Docket: A-397-15
Citation:
2016 FCA 125
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CORAM:
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DAWSON J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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CRAIG DYSON
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Respondent
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REASONS
FOR JUDGMENT
BOIVIN J.A.
[1]
Mr. Craig Dyson began employment as a Fishery
Officer Trainee at the Department of Fisheries and Oceans Canada (DFO) on May
26, 2008 and was subject to a probationary period until he completed the
Fishery Officer Career Progression Program. The DFO terminated Mr. Dyson’s
employment on July 5, 2010, while he was still on probation.
[2]
The relevant portions of Mr. Dyson’s letter of
dismissal read as follows:
The purpose of this
letter is to advise you that, in accordance with the authority delegated to me
under [sub]section 62 (1) of the Public Service
Employment Act, I have
concluded with regret that your employment with the Department of Fisheries and
Oceans [DFO] will be terminated, effective today, July 5, 2010, at the close of
business. …
The reason for
terminating your employment is due to your unsuitability for the position of
Fishery Officer Trainee, more specifically …
● Concerns
related to reliability and attendance;
● Failure
to meet work requirements[;]
● Failure
to adhere to established policies, procedures, practices, and codes of conduct.
[3]
Mr. Dyson grieved the decision to terminate his
employment and referred his grievance to the Public Service Labour Relations
and Employment Board. His grievance was denied at all three levels of the
grievance process. Mr. Dyson then referred it to adjudication pursuant to
paragraph 209(1)(b) of the Public Service Labour Relations Act, S.C.
2003, c. 22 s. 2 (the Act). The adjudicator, Mr. John C. Jaworski, allowed the
grievance and ordered that Mr. Dyson be reinstated in his position at the GT-02
group and level, the rank at which he was first appointed.
[4]
The adjudicator concluded that he had
jurisdiction and was not barred by section 211 of the Act to hear the grievance
because he found that the DFO had acted in bad faith and had not based its
decision on bona fide dissatisfaction with his suitability.
[5]
The standard of review of a decision of an adjudicator
with respect to dismissal or disciplinary action is reasonableness (Payne v.
Bank of Montreal, 2013 FCA 33, [2013] F.C.J. No. 123 at paras. 32 and 33; King
v. Canada (Attorney General), 2013 FCA 131, [2013] F.C.J. No. 551 at para.
3). Also, Public Service Labour Relations and Employment Board’s adjudicators are
owed deference in their exercise of interpretive discretion, because they have
a particular expertise in interpreting and applying the Act (Kagimbi v.
Canada (Attorney General), 2014 FC 400, 453 F.T.R. 286 at para. 19,
affirmed 2015 FCA 74, [2015] F.C.J. No. 474 [Kagimbi FCA] at para. 4).
[6]
In this appeal, the Crown asserts that the
adjudicator erred in finding that the DFO acted in bad faith and that Mr.
Dyson’s dismissal was not based on a bona fide dissatisfaction as to employment
suitability. The Crown also submits that the adjudicator erred and exceeded his
jurisdiction, because he did not explicitly identify his reason for assuming
jurisdiction under section 209 of the Act.
[7]
I cannot agree.
[8]
In my view, the adjudicator’s decision was
reasonable in the circumstances, because the DFO failed to provide evidence or facts
in support of its decision to terminate Mr. Dyson’s employment. Indeed, on many
occasions, the adjudicator repeats that the existence of evidence or facts is
lacking (see for example the adjudicator’s decision at paras. 64, 79, 80, 81,
113, and 134). On another occasion, he found that the evidence tendered by DFO
was “disconcerting” (para. 139).
[9]
More specifically, on the allegation of
performance issues, the adjudicator found that the DFO failed to demonstrate proper
existence of facts. The adjudicator mentioned at paragraph 136 of his reasons:
… It is clear that Mr. Lambert relied on the information provided to
him in support of this assessment; however, for this reliance to be in good
faith and to meet the test of a bona fide dissatisfaction as to the grievor’s
suitability, the facts must exist to support that finding. Here, if those
facts exist, they were never provided to me, despite the clear question
being asked to the three people who made the determination. … [Emphasis added]
[10]
On the allegation of failure to adhere to
policies and procedures, the adjudicator found that the individual responsible
for the termination decision, Mr. Robert Lambert, Director of Conservation and
Protection for the Newfoundland and Labrador Region of DFO, erroneously took
into an account incident that did not take place during the relevant
probationary period and relied on policies that had never previously been
enforced and never been made clear to Mr. Dyson. For example, with regard to
the allegation of the failure to follow the firearms policy, the adjudicator
noted at paragraph 64 of his reasons that he heard no evidence of:
1. what,
if any, training the grievor received with respect to the firearms policy;
2. whether
the grievor was provided a copy of the firearms policy;
3. what,
if any, information or training the grievor was given with respect to accessing
the firearms policy on the DFO intranet site; and
4. whether
the firearms policy was actually available on the DFO intranet site at the time
the loss of the magazine incident occurred.
[11]
On the allegation of issues with attendance and
reliability, the adjudicator found that the DFO failed to adduce evidence to
support their allegation that Mr. Dyson did not engage in the appropriate steps
for taking sick leave and that he had misused that leave. The adjudicator noted
at paragraph 149 of his reasons:
… Although there was an allusion by the employer that the grievor did
not submit medical certificates when required, there was no actual evidence
that this was the case; in fact the grievor testified that whenever he was
required to provide medical certificates, he did so. [Emphasis added]
[12]
It is well-settled law that “an adjudicator seized of a
grievance by an employee rejected on probation is entitled to look into the
matter to ascertain whether the case is really what it appears to be”
(Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), [1989]
F.C.J. No. 461 at para. 17). Thus, it was open to the adjudicator to inquire as
to whether the “employer
had used rejection on probation as a sham to camouflage another reason for the
dismissal and had therefore acted in bad faith” (Kagimbi FCA at
para. 2) and, on that basis, assume jurisdiction under paragraph 209(1)(b).
[13]
In the present case, I am of the view that,
confronted with the lack of evidence and the absence of facts provided by the DFO,
it was reasonable for the adjudicator to find that the employer acted in bad
faith.
[14]
Finally, I agree with the Crown that the adjudicator
did not explicitly state that Mr. Dyson’s termination amounted to
“disguised discipline” as enumerated under paragraph 209(1)(b) of the Act.
This deficiency, however, is not fatal. While it would have been preferable to make
explicit reference to the provision, a holistic reading of the adjudicator’s
reasons supplemented by a review of the record supports that this was the basis
of the adjudicator’s assumption of jurisdiction (Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] S.C.J. No. 62 at para 14). As such, section 211 of the Act could not
operate to bar the adjudicator’s jurisdiction.
[15]
For these reasons, I propose to dismiss the appeal
with costs in the amount of $1,500 all inclusive.
“Richard Boivin”
“I agree
Eleanor R.
Dawson J.A.”
“I agree
Yves de
Montigny J.A.”
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