Matthews v. Canada (Attorney General), docket T-623-97

Date: 19971208

Docket: T-623-97

BETWEEN:

     JOHN MATTHEWS

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     - and-

     J. BARRY TURNER, ADJUDICATOR, MEMBER

     OF THE PUBLIC SERVICE STAFF RELATIONS BOARD,

     ESTABLISHED PURSUANT TO THE PUBLIC SERVICE

     STAFF RELATIONS ACT, R.S.C. 1985, C. P-35

     Respondents

     REASONS FOR ORDER

RICHARD J.:

Nature of the Proceeding

[1]      This is an application for judicial review for an order setting aside the decision dated March 5, 1997, of J. Barry Turner, an adjudicator and member of the Public Service Staff Relations Board in which the adjudicator found that the applicant should be awarded damages rather than reinstatement.

[2]      More precisely, the applicant seeks:

a)      an order setting aside the decision of the adjudicator which awarded damages rather than reinstatement and directing that the applicant be reinstated with full pay and benefits; and

b)      in the alternative, an order setting aside the decision of the adjudicator and directing the adjudicator to hear evidence and submissions from the parties with respect to the issue of remedy which reasonably and lawfully relates to the adjudicator's finding of disguised discipline.

Background

[3]      The applicant began his employment with CSIS in 1989 and was employed as a Senior Officer (Level 8 Classification) in the Administrative and Finance Unit, Policy and Systems Branch.

[4]      The applicant was terminated by CSIS under its Work Force Adjustments Policy (WFAP) and pursuant to a Reverse Order of Merit (ROM) exercise effective April 1, 1996.

[5]      The applicant grieved his termination on the ground his termination was actually a disguised disciplinary action under the guise of the WFAP and the ROM exercise.

[6]      The applicant requested reinstatement as a remedy at all level of grievances. CSIS denied all grievances.

[7]      The applicant's grievances were referred to adjudication on June 18, 1996, under section 92 of the Public Service Staff Relations Act as CSIS is a separate employer under Part II of that Act. Hearings were held on December 9, 10, 11, 12 and 13, 1996, before the adjudicator.

[8]      The adjudicator rendered his written decision on March 5, 1997.

[9]      The adjudicator found that CSIS had acted in bad faith in arbitrarily ridding itself of the applicant under the guise of a lay-off, that he was terminated for disciplinary reasons and accordingly, the adjudicator had jurisdiction to hear and determine the grievances.

[10]      In Court File No. T-618-97, I dismissed the application brought by the respondent herein to set aside that decision.

[11]      The adjudicator went on to find that, although reinstatement was the remedy in the vast majority of unjust dismissal cases, he could not reinstate the grievor in this particular case.

[12]      The adjudicator found that there would be no benefit to the applicant in reinstating him into the climate that had prevailed in this particular workplace and that the applicant would derive much more benefit from payment in lieu of reinstatement.

[13]      The adjudicator awarded the applicant the sum of $70,000 payable forthwith in damages.

Issues

[14]      Did the adjudicator erred in finding that the applicant would derive more benefit with payment in lieu of reinstatement, without hearing evidence or argument from the parties on this issue? If so, was this error patently unreasonable?

[15]      Did the adjudicator breach the principles of natural justice by not allowing the parties the opportunity to be heard on the issue of remedy once reinstatement was deemed by him not to be an option.

Analysis

[16]      Counsel for the applicant admits that it was open to the adjudicator to award damages rather than reinstatement but submits that the threshold is very high and has not been met in this particular case.

[17]      In fact, nothing in subsection 94(4) of the Act limits the type of remedy an adjudicator may prescribe in a grievance. The authority of an adjudicator to award damages rather than reinstatement has been upheld by the Federal Court of Appeal¹.

[18]      However, counsel for the applicant submits that in an arbitral setting, unless there is just cause for termination, tenure and continued employment is one of the twin pillars (the other being seniority) of an employee's charter of employment security.

[19]      Counsel for the applicant also submits that even where the facts strongly suggest that a continued and viable employment relationship is not possible, arbitrators are reluctant to deny reinstatement where just cause for discharge has not been found.

[20]      In his reasons, the adjudicator makes the following findings:

1)      After considering all the circumstances, I am of the view that Mr. Matthews' overall conduct did not warrant the ultimate penalty of termination. It is quite clear that he was never put on formal notice regarding his shortcomings, and he was never disciplined prior to his "lay off". I must therefore fashion what I believe is an appropriate remedy.

2)      The grievor does not dispute many of the contentions of the employer relating to poor performance and even misconduct. Neither does he dispute being told verbally of his shortcomings. His point is that these matters were never formally put to him in writing. That being said, the grievor does not recognize his shortcomings. The employer has viewed his performance as falling short of expectations and has viewed his conduct as lacking in professionalism for a substantial length of time, going back several years. The employer's witnesses lack confidence in the grievor.

     . . .

3)      Nonetheless, I cannot reinstate the grievor in the employ of this employer in this particular case. This employer has lost confidence in the grievor.

     . . .

4)      I can see no benefit to the grievor in reinstating him into the climate that prevails in this particular workplace. I am convinced that he will derive much more benefit from payment in lieu of reinstatement.

---

[21]      Clearly, the adjudicator fashioned what he believed to be an appropriate remedy based on the record before him and there was sufficient evidence before him to justify the remedy which he did so fashion.

[22]      However, the adjudicator then went on to make a determination of the amount compensation which should be paid to the applicant. This part of his decision reads as follows:

In the calculation of my order, I have taken note of the grievor's many years of public service, the lack of a disciplinary record, and the fact that he received his $62,522. annual salary until April 1, 1996. I therefore order that the grievor be compensated in the amount of $70,000. payable forthwith.

[23]      The adjudicator did not invite either of the parties to make submissions or give evidence concerning the calculation or amount of the award for damages. The adjudicator based his calculation only on the number of years of public service, the lack of a disciplinary record and the salary which the applicant continued to receive until April 1, 1996.

[24]      In my opinion, the adjudicator should have given the applicant, as well as the respondent, the opportunity to make submissions and give evidence on the method of calculation and the amount of damages to be awarded to the applicant. As pointed out by counsel for the applicant, the adjudicator did not have any evidence relating to the applicant's loss of pension entitlement, the applicant's ability to obtain alternative employment, the notice range or the value of lost benefits.

[25]      In my view, procedural fairness requires that the applicant and the respondent be given the opportunity to address the matter of the quantum of damages through submissions and evidence. In order to expedite the process and if the parties are in agreement, this may be done by means of written submissions.

Conclusion

[26]      Accordingly, that part of the adjudicator's decision which fixes the amount of the damages awarded to the applicant is set aside and the adjudicator is directed to redetermine the amount of the damages after providing both the applicant and the respondent with an opportunity to make submissions and give evidence to the adjudicator on this specific issue.

     __________________________

     Judge

Ottawa, Ontario

December 8, 1997

__________________

¹      Champagne v. Canada (Public Service Staff Relations Board), [1987] F.C.J. 906 (F.C.A.).