Canada (Attorney General) v. Matthews, docket T-618-97

Date: 19971208

Docket: T-618-97

BETWEEN:

     ATTORNEY GENERAL OF CANADA

     Applicant

     - and -

     JOHN MATTHEWS

     Respondent

     REASONS FOR ORDER

RICHARD J.:

Nature of the Proceeding

[1]      This is an application for judicial review of a decision dated March 5, 1997, of J. Barry Turner, an adjudicator and member of the Public Service Staff Relations Board in which the adjudicator decided that he had the jurisdiction to hear the two grievances of the respondent and upheld one of his grievances which had been referred to adjudication on June 18, 1996, pursuant to section 92 of the Public Service Staff Relations Act¹.

[2]      The grounds of the application are that the adjudicator erred in law in concluding that he had jurisdiction in the present matter under subsection 92(1) of the Public Service Staff Relations Act and the adjudicator acted beyond his jurisdiction by making a decision relating to the grievances raised by the respondent.

Background

[3]      The respondent was employed by the Canadian Security Intelligence Service as a Senior Officer (Level 8 Classification) in the Administrative and Finance Unit, Policy and Systems Branch.

[4]      The respondent began his employment with CSIS in 1989 and was terminated by CSIS under its Work Force Adjustment Policy (WFAP) pursuant to a Reverse Order of Merit (ROM) exercise effective April 1, 1996.

[5]      The respondent grieved his termination on the grounds that it was actually a disguised disciplinary action under the guise of the WFAP and the ROM exercise.

[6]      At all three levels of grievances, the respondent submitted that his termination was actually disguised discipline and asked for reinstatement. CSIS denied all of the respondent's grievances.

[7]      The respondent's grievances were referred to adjudication on June 18, 1996, under subsection 92(1) of the Public Service Staff Relations Act, as CSIS is a separate employer under Part II of that Act.

[8]      Hearings were held on December 9, 10, 11, 12 and 13, 1996, before the adjudicator.

[9]      At the outset of the hearing, counsel for CSIS raised a preliminary objection to the jurisdiction of the adjudicator on the ground that there was no disciplinary action related to any of the respondent's grievances and therefore the respondent could not rely on section 92 of the Act.

[10]      Counsel for the respondent submitted, in response, that the evidence would demonstrate that CSIS acted arbitrarily, unreasonably and in bad faith and that the WFAP and the ROM exercise were merely used to disguise the termination, which was in fact for disciplinary reasons.

[11]      The adjudicator held that the burden of demonstrating disguised disciplinary action rested on the respondent and that his failure to do so would prevent the adjudicator from taking jurisdiction under section 92 of the Act.

[12]      The adjudicator reserved on the issue of jurisdiction in order to hear the merits of the case.

[13]      The adjudicator heard three witnesses:

1)      John Matthews, the grievor and the applicant herein;

2)      Doug Outhwaite, Director General, Personnel Services, since April 1, 1995; and,

3)      Michael Andrecheck, Controller, Administration and Finance Branch, since June of 1990.

[14]      The adjudicator thoroughly reviewed and analyzed the evidence in the decision and set out the argument for the grievor and for the employer.

[15]      The adjudicator found that the decision to lay the respondent off was not made in accordance with applicable CSIS policies and that, based on the whole of the evidence, CSIS acted in bad faith in arbitrarily ridding itself of the grievor under the guise of a layoff. Therefore, the adjudicator concluded that he had jurisdiction under subsection 29(1) of the Act.

Issue

[16]      Whether the adjudicator erred in law in concluding that he had jurisdiction to deal with the grievances pursuant to subsection 92(1) of the Act. Subsection 92(1) of the Act reads as follows:

     Adjudication of Grievances

     Reference to Adjudication

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, or

b) disciplinary action resulting in discharge, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

Analysis

[17]      Since CSIS is a separate employer, the respondent is subject to paragraph 92(1)(c) of the Act.

[18]      The adjudicator concluded that he had jurisdiction under paragraph 92(1)(c) of the Act.

[19]      In his reasons, he stated:

The jurisprudence of this Board's adjudicators and of its reviewing courts supports the notion that the employer cannot, under the guise of using an administrative means such as rejection on probation or lay off, in effect terminate the employee for disciplinary reasons and thereby deprive an adjudicator of jurisdiction.

This is precisely what the employer has attempted in this case. It did not discipline the grievor early on, although it appears it could have been justified in so doing. It chose not to deal with the grievor's shortcomings. When the employer was faced with the prospect of downsizing some time later, it conducted what can only be characterized as a semblance of a ROM exercise leading to what the employer characterized as a lay off. In fact, the choice to terminate the grievor had already been made. I find, based on the whole of the evidence that the employer acted in bad faith in arbitrarily ridding itself of the grievor under the guise of lay off. In effect, the grievor was terminated for disciplinary reasons.

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[20]      The adjudicator based his decision on the following findings:

1)      Mr. Outhwaite's straightforwardness by outlining what processes should have been followed was refreshing. He admitted that once a decision is made to reduce a position under the WFAP, that policy must be followed. The policy that he was referring to in Exhibit G-1, Tab 50, section 4.4, is the same as the ROM guidelines reminder sent to managers in June 1995 (Exhibit E-5). It reads:

4.4 Employees judged to be unsatisfactory performers should be "terminated for cause" and not declared surplus. This situation must be dealt with before a workforce adjustment occurs.

This was not done for Mr. Matthews even though Mr. Andrecheck said that he noted five incidents of unsatisfactory work performance.

2)      Mr. Outhwaite agreed that even during a downsizing period, performance reviews were mandatory by supervisors as provided in Exhibit G-1, Tab 54, sections 3.1.1 and 3.1.3. They were not done for Mr. Matthews, nor for other employees.

3)      He also agreed that a special report or a notice of shortcomings should be written if an employee's performance has changed noticeably as described in sections 3.3.1 and 3.3.2. No special report or notice of shortcomings was prepared for Mr. Matthews.

Mr. Outhwaite also agreed that the performance standard required for CSIS is "fully satisfactory" as described in Exhibit G-1, Tab 54, section 5.2.1. According to Mr. Andrecheck and some Chiefs, Mr. Matthews' performance was not fully satisfactory after 1990, and was in fact deemed unsatisfactory since his performance met some of the criteria listed in Exhibit G-1, Tab 54, section 5.2.3.

Mr. Andrecheck admitted that even though he agreed that the grievor's performance was unsatisfactory, Mr. Matthews was never notified in writing about his failures. If the proper process had been followed, the grievor may have been disciplined. Even Mr. Minnis agreed with this. Since the employer failed to document the grievor's unsatisfactory performances, as the months and years went by, it cannot now suddenly use another means to get rid of him. Discipline leading to discharge must be progressive. In fact, CSIS' policies and procedures clearly state that lay-off is not the means to deal with disciplinary matters.

4)      Mr. Outhwaite also said that internal transfers should not be used as a method of discipline although this measure was resorted to in this case. I agree. This method was another example of not dealing directly with the grievor's shortcomings.

5)      Regarding the ROM exercise, Exhibit G-1, Tab 52, the low score of one was deemed by Mr. Outhwaite to be unsatisfactory, yet no performance reviews were ever done to document this and hopefully better manage the grievor. Mr. Outhwaite did not know how the grievor could be declared surplus on September 14, 1995 before the ROM exercise had been done on September 19. Neither do I.

6)      The Chiefs told Mr. Andrecheck they thought the grievor would be the least meritorious candidate even before the September 14, 1995 meeting with Mr. Ross. Thus, it was pre-determined that the grievor would most likely be the least meritorious candidate. In fact, the grievor was removed from the draft organizational chart in April, 1995 (Exhibit E-9). I believe Mr. Matthews was perceived as an irritant during 1994/1995 so management decided he had to go, and the WFAP was the only way to do it since there was no paper trail that could be used to establish a culminating incident. All of this leads me to conclude that the whole exercise was designed to get rid of him under the WFAP.

7)      I hasten to add that all three grievance level responses in Exhibit E-10 refer to the fact that the decision to "lay-off" the grievor was made in accordance with applicable CSIS policies. I do not agree for reasons that I have already outlined. If established policies, procedures and guidelines are to be ignored to this extent, then why bother putting them in place? They are not to be applied selectively, but uniformly, otherwise employer-employee relations would be managed on a chaotic ad hoc basis.

[21]      Counsel for the applicant submitted that the evidence only showed that the applicant had been informed on September 14, 1995, that if he did not resign, a ROM exercise would be conducted and he would probably or likely become the least meritorious candidate. However, Mr. Matthews stated in evidence that he did not recall the use of the word "likely".

[22]      Counsel for the applicant submitted that the decision by CSIS to reduce a level 8 position, as well as five other positions, in the financial administration branch, was part of a comprehensive downsizing process that had started in 1992 at the CSIS. The employer proceeded to eliminate one of the positions through the ROM exercise and the respondent was adjudged to be the poorest performer.

Conclusion

[23]      In Canada (Attorney General) v. Penner², Mr. Justice Marceau commented on the decision of the Supreme Court of Canada in Jacmain v. Attorney General (Canada)³. He stated:

It is clear that five of the nine judges who rendered this Jacmain judgment expressed the opinion 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. That would be an application of the principle that form should not take precedence over substance. A camouflage to deprive a person of a protection given by statute is hardly tolerable.

[24]      The adjudicator conducted such an inquiry in this case.

[25]      In my opinion, based on the record before me, the adjudicator did not misdirect himself in law and there was sufficient evidence on the record to support his finding.

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[26]      Accordingly, the application for judicial review is dismissed.

     __________________________

     Judge

Ottawa, Ontario

December 8, 1997

__________________

¹      R.S.C. 1985, c. P-35.

²      [1989] 3 F.C. 429 at 440 (C.A.).

³      [1978] 2 S.C.R. 15">[1978] 2 S.C.R. 15.