Docket: T-1521-16
Citation:
2017 FC 477
Ottawa, Ontario, May 10, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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MURRAY BIRD
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Applicant
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and
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WHITE BEAR
FIRST NATION
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
This is a judicial review application brought
under section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of a
negative August 26, 2016 decision [the Decision or Reasons] rendered by an Adjudicator
appointed under subsection 242(1) of the Canada Labour Code, RSC 1985, c
L-2 [the Code], of a complaint brought by the Applicant under subsection 240(1)
of the Code contesting the Respondent’s decision to dismiss the Applicant for
cause. For the reasons outlined below, the judicial review will be granted and
the matter returned for readjudication.
[2]
On January 29, 2001, the Applicant began his
employment as a teacher for the Respondent’s on-reserve school. He became the principal
in 2009. The Applicant’s employment was based on one-year contracts, the most recent
being from September 1, 2014 to August 31, 2015. After receiving a number of
complaints against the Applicant, the White Bear First Nation Education Board [WBFNEB
or the Board] referred the matter to the Chief and Council for assessment.
[3]
Shortly thereafter, the Respondent dismissed the
Applicant for cause by way of a December 4, 2014 letter [the Letter] listing the
following reasons:
i.
serious incompetence;
ii.
insubordination;
iii.
sexual harassment;
iv.
a criminal act;
v.
significant breaches of workplace policy;
vi.
breaches of trust and duty of fidelity; and
vii.
an overall pattern of misconduct and
impropriety.
The Letter further
stated that “certain concerns” had been brought
to the Applicant’s attention without positive change or results, although no
further details were provided.
[4]
On December 16, 2014, the Applicant challenged
the termination, filing a complaint with Human Resources Development Canada
that he was unjustly dismissed. The resulting hearing occurred before the
Adjudicator over the span of five days in 2016 and included the testimony of
seven witnesses. The proceedings were not recorded and no transcripts exist.
[5]
As a preliminary matter, the Adjudicator found
that the Applicant was not a “manager” under the
Code (managers are exempt from the Code per subsection 167(3)), allowing the
Applicant to benefit from the Code’s labour and employment protections. That
finding is not challenged. The Adjudicator went on to make four principle
findings in support of his “just cause”
conclusion, characterized as incompetence, insubordination, financial
mismanagement and sexual harassment, all discussed below.
[6]
Incompetence: The
Adjudicator found incompetence in the Applicant’s defiant resistance to
implement the Treaty 4 Student Success Program [T4SSP]. T4SSP, an outside
services provider contracted by the Respondent, was commissioned to assist with
school improvements (such as new models of leadership evaluation, teacher
supervision, and program improvement). The Applicant, in his testimony before
the Adjudicator, admitted that he resisted T4SSP implementation until the last
three months of his employment, given that he did not support the program and
favoured other priorities. The Adjudicator found this to be wilful misconduct
warranting discipline, as it went to the very heart of the employment relationship.
[7]
Insubordination: The
Applicant learned through an irate parent that a teacher at the school had
allegedly circulated nude pictures to his daughter. The Applicant received
direction from the Chair of the Education Board to do nothing until clearer evidence
against the teacher could be established. The Applicant nonetheless ordered the
teacher to leave school premises that day, recalling him only later that
evening. The Adjudicator found the Applicant’s actions to be insubordinate for
having ignored the Board Chair. Further, the Adjudicator found that the
Applicant’s actions had stigmatized, embarrassed, and damaged the reputation of
the teacher, and that the Applicant had not apologized to the teacher or
otherwise attempted to address his distress. It was later established that the
allegations made against the teacher were misguided.
[8]
Financial Mismanagement: The Adjudicator took issue with the school canteen losing money ($800
was unaccounted for) and missing product (staff were apparently removing items
freely), which he found had been reported to the Applicant by a teacher. The
Adjudicator found that the Applicant had failed to address these financial
management concerns, an area which fell within his job responsibilities.
[9]
Sexual Harassment: The Adjudicator began his analysis of the sexual harassment by
describing sexual harassment in the workplace, citing jurisprudence and
legislation. The Adjudicator also noted that the Respondent had not developed a
sexual harassment policy in the workplace, although he noted that Section 1:500
of the White Bear Education Complex Procedures Manual [the Manual] defines
harassment. The Adjudicator, in considering the complaints, went to great
lengths to summarize the testimony before him (including witness statements and
cross-examination). The complaints included allegations of inappropriate
statements of a sexual nature made by the Applicant to two female staff members
on different occasions and in front of other staff members.
[10]
Allegations were also made that the Applicant
used derogatory language when referring to homosexuals and that he failed to
take action in response to complaints against male staff members who had
themselves participated in making inappropriate comments with a sexual
connotation.
[11]
The Applicant brushed aside or denied most of
the accusations, and stated that things were said either in jest or without
malice. However, the Adjudicator found that the Applicant’s evidence was often
self-serving and he therefore preferred the evidence of the other witnesses.
[12]
The Adjudicator also noted that he was to make
his decision on a balance of probabilities, assessing what facts are “more probable than not” true. He drew a negative
inference from the fact that the Applicant failed to call the one witness who
could have spoken to a number of the contested allegations. Applicant’s counsel
cancelled that witness’ appearance two days before his scheduled testimony.
[13]
Referencing Professor A.P. Aggarwal’s Sexual
Harassment in the Workplace (a precise reference was not provided by the
Adjudicator in his Reasons), the Adjudicator characterized the
Applicant’s actions as “sexual annoyance”, which
is described as “a behaviour that is intimidating or
offensive to an employee and that creates an offensive work environment. This
would include sexual comments and gestures”. The Adjudicator found this to
be a lower form of harassment as compared to “sexual
coercion”, which may involve, for instance, a supervisor favouring a
subordinate’s promotion or raise of salary in exchange for sexual favours.
[14]
Relying on Bell v Computer Sciences Corp,
2007 ONCA 466 and Woerkens v Marriott Hotels of Canada Ltd, 2009 BCSC
73, the Adjudicator also took note of the Applicant’s position in the
school and his rank as principal. The Adjudicator noted that senior managers
are held to a higher standard of conduct in sexual harassment cases, given
their privileged position of trust, confidence, autonomy, and responsibility.
[15]
In addition, the Adjudicator found that the
Respondent complied with termination policies and procedures, the Manual, and the
Applicant’s Employment Agreement [the Agreement]. The Manual states that the
employer may not dismiss an employee after receiving a complaint until it has
afforded the employee the opportunity to respond to the allegations. The
Adjudicator found that the Respondent had indeed offered to explain reasons for
termination to the Applicant, which he declined, and that the Agreement
referenced the White Bear First National Personnel Policy [Policy], which
included a right to appeal a termination, which he noted the Applicant failed to
do.
II.
Standard of Review and Issues
[16]
Based on the Supreme Court’s recent decision in Wilson
v Atomic Energy of Canada Ltd, 2016 SCC 29 at paras 15-16 [Wilson],
I am of the view that the standard of review applicable to the issues below is
reasonableness. The existence of a privative clause (section 243 of the Code)
underscores the deference placed with the Adjudicator’s findings of fact and
law (Colistro v BMO Bank of Montreal, 2008 FCA 154 at para 6).
[17]
The Applicant challenges the Reasons on various
grounds, including findings regarding:
1)
incompetence (regarding the T4SSP service
agreement);
2)
insubordination (in suspending the teacher);
3)
financial mismanagement (of the canteen);
4)
sexual harassment; and
5)
the Applicant’s opportunity to respond to the
termination.
[18]
The Applicant also raises two main issues,
namely that the Adjudicator erred in failing to:
i.
apply the correct legal test for cause (or just
dismissal), and
ii.
address “progressive
discipline”.
[19]
I agree. These latter two clearly unreasonable
errors go to the heart of the Decision for the reasons that follow. They also
overlap with certain of the five other findings challenged and, to the extent
they do, will be addressed.
III.
Analysis
A.
Issue 1: The Legal Test for Just Cause
[20]
The Adjudicator’s authority to determine whether
an employee’s dismissal is just is governed by paragraphs 242(3)(a) and (b) of
the Code:
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242(3) Subject to
subsection (3.1), an adjudicator to whom a complaint has been referred under
subsection (1) shall
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242(3) Sous
réserve du paragraphe (3.1), l’arbitre :
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(a) consider
whether the dismissal of the person who made the complaint was unjust and
render a decision thereon; and
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a) décide si le
congédiement était injuste;
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(b) send a copy
of the decision with the reasons therefor to each party to the complaint and
to the Minister.
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b) transmet une
copie de sa décision, motifs à l’appui, à chaque partie ainsi qu’au ministre.
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[21]
The parties present different positions on the
law and how it was or ought to be applied. The Applicant contends that first, the
test established in William Scott and Co v CFAW Local P-12, [1977] 1
CLRBR 1 at para 11 [Scott], is still good law, and second, under the
Code the Adjudicator must apply the essence of the Scott test to
determine whether just cause exists in the particular circumstances. However,
he notes that after reciting much of the evidence and making factual findings,
the Adjudicator’s legal conclusion consists only of the following two paragraphs:
As a result of the forgoing I find Mr. Bird
wilfully did not support the educative goals implemented by T4SSP and approved
by the WBFN. He was insubordinate in his relations with his direct superior on
the Education Board, regarding the suspension of Mr. Stevenson [a teacher], he
was negligent in responsibilities in regard to school canteen finances, and
that he engaged in sexual harassment and did not prevent other staff from so
engaging.
For these reasons I find he was dismissed
with cause.
[22]
The Applicant states that in arriving at his
conclusion, the Adjudicator failed to apply the Scott test (or any
substitute thereof), committing an error in law and that further analysis was
required to determine whether cause existed for terminating the Applicant.
[23]
This test for just dismissal, as articulated in Scott,
encompasses a three-part analysis:
i.
Has the employee given just and reasonable cause
for some form of discipline by the employer?
ii.
If so, was the employer’s decision to dismiss
the employee an excessive response in the circumstances?
iii.
If so, what alternative measure should be
substituted as just and equitable?
[24]
While the first and third elements of the Scott
test are factually-driven, the second requires a more contextual analysis. Scott
enumerates that analysis as encompassing five elements, which I will refer to
as the “mitigating factors”:
i.
seriousness and immediacy of the misconduct;
ii.
premeditated or repetitive nature of the
misconduct (as opposed to momentary or otherwise isolated lapses);
iii.
employee’s length of time and his or her
disciplinary record;
iv.
employer’s past corrective disciplinary attempts
to solve to the problem; and
v.
dismissal’s consistency with the employer’s
policies, or whether it is arbitrary and harsh treatment.
[25]
Relying on the Supreme Court’s decision in McKinley
v BC Tel, 2001 SCC 38 [McKinley], cited by the Federal Court of
Appeal in Payne v Bank of Montreal, 2013 FCA 33 at paras 44-47 [Payne],
the Applicant submits that in assessing these factors the Court is required to
conduct a contextual analysis based on proportionality, striking a balance
between the nature of the employee’s misconduct and that of the sanction
imposed by the employer. If concluding that the dismissal was just, the
Applicant says that the Adjudicator must be persuaded that the evidence is
clear, cogent, and convincing. The employer bears the onus, on a balance of
probabilities, of establishing cause (McKinley at para 33), which we now
know includes non-unionized employees subject to the Code (Wilson at
para 67). The Applicant’s position is that the Adjudicator failed to engage in
the bulk of the just cause analysis, stopping at stage 1 of the Scott
test and going no further.
[26]
The Respondent counters that the Adjudicator carefully
reviewed the evidence in his lengthy Decision with care and engaged in a
comprehensive legal analysis. According to the Respondent, given the “constellation of evidence” before the Adjudicator,
termination was the only appropriate remedy and he needed to go no further than
the first stage of Scott. In other words, the Respondent argues that
since the sanction met the conduct, there was no reason to engage in the
contextual analysis and address the second or third Scott questions.
[27]
Despite the Adjudicator’s factual findings, I
agree with the Applicant that this does not absolve the Adjudicator from an
explanation as to why the misconduct warranted immediate dismissal without even
a mention of a proportionality assessment, including progressive discipline and
possible alternatives to termination. The case law has rejected a categorical approach on whether an employee’s
misconduct warrants dismissal: “with limited
exceptions, the category of misconduct involved, including dishonesty, is not
determinative” (see Payne at para
46, citing McKinley).
[28]
Absent these limited exceptions, Payne
instructs that a careful assessment of all the
circumstances must be done to ensure that the punishment imposed on the
employee is proportionate to the gravity of the misconduct: the Federal Court
of Appeal underlined that this principle recognizes the importance of work in
the lives of individuals and the power imbalance inherent in the employment
relationship. The test for dismissal is not easily satisfied in the
absence of prior warnings or the implementation of lesser sanctions (Payne
at paras 48, 53-54). Here, the Adjudicator found that there were no prior
warnings or lesser sanctions imposed.
[29]
Other Federal Court jurisprudence has also
underlined that part of the adjudicator’s role is to analyse whether “the disciplinary measures selected by the employer are
appropriate in light of the misconduct and the other relevant circumstances”
(Bitton v Banque HSBC Canada, 2006 FC 1347 at paras 31-32). The Federal
Court of Appeal found likewise, in Fontaine v Truchon, 2005 FCA 357 at
paras 26-27 and 31, that the adjudicator erred in law when failing to properly
weigh, or consider at all, the appropriateness of the sanction imposed against
the employee’s misconduct.
[30]
More recently, in Clarke v Syncrude Canada
Ltd, 2014 ABCA 362 at para 17 [Clarke], a sexual harassment and
assault case, the Alberta Court of Appeal accepted that contextual factors
which may be considered within a McKinley proportionality analysis include the events
themselves, the spectrum of the misconduct at hand, the parties’ positions, their
employment records, and the impact of the misconduct on business relationships.
While Clarke was decided under provincial rather than federal
legislation, and therefore was not subject to the Code, its factors resemble Scott’s
mitigating factors.
[31]
Furthermore, as will be discussed in the second
issue below, Wilson heightens the requirement for analysis under the
Code, including the need to address progressive discipline (which, as one of
the checks and balances on the employer, forms part of the Scott mitigating
factors). Therefore, the law post-Wilson requires that an adjudicator at
minimum turn his or her mind to whether the dismissal was just, which entails
engaging with the mitigating factors, including progressive discipline, and
weighing these against the conduct. If cause is established due to sufficiently
egregious conduct which obviates the need for mitigation by the employer, then
that needs to be explained by the adjudicator.
[32]
Here, the Adjudicator clearly took note of the
events that transpired, the Applicant’s position, the employer’s
anti-harassment policy, and the negative impact the Applicant’s conduct had on
staff. The Adjudicator found that the harassment fell on the lower end of the Aggarwal
spectrum discussed above (i.e. sexual annoyance versus coercion). Therefore,
what remains unclear – because there is no evidence of it in the Decision –is
whether the Adjudicator weighed the Scott mitigating factors against the
Applicant’s dismissal for cause, a sanction described by Canadian courts as the
“capital punishment’ of employment law” (see for
example: Johar v Best Buy Canada Ltd, 2016 ONSC 5287 at para 11).
[33]
Moreover, the Adjudicator, at the beginning of
his Reasons, found that that there was no evidence that the Applicant was
subject to a documented process of progressive discipline. Nowhere, for
instance, in the analytical section of the Decision are the mitigating Scott
factors or any similar considerations (such as Clarke’s) weighed
against the Applicant’s alleged misconduct.
[34]
Clearly, it is open to an adjudicator to make
findings of misconduct based on his or her overview of the evidence, which the
Adjudicator did in this case. However, it is not open to the adjudicator to
simply list those findings and come to a conclusion that cause was established
and thus dismissal is warranted without explaining why the tests for cause and
proportionality, so well established in the law, were not applied. Indeed, such
a “categorical” approach was rejected by the
Federal Court of Appeal in Payne at para 46.
[35]
In short, the jurisprudence calls for a more
rigorous and thoughtful analysis. As such, the Adjudicator’s failure to engage
in a proportionality analysis developed in Scott, McKinley, and Payne blemishes the
transparency and justification of the Decision.
B.
Issue 2: Progressive Discipline
[36]
The Supreme Court of Canada in Wilson
recently provided direction as to the underlying principles guiding the
employer’s obligation to ensure “justness” in
workplace discipline and termination processes under the Code. Justice Abella,
writing for the majority, sided with a long line of arbitral jurisprudence, dating
back to Professor George Adams’ decision in Roberts v Bank of Nova Scotia (1979),
1 LAC (3d) 259 (Can) [Roberts], which held that the Code precludes
an employer from terminating an employee without cause, and rejected the
arbitral decisions which found the opposite (and which the minority supported).
The Wilson majority had the following to say about Roberts as it
relates to progressive discipline:
[Roberts] concluded that Parliament
must also have had the concept of progressive discipline in mind […] This
concept generally requires employers seeking to justify the dismissal to
demonstrate that they have made the employee aware of performance problems,
worked with the employee to rectify them, and imposed “a graduated repertoire
of sanctions before resorting to the ultimate sanction of dismissal” […]
(Wilson at para 54)
[37]
Justice Abella also incorporated into her
judgment the need to consider the doctrine of progressive discipline under section
240 complaints. She cited Professor George Adams in Roberts:
Under a collective agreement, arbitrators
have adopted the concept of progressive discipline, subject to specific
provisions under the collective agreement to the contrary. ...
Parliament must have had this basic concept
in mind when it enacted the instant provision because it is the very essence of
"justness" in any labour relations sense. ... [M]ore fundamentally,
it would be my view that on the enactment of [ss. 240 to 246] all employers
subject to this new provision were accorded the powers to meet the requirements
of progressive discipline. With the greatest of respect, [a] more technical and
contrary interpretation ... would simply frustrate and squander the purpose of
this legislation. (as quoted in Wilson at para 55)
[38]
Professor Adams, however, qualified his findings,
writing that adjudicators should not “unthinkingly”
apply the heightened standard (including progressive discipline) without
nuance:
However, this does not mean that
Adjudicators should import the law of the collective agreement in discipline
cases unthinkingly and without modification. They should be extremely sensitive
to the varying employment contexts subject to this new provision of the Code, many
of which may not fit comfortably within the “industrial” discipline model. In
such cases appropriate modifications can be made as required. Thus, I must ask
whether the use of suspensions in the banking industry ought not to be
required. (as quoted in Wilson at para 56)
[39]
Given these developments in Wilson, when
an employee submits a complaint under section 240 of the Code, the adjudicator must
consider whether or not the employer engaged in a meaningful process of
progressive discipline – and if it did not, the adjudicator must explain why the
failure to do so was justified on the facts.
[40]
In Roberts, Professor Adams asked whether
suspensions within the progressive discipline framework should not be required
in the banking industry and decided that under the Code it should, as he noted
that “[p]rogressive discipline, including the
requirement of an intermediate suspension penalty, is operative in a number of
white collar and office contexts, i.e., hospitals, municipal and provincial
Government work place settings, professional and para-professional office
places” (Roberts at para 20).
[41]
In this case, the Adjudicator did not even raise
a question as to why no steps were taken with respect to progressive discipline,
nor did he discuss why they need not have been followed. It is difficult to
understand how the Adjudicator could have concluded that the Applicant’s
dismissal was just without turning his mind, even briefly, to the concept of
progressive discipline.
[42]
This is not to say that a single culminating
event or series of events may never warrant dismissal for cause without any
warning in the appropriate circumstances. However, as the Federal Court of
Appeal stated in Payne, those situations are few and far between.
Indeed, a failure to consider the principle of progressive
discipline does not sit well with the Supreme Court’s recent jurisprudence, nor
is it consistent with the principles established in Scott or with
leading commentary on the subject as cited in Wilson. One cannot lose
sight of the basic but vitally important reason for which employers governed by
the Code must engage in a meaningful progressive disciplinary process: to offer
the employee an opportunity to respond and to mend his or her ways (P(M) and Bank, Re (2010), 2010 CarswellNat 6295 at para 43).
[43]
Moreover, in situations where the dismissal is
based on cumulative misconduct, as this case appears to be, it was recently
held that the employer should give well-documented, clear, and effective
warnings, and should implement progressive discipline in order to rely on the
said misconduct as grounds for dismissal (Goncharova v Marsh Lake Solid
Waste Management Society, 2015 YKSM 4 at para 232).
[44]
Again, my conclusion on this second issue should
not be taken to mean that an adjudicator may not find that a single serious – or less egregious but culminating – event can lead to just dismissal. Indeed,
there are situations such as that which occurred in Leach
v Canadian Blood Services, 2001 ABQB 54 at para 117
[Leach], which did not necessitate any opportunity for ameliorative
discipline given, amongst other considerations, two incidents of more serious forms
of sexual harassment (including physical contact) that occurred in that case (Leach
at paras 120 and 138). Rather, the guiding
principle is that the adjudicator must provide reasons outlining why the
misconduct is so egregious, or the misconduct is sufficiently cumulative, to
relieve the employer of its responsibility to engage in a progressive or
ameliorative disciplinary process, as was done by Justice Coutu in Leach and
Professor Adams in Roberts.
[45]
In the present case, there are further reasons why
the Adjudicator’s analysis or lack thereof was unreasonable. For instance, the
Adjudicator mentions that “references” were made
to oral warnings. However, he goes on to note that nothing in the documentary
evidence supports any such warnings. This finding is confusing and not transparent.
The evidence establishes that the Respondent’s Education Board received a
number of complaints regarding the Applicant at around the same time, and
referred the matter to the Chief and Council because “it
was too much for them [the Education Board]”. The Chief and Council then
took charge of the matter and dismissed the Applicant for cause. There is no
evidence that the Education Board or the Chief and Council gave or provided the
Applicant with any opportunity to respond or to correct his behaviour. While
conflicting evidence suggests that counsel for the Respondent may have offered
to explain the contents of the Letter to the Applicant, that meeting would have
been futile from the progressive discipline perspective because it was offered
after the delivery of the Letter, and thus after the dismissal.
[46]
Apart from the employer’s general legal obligation
to engage the employee in a progressive disciplinary process under the Code and
per Wilson, the Respondent in this case also had contractual obligations
in this regard per the Agreement, discussed below.
(1)
Insubordination
[47]
First, the Adjudicator found that the teacher’s
suspension amounted to insubordination. The Applicant argued that the Adjudicator’s
“incompetence” finding regarding the refusal to
implement T4SSP also amounted to insubordination, and that both “insubordination” findings breached the process
required by Mr. Bird’s Agreement.
[48]
Article 8.01 of the Employment Agreement reads
as follows:
8.01 In the matter of Employee insubordination as determined by
the Employer, the following steps will be taken:
(a) verbal warning
(b) written warning
(c) written
reprimand
(d) termination
In the letter of
reprimand, the Employee will be reminded that by this Agreement the next step
taken will be termination.
[49]
This article contains a clear, four-step progressive
discipline process to be followed in cases of insubordination. The Adjudicator
should have indicated why none of the first three steps were followed. While
the Respondent maintains that the Adjudicator’s finding was appropriate in the
circumstances, it cannot argue both sides of the coin, namely that (a) the
Applicant was insubordinate on one side, but on the other that (b) the failure
to follow through with the procedure required to address insubordination was
warranted, and that the Adjudicator’s failure to turn his mind to the issue was
reasonable.
[50]
In my view, the Adjudicator’s failure to turn
his mind to article 8.01 of the Agreement, which contractually requires a
progressive disciplinary process, is an unreasonable omission from his Decision.
(2)
Due Process
[51]
Second, the Applicant challenges the
Adjudicator’s finding that he had the opportunity to respond to the complaints
made against him, when that opportunity was only offered after termination. The
Respondent contends that the finding of cause vitiated the need to give the
Applicant the opportunity to respond to these complaints before his
termination.
[52]
The “Due Process”
provision, found in the preamble of the Manual, precludes the Education Board
from terminating an employee upon receiving a complaint without affording the
employee the right to respond. It reads thus:
Where a complaint is made to the Board
respecting the competency or the character of the teacher and/or staff member,
the Board shall not terminate the employment of a teacher and/or staff member
unless it has communicated the complaint to the teacher and/or staff member,
and given the teacher and/or staff member an opportunity to appear before the
board to answer the complaint. Further action will be determined by the
teacher/staff member’s job description.
[53]
Article 9.01 (of the Agreement) incorporates the
Manual into the Agreement, obligating the employer to observe the “Due Process” provision reproduced above and allowing it
to craft corrective or disciplinary action accordingly.
[54]
In the Decision, the Adjudicator appears to say
that because the Board referred the matter to the Chief and Council, the
Applicant was not entitled to have the complaints put to him, and/or to be
provided with an opportunity to correct his behaviour.
[55]
This analysis is flawed. The complaints were
initially made to the Board and the Board had a duty to put them before the
Applicant. Neither the Agreement nor the Manual provide for an exception that
would allow the Board not to do so, including referring the complaints to the
Chief and Council. While the Adjudicator did cite the relevant “Due Process” provision of the Manual in his Reasons,
he failed to meaningfully consider it.
[56]
In my view, this was another area in which the Applicant
was denied procedural protections prior to termination. Again, the Adjudicator
may have decided that this was acceptable given the Applicant’s distasteful and
offensive conduct. However, he unreasonably erred in failing to properly
address it.
IV.
Conclusion
[57]
For all the reasons listed above, I am of the
view that the Adjudicator unreasonably erred by failing to properly consider the
concept of progressive discipline, both as it applies to the Agreement between
the parties and as it has been understood by the jurisprudence developed under
the Code, just as he failed to follow the case law requiring a proportionality
analysis.
[58]
While I agree with the Respondent that the
Adjudicator is owed a high degree of deference (Payne at paras 41-43),
the Adjudicator must provide transparent, intelligible and justifiable reasons,
per Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, as to why the Applicant’s
misconduct, in all the circumstances, merits the most severe of all punishments
in the domain of employment and labour law – dismissal with cause –as opposed
to a lesser sanction. In light of the above, I am granting this application for
judicial review.
V.
Costs
[59]
The parties requested a short period to return
with submissions on costs. They shall have two weeks from the date of this
judgment to propose costs, should they not reach an agreement.
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