Green v. Canada (Treasury Board), docket A-542-97

Date: 20000327

Docket: A-542-97

(T-1710-96)

CORAM:      ROBERTSON J.A.

         ROTHSTEIN J.A.

         SHARLOW J.A.

BETWEEN:

     ATTORNEY GENERAL OF CANADA

     Appellant

     (Respondent)

     - and -

     BARRY GREEN

     Respondent

     (Applicant)

     REASONS FOR JUDGMENT

SHARLOW J.A.

[1]      Barry Green, an air traffic controller employed by Transport Canada, was dismissed because of an incident that occurred on May 9, 1995 when he was on duty alone in the Sudbury Control Tower. The dismissal was made on the recommendation of Mr. Mel Cooper, the Superintendent of Control Tower Operations for the Ontario Region. The letter of termination reads in part as follows:

I have determined that, on May 09, 1995, you wilfully left the Sudbury Control Tower unmanned for approximately 35 minutes. In doing so, you potentially jeopardized the safety of the flying public and demonstrated a gross disregard for the responsibilities of your position.

These actions constitute an irreparable breach of trust.

As a result, I have no alternative but to proceed with termination of your employment from your AI-OPR-02 position effective close of business Monday, May 29, 1995.

[2]      Mr. Green grieved the dismissal, as was his right under paragraph 92(1)(b) (ii) of the Public Service Staff Relations Act, R.S.C. 1985, P-35. The grievance was heard by an adjudicator who is a member of the Public Service Staff Relations Board (PSSRB). The hearing was conducted over 8 days between November 15, 1995 and May 23, 1996. On June 14, 1996, the adjudicator dismissed the grievance and gave the following reasons (page 20-24):

The fact that Mr. Green was away from his post for approximately 35 minutes during which time he ate lunch in the airport restaurant is not in dispute.

Much of the thrust of Mr. Green's defense was to the effect that this action was not extremely serious in that the tower is closed at Sudbury airport between the hours of 11:00 p.m. and 7:00 a.m. every night and that therefore during the period of Mr. Green's absence on May 9 air traffic would conduct themselves as they would during the night hours and with the same degree of safety. I cannot accept that argument. The controllers in Toronto expected that he would be back any minute. Without any further information, they treated the situation accordingly and continued to deal with the Sudbury zone as controlled airspace. Mr. Green remained in control of his own airspace. The potential for confusion arises out of the fact that no one knew exactly what was going on, where the controller was and how long he would be gone. Aircraft and airport vehicles expect positive control except during certain hours. They have the right to count on this and make their plans accordingly.

Counsel for the grievor maintained that during the grievor's absence, the airspace reverted to Class E airspace. Whether or not this is the case, the ATSAMM [Air Traffic Services Administration Management Manual] makes it clear that a lone controller shall vacate a position only of necessity, only for a few minutes and only when there is no known or anticipated traffic.

I accept the evidence of Mr. Cooper that having the tower "manned" at all times during advertised hours is basic to the training and experience of all controllers and the absence of the relief directive from the tower does not in any way excuse Mr. Green from that obligation. Mr. Green, as an experienced controller, knew what he was supposed to do. He simply decided on May 9 to go for lunch and disregarded these basic principles of air traffic control.

Furthermore, this hearing was not about a controller who found himself in desperate straits, who needed a quick relief break to use the bathroom and who returned as quickly as possible to his post having first taken all possible precautions for his anticipated absence. Mr. Green very simply went for lunch.

There were also several times during the morning when traffic would have allowed him to take a relief break if he had an urgent need to do so. Despite the grievor's claim that he had an urgent need to use the bathroom, he announced to Toronto Air Traffic Control that he was going for lunch before he left the tower. Similarly, in his telephone conversation with Mr. Cooper only 17 minutes after his return to the tower on May 9, the only reason he gave Mr. Cooper for his absence was that he had gone for lunch. He admits that he did not return from his bathroom break before leaving for lunch.

The grievor should have been aware of the fact that as the sole air traffic controller in charge of the tower he must not leave his post unmanned except when there was no traffic and then only for urgent "relief" needs which have in the past been interpreted as "bathroom" needs. Despite the fact that the relief policy document was not in the tower cab that day, he showed that he was well aware of the policy itself.

The grievor described in detail how he had soiled himself on the way to the bathroom and had to wash out his underwear and put it in his truck before going for lunch. When he spoke to Mrs. Shelsted on his return to the tower he told her that he had gone for lunch, making no mention of any other personal emergency or other indisposition. What appeared to be uppermost in the grievor's mind as the reason for absenting himself from the tower then as earlier was having lunch.

The grievor justified his action in leaving for lunch, despite the fact that there was traffic in his zone, by indicating that a former manager of his by the name of Mr. Cubitt had orally told him that the written policy, which was extant in his day, could be interpreted as meaning that relief breaks could be taken during "minimum" traffic periods and not restricted to times when there was no traffic. Mr. Cubitt was not called to testify. However, Mr. Green has had subsequent managers who issued their own memoranda on the matter of relief breaks which restricted them to times when there was no traffic. Mr. Green agreed that he had not been told by either of these two more recent managers that he could disregard their precise written instructions.

In any case, Mr. Green took a lunch break, not just a "relief" break per se. He stated that he was developing a headache and needed food. It has been known for a number of years that controllers can be expected to work alone on occasion. He made no provision for such an eventuality by bringing lunch or having an emergency supply of food at work. He did not try to send out for food, or order food in, nor did he even bring his food back to the tower to be warmed in the microwave there. Indeed, he ordered the special of the day in the restaurant, sat down and ate it and then returned to the tower. On his return he entered the reception area and told the clerk, Mrs. Shelsted, that he had gone for lunch and made a sign above his head to indicate flying aircraft as he said: "With airplanes flying all over the place". Whatever Mr. Green was feeling, concern for the flying public was not uppermost in his mind.

The grievor's position was that he had it in his mind that it was permissible for him to leave the tower for lunch because Mr. Larivière had been authorized to do so in July 1994. In support of Mr. Green's position, Mr. Larivière testified that Mr. Green had told him this and submitted his personal notes of May 12 to substantiate this (Exhibit G-21). The truth of this evidence is clearly belied by tower tapes played at the hearing which record a telephone conversation between Mr. Green and Mr. Larivière on May 15. Nothing could be clearer than Mr. Green's own words expressing his astonishment that Mr. Larivière had been given permission to leave for lunch. Furthermore, there were a number of factors which made Mr. Green's case and Mr. Larivière's very different.

Leaving the tower unmanned during advertised hours while aircraft were actively using it is a grave misdemeanour warranting discharge. I have considered all the mitigating factors suggested by counsel for the grievor and must find that they are insufficient to mitigate the penalty of discharge.

The grievor's counsel urged me to find that this isolated incident in Mr. Green's long 23 to 24-year career as a controller was unlikely to ever occur again. I wish I could believe that that would be the case.

Considering the grievor's good record and long service I searched the evidence for signs of remorse or appreciation of the implication of his actions. In fact, after the event he continued to justify and minimize his actions in his interview with Mr. Cooper on May 16 and at the hearing. Although he did say in his interview with Mr. Cooper that he was "sorry for all the stuff that was happening", other evidence suggests that even at the hearing he did not understand the gravity of his actions on May 9 (Exhibit E-22). He expressed his aggrievement against Mr. Cooper for talking about him the way he did when "he only failed to do one thing". In his view, Mr. Cooper had "overreacted".

It was suggested that there was a history between Mr. Green and Mr. Cooper and that this had somehow motivated the latter's decision to discharge the grievor. The only evidence introduced in this matter was of a remark made "in one fashion or another" alleged to have been made in 1987 or 1988 in North Bay without any real context being given. In the light of Mr. Cooper's denial and in light of the fact that it was his unchallenged evidence that he was working on Toronto Island at the time, I give little weight to this evidence. In any case, there are ample facts to justify Mr. Cooper's decision to discharge.

In these circumstances, the employer's position that the bond of trust between it and Mr. Green is irretrievably broken is not unreasonable. The evidence cannot support a finding on my part that the employer's decision to discharge Mr. Green is unreasonable, such as to allow me to set aside its decision.

The grievance is denied.

[3]      Mr. Green applied to the Trial Division of this Court for judicial review of the adjudicator's decision. It was argued for Mr. Green that the adjudicator failed to properly apply the principle from Browne v. Dunn (1893), 6 R. 67 (H.L.) and thus erred in her findings on the credibility of two witnesses. The Judge rejected that argument.

[4]      It was also argued for Mr. Green that the adjudicator erred in her application of the principles of corrective and progressive discipline by using her finding that Mr. Green lacked remorse to justify more severe discipline than would otherwise be appropriate, and by failing to give due weight to Mr. Green's work record and the consequences of dismissal.

[5]      In a decision dated July 8, 1997, the Judge set aside the adjudicator's decision and referred the matter back to a different adjudicator "to determine the appropriate penalty, taking into consideration the principles of corrective and progressive discipline, and the reasons for this decision": Green v. Canada (Treasury Board) (1997), 134 F.T.R. 108 at 116.

[6]      The employer appeals the decision of the Judge. Mr. Green cross-appeals with respect to the application of Browne v. Dunn.

Employer's appeal

[7]      In a judicial review of the decision of an adjudicator under the Public Service Staff Relations Act, the appropriate standard is patent unreasonableness: Barry v. Canada (Treasury Board) (1997), 221 N.R. 237 (F.C.A.), applying United Brotherhood of Carpenters and Joiners of America, Loc. 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316. Thus, the adjudicator's decision must stand unless it is "clearly irrational, that is to say evidently not in accordance with reason" (per Cory J. in Canada (A.G.) v. P.S.A.C., [1993] 1 S.C.R. 941 at 963-4).

[8]      A decision may be patently unreasonable if, for example, it is unsupported by evidence or if it is based on unsound reasoning. However, a decision is not patently unreasonable merely because it is based on evidence that is weighed one way when it might have been weighed another way, or because the reasons given for the decision do not discuss every point that might be argued. The question here is whether the Judge correctly applied the "patently unreasonable" standard of review to the adjudicator's decision.

[9]      The Judge vacated the adjudicator's decision because she did not address Mr. Green's long and untarnished work record, or the ramifications to him of dismissal, as possible justification for corrective discipline rather than the penalty of dismissal. The Judge characterized this omission as a failure to consider relevant evidence and as an error of law that led to a patently unreasonable decision.

[10]      A preliminary question arises as to whether Mr. Green's work record could correctly be described as "untarnished". There is a 1994 adjudicator's decision relating to a prior grievance by Mr. Green regarding disciplinary action taken against him. Counsel for the employer indicated that the 1994 decision was before the adjudicator in this case. However, it was not in the record before the Judge, nor was its existence disclosed to him.

[11]      There is no reference on the adjudicator's reasons to the 1994 decision, and no indication that she relied on it in arriving at her decision. For the period relevant to this case, Article 7 of the Collective Agreement between the Treasury Board and the Canadian Air Traffic Control Association required a notice of disciplinary action against an employee to be removed from the employee"s personnel file where two years had elapsed since the disciplinary action was taken, if no further disciplinary action was recorded during that two year period. It was suggested that because of this provision, evidence of prior disciplinary action is not placed before adjudicators except for the purpose of impeaching the credibility of a witness.

[12]      It is clear from the adjudicator's reasons that she was aware of the length of Mr. Green's service and the positive aspects of his work record. She referred to the submission of Mr. Green's counsel that this incident was "an isolated incident in Mr. Green's long 23 to 24-year career as a controller" and to Mr. Green's "good record and long service". Therefore, the Judge erred when he found that these factors were ignored.

[13]      It is equally clear that the adjudicator did not accept that the length or quality of Mr. Green's work record outweighed the egregiousness of the abandonment of his post for 35 minutes. The weighing and balancing of opposing considerations is a task that is squarely within the expertise and jurisdiction of the adjudicator. Her treatment of Mr. Green's employment record discloses no error that warranted intervention by the Judge.

[14]      As to whether the adjudicator erred in not addressing the ramifications of dismissal, counsel for Mr. Green refers to the following comments from D.J.M. Brown and D.M. Beatty, Canadian Labour Arbitration, 3^rd ed., (Aurora: Canada Law Book Inc., 1999) at 7:4426:

Perhaps reflecting the severe economic conditions of the day, arbitrators have relied on the serious economic hardship which for certain employees would likely accompany their termination as a basis for substituting some other penalty in the place of a dismissal. Not surprisingly, such considerations seem to have been utilized more frequently in periods of high unemployment, particularly in the case of more mature workers, females and members of minority groups, who otherwise have had long and exemplary service records. At least one arbitrator has held that discharge of an employee 18 months from pension entitlement, and its attendant economic hardship, was a mitigating factor. [footnotes omitted]

[15]      Counsel for the employer does not say that such considerations are never relevant. His objection to this aspect of the Judge's decision is more basic. He says, and counsel for Mr. Green does not deny, that this point was not argued before the Judge. Counsel for the employer says that if he had known that the Judge would find as a fact that Mr. Green would be unable to find work as an air traffic controller, and would then use that conclusion as part of the basis for his decision, he would have sought leave to adduce evidence on the point. On the other hand, counsel for Mr. Green argues that it was appropriate for the Judge to take judicial notice of the fact that there is only one employer for air traffic controllers in Canada.

[16]      I agree with counsel for the employer that the Judge should not have found that the adjudicator erred on an issue on which no evidence was adduced and that was not argued in the adjudication or in the judicial review.

[17]      An important basis of the decision of the Judge is his conclusion that the adjudicator erred in failing to refer to the possibility of corrective or progressive discipline. Related to this point is the argument made for Mr. Green, that the adjudicator used Mr. Green's lack of remorse to justify a greater penalty than should have been applied.

[18]      On this point, counsel for Mr. Green referred to this excerpt from Brown and Beatty (cited above) at 7:4420:

The theory of progressive discipline, evolving from the duty to warn an employee of the seriousness with which the employer views her employment record, is simply one manifestation of the recent arbitral recognition of the correction theme underlying industrial discipline. Very simply, by progressively increasing the severity of the discipline imposed for persistent misconduct it is expected that the employee will be given some inducement and incentive to reform her conduct. Very simply, by progressively increasing the severity of the discipline imposed for persistent misconduct it is expected that the employee will be given some inducement and incentive to reform her conduct. As one arbitrator has put it:

One of the advantages to adopting a corrective disciplinary approach is that it enables the parties to know where they stand with each other. An employee who is subjected to corrective discipline knows that after receiving a warning he may receive a suspension and that after a suspension he may be discharged if he repeats an offence.

The theory has also been accepted as an appropriate principle for application in dismissals that are being reviewed under the Canada Labour Code which provides that an employer may not discharge an employee without just cause.

[...]

This emphasis on the rehabilitative potential of the grievor seems particularly compelling in those instances when the arbitrator is satisfied that the employer's interest in protecting the integrity of its service can be satisfied by some sanction other than the dismissal of the employee in question... [footnotes omitted]

[19]      Counsel for the employer referred to the following excerpt from the same text, in the same paragraph, immediately following the previous quotation:

Conversely, where arbitrators can imply, from the grievor's refusal to admit to a true statement of what must have been the facts, or from refusal to acknowledge the wrongfulness of his conduct, [. . .], what they conceive to be a lack of rehabilitative potential, they have relied upon that as a factor in determining not to exercise their discretionary powers to modify the discipline imposed.

While many arbitrators now accept the idea that the rehabilitative theory of industrial discipline implies that the termination of an employee for just cause requires a finding that "the employment relationship has been so fundamentally breached as to render it devoid of any possible future viability", arbitral opinion is divided as to whether the theory may, in appropriate circumstances, "call for a remedial programme of discipline designed to reintegrate the employee into the workforce to his fullest potential"... [footnotes omitted]

[20]      Given this explanation of the principle of progressive or corrective discipline, a decision upholding a dismissal is not patently unreasonable if the evidence before the adjudicator is capable of supporting the conclusion that the employment relationship is fundamentally breached and there is no rehabilitative potential.

[21]      In this case the adjudicator was not persuaded that Mr. Green's behaviour would not be repeated. She searched for evidence of remorse or appreciation of the gravity of his actions, and found none. She found instead that Mr. Green continued to minimize and justify his actions. Then the adjudicator concluded that "the employer's position that the bond of trust between it and Mr. Green was irretrievably broken is not unreasonable".

[22]      Reading the adjudicator's reasons in their entirety, there can be no doubt that she considered this to be a case where there was a serious breach of an important policy of public safety by an employee who lacked rehabilitative potential. I am unable to agree with the Judge that the adjudicator erred in failing to address specifically the possibility of corrective or progressive discipline.

[23]      Nor can I accept the argument of counsel for Mr. Green that the adjudicator improperly used "lack of remorse" as a factor that aggravated the penalty: College of Physicians and Surgeons of Ontario v. Gillen (1993), 13 O.R. (3d) 385 (Ont. C.A.). As I read the adjudicator's decision, she found that his actions warranted discharge and then looked for mitigating factors, one of which would have been remorse, but found none.

[24]      For these reasons, the employer's appeal should be allowed.

Mr. Green's cross-appeal

[25]      Browne v. Dunn stands for a rule of evidence that where the credibility of a witness is to be impeached by evidence that contradicts his testimony, the witness must be given a fair opportunity to explain the discrepancy. This is a rule grounded in fairness and reason. Its application depends upon the circumstances of the case. The trier of fact is always entitled to disbelieve or reject any evidence that is presented (J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2^nd ed., (Toronto: Butterworths, 1999) at 954-957).

[26]      Browne v. Dunn was invoked in this case in relation to the evidence of two witnesses, Mr. Larivière and Mr. Turner. Both were called as witnesses for Mr. Green.

[27]      The evidence of Mr. Larivière, an air traffic controller, was intended to support Mr. Green's position that on July 9, 1995, the date he left the tower unmanned, he was aware that Mr. Larivière had a similar experience on July 23, 1994. On that day Mr. Larivière was on duty at the Sudbury Tower by himself when his manager, Mr. Eastaugh, gave him permission to take a lunch break. He told Mr. Green about this incident sometime after it occurred.

[28]      After Mr. Larivière gave evidence, the adjudicator heard a taped conversation between Mr. Green and Mr. Larivière on May 15, 1995. The adjudicator interpreted the taped conversation as evidence that it was only on May 15, 1995 that Mr. Green learned of the July 23, 1994 incident involving Mr. Larivière.

[29]      To counter that evidence, Mr. Larivière was recalled. He produced his personal file notes describing a conversation on May 12, 1995 between Mr. Larivière and Mr. Green. The notes said, "Remembered that Eastaugh told R.L. to take a reasonable break in the same situation." Mr. Larivière was not cross-examined. Counsel for Mr. Green argued that, because Mr. Larivière was not cross-examined, the adjudicator should not have found his notes to be wrong.

[30]      This is not a situation that required the application of the rule in Brown v. Dunn. In determining the state of Mr. Green's knowledge on May 9, 1995 when he left the tower for lunch, the adjudicator was entitled to consider the taped conversation to be more reliable than Mr. Larivière's notes.

[31]      Counsel for Mr. Green also argued that Browne v. Dunn applies to the evidence of Mr. Turner, another air traffic controller, who was called to give evidence of animosity between Mr. Green and Mr. Cooper. Mr. Turner recalled a conversation with Mr. Cooper in 1987 or 1988 in which Mr. Cooper said that in one fashion or another he would get even with Mr. Green. Mr. Turner could not recall how the subject came up or whether the conversation was overheard. He had no knowledge of any background interactions between Mr. Green and Mr. Cooper. The subject of Mr. Green never came up again. Mr. Turner was not cross-examined. Mr. Cooper, who gave evidence for the employer before Mr. Turner was called, denied that he had told Mr. Turner that he would get even with Mr. Green.

[32]      The adjudicator did not find that Mr. Turner was untruthful. She merely gave his evidence little weight, noting that even if it had indicated some past animosity, there were ample facts to justify Mr. Cooper's decision to discharge Mr. Green. Brown v. Dunn does not preclude the adjudicator from reaching that conclusion.

[33]      For these reasons, the cross-appeal should be dismissed.

Conclusion

[34]      The appeal should be allowed and the cross-appeal dismissed with costs. The order of the Judge should be set aside and an order made dismissing the application for judicial review. It follows that the decision of the adjudicator is restored.

                                     Karen R. Sharlow

                                

                                         J.A.

"I agree

     Joseph T. Robertson"

"I agree

     Marshall Rothstein"