Date: 20100225
Docket: T-1537-08
Citation: 2010 FC 226
Ottawa, Ontario, February 25, 2010
PRESENT: The Honourable Leonard S. Mandamin
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
MICHAEL PEPPER
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Attorney General applies for judicial review
of the September 5, 2008 decision of the Adjudicator, Michele A. Pineau, of the
Public Service Labour Relations Board (Michael Pepper v. Deputy Head
(Department of National Defence), 2008 PSLRB 71). The decision concerns the
remedial award for a grievance by Michael Pepper that the Adjudicator has
previously allowed.
BACKGROUND
[2]
The grievor, Michael Pepper, is a systems
electronic technician with the Department of National Defence (DND) at Cape
Scott, Nova Scotia. He
had been employed with DND since 1977.
[3]
Mr. Pepper’s employment was terminated on July
14, 2006 due to an inablility to attend work for medical reasons. He had been
on medical leave since 1999. At the time of his dismissal he was on sick leave
without pay.
[4]
Mr. Pepper had two grievances before the
Adjudicator. The first, initiated January 16, 2002, alleged management
mistreated him to the point of causing him to become ill and unable to perform
his duties. Mediation of this harrassment grievance conducted between September
11, 2003 and March 17, 2006 was unsuccessful. Mr. Pepper’s employment was
terminated four months later.
[5]
Mr. Pepper’s second grievance, filed July 16,
2006, was that his dismissal from employment was illegal.
[6]
The Adjudicator dismissed the harrassment
grievance but found Mr. Pepper’s dismissal was unlawful because the employer
breached the confidentiality of the mediation process. She found it used
medical information submitted in the privileged forum of mediation to terminate
Mr. Pepper’s employment. The Adjudicator also found the employer failed to
accommodate the grievor to the point of undue hardship. The Adjudicator’s
Reasons for Decision are set out in Pepper v. Treasury Board (Department of
National Defence) 2008 PSLRB 8 (Pepper 1).
[7]
The Adjudicator ordered Mr. Pepper reinstated
in the position he held at the time of his termination and “entitled to
benefits and wages, if that is the case.” The Adjudicator took the question of
a remedial award under reserve and gave the parties 60 days to come up with an
agreement on indemnity.
[8]
The parties were unable to come to an agreement
on indemity. After exchange of submissions on the issue of indemnity, the
Adjudicator awarded Mr. Pepper salary, employment benefits and lost overtime
opportunities retroactive to date of termination, $9000 for pain and suffering,
$8000 as additional compensation and interest.
DECISION
UNDER REVIEW
[9]
The portion of the Adjudicator’s decision under
review involves the award of salary, employment benefits and lost overtime
opportunities retroactive to date of termination. The other portions of the
Adjudicator’s award under the Canada Human Rights Act, (R.S.C., 1985, c.
H-6) (CHRA) and other compensation are not challenged.
[10]
In coming to a remedial award, the Adjudicator
first reviewed her earlier decision on the termination adjudication where she
had stated:
It is my
decision with regard to a remedial award is taken under reserve. The parties
are given 60 days to come to an agreement concerning such indemnity as may be
owed to the grievor. Should the parties be unable to come to an agreement, I
will receive their representations on a remedial award by an exchange of
written submissions, no later than 90 days following the issuing of these
reasons.
…
The grievor
is reinstated in the position he held at the time of his termination and
entitled to benefits and wages, if that is the case.
I retain
jurisdiction on the issue of a remedial award with respect to PSLRB No. 566-02-767
for a period of 90 days.
[11]
The Adjudicator then reviewed the parties’
respective positions. The grievor claimed compensation for lost wages and
benefits retroactive to the date of reinstatement, compensation for losses
incurred because of the cancellation of those benefits retroactive to the start
of his medical leave and leave with pay retrospective to April 1, 2005, the
date on which the PSLRB was authorized to interpret and apply the provisions of
the CHRA.
[12]
The respondent (now Applicant) had submitted
that an award of $7000 and reinstatment fully compensates the grievor for pain
and suffering related to termination of employment. The Adjudicator reiterated
the respondent’s position:
[15] …
Furthermore, at the time of his termination, the grievor was on leave without
pay, and with the caveat that the grievor is entitled to benefits and wages “if
that is the case,” as per paragraph of 2008 PSLRB 8, my decision expressly
envisions that the grievor was not medically fit to be in the workplace at the
time of his termination. Accordingly, he should be restored to this
pre-termination status.
…
[26] The
respondent takes the postion that because the grievor was on leave without pay
at the time of his termination, I can only put him back into the position he
was at the time of termination, that is, on leave without pay, and therefore no
compensation is payable under this head.
[13]
The Adjucator did not accept the respondent’s
submission referring in part to the Public Service Labour Relations Act,
(2003, c. 22, s. 2) (PSLRA):
[27] In the
circumstances of this case, I take the view that the damages owed to the
grievor as a result of his termination are not particular to the employer’s
breach of the CHRA, but come under my general remedial authority as an
adjudicator under subsection 228(2) of the PSLRA as in any other case
involving a termination. A reinstated employee is normally entitled to be
compensated for his salary, lost overtime opportunities, benefits and any
losses incurred as a result of the cancellation of his benefits, retroactive to
the date of reinstatement. …
[28] In my
decision, at paragraph 169, I stated that “[t]he grievor is reinstated in the
position he held at the time of this termination and entitled to benefits and
wages, if that is the case [emphasis added].” My understanding of the
grievor’s status at the time of adjudication of his grievances was that he was
receiving worker’s compenstaion benefits. Accordingly, there is no compensation
owing by the respondent before the date of grievor’s termination since he was
receiving statutory benefits for which he applied.”
[14]
In the course of considering the claim for an
award for pain and suffering, the Adjudicator returned to the subject of the
the grievor’s leave without pay noting:
[31] … I also
held that although the grievor was on work-related medical leave, the
respondent took no interest in his medical well-being until time came to
terminate his employment, and at that time the respondent did not heed the
recommendations of the grievor’s physician that he could be accommodated back
into the workplace.
[15]
In result the Adjudicator awarded, in addition
to damages for pain and suffering under paragraph 53(2)(e) of the CHRA
and additional compensation under subsection 228(2) of the PSLRA and subsection
53(3) of the (CHRA), the following:
1)
salary
retroactive to the date of termination under subsection 228(2) of the PSLRA;
2)
lost
overtime opportunities retroactive to the date of termination under subsection
228(2) of the PSLRA;
3)
employment
benefits retroactive to the date of termination under subsection 228(2) of the PSLRA.
[16]
The Adjudicator retained jurisdiction with
respect to all aspects of this remedial award for a period of 60 days for the
purpose of implemeting the award.
LEGISLATION
[17]
The
relevant sections of the PSLRA provide:
|
223. (1) A party who refers a grievance to
adjudication must, in accordance with the regulations, give notice of the
reference to the Board and specify in the notice whether an adjudicator is
named in any applicable collective agreement or has otherwise been selected
by the parties and, if no adjudicator is so named or has been selected,
whether the party requests the establishment of a board of adjudication.
(2) On receipt of the notice by the Board, the
Chairperson must
(a) if the grievance is one arising out of a
collective agreement and an adjudicator is named in the agreement, refer the
matter to the adjudicator;
(b) if the parties have selected an
adjudicator, refer the matter to the adjudicator;
(c) if a board of adjudication has been
requested and the other party has not objected in the time provided for in
the regulations, establish the board and refer the matter to it; and
(d) in any other case, refer the matter to an
adjudicator designated by the Chairperson from amongst the members of the
Board.
…
228. (1) If a grievance is referred to
adjudication, the adjudicator must give both parties to the grievance an
opportunity to be heard.
(2) After considering the grievance, the
adjudicator must render a decision and make the order that he or she
considers appropriate in the circumstances. The adjudicator must then
(a) send a copy of the order and, if there are
written reasons for the decision, a copy of the reasons, to each party, to
the representative of each party and to the bargaining agent, if any, for the
bargaining unit to which the employee whose grievance it is belongs; and
(b) deposit a copy of the order and, if there
are written reasons for the decision, a copy of the reasons, with the
Executive Director of the Board.
233. (1) Every decision of an adjudicator is
final and may not be questioned or reviewed in any court.
(2) No order may be made, process entered or
proceeding taken in any court, whether by way of injunction, certiorari,
prohibition, quo warranto or otherwise, to question, review, prohibit or
restrain an adjudicator in any of the adjudicator’s proceedings under this
Part.
|
223. (1) La partie qui a renvoyé un grief à
l’arbitrage en avise la Commission en conformité avec les règlements. Elle
précise dans son avis si un arbitre de grief particulier est déjà désigné
dans la convention collective applicable ou a été autrement choisi par les
parties, ou, à défaut, si elle demande l’établissement d’un conseil
d’arbitrage de grief.
(2) Sur réception de l’avis par la Commission,
le président :
a) soit renvoie l’affaire à l’arbitre de grief
désigné dans la convention collective au titre de laquelle le grief est
présenté;
b) soit, dans le cas où les parties ont choisi
un arbitre de grief, renvoie l’affaire à celui-ci;
c) soit institue, sur demande d’une partie et
à condition que l’autre ne s’y oppose pas dans le délai éventuellement fixé
par règlement, un conseil d’arbitrage de grief auquel il renvoie le grief;
d) soit, dans tout autre cas, renvoie le grief
à un arbitre de grief qu’il choisit parmi les membres de la Commission.
…
228. (1) L’arbitre de grief donne à chaque
partie au grief l’occasion de se faire entendre.
(2) Après étude du grief, il tranche celui-ci
par l’ordonnance qu’il juge indiquée. Il transmet copie de l’ordonnance et,
le cas échéant, des motifs de sa décision :
a) à chaque partie et à son représentant ainsi
que, s’il y a lieu, à l’agent négociateur de l’unité de négociation à
laquelle appartient le fonctionnaire qui a présenté le grief;
b) au directeur général de la Commission.233.
(1) La décision de l’arbitre de grief est définitive et ne peut être ni
contestée ni révisée par voie judiciaire.
(2) Il n’est admis aucun recours ni aucune
décision judiciaire — notamment par voie d’injonction, de certiorari, de
prohibition ou dequo warranto — visant à contester, réviser, empêcher ou
limiter l’action de l’arbitre de grief exercée dans le cadre de la présente
partie.
|
STANDARD OF REVIEW
[18]
The Supreme Court of Canada has held in Dunsmair
v. New Brunswick, 2008
SCC 9 (Dunsmuir) there are two standards of review: correctness and
reasonableness. The previous standards of reasonbleness simplicter and
patent unreasonableness are collapsed into the single standard of
reasonableness (Dunsmuir, para. 45). The Supreme Court also held that
where the standard of review has been previously determined, there is no need
to conduct a new standard of review analysis (Dunsmuir, para. 57).
[19]
The parties both agree the Adjudicator’s
decision is reviewable on a standard of reasonableness.
[20]
The standard of review for an adjudicator’s
decision acting within jurisdiction under the PSLRA has been found to be
that of reasonableness: Bellavance v. Canada (Human Resources
Develpoment Canada), [2000] F.C.J. No.
1284 at paras. 38-41, Robillard v. Canada
(Attorney General), 2008 FC 510 at paras. 23-24.
[21]
Accordingly, I will review the Adjudicator’s
decision on the deferential standard of reasonableness.
ANALYSIS
[22]
The Applicant submits the Adjudicator’s
decision was unreasonable in ordering salary, benefits and lost overtime to an
employee who was unfit to work. Further, the Adjudicator’s decision contained
little analysis and few reasons.
[23]
The Applicant argues the Adjudicator offers no
justification for why the Respondent would be entitled to salary, benefits or
lost overtime opportunities to the date of his termination especially since the
Adjudicator had recognized the Respondent was not medically fit to return to
the workplace and was receiving Worker’s Compensation benefits.
[24]
The Applicant submits the Adjudicator should
have ordered the Respondent returned to his position at the time of the
termination: on leave without pay.
[25]
The Applicant submits the Adjudicator offers no
analysis or review of cases relating to damages awarded in a wrongful
termination case such as Honda Canada Inc. v. Keays, 2008 SCC 39 or Bedirian
v. Canada (Attoney General), 2007 FCA 221. Further, the paucity of reasons
also warrents intervention by the Court citing Justice Martineau in Avila v.
Canada (Minister of Citizenship and Immigration), 2006 FC 359 at para. 32:
Here is the rub: the main flaw of the
impugned decision results from a complete lack of analysis of the applicant’s
personal situation. It is not sufficient for the Board to indicate in its decision
that it considered all the documentary evidence. […] Further, because of the
laconic nature of the reasons for dismissal contained in the decision, it
cannot stand up to somewhat probing examination.
[26]
The Respondent submits the
Adjudicator’s reasons must be read in the context of her previous decision in Pepper
1 where she decided the
Respondent’s termination was unlawful.
[27]
I agree with the
Respondent’s submission. The Adjudicator gave lengthy reasons in the preceding
decision, retained jurisdiction on a remedial award but reserved for a period
of time to allow the parties an opportunity to agree on an appropriate award.
When the parties failed to agree, the Adjudicator gave the parties the
opportunity to make submissions before issuing the impugned remedial award
which included salary, benefits and lost overtime retroactive to date of
termination.
[28]
The Adjudicator referred
to her preceding decision in the reasons for the award:
“… I
also held that although the grievor was on work-related medical leave, the
respondent took no interest in his medical well-being until the time came to
terminate his employment, and at the time the respondent did not heed the
reocmmendations of the grievor’s physician that the could be accommodated back
into the workplace.”
[29]
In these circumstances, I
see no reason to treat the Adjudicator’s award decison in isolation from her
earlier decision on unlawful dismissal.
[30]
On review of the
reasons in the earlier decision, I find the Adjudicator made a clear finding of
fact that the Applicant breached its duty to accommodate the Respondent. The
Adjudicator accepted evidence from the Respondent’s psychiatrist concerning the
Respondent’s ability to return to work in approximately three months if
workplace issues were resolved. After detailed analysis the Adjudicator found
the Applicant had failed to accommodate the Respondent:
157 Therefore, I
come to the inevitable conclusion that the employer decided to terminate the
employment of the grievor without taking the steps to make an informed
decision. Namely the employer did not seek out useful information from Dr.
Rosenberg to assist in its decision-making, nor did it attempt to determine if
there was a suitable job available that could accommodate his return to work.
158 The employer's arguments
suggest that the length of the absence was in itself an accommodation since the
grievor was unable to return to work for a lengthy period. While the
employer provides sick leave, leave without pay and disability benefits as part
of its compensation package, doing so does not mean that it fulfilled its
obligation to accommodate the grievor to the point of undue hardship in the
circumstances of this case. There is no indication that the employer was in
regular contact with the grievor during his absence or that it committed
financial or other resources to accommodate the grievor outside these benefits.
In fact, the grievor was receiving compensation for a work-related injury. The
employer did not seek up-to-date medical information about the grievor for two
years before its decision to terminate his employment. Given the size of the
employer's organization, its resources and expertise, I have some difficulty
understanding why the employer did not take a greater initiative in suitably
accommodating the grievor's return to work before the definitive decision to
terminate his employment. An ultimatum based on a lengthy mediation process
unrelated to ending the grievor's employment is not an accommodation argument. The
grievor was not entitled to a perfect solution, but he was entitled to a full
consideration of his restrictions and how they could be accommodated within the
employer's policies and the jobs available.
159 On the basis of
these findings, I conclude that the employer failed to accommodate the grievor
to the point of undue hardship.
(emphasis added)
[31]
It is clear the
Adjudicator found the Respondent was capable of returning to work in
appropriate circumstances and that the Applicant breached its duty to
accommodate the Respondent.
[32]
In Bellavance v. Canada (Human Resources
Development), [2000] F.C.J. No. 1284, Justice Blais (as he then was) considered
the deferential standard of review of decisions by Public Service Board Members
relating to cases involving the dismissal of public servants. He noted at
paras. 38-40:
The standard
of judicial review of a decision of the Staff Relations Board was raised in
Fraser v. Canada (Public
Service Staff Relations Board), [1985] 2 S.C.R. 455, where the Chief Justice
said at 464:
A restrained
approach to disturbing the decision of specialized administrative tribunals,
particularly in the context of labour relations, is essential if the courts are
to respect the intentions and policies of Parliament and the provincial
legislatures in establishing such tribunals ...
In Canada
(A.G.) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at 661 and
662, the Supreme Court also maintained:
It is
apparent that the Board's raison d'être is the resolution of labour management
disputes that may erupt between the Federal Government and its employees. The
area of expertise of the Board is in the field of labour relations involving
the Federal Government and its employees.
... . .
The Board has
been given wide powers and the protection of a privative clause. Its members
are experienced and skilled in the field of labour relations. The legislator
made it clear that labour disputes, such as those presented in this case, were
to be resolved by the Board. The Court should not be quick to interfere.
The Supreme
Court, explaining the reason for such a standard, indicated in Canada (A.G.) v.
Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at 962 and 964:
There are a
number of reasons why the decisions of the Board made within its jurisdiction
should be treated with deference by the court. First, Parliament in the Act
creating the Board has by the privative clause indicated that the decision of
the Board is to be final. Secondly, recognition must be given to the fact that
the Board is composed of experts who are representatives of both labour and
management. They are aware of the intricacy of labour relations and the
delicate balance that must be preserved between the parties for the benefit of
society.
These experts will often have earned by their merit the confidence of the parties.
Each time the court interferes with a decision of such a tribunal confidence is
lost not only by parties which must appear before the Board but by the
community at large. Further, one of the greatest advantages of the Board is the
speed in [sic] which it can hold a hearing and render a decision. If courts
were to interfere with decisions of the Board on a routine basis, victory would
always go to the party better able to afford the delay and to fund the endless
litigation. The court system itself would suffer unacceptable delays resulting
from the increased case load if it were to attempt to undertake a routine
review.
...
It is not
enough that the decision of the Board is wrong in the eyes of the court; it
must, in order to be patently unreasonable, be found by the court to be clearly
irrational.
(emphasis
added)
[33]
The Adjudicator was
clearly cognizant of the Applicant’s position the Respondent should be
reinstated to leave without pay. The Adjudicator rejected that position. I
would add the Applicant’s proposal would merely return the situation to the
very impasse that led to the Respondent’s dismissal by the Applicant. In my
view, the Adjudicator was tasked with hearing this labour dispute and may look
to outcomes beyond the impasse that initiated it.
[34]
The language of section 228(2)
of the PSLRA expressly gives the Adjudicator a measure of discretion: “After
considering the grievance, the adjudicator must render a decision and make the
order that he or she considers appropriate in the circumstances.”(emphasis
added)
[35]
The Supreme Court of
Canada pronouncements and the privative clause in the PSLRA are clear: the
expertise of public service labour relations adjudicators requires significant
deference from reviewing courts.
[36]
The Adjudicator
considered and decided a matter well within her area of expertise. She based
her decision on facts found in the evidence before her. The Adjudicator had
carefully reviewed the circumstances of the case and set out her findings in
reasons given in Pepper 1. The award of salary, benefits and lost
overtime was within her jurisdiction and discretion.
[37]
I find the Adjudicator’s
decision on the remedial award of wages, benefits and lost overtime retroactive
to date of termination is reasonable.
CONCLUSION
[38]
The application for judicial review is
dismissed.
[39]
Costs are awarded to the Respondent.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
This application for judicial review is
dismissed.
2.
Costs are awarded to the Respondent.
“Leonard S. Mandamin”
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