FPSLREB Decisions

Issues before the adjudicator

1 On February 15, 2010, I rendered 2010 PSLRB 24 for a grievance filed by Taylor Wentges (“the grievor”) against the Department of Health (“the respondent”). In that decision, I allowed the grievance in part, and I ordered that the termination of employment imposed on the grievor by the respondent be replaced by a 30-day suspension. In the order section of the decision, I wrote as follows:

…

104    PSLRB File No. 566-02-2813: the grievance is allowed in part. The termination is replaced by a 30-day suspension deemed starting on March 9, 2009.

105    I order the respondent to reinstate the grievor in his former position within three weeks of this decision and to begin to pay him salary and benefits starting immediately.

106    If the parties are unable to agree on the issue of retroactive compensation within 60 days of this award, a hearing will be scheduled to decide the issue.

107    I will remain seized for a period of 90 days to intervene should any difficulties arise in implementing this decision.

2 As ordered, the grievor has been reinstated to his former position, and the termination was replaced by a 30-day suspension. However, a one-day hearing on the issue of remedy proved necessary.

3 At the hearing I was advised that, on April 9, 2010, the grievor received the retroactive pay that the respondent owed him. I was also advised that the respondent has begun discussions with the administrator of the Public Service Health Care Plan (PSHCP) to obtain retroactive coverage for the grievor, which would allow him to submit a claim for pharmaceutical expenses that he incurred while not employed. The respondent has committed itself to directly reimbursing the grievor should the administrator of the PSHCP refuse to retroactively cover him. 

4 The grievor also claimed interest on the retroactive wages owed him at an annual rate of 3 percent. The respondent opposed that claim. In the alternative, it submitted that any interest payable should be at the Bank of Canada rate, which was 0.75 percent for March 2009 and 0.50 percent for the other months. The grievor also claimed that the respondent should reimburse him $1350 for the disbursements that he incurred to obtain a second mortgage on his house due to the absence of wages after he was terminated. The respondent also opposed that claim on the basis that the grievor had not made any effort to mitigate his damages.

5 The grievor further asked that the respondent write him a letter of apology for the way in which he was treated. He also asked that management representatives involved in his termination be trained on how to apply the Treasury Board policy on discipline. The respondent opposed that request on the basis that its representatives acted in good faith when they terminated the grievor. 

6 In addition, the grievor asked that his personal file be expunged of any reference to the termination of his employment. The respondent agreed in part with the grievor’s request. It undertook to remove the termination documents from the grievor’s file and replace them with a copy of 2010 PSLRB 24 to preserve a record of the 30-day suspension. The grievor was satisfied with the respondent’s proposal. However, he indicated that he would prefer that the adjudicator order the respondent to implement its proposal.   

7 The grievor finally asked that the adjudicator provide some direction or guidance to the respondent to improve his working conditions. The grievor claims that he has experienced difficulties since his return to work. The respondent opposed that request and indicated that it finds it unnecessary because those difficulties have been resolved.

8 With the exception of the grievor’s claim for retroactive health benefits, the respondent argued that I do not have jurisdiction to grant the grievor’s requests because those requests do not deal with compensation. The scope of this hearing is limited deciding what retroactive compensation, if any, is owed to the grievor in accordance with my decision in 2010 PSLRB 24. 

9 The grievor argued that I have jurisdiction to grant all his requests and that the hearing is not limited to retroactive compensation. He based his argument on paragraph 101 of 2010 PSLRB 24, which reads as follows:  

101    On the question of other remedies, the grievor also asked for pharmaceutical expenses, professional membership fees, compensation for lost opportunities, compensation for financial hardship and interest on all. The grievor did not produce any evidence that would justify accepting his request. The employer did not make any representation on retroactive salary and benefits that should be paid to the grievor in case of reinstatement. Considering the above, I need to hear further representations from the parties before making a decision on other remedies.

10 The grievor also argued that, according to the Public Service Labour Relations Act and to the case law, an adjudicator has the authority to grant all the remedies that he is requesting. In support of his arguments, the grievor referred me to the following decisions: Chénier v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 27; Lo v. Treasury Board (Treasury Board Secretariat), PSSRB File No. 166-02-27825 (19980514); Katchin v. Canadian Food Inspection Agency, 2003 PSSRB 24; and Lloyd v. Canada Revenue Agency, 2009 PSLRB 15.

Reasons

11 It is clear from paragraph 106 of 2010 PSLRB 24 that the scope of this hearing is to decide what the grievor should be paid for retroactive compensation. The grievor has already been paid retroactive wages. With the exception of health care benefits, no issue was raised at the hearing about retroactive benefits. For those benefits, the respondent has been in contact with the administrator of the PSHCP to reinstate the insurance retroactively, and if benefits cannot be reinstated, the respondent has agreed to reimburse the grievor the amount that the plan would have reimbursed him.

12 The grievor asked for interest on his retroactive wages. He also asked to be reimbursed $1350 for the disbursements that he was required to make to obtain a second mortgage on his house. I reject those claims, even though I recognize that the termination could have imposed financial hardship on the grievor. As stated at paragraph 35 of 2010 PSLRB 24, the grievor himself admitted that he did not make any efforts to find other work and to mitigate his damages. Even though the respondent was aware of that fact, it agreed to pay him all retroactive wages. In that context, I will exercise my discretion under the Act and not order the respondent to pay interest or to assume the claimed disbursements.

13 Nothing in 2010 PSLRB 24 or in the evidence adduced for that hearing leads me to believe that the respondent acted inappropriately or in bad faith when it terminated the grievor in 2009. The respondent believed that it had cause to terminate the grievor, considering his prior disciplinary record. There are therefore no reasons for me to order the respondent to train its managers to manage discipline and to order that it send a letter of apology to the grievor.

14 The grievor asked that his personal file be expunged of all references to the termination. In response to that request, the respondent agreed to remove the termination documents and replace them with decision 2010 PSLRB 24. The employer’s response satisfied the grievor. Despite the fact that this issue does not strictly involve compensation, I do consider that I have the authority to give effect to the agreement of the parties.

15 Finally, the grievor asks that I provide direction to the respondent to improve his working conditions. I already made some minimal suggestions at paragraphs 95 and 98 of 2010 PSLRB 24. It is inappropriate for me to go further and get involved in that dimension of the employment relationship, and such matters are more appropriately the subject matter of new grievances.

16 After my decision in 2010 PSLRB 24 was rendered, the parties advised me that a portion of the reported testimony was somewhat inaccurate. At paragraph 38, instead of reading: “In July 2008, Mr. Klassen also told Mr. Coburn that his one-man project was to get rid of the grievor,” it should have been the following: “In July 2008, Mr. Klassen also told Mr. Coburn that Mr. Neufeld’s one-man project was to get rid of the grievor.” As no issue turns on this fact, I will set the issue aside.

17 For all of the above reasons, I make the following order:

Order

18 The respondent will pursue its discussion with the administrator of the PSHCP to obtain retroactive health benefits for the grievor. 

19 If the respondent does not obtain retroactive health benefits for the grievor, it shall reimburse the grievor for the pharmaceutical expenses for which he would otherwise have been reimbursed.

20 The employer will remove all termination documentation from the grievor’s personal file and will replace them with a copy of 2010 PSLRB 24 within 30 days of this decision.

21 I reject all other claims made by the grievor at the hearing.

22 I will remain seized for 90 days to intervene should any difficulties arise in implementing this decision.

May 4, 2010.

Renaud Paquet,
adjudicator