29]
The
applicant submits decisions holding that union representation is necessary if
the information gathered may lead to the imposition of a disciplinary sanction.
However, the respondent correctly notes that the decisions submitted cover
situations that are different from the one before us.
[30]
For
example, in United Food and Commercial Workers International Union, Local
175 v. Axis Logistics Inc. (Horwood Grievance) (2000), 87 L.A.C. (4th) 100,
the clause reads as follows:
4.02 (a) The employer agrees that, whenever
an interview is held with an employee that becomes part of his record regarding
his work or conduct, a plant steward will be present as a witness.
The employee may request that the steward
leave the meeting.
(b) During the interview, the employee
and steward will be given the opportunity for consultation.
(c) In the event a steward is not
present, the condition will be brought to the attention of the employee. The
meeting that becomes part of the employee's record will be postponed until the
steward is available. [page 102] (d) If the meeting is held without a steward,
any conclusions, verbal or written, will be null and void except when the
employee requests the steward to leave. [Emphasis added.]
[31]
There is
no mention of disciplinary measures in that clause. Instead, it provides for
representation at all meetings that are or will be included in the employee’s
record. That is not the case here.
[32]
The
adjudicator’s conclusion that the purpose of the meeting was to gather
information is logical and supported by the evidence. His finding that the
disciplinary measures were instead related to the incident following the
meeting is also justified.
[33]
Finally,
the applicant’s argument that the presence of a union representative could have
changed the subsequent events must be set aside as speculative and
hypothetical.
Did
the adjudicator make an unreasonable error in concluding that there had been
intimidation and threats, justifying the applicant’s suspension and dismissal?
[34]
The
applicant argues that the sentence at paragraph 152 of the decision that reads
[TRANSLATION] “I do not believe that the grievor intended to suggest that he
would use firearms” is incompatible with the adjudicator’s conclusion, in which
he states, [TRANSLATION] “With respect to the dismissal, I find that there was
intimidation and that there were threatening comments.”
[35]
However,
the adjudicator made a distinction between the use of firearms and the
intention to intimidate. He wrote as follows at paragraphs 131 and 152:
[TRANSLATION]
[131] … I do not believe
this was a direct threat such as “I’ll shoot you,” but in my opinion the use of
the conditional tense constitutes a form of intimidation intended to make Mr.
Boushey feel uncomfortable. …
[152] I do not believe that the
grievor intended to suggest that he would use firearms. However, I am convinced
that he wanted to intimidate his co-workers. Unfortunately, when intimidation
takes place in front of a computer screen showing firearms, an atmosphere of
fear is created. …
[36]
The
adjudicator upheld the suspension and dismissal on the basis that there had
been threats and intimidation, not that there had been an intention to use
firearms. In reaching this conclusion, the adjudicator considered the workplace
context and the applicant’s credibility. I do not believe that the intervention
of the Court is justified in this case.
[37]
The
adjudicator’s conclusions are understandable and justifiable in respect of the
facts and law.
JUDGMENT
THE COURT ORDERS that the
applications for judicial review be dismissed. The parties may, upon request, submit their written
representations (maximum three pages) with respect to costs no later than ten
days after the date of this judgment.
“Michel
Beaudry”
Certified true
translation
Francie Gow, BCL, LLB
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