FPSLREB Decisions

I. Complaint before the Board

1 On April 26, 2006, David Babb (“the complainant”) filed the following complaint against the Canada Revenue Agency (CRA or “the respondent”) with the Public Service Labour Relations Board (“the Board”):

That I have been disciplined (see letter dated March 27/06) by Gary Gustafson (director and employer Co-chair OSH) for acting in accordance to [sic] my rights and obligations as an employee under the Canada Labour Code.

2 As corrective action, the complainant requested the following: “… Rescind disciplinary Action… etc.”

3 The complainant forwarded to the Board a copy of the disciplinary letter dated March 27, 2006, and signed by Gary Gustafson, Director, Ottawa Technology Center, CRA, referenced in the complaint. It reads as follows:

…

At our Occupational Safety and Health (OSH) February 2006 meeting you raised the issue of wrong/erroneous minutes of the August 2005 meeting being posted on the OTC web site, which allegedly differed considerably from the final agreed minutes. Subsequent to the OSH meeting, you met with me, at which time you further alleged employees came to you stating that they overheard managers talking about doctoring the OTC OSH minutes. As a direct result of the seriousness of your allegations, I requested Donna Martineau, a Senior Labour Relations Consultant in the Region and Chris Aylward, Regional VP-UTE to investigate your allegations of potential wrong doings by management and the posting of wrong/erroneous minutes.

At the investigation meeting, you repeatedly said you “raised a concern” about the OHS minutes that were posted on the web site, minutes that were forwarded to Corporate OHS and the official minutes agreed upon as opposed to the allegation of wrongdoing by management. It was determined that there were discrepancies in what was agreed to by the Co-chairs and the minutes that were actually posted. However, it was further determined that at the time the minutes were posted on the OTC web site a mistake had been made in that the initial draft of the minutes were inadvertently forwarded for posting.

It is paramount to have an optimal Employee/Union/Employer relationship built on trust, professionalism and mutual respect and I believe that you must play a significant role in achieving this required relationship. At the time of the disciplinary hearing, your explanations varied, were inconsistent and lacked credibility. I have taken into consideration your employment record, your union affiliation and your Union role in representing UTE members, however, these elements do not mitigate the seriousness of your misconduct. Your actions and behaviour are unacceptable and cannot be further tolerated.

Furthermore, you demonstrated a lack of professionalism and respect towards management by making allegations that you would not substantiate during the investigation nor at the disciplinary hearing and I find that you failed to be forthright in your dealings with me. In addition, it is my opinion that you lacked transparency and embellished your story and by consequence made a vexatious complaint towards management, thereby hindering the Union/Management relationship required to instill and ensure good relations. Your actions as described above, infringe the CRA Code of Ethics and Conduct and are in contradiction with the Agency core values.

Accordingly, this letter constitutes a written reprimand and a copy will be placed on your personnel file for a period of two years provided that no further disciplinary action has been recorded during this period.

In the future, should you fail to adhere to the CRA Code of Ethics and Conduct, you could be subject to more severe disciplinary action up to and including termination of your employment.

You have the right to grieve this decision within 25 days of receipt of this letter.

Please acknowledge receipt of this letter by signing the attached duplicate copy.

…

4 On July 14, 2006, the Board received notice from the respondent that the parties had agreed to a “settlement in principle” of the dispute. Within the next few months, the Board wrote three times, to the complainant’s bargaining agent, the Public Service Alliance of Canada (PSAC), asking each time for an update on the status of the matter. The Board received no responses. On September 12, 2007, the Board wrote to the parties and asked them if the file should be closed and if not, if the parties preferred to deal with the complaint at an oral hearing or through written submissions. After examining the responses, it became clear to the Board that no agreement had been reached on the case. The Board then decided that an oral hearing would be necessary.

II. Summary of the evidence

5 The complainant tabled 17 documents, 11 being various versions of the minutes of Workplace Health and Safety Committee (WHSC) meetings. The complainant’s representative called as witnesses Denis St-Jean, National Health and Safety Representative, PSAC, Chris Aylward, Regional Vice-President, National Capital Region, Union of Taxation Employees (“the UTE”), and the complainant himself. For the respondent, six documents were tabled. The respondent’s representative called as witnesses Gary Gustafson and Donna Martineau, Senior Technical Advisor, Labour Relations Consultant, CRA.

6 The first witness for the complainant, Mr. St-Jean, is an expert in workplace health and safety. He has been a national representative in that field for PSAC for the past 15 years. In his role, among other things, Mr. St-Jean sits on bipartite and tripartite forums mandated to develop policy and regulatory changes to workplace health and safety legislation and regulations. He has in-depth knowledge of Part II of the Canada Labour Code (“the Code”), and its provisions, and he participated in its last review. In his role as a national representative, Mr. St-Jean also provides training to and advises union representatives that sit on local WHSCs.

7 Mr. St-Jean described the role of the union representatives and the co-chair that sit on local WHSC. Their role is spelled out in the legislation. They collect information and concerns from employees relating to workplace health and safety. They also perform workplace inspections and investigate complaints and accidents. In addition, the union co-chair assumes a leadership role over the other union representatives. The union co-chair is responsible along with the employer co-chair for preparing the minutes of WHSC meetings.

8 Mr. St-Jean explained that the minutes of the meetings are a footprint of what was raised. They are the key source of information for determining how the parties dealt with an issue. Mr. St-Jean stated that the Code obliges the parties to keep accurate records. Normally, at a WHSC meeting, someone takes notes and prepares a first draft of the minutes. The draft is then circulated to committee members for comments. The two co-chairs consolidate the changes and ultimately sign the minutes. They ensure that the minutes reflect the respective positions of the parties if there is no consensus. After the minutes have been approved, they are posted in the workplace to keep everyone informed of the progress or lack of progress on issues. The minutes also provide a profile of the committee’s success and the results it achieves.

9 The complainant was the second witness. He stated that began working for the CRA as a maintenance and machinery technician in 2002. After his technician position was abolished, he was appointed to a clerical position in 2005. The complainant has a disability, an environmental illness called chronic chemical neurotoxicity. He was injured in a workplace accident and came to realize how little he knew about workplace heath and safety. He developed an interest in it and got involved in the local WHSC at his workplace. He became a member in 2004, and later that year he became the WHSC co-chair. To deepen his knowledge, the complainant took several health and safety courses from the Union of Taxation Employees, the PSAC and the Ontario Federation of Labour.

10 The complainant explained the role of the WHSC, which is outlined in Part II of the Code. He also testified on the role of committee co-chairs. They have to ensure that the committee runs effectively and that it meets its legislative and regulatory mandates. The co-chairs also coordinate the work of their fellow committee members. The WHSC meets about 10 times a year, and minutes of the meetings are taken. The two co-chairs are responsible for ensuring that the minutes reflect what took place at WHSC meetings.

11 The complainant explained the process by which WHSC minutes are prepared. The secretary prepares a first draft of the minutes from the notes he or she took at the meeting. He or she then sends the draft to the committee’s members who can suggest changes. The two co-chairs meet after the comments are received to agree on the final version of the minutes. A new version is prepared and brought to the next committee meeting for approval by the committee members.

12 The employer has the responsibility of posting the minutes and forwarding them to CRA Headquarters. The minutes are posted on the heath and safety bulletin boards located on every floor of the building. The minutes are also posted on the intranet.

13 According to the complainant, there was a long-standing issue around the content and the posting of the minutes. The complainant found out that the wrong minutes were posted on the intranet for the August 2005 WHSC meeting. Rather than the official minutes, the draft minutes were posted. The union had raised several issues that were not reflected in the draft minutes, and that was of concern to the complainant. He decided to raise it at the February 23, 2006, WSHC meeting. The complainant was preoccupied by the idea that health and safety records and meeting results should be well kept so that employees can be properly informed.

14 The day after the meeting, the complainant met with Mr. Gustafson, the employer co-chair, in Mr. Gustafson’s office. According to the complainant, it was essentially a continuation of the discussions that started at the meeting the previous day. Both co-chairs recognized that they had a long-term problem with minutes of WHSC meetings. The complainant asked Mr. Gustafson if they could have an off-the-record, open and frank discussion on the topic. Mr. Gustafson agreed, and they closed the door. The complainant then talked about management posting the wrong set of minutes. He asked Mr. Gustafson, “What’s going one here?” The complainant also related that in fall 2005, an employee told him to tell him that he had overheard management talking about what they wanted and did not want in the minutes. Furthermore, referring to the errors in the minutes, the complainant asked Mr. Gustafson: “Is it done on purpose?”

15 When the employee talked to the complainant in fall 2005, the complainant thanked him for the information and said that he would look into the matter. The employee did not know who the managers in question were. He asked the complainant to keep his name confidential for fear of reprisals. During the February 24, 2006, meeting, Mr. Gustafson asked the complainant for the name of the employee who overheard management talking about the minutes. The complainant refused to answer the question and to provide the employee’s name.

16 After the meeting, an investigation was begun into the allegation that the complainant had brought to Mr. Gustafson’s attention. At first, the complainant did not return phone calls from Ms. Martineau who was conducting the investigation. On Mr. Aylward’s advice, the complainant agreed to meet with the investigation committee, which was composed of Mr. Aylward and Ms. Martineau. At the meeting, Ms. Martineau read the Discipline Policy and the Code of Ethics. She asked for the name of the employee who told the complainant in fall 2005 about management’s discussion of the WHSC minutes. The complainant refused. There was also a discussion of the exact words that the complainant spoke to Mr. Gustafson on February 24, 2006 on that topic. The complainant did not remember his exact words, and he did not recall when referring to the minutes, using as expressed in the disciplinary letter, the word “doctoring” the minutes.

17 Mr. Aylward was called as a witness for the complainant. He sits on the UTE’s National Health and Safety Committee. He confirmed that he was a member of the fact finding investigation committee that the respondent created to clarify two issues: 1) the posting of the wrong WHSC meetings minutes and 2) the allegation of doctoring the minutes that the complainant brought forward.

18 On the first issue, the fact-finding committee found that the secretary had made a mistake by not sending the right set of minutes for posting. On the second issue, when the complainant was asked for the employee’s name, he said that he would not provide the name to the fact-finding committee. The complainant was more interested in the accuracy of the minutes. Ms. Martineau explained the consequences of not cooperating with the fact-finding committee and the usefulness of revealing the name. The complainant maintained his position and refused to reveal the name.

19 The first witness for the respondent was Mr. Gustafson. Since fall 2003, he has been the director of the CRA’s Ottawa Technology Centre. He has been employed by the CRA and its predecessors since 1975. He is the equivalent of an Assistant Deputy Minister and is responsible for close to 1000 indeterminate employees. The organization chart shows that the complainant, through four levels of management, reports ultimately to Mr. Gustafson. Since June 2005, Mr. Gustafson has been co-chair of the WHSC for the CRA’s 875 Heron Road location in Ottawa. In that respect, he is the equivalent of the complainant regarding the WHSC.

20 Mr. Gustafson has been trained in health and safety matters. He knows the WHSC’s role and the employer’s obligations under Part II of the Code. At first, Mr. Gustafson decided to assume the co-chair function because his predecessors were frustrated that the committee was not effective. He worked on developing terms of reference in collaboration with the complainant and tried to make the committee more effective.

21 Mr. Gustafson had a mostly positive working relationship with the complainant as co-chair. Over time, things became more difficult and challenging because some committee members were very demanding. Mr. Gustafson provided examples to illustrate his opinion.

22 Mr. Gustafson confirmed the complainant’s testimony on the procedure for preparing WHSC meeting minutes. He only added that his initial comments were already included before the draft minutes were sent to the committee members. He confirmed that he and the complainant had to meet to finalize the minutes and that sometimes they were not finalized before the next meeting.

23 Mr. Gustafson remembered the meeting of February 24, 2006, when the complainant related to him that an employee had told him that he overheard managers talking about doctoring the WHSC meeting minutes. He asked the complainant why he had not come to him earlier with that information. The complainant did not answer the question. Mr. Gustafson thought about it overnight and decided that it would be necessary to launch an investigation into the allegation. The next day, he met with Denis Maurice, Head of Staff Relations, and asked him for advice. It was decided that a fact-finding investigation would take place into the allegations that the wrong minutes were posted and that the minutes were being doctored.

24 The conclusion of the fact-finding investigation was that the secretary had made a mistake by not posting the right set of minutes. However, on the second allegation, no new information came to light from the investigation. Mr. Gustafson wanted names of people so that he could address the issue, and no names were given. The complainant refused to cooperate by naming. It was decided together with Staff Relations, that management had no choice but to take disciplinary action against the complainant. His lack of cooperation was unacceptable. His entire story lacked credibility and his explanations were inconsistent.

25 The second witness called by the respondent was Donna Martineau, Senior Technical Advisor, Labour Relations, CRA. She has worked in labour relations for more than 12 years. She also sits on the WHSC as an advisor. Ms. Martineau said that the complainant was asked to cooperate with the fact-finding committee that was created to investigate the allegations made about the WHSC minutes. At first, he did not return her phone calls, but at the end, he agreed to appear in front of the fact-finding committee. The complainant then refused to cooperate with the fact-finding committee by not providing the name of the person who made the allegation that management was doctoring the minutes.

III. Summary of the arguments

A.  For the complainant

26 The complainant asks that the Board issue a declaration that the respondent contravened section 147 of the Code and that it issue an order that the respondent cease contravening that section. Even though the disciplinary letter has been withdrawn from the complainant’s file now that more than two years have passed, the issue is very much alive and not academic in nature.

27 The complainant was disciplined for exercising his rights under Part II of the Code. He reported an issue to the employer co-chair that had been raised with him in confidence by a CRA employee, and the he acted in accordance with paragraph 126(1)(g) of the Code. The employee in question had raised concerns with the complainant about WHSC minutes. The complainant raised the concerns with the respondent, and as a consequence, the respondent disciplined him.

28 The respondent’s allegation of misconduct resulted from the complainant exercising his rights under the Code regarding the WHSC minutes. Under subsection 135.1 (9) of the Code, the committee shall ensure that accurate records are kept and that minutes are kept of its meetings. The concerns that the complainant raised with Mr. Gustafson were about those minutes. The complainant was disciplined because he refused to cooperate with the respondent by not naming the employee who raised the concern. The complainant did not want to provide the name for fear of reprisal against that employee. He simply tried to protect that employee.

29 The respondent, rather than investigate the actions of its representatives, became concerned with the fact that the complainant would not provide the name of the employee who had raised the concern. Faced with the complainant’s refusal to provide the name, the respondent decided to discipline him. In doing so, it retaliated against the complainant for exercising his rights under the Code.

30 The complainant has a passion for and is committed to health and safety issues. When a sensitive allegation about the WHSC minutes was brought to his attention, he did not raise it at the committee meeting, but opted instead to raise it with the employer co-chair during a private meeting. The complainant did not repeat the allegation to anyone else. There were problems with the WHSC minutes and he wanted to know if they were the result of human error or if they were done on purpose. The complainant’s approach was responsible.

31 The complainant’s representative also argued about the lack of procedural fairness during the investigation that led to the disciplinary letter. The respondent’s own discipline policy was not entirely respected. I will not report those arguments, since they are not required for my decision on the merits of the complaint.

32 The complainant’s representative referred me to the following decisions to support her arguments: Ministry of Labour of Ontario v. City of Hamilton (2002), 58 O.R. (3d) 37; Canadian Freightways Limited v. Teamsters Local 31 and Smith (2001), O.H.S.B. Decision No. 01-025; Borowski v. Attorney General of Canada, [1989] 1 S.C.R. 342; Ouimet v. VIA Rail Canada Inc., [2002] CIRB No. 171; Firestone Steel Products of Canada v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 27 (1975), 8 L.A.C. (2d) 164; Shaw v. Deputy Head Department of Human Resources and Skills Development, 2006 PSLRB 125; King and Waugh v. Canada Customs and Revenue Agency, 2005 PSSRB 3.

B. For the respondent

33 This case does not fall under the definition of reprisal. The evidence presented does not support it. It is necessary to distinguish between the existing rights provided by the Code and the behaviour of an employee. This case has to do with the latter. The respondent imposed the disciplinary action because of the employee’s behaviour and not because he exercised a right. The complainant has to prove the opposite which he did not do.

34  On February 24, 2006, the complainant told with Mr. Gustafson, the WHSC co-chair, that an employee had told him that management was “doctoring” the WHSC minutes. Mr. Gustafson did not make any threat toward the complainant. Because of the seriousness of the allegations, he decided to have someone from Labour Relations to launch an investigation into the allegation. The investigation was launched, and the complainant refused to cooperate, as shown by the evidence. He should have known that by bringing such a serious allegation, he would have to back it up. The complainant’s refusal to cooperate was clearly insubordination. That is why he was disciplined, not because he raised a health and safety issue with the respondent.

35 The respondent had no reason to retaliate against the complainant, who had raised an allegation. Its motivation was to get to the bottom of the serious allegation brought up by the complainant. He refused to cooperate during the investigation and at the disciplinary meeting. He had several occasions to cooperate, and he refused. The complainant was insubordinate, and that is why he was disciplined, not because he exercised his rights under the Code.

36 The respondent’s representative also argued that the corrective action must be limited to what is requested in the complaint, which is to rescind the disciplinary action. The disciplinary letter was removed from the file because it was served more than two years ago. There is no longer an issue, because the remedy has already been granted. The complainant is now asking the Board to issue a declaration against the respondent. Such a declaration is not within the Board’s jurisdiction, considering that it was not requested in the complaint. It would mean that the Board would be accepting an amendment to the complaint, which is contrary to the case law.

37 The respondent’s representative also argued about the correctness and the fairness of the investigation that led to the disciplinary letter. She argued that the respondent had respected its discipline policy. I will not report those arguments, since they are not required for my decision on the merits of the complaint.

38 The complainant’s representative referred me to the following decisions to support her arguments: Ouimet v. VIA Rail Canada Inc., [2002] CIRB No. 171; Blakely v. Algoma Central Corporation and Canadian Marine Officers’ Union, [2003] CIRB No. 240; Ridge v. Canadian Pacific Railway Company (1992), 88 di 20 (C.L.R.B.); Gilmore v. Canadian National Railway Company (1994), 96 di 61 (C.L.R.B.); Kucher v. Canadian National Railway Company (1996), 102 di 121 (C.L.R.B.); Rozon et al. v. Treasury Board (Human Resources Development Canada), 2002 PSSRB 30; Vallée v. Treasury Board (Royal Canadian Mounted Police), 2007 PSLRB 52; Burchill v. Attorney General of Canada, [1981] 1 F.C. 109; and Sotirakos v. Canada Customs and Revenue Agency, 2002 PSSRB 38.

IV. Reasons

39 The complainant’s burden in this case is to prove, on a balance of probabilities, that the respondent violated section 147 of the Code, which reads as follows:

      147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

(a) has testified or is about to testify in a proceeding taken or an inquiry held under this Part;

(b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or

(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

40 With the exception of whether the expression “doctoring the minutes” was used, the evidence submitted by the parties was not contradictory. The complainant, in his position as WHSC co-chair, was concerned about the accuracy of the minutes of WHSC meetings. At the February 23, 2006, committee meeting, he mentioned that the August 2005 minutes posted on the website did not match the official minutes. The wrong set of minutes had been posted. The next day, he met with Mr. Gustafson, the employer co-chair, and raised the issue again. The complainant also brought to Mr. Gustafson’s attention, the fact that an employee had overheard management talking about what should appear or not appear in the minutes of WHSC meetings. From the evidence presented by the parties, it is not clear what exactly the complainant said. Did he or did he not use the expression “doctoring the minutes”? The complainant claims that he did not use that expression, and Mr. Gustafson claims that he did.

41 What is clear from their conversation is that the complainant conveyed his preoccupation, based on what he heard from an employee, that the reason that the minutes were not accurate may have been because management intended to alter them or tamper with them. Nothing in the evidence leads me to believe that the complainant accused management of doctoring, manipulating or tampering with the minutes. Instead, the complainant reported to Mr. Gustafson what an employee reported to him. On that, the evidence is not contradictory.

42  Later, during the fact-finding investigation and the disciplinary meeting, the complainant refused to reveal the employee’s name. The respondent considered that his many refusals to reveal the name constituted a clear lack of cooperation and insubordination. For the respondent, this was aggravated by the fact that the complainant did not at first agree to meet with the fact-finding committee and did so only after Mr. Aylward talked to him.

43 From the respondent’s perspective, this is a case of disciplinary action taken against an employee who brought a serious allegation to management’s attention and then refused to cooperate to get to the bottom of it. He accused management of doctoring the minutes WHSC meetings, and he did not cooperate during the investigation that followed. That was insubordination. From the complainant’s perspective, in bringing the allegation to management’s attention, he was exercising his rights under the Code as WHSC co-chair.

44 Under subsection 135(1) of the Code, establishing a WHSC is mandatory in workplaces of more than 20 employees. According to subsection 135(10) of the Code, the WHSC shall meet at least nine times per year at regular intervals. Subsection 135.1 (9) of the Code obliges committees to keep records and minutes of meetings. It reads as follows:

      135.1 (9)A committee shall ensure that accurate records are kept of all the matters that come before it and that minutes are kept of its meetings. The committee shall make the minutes and records available to a health and safety officer at the officer’s request.

45 The Code does not specify who is responsible for ensuring that minutes of meetings are kept. The practice in this case was that the two co-chairs, the complainant and Mr. Gustafson, shared the responsibility. The complainant met with Mr. Gustafson to raise possible wrongdoings with the writing and posting of minutes. He was within his rights, and he was acting in accordance with Part II of the Code in ensuring that correct minutes were kept.

46 The complainant raised his concerns with Mr. Gustafson at a face-to-face meeting in Mr. Gustafson’s office. He did not make a public accusation that management was altering or doctoring the minutes. He neither shared that information with his fellow union colleagues nor raised it openly during the WHSC committee meeting the day before. He simply raised it privately with Mr. Gustafson. The complainant maintained during the process that followed that he could not reveal his source because he had made a commitment to the employee not to. Under the circumstances, he was fully entitled to proceed in the manner that he did.

47 Considering all of this, it is necessary to establish whether the complainant was disciplined for exercising his rights under the Code. As mentioned in Ouimet:

…

[56] The Board’s role is not to determine if the level of discipline was fair, nor even whether the employer had just cause for taking whatever disciplinary action, as an arbitrator would do in a grievance procedure … Its role is to be satisfied that the employer’s action is not tainted with retaliation against the complainant for his role as a co-chairperson of the committee and other related activities.

…

48 In Ouimet, the evidence showed that the complainant was disciplined because he failed to properly perform his duties as an employee and that the disciplinary measure had nothing to do with his function as a WHSC co-chair. In Blakely, the same principle applied. The complaint was dismissed because the complainant did not convince the Canada Industrial Relations Board that his employer retaliated against him for exercising his rights. The same principle and conclusion applied in Ridge. In Gilmore and also in Kucher, the complaints were dismissed since the disciplinary action was imposed because the complainants refused to perform their duties, without reasonable cause.

49 In Rozon, the Public Service Staff Relations Board concluded that the penalty imposed on the complainant seemed too severe but decided not to intervene since it did not have jurisdiction to change the severity of the penalty. In Vallée, the complainant was not able to prove, on a balance of probabilities, that there was a link between the measure taken against him by his employer and the fact that he had exercised his rights under the Code.

50 The Sotirakos case, cited by the respondent, is of a different nature. Ms. Sotirakos grieved a disciplinary action imposed on her by her employer because she had refused to provide substantiating details about a written allegation that she made against an assistant director. The adjudicator concluded that the employer was correct in imposing the sanction considering that the grievor based her accusation on hearsay. There is a clear distinction to be made with this case as it does not relate to the exercise by an employee of his or her rights under the Code or under any other legislation.

51 The complainant’s representative cited the Ontario Ministry of Labour and Canadian Freightways Limited to establish that workplace health and safety legislation should not be interpreted in a narrow and technical manner. Firestone Steel Products of Canada and Shaw were also cited to establish that the standard of conduct to be expected from a union representative while performing his or her union functions is different from what is expected from an employee. It is noted that the latter two cases have nothing to do with exercising rights under the Code.

52 In King and Waugh, the complainants, both union representatives, were disciplined for refusing to obey repeated orders from the employer demanding that they destroy a document that they sought to introduce at a WHSC meeting. The Public Service Staff Relations Board allowed the complaint and wrote the following in its reasons:

…

[105]  The evidence showed that the employer suspended the complainants because they would not destroy a document. Both complainants, acting as health and safety committee members, had every right to bring items forward to the OSH Committee. What was the purpose of the Committee? Section 135 (1) of the Code states that the purpose of the committee was to address “…health and safety matters that apply to individual work places”. By ordering the destruction of these documents, which according to the evidence did not contravene section 107 of the Customs Act, the complainants were prevented from addressing these health and safety concerns using this data, and a violation of The Code occurred.

…

53 In King and Waugh, the respondent argued that the disciplinary sanction was imposed for misconduct, namely a refusal to obey an order. For the respondent, there was no element of bad faith, and it tried several times to get the employees to comply before it embarked on a course of discipline. It was a case of insubordination, nothing more and nothing less.

54 There are differences between King and Waugh and this case, but there are also many similarities. The complainant in this case refused to reveal to management the name of an employee rather than refusing to destroy a document. The complainants in King and Waugh were disciplined for refusing to obey an order. The complainant in this case was disciplined for not cooperating with an investigation and repeatedly refusing to reveal a name. As for Mr. King and Mr. Waugh, the disciplinary action resulted from their actions and behaviours as union health and safety representatives.

55 There is no doubt from the evidence submitted that disciplinary action was taken against the complainant following an action, which was a declaration that he made to Mr. Gustafson in his role and function as the WHSC co-chair. He wanted to ensure that accurate minutes of the WHSC meetings were kept. In asking for that, he was exercising his rights under the Code.

56 From what I heard at the hearing, I conclude that the complainant is an honest person who is very dedicated to workplace health and safety. I believe that he acted in good faith when he met with Mr. Gustafson to raise his concerns about what he had been told by an employee. The evidence did not show that he claimed that management was doctoring the minutes. He simply raised it in a “face-to-face” informal meeting with Mr. Gustafson. He had a legitimate preoccupation about the accuracy of the minutes. In doing so, he was trying to enforce subsection 135.1(9) of the Code, as he was entitled to do as the WHSC co-chair. The complainant was under no obligation to disclose the name of the employee during the course of the investigation. It became nearly impossible for management to identify the faulty managers, if there were any, without having the name of the witness who overheard them talking. However, that did not give management the right to take action against the complainant.

57 The respondent raised two other interrelated issues. The first has to do with the doctrine of mootness and the second with the corrective action requested by the complainant.

58 The respondent argued that the disciplinary letter had already been removed from the complainant’s file since more than two years had passed. There is no longer an issue, and the case can be said to be moot. In Borowski, the Supreme Court of Canada wrote the following on the doctrine of mootness:

…

15.  The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

16.  The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

…

59    I do not accept the respondent’s mootness argument. My decision will have the practical effect of resolving some controversy that affects or that may affect the rights of the parties. Also, the decision is not purely academic in nature. It meets the criteria of the “live controversy test”. Although it is true that the letter of reprimand has been removed from the complainant’s file, it is still relevant and at issue that I establish whether the disciplinary action resulted from the complainant exercising his rights under the Code. That will be of great assistance as a guideline for the parties in their future relationship regarding health and safety matters. The issues and preoccupations will continue to be raised in the parties’ workplace, and disputes between the parties will probably arise in the future.

60    Finally, I find that I have jurisdiction to issue a declaration that the respondent violated section 147 of the Code by taking disciplinary action against the complainant, and to order the respondent to cease contravening section 147. Had the letter of reprimand still been in the complainant’s file, I would have ordered it rescinded. The basis for that decision would have been the finding that the action of the employer was unlawful. The letter of reprimand no longer exists, not because of an order of this Board, but because it has expired. Nevertheless, the finding still remains. I believe a declaration is in order, to affirm the complainant’s rights, in keeping with the intent of the Code.

61    Accepting this alternate remedy does not contradict the principle established in Burchill. In that case, the Court ruled that a grievor cannot amend his or her grievance after it has been referred to adjudication. In the instant case, the Board is hearing a complaint. This is not the case of a grievance having gone to the final level and then being referred to adjudication. Bringing a complaint to the Board is the only process open to someone who wishes to challenge the employer under section 133.

62 Moreover, I do not agree that the complainant has amended the complaint, but rather, he has suggested an appropriate remedy, considering the fact that this hearing took place more than 24 months after the disciplinary measure was imposed.

63    In Vallée, the Board proposed four criteria for allowing a complaint.

64. Thus, the complainant would have to demonstrate that:

a) he exercised his rights under Part II of the CLC (section 147);

b) he suffered reprisals (sections 133 and 147 of the CLC);

c) these reprisals are of a disciplinary nature, as defined in the CLC (section 147); and

d) there is a direct link between his exercising of his rights and the actions taken against him.

64    In this case, the complainant exercised his rights under the Code, suffered reprisals of a disciplinary nature and established on a balance of probabilities that there was a direct link between exercising his rights and the action taken against him.

65    In conclusion, the complainant was a victim of unlawful reprisals under section 147 of the Code when he was disciplined on March 27, 2006. The respondent was prohibited from imposing such disciplinary action on the complainant.

66    For all of the above reasons, the Board makes the following order:

V. Order

67    The complaint is allowed.

68    The Board declares that the respondent, the Canada Revenue Agency, has violated section 147 of the Code.

69    The Board orders the respondent, the Canada Revenue Agency, to post this decision on all of its health and safety bulletin boards at 875 Heron Road in Ottawa, Ontario, for a minimum of two months, as well as on the intranet.

June 2, 2008.

Renaud Paquet,
Board Member