Docket: A-404-16
Citation:
2017 FCA 176
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CORAM:
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GAUTHIER J.A.
GLEASON J.A.
WOODS J.A.
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BETWEEN:
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SHIV CHOPRA
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
September 6, 2017).
GLEASON J.A.
[1]
While the record before us is quite voluminous,
the question we are called upon to decide in this application for judicial
review is straightforward, namely, whether the decision of a Public Service
Labour Relations and Employment Board (PSLREB) adjudicator, upholding the penalty
of dismissal, is reasonable. The decision in question was made in Chopra v.
Deputy Head (Department of Health), 2016 PSLREB 89 [Reasons] and
followed lengthy litigation between the applicant and his employer.
[2]
The following antecedents are relevant to this
application.
[3]
In a previous decision in Chopra et al. v.
Treasury Board (Department of Health), 2011 PSLRB 99 [Chopra 1], the
PSLREB adjudicator dealt with three grievances: one contesting a 10-day
suspension, another contesting a 20-day suspension and the third contesting the
applicant’s dismissal. The adjudicator dismissed all three grievances.
[4]
The Federal Court set aside the decision in Chopra
1 in part, remitting the 20-day suspension grievance and the dismissal grievance
to the adjudicator for reconsideration (Chopra v. Canada (Attorney General),
2014 FC 246, 451 F.T.R. 172). The Federal Court’s judgment was affirmed by this
Court in two judgments: Chopra v. Canada (Attorney General), 2015 FCA
205 and Chopra v. Canada (Attorney General), 2015 FCA 206.
[5]
The Federal Court found that the adjudicator’s
treatment of condonation in respect of the 20-day suspension grievance was
unreasonable and remitted the grievance to the adjudicator for reconsideration
of that issue. Because the dismissal was premised in part on the 20-day
suspension being part of the applicant’s disciplinary record, the Federal Court
also remitted the dismissal grievance for reconsideration in the event the
adjudicator were to set aside the 20-day suspension.
[6]
In the decision under review, the adjudicator
found that the employer had condoned the applicant’s conduct for which the 20-day
suspension was levied. He thus allowed the grievance contesting that suspension,
thereby removing the 20-day suspension from the applicant’s record. The
adjudicator nonetheless upheld the dismissal, finding that the penalty was
warranted in light of the applicant’s misconduct that gave rise to the
termination and the remaining disciplinary record of the applicant. This
included a 5 and a 10-day suspension, the latter for acts of insubordination
that showed an attitude similar to that evinced in the act of insubordination
that led to the termination of the applicant’s employment.
[7]
The applicant submits that the adjudicator’s
decision was unreasonable, asserting that it was not open to the adjudicator to
uphold the dismissal when part of the prior record on which the decision to
terminate was based was set aside. The applicant more specifically says that
the adjudicator at least implicitly found in Chopra 1 that but for the
entirety of the prior record (including the 20-day suspension), termination
would not have been appropriate. The applicant also asserts that the employer
recognized this fact as well as it waited until there was a 20-day suspension
on Dr. Chopra’s record before moving to terminate his employment.
[8]
We disagree with these assertions. Contrary to
what the applicant says, we do not see anything in Chopra 1 to indicate
that the adjudicator determined that the 20-day suspension was a
necessary pre-condition to a dismissal for cause. Nor do we see anything in the
employer’s conduct to indicate that a 20-day suspension was required before
moving to terminate Dr. Chopra’s employment for the final act of
misconduct. In short, there is nothing in the fact pattern or in Chopra 1
that prevented the adjudicator from upholding the termination.
[9]
We also note that there is no hard and fast rule
that must be applied by labour adjudicators in situations like this that would
require that a termination decision be set aside when part of the prior record
is overturned. A decision similar to the one in the present case was made in King
v. Canada (Deputy Head - Border Services Agency), 2010 PSLRB 125 [King],
where part of the prior record on which the decision to terminate was based was
set aside after the employee had been dismissed. The adjudicator in that case
found the dismissal to nonetheless have been for cause, and the award was
upheld by the Federal Court and this Court: King v. Canada (Deputy Head –
Border Services Agency), 2012 FC 488, 409 F.T.R. 216; 2013 FCA 131,
446 N.R. 149. It was therefore open to the adjudicator in the instant case to
determine whether the dismissal was for cause in light of the applicant’s most
recent act of insubordination and the portions of the applicant’s record which
were left intact.
[10]
The applicant attempts to distinguish King
by saying that the culminating act in that case was much more serious than Dr.
Chopra’s final act of misconduct. The adjudicator disagreed and found that Dr.
Chopra, like Mr. King, had reached the point where rehabilitation was
impossible such that “reinstatement ‘… would vindicate
his actions and invite a repetition’” (Reasons at para. 101).
[11]
This assessment is entitled to considerable
deference as determination of the appropriate penalty in a disciplinary matter lies
at the very core of the PSLREB’s expertise: Canada (Attorney General) v.
Gatien, 2016 FCA 3 at para. 39, 479 N.R. 382 and Bahniuk v.
Canada (Attorney General), 2016 FCA 127 at para. 14, 484 N.R. 10.
[12]
In light of the facts before the adjudicator and
the deference to be afforded to his decision, we see no basis to intervene and
accordingly shall dismiss this application for judicial review with costs,
fixed in the all-inclusive amount of $2,500.00.
“Mary J.L. Gleason”
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