Docket:
T-54-13
Citation: 2014 FC 126
Ottawa, Ontario, February 4, 2014
PRESENT: The Honourable Mr. Justice Phelan
|
BETWEEN:
|
|
STANLEY BAHNIUK
|
|
Applicant
|
|
and
|
|
CANADA REVENUE AGENCY
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This is an application for judicial review of the
decision [Decision] of an adjudicator [Adjudicator] under the Public Service
Labour Relations Board in relation to several grievances in respect of
disciplinary actions taken against the Applicant, culminating in the
termination of employment. The Adjudicator upheld part of the grievance but
ordered compensation in lieu of reinstatement.
[2]
The Applicant asks for an order allowing some or
all of the grievances, reinstatement, costs and fees, interest and compensation
for loss of reputation and effects on future employment. In the alternative,
the Applicant asks for compensation of approximately $1.5 million plus costs.
[3]
For the reasons to follow, this application will
be dismissed with costs.
II. BACKGROUND
[4]
The arbitration is established under paragraph 209(1)(b)
of the Public Service Labour Relations Act, SC 2003, c 22, s 2 [Act]. A
strong privative clause set out in subsection 233(2) governs the review of an
adjudicator’s decision.
|
209. (1) An employee may refer to
adjudication an individual grievance that has been presented up to and
including the final level in the grievance process and that has not been
dealt with to the employee’s satisfaction if the grievance is related to
(a) the interpretation or application in respect of the employee of a
provision of a collective agreement or an arbitral award;
(b) a disciplinary action resulting in termination, demotion,
suspension or financial penalty;
…
233. (1) Every decision of an adjudicator
is final and may not be questioned or reviewed in any court.
(2) No order may be made, process entered
or proceeding taken in any court, whether by way of injunction, certiorari,
prohibition, quo warranto or otherwise, to question, review, prohibit
or restrain an adjudicator in any of the adjudicator’s proceedings under this
Part.
|
209. (1) Après l’avoir porté jusqu’au
dernier palier de la procédure applicable sans avoir obtenu satisfaction, le
fonctionnaire peut renvoyer à l’arbitrage tout grief individuel portant sur :
a) soit l’interprétation ou l’application, à son égard, de toute
disposition d’une convention collective ou d’une décision arbitrale;
b) soit une mesure disciplinaire entraînant le licenciement, la
rétrogradation, la suspension ou une sanction pécuniaire;
…
233. (1) La décision de l’arbitre de
grief est définitive et ne peut être ni contestée ni révisée par voie
judiciaire.
(2) Il n’est admis aucun recours ni
aucune décision judiciaire — notamment par voie d’injonction, de certiorari,
de prohibition ou dequo warranto — visant à contester, réviser,
empêcher ou limiter l’action de l’arbitre de grief exercée dans le cadre de
la présente partie.
|
A. Preliminary
Facts
[5]
The Applicant was employed in the Accounts
Receivable Division, Calgary Tax Service Office [TSO], Canada Revenue Agency
for 24 years. For the past 20 years, he was a Team Leader.
[6]
The Record discloses that the Applicant and
management have had a strained relationship since 2002. The Applicant advised
the Court during his oral argument that he had filed approximately 55
grievances in the past 8-10 years.
[7]
In April 2007 the Applicant received a one-day
suspension for inappropriate behaviour during a meeting with his manager.
Following an altercation on May 2, 2008 with the Assistant Director of Calgary
TSO, the Applicant received a three-day suspension.
[8]
On July 30, 2009, the Respondent retained Randy
Mattern [Mattern] to investigate thirteen pending allegations of management
harassment. The Applicant did not provide Mattern with any documentary evidence
and refused to review and sign a statement he had given.
[9]
On October 2, 2009, the Assistant Director of
the TSO instructed the Applicant to stop unprofessional conduct occurring in
his team. The Applicant refused because he felt such a responsibility was not part
of his duties. The Applicant later claimed that the instruction was a direct
order and a form of management harassment.
[10]
The events of November 19, 2009 are significant
in this case. The Applicant met with the same Assistant Director and another
Team Leader to discuss a file. The Applicant refused to make a decision on how
to proceed with the file. He apparently objected to being required to determine
the “correct course of action”. He also refused to meet with the Assistant
Director concerning file transfers – citing “personal” reasons.
[11]
The meeting resumed the next day in the presence
of a witness where the Assistant Director changed the wording of his order from
“correct” course of action to “recommended” course of action. The Applicant
again refused to meet to discuss file allocation but ultimately agreed to
attend the meeting but said that he would not participate. The Assistant
Director found the Applicant’s position to be unacceptable, terminated the
meeting and informed the Applicant that the next meeting would be a fact-finding
one for disciplinary purposes.
[12]
The fact-finding meeting was held and a
disciplinary hearing was conducted on November 24, 2009. At that meeting
the Applicant was confrontational, hostile and failed to present mitigating
circumstances explaining his conduct. He was placed on administrative
suspension without pay pending an investigation of his insubordination and his
allegations of being harassed by the Assistant Director.
[13]
The Director of the Calgary TSO, Mr. Leigh,
conducted that investigation following which a disciplinary hearing was held on
December 10, 2009. The Applicant received a 10-day suspension for two acts of insubordination
committed on November 19, 2009 and a 20-day suspension (to be served
consecutively) for misuse of the Respondent’s harassment policy. This decision
by the employer, like all the earlier ones, was grieved by the Applicant.
[14]
At the end of December 2009, the Mattern
investigation found all 13 allegations of harassment to be unfounded.
[15]
Continuing in this vein of tension between the
employer and employee, and following a meeting of January 18, 2010 called to
discuss the employment relationship, Leigh determined that he needed further
time to consider the matter and placed the Applicant on paid leave.
[16]
Finally, on January 22, 2010, Leigh gave the
Applicant a letter of termination based on the employer-employee relationship
being irreparably damaged. The Applicant grieved the termination.
[17]
The several grievances were referred to adjudication
pursuant to paragraph 209(1)(b) and a hearing over six days was
conducted by Stephen B. Katkin [Adjudicator]. The Applicant was present
throughout and had representation from his union throughout. While the
Respondent called witnesses who were cross-examined, the Applicant did not
testify.
B. Adjudicator’s Decision
[18]
The Adjudicator ultimately had to deal with four
grievances related to the following disciplinary actions:
•
a three-day suspension without pay for
unprofessional and disrespectful conduct;
•
an indefinite suspension without pay pending
investigation into the grievor’s conduct;
•
a 10-day suspension without pay for
insubordinate behaviour and a 20-day suspension without pay for inappropriate
use of the CRA’s harassment policy; and
•
termination of employment.
[19]
The Adjudicator wrote a thorough and balanced
decision addressing all the major issues in the various grievances.
C. Three-Day
Suspension
[20]
The Adjudicator found this suspension was
appropriate. He noted that in respect of unprofessional and disrespectful
conduct, the Applicant did not testify and there was nothing to contradict the
evidence of the person who had been the target of this unseemly conduct. In
fact, the Applicant had apologized.
D. Indefinite
Suspension
[21]
The Adjudicator held this grievance to be moot
because the indefinite suspension became 10 and 20-day suspensions which were
applied retroactively to the first day of the indefinite suspension.
E. 10
and 20-day Suspensions
[22]
The 10-day suspension was applied to two acts of
insubordination. The first was the Applicant’s failure to acknowledge the
Assistant Director’s direct order to meet with co-workers to determine the
“correct” course of action. The second was the initial refusal to meet to
discuss file allocation and the subsequent agreement to meet but refusal to
participate.
[23]
With respect to the first act, the Adjudicator
found that the employer had not proven on a balance of probabilities that the
Applicant had engaged in the alleged insubordination. Because the Applicant had
ultimately attended the meeting, the Adjudicator found that he had acquiesced
to the order.
[24]
With respect to the second act, the Adjudicator
accepted that the Applicant had initially refused to attend a meeting to
discuss file allocation, and then attended the meeting but refused to
participate. This was an act of insubordination warranting discipline.
[25]
As the result was that only one of the two acts
of insubordination was sustained, the 10-day suspension was halved to five
days.
[26]
With respect to the 20-day suspension for misuse
of the CRA harassment policy, the Adjudicator found the Applicant’s various
grievances, as investigated by Leigh, to be baseless and made maliciously. The
Adjudicator found the Applicant to have contravened that policy which required
complaints to be made in good faith. In particular, the grievances against the
Applicant’s suspension were unfounded and filed to be used as a weapon against
the superior.
[27]
The Adjudicator, basing the result on the
earlier halving of the 10-day suspension, reduced the 20‑day suspension
to 10 days.
F. Termination
of Employment
[28]
The Adjudicator found that the termination was
done for disciplinary reasons. The employer was disentitled to rely on the
Applicant’s failure to cooperate with the investigation because he had not been
informed that he could be disciplined for his failure.
[29]
The Adjudicator also found that the employer
could not rely on the Applicant’s statement on January 18, 2010 that he had not
been disrespectful to management. The employer had not taken the statement
sufficiently seriously to justify it being a “culminating event” justifying
termination. In light of the absence of any culminating event and the revised
disciplinary record, the Adjudicator found that the Applicant’s termination was
excessive.
[30]
The Adjudicator concluded that there were
exceptional circumstances which justified the payment of compensation in lieu
of reinstatement. The employer had repeatedly made good faith efforts to
improve the relationship with the Applicant – all of which had been rejected.
The Adjudicator saw no reasonable prospect that the Applicant would accept
direction from senior management and concluded that the employment relationship
was clearly broken.
[31]
Having concluded that the employment
relationship was no longer viable, the Adjudicator, despite upholding some of
the grievances and dismissing others, found that compensation in lieu of
reinstatement was the appropriate remedy. The Adjudicator left the quantum of
compensation to the parties for determination.
[32]
Apparently the parties have not reached a
settlement of quantum nor have either of them requested Board assistance.
At
the hearing of this judicial review, the Applicant did not seriously challenge
the conclusion that compensation was the only viable remedy.
III. ANALYSIS
[33]
The Adjudicator’s decision is reviewable on a
standard of reasonableness (Canada (Attorney General) v Amos,
2011 FCA 38, [2012] 4 FCR 67). In this field of employment adjudication, the
Court is to accord considerable deference to the Adjudicator’s decision.
Issues relating to
the termination of an employee's employment fall within the very heartland of
the adjudicator's jurisdiction. Thus, considerable curial deference applies.
Adjudicators, in coming to their decisions, must observe witnesses' demeanour,
hear and weigh evidence, make findings of fact, and draw the necessary
conclusions. In the case at bar, that is precisely what the adjudicator did.
McCormick v Canada (Attorney General of Canada) (1998), 161 FTR 82, at para 16
[34]
The Adjudicator not only has the expertise in
this area, the Adjudicator heard the witnesses, assessed credibility and
reached conclusions on the nature and viability of the employment relationship
based on a far better position than this Court sitting in judicial review.
[35]
I have set out the facts in this case thoroughly
in order to show what was before the Adjudicator. A review of his decision
shows that it was complete, thorough and thoughtful.
[36]
In terms of reasonableness, others may find the
Adjudicator to be unduly lenient to the Applicant who had a long history of
challenging authority. However, it is impossible, on the facts of this case, to
say that the Adjudicator was unreasonable.
[37]
It was entirely open to the Adjudicator to find
that the Applicant was engaged in maliciously filing grievances. It was also
open to the Adjudicator to accept the evidence of other employees and
management particularly where the Applicant did not testify and challenge that
evidence.
[38]
The Adjudicator applied the proper legal test in
respect of discipline and exhibited a clear line of reasoning. It was not only
open to the Adjudicator to find that the employment relationship was
irreparably broken, it was the only conclusion a reasonable person could reach.
[39]
The Applicant made arguments in the nature of
complaints about breach of natural justice (procedural unfairness). However, he
was unable to show any examples of where the Adjudicator breached or permitted
a breach of procedural fairness.
[40]
The Applicant attempted to canvas a number of
issues he had with his employer which were outside the specific grievances
before the Adjudicator. Whatever unfairness or complaints the Applicant had
about the manner of investigation by the employer or about the employer’s
failure to follow time limits in CRA policy, these were not matters before the
Adjudicator. The Applicant’s suggestion that he did not know what grievances
were the subject of malicious filing is difficult to comprehend since he was
the only person filing the multitudes of grievances.
IV. CONCLUSION
[41]
There is no basis whatsoever for this Court to
interfere with the Adjudicator’s decision.
[42]
The application for judicial review will be
dismissed with costs.
Email this Content