FPSLREB Decisions

Heard at Ottawa, Ontario,
March 24 to 27, 2015.

REASONS FOR DECISION

I. Introduction

1        The grievors, Shiv Chopra and Margaret Haydon, judicially reviewed my decision on their grievances against their suspensions and terminations of employment (2011 PSLRB 99). The Federal Court allowed the judicial review in part and remitted the matter to me for redetermination in accordance with its reasons (Chopra v. Canada (Attorney General), 2014 FC 246). In March 2015, I heard submissions on the issue of the employer’s condonation of the grievors’ conduct that led to their suspensions as well as submissions on the appropriateness of the terminations were I to allow the suspension grievances in whole or in part.

2        The employer appealed the Federal Court’s decision. The Federal Court of Appeal’s decision, upholding the judicial review decision, was issued on September 22, 2015 (Chopra v. Canada (Attorney General), 2015 FCA 205).

II. Overview of the Federal Court’s decision

3        The Federal Court wrote extensive reasons. I have set out the order in the next section. I have also set out portions of the reasons that relate to the issues before me.

A. Judgment and order

4        The Court made the following order:

• Dr. Chopra’s 10-day suspension was upheld;
• Dr. Haydon’s 10-day suspension for speaking out was remitted back to me to determine the issue of condonation by the employer;
• Dr. Chopra’s 20-day suspension for speaking out was remitted back to me to determine the issue of condonation by the employer;
• Dr. Chopra’s termination grievance was remitted back to me to determine the appropriateness of the disciplinary sanction only if his 20-day suspension is varied or set aside; and
• Dr. Haydon’s termination grievance was remitted back to me to determine the appropriateness of the disciplinary sanction based on a) not taking into account her 2001 suspension for speaking out, and b) taking into account any variance or setting aside of her 10-day suspension for speaking out.

B. Reasons

5        In the course of making its order, the Federal Court made observations in the reasons that have a bearing on this rehearing.

1. Stale discipline of Dr. Haydon

6        The Federal Court noted that I had not addressed the issue of the employer’s reliance on discipline imposed on Dr. Haydon in 2001. It found that Diane Kirkpatrick testified that she had relied on both the 2001 and 2004 suspensions in coming to her decision to terminate Dr. Haydon’s employment. The 2001 discipline was subject to the “sunset clause” in the collective agreement and did not form part of the grievor’s disciplinary record at the time her employment was terminated.

2. Speaking-out grievances

7        The Federal Court directed me to further consider the argument of condonation as it would apply to the employer’s delay in imposing discipline on the grievors for speaking out.

8        The Federal Court summarized the relevant legal principles of condonation (at paragraphs 109, 110, and 196 to 198), which I have addressed in the reasons section of this decision. However, the Federal Court made some observations about the facts in this case that the grievors have submitted are relevant to this rehearing.

9        The Federal Court stated (at paragraph 205) that “[t]he relevant question was whether they [the grievors] were made aware in a timely manner that their employer believed that their comments warranted discipline.” The Federal Court found that the failure to warn the grievors that their statements warranted discipline had to be considered in light of the positive comments the Deputy Minister made with respect to testimony Dr. Chopra and Dr. Haydon gave in Senate hearings. The Federal Court noted that the grievors’ testimony before the Senate Committee on Agriculture and Forestry also included criticisms of their supervisors’ qualifications and allegations of pressure and of reprisals.

10        The Federal Court found that the grievors were told that the fact-finding processes were not disciplinary in nature and that the employer allowed them “to make numerous public statements over an extended period  without ever advising them that it believed that their comments warranted discipline” (at paragraph 208).

11        The Federal Court found that the employer was aware of the comments, and concluded that there is no argument that the delay imposing discipline could be justified on the basis that the employer had only recently become aware of them.

12        The Federal Court also noted that Ms. Kirkpatrick knew of the grievors’ intent to speak out in advance of the comments, on at least two occasions, and that she did not instruct them not to speak out but rather reminded them of their responsibilities as public servants (at paragraph 210).

13        The Federal Court noted that although Ms. Kirkpatrick wrote to counsel for the grievors (on July 31, 2003) that inappropriate activities may result in disciplinary action, “... at no point prior to the imposition of discipline did she inform Drs. Chopra and Haydon that she considered their comments to have been inappropriate” (at paragraph 211).

14        The Federal Court also found that the employer had made no suggestion that there was any kind of “... ‘culminating incident’, following which employer forbearance was no longer possible” (at paragraph 212).

15        The Federal Court noted that even if it was reasonable for the employer to wait for the Public Service Integrity Officer (PSIO) investigation report (of March 21, 2003), this did not explain why it took a further 8 months to impose discipline on Dr. Chopra and a further 10 months on Dr. Haydon (at paragraph 214).

16        The Federal Court noted that I did not address the employer’s explanation that Dr. Chopra’s absence from the workplace between February and May of 2003 contributed to the delay. It also noted that it “is not apparent” why it took the employer a further seven months after he returned to work to discipline him for his public comments (at paragraph 215). The Federal Court also noted that it was not apparent how Dr. Haydon’s absence from the workplace in January of 2004 could explain why no discipline was imposed on her in the nine months between the release of the PSIO report and her absence from the workplace (at paragraph 215).

17        The Federal Court noted that the discipline imposed on the applicants (the grievors) was based in part on the repetitive nature of their alleged misconduct. The question of whether the delay imposing discipline had prejudiced the grievors was a factor to consider when assessing the suspensions (at paragraph 216).

18        The Federal Court also stated as follows:

[218] I am not prepared to speculate as to what the applicants would or would not have done, had they been disciplined for speaking out in a timely manner. The purpose underlying the arbitral jurisprudence relating to delay and the principle of condonation is to give employees an opportunity to modify behaviour that an employer believes warrants discipline. While Drs. Chopra and Haydon may [sic] have been aware that discipline was a possibility, they never had a chance to make an informed decision whether or not to risk continuing with their public comments as their employer failed to tell them that it viewed their comments as warranting discipline prior to actually imposing that discipline.

[219] Once again, the implications of all of this are not for me to decide, but were matters to be determined by the Adjudicator who was required to balance Health Canada’s explanation for the delay against whatever prejudice had been suffered by Drs. Chopra and Haydon as a result. No such balancing exercise was undertaken by the Adjudicator in this case.

III. Scope of the rehearing

19        The parties raised issues about the scope of the rehearing that arose in the context of the employer speaking to an exhibit (G-267) prepared by Dr. Kirkpatrick and setting out a chronology of events. Counsel for the grievors argued that I did not rely on this exhibit in the original decision and that it was not open to the employer at the rehearing to re-argue its case. He noted that the employer never relied on this chronology to support the delay. It was introduced at the point of the hearing when Dr. Lambert’s termination was being reviewed (in 2011 PSLRB 99). Counsel for the grievors submitted that it would be inappropriate to rely on it for the purpose of the condonation analysis. Counsel for the grievors argued that I was very limited in the scope of this hearing and that it was not up to me to “shore up” my decision. He submitted that I was limited to reviewing what was set out in the Federal Court’s decision.

20        Counsel for the employer referred me to paragraph 414 of the decision, at which the Federal Court stated that the rehearing was to be based on the record. Had the Federal Court intended to limit the scope of the hearing to what was in its or my decision, it would have stated so, she submitted. Counsel for the employer submitted that I was entitled to take all the evidence into account. She noted the practical impossibility of including all the evidence in a decision.

21        I reserved my determination on this objection at the rehearing.

22        I find that the document relied upon by the employer (Exhibit G-267) is properly before me and can be considered in this rehearing. The Federal Court was clear that the rehearing of the suspension grievances should be based solely on the existing record, with no new evidence to be adduced by either party. It also stated that the parties would have an opportunity to make additional submissions with respect to the outstanding issues. The Federal Court did not limit the parties in their submissions. Therefore, I find that it was open to both parties to refer to evidence on the record in their submissions. I have addressed the merits of the employer’s submissions on this document (Exhibit G-267) in my reasons. As will be seen, I determined that Ms. Kirkpatrick’s activities (as set out in Exhibit G-267) did not excuse or explain the significant delay in imposing discipline on the grievors after the PSIO investigation was concluded.

IV. Summary of the arguments

23        The parties made extensive oral submissions and relied on submissions made to the Federal Court. I have summarized the oral submissions, and I have considered all the submissions in coming to this decision.

A. For the grievors

24        Counsel for the grievors submitted that the Federal Court decision was clear that there had been condonation. They also submitted that the principles of progressive discipline required that they be reinstated to their positions.

25        Counsel submitted that I was also bound by the findings of the Federal Court on stale discipline of Dr. Haydon.

26        Counsel for the grievors closely reviewed the relevant sections of the Federal Court decision that I have summarized earlier in this decision.

27        Counsel submitted that the grievors were not disciplined for their conduct and that when their conduct was repeated, again, it was not disciplined. He stated that the Federal Court noted that there did not appear to be a difference between the statements made that were upheld by an earlier Federal Court decision (Haydon v. Canada, [2001] 2 FCR 82 (T.D.); “Haydon No. 1”) and those made for which the grievors were disciplined. Counsel submitted that the grievors were entitled to assume that they could continue to abide by the standards set out in that earlier Federal Court decision.

28        Counsel referred me to the decision of the Ontario Court of Appeal in McIntyre v. Hockin, [1889] O.J. No. 36 (QL) at para. 13, which refers to “any considerable time” when weighing whether condonation occurred and stated that the delay in this case was beyond any considerable time. He also submitted that the deputy head could be considered a sophisticated employer that knows the appropriate steps to take when imposing discipline. Counsel reviewed a range of decisions involving speaking out grievances in which the delays in imposing discipline were significantly less that the delays in this case. He also referred me to the Treasury Board’s “Guidelines for Discipline” (Exhibit G-288) that state that discipline should be conducted in a timely manner.

29        Counsel also relied on the four factors of condonation set out as follows in Canadian Union of Public Employees, Local 1718 v. Stapleford Medical Management Inc., [2007] S.L.A.A. No. 3 (QL) at para. 81:

…

1. unreasonable delay may indicate employer condonation;
2. the employee’s right to procedural fairness must be preserved;
3. delay effectively denies the grievor the opportunity to defend himself or herself;
4. the requirement for expeditious discipline is a general arbitral principle applicable even in the absence of evidence of prejudice or unfairness to the employee.

…

30        He submitted that all four of these factors were at play in this case.

31        Counsel submitted that the Federal Court made a finding that the deputy head took no action and that it did not warn the grievors (at paragraph 199). He also submitted that the Federal Court made a finding that the employer’s fact-finding exercise was not a disciplinary process and therefore is not a factor in determining the condonation issue.

32        Counsel also submitted that the Federal Court found that the employer had “... allowed Drs. Chopra and Haydon to make numerous public statements over an extended period of time without ever advising them that it believed that their comments warranted discipline” (at paragraph 208). Counsel submitted that it was an absolute obligation on the employer to advise the grievors that their behaviour was inappropriate.

33        Counsel also submitted that the Federal Court was clear that the employer did not rely on a culminating incident in its discipline and that it was not open to the employer to do so at this rehearing.

34        Counsel submitted that the Federal Court concluded that there was nothing to support the seven- and nine-month delays imposing discipline. He also submitted that the employer could not rely on the repetitive nature of the grievors’ comments, since it allowed them to make those comments. He stated that if the repetitive nature of the acts is removed, an essential part of the grounds for discipline is removed.

35        Counsel also submitted that the Federal Court’s statement that the grievors “... never had a chance to make an informed decision whether or not to risk continuing with their public comments as their employer failed to tell them that it viewed their comments as warranting discipline prior to actually imposing that discipline” (at paragraph 218) was conclusive and determinative of the speaking-out grievances.

36        Counsel submitted that the grievances against the discipline for speaking out should therefore be allowed. In addition, he submitted that the termination grievances should also be allowed because the employer relied on progressive discipline when terminating the grievors’ employment.

37        Counsel referred me to Telus Communications Inc. v. Telecommunications Workers Union, 2012 CanLII 39240, on the doctrine of culminating incident. He submitted that a culminating incident had not been established and that I had decided the appropriateness of the termination of Dr. Chopra’s employment based on his disciplinary record. He also stressed the importance of progressive discipline and stated that if one step in that progression is rescinded, then each of the other steps is affected. He submitted that the 20-day suspension was the most significant disciplinary action of the 3 suspensions used to justify terminating Dr. Chopra. He stated that therefore, it follows that if the 20-day suspension is removed, the termination cannot be justified. He further submitted that the task is then to look at the appropriate amount of discipline, short of termination.

38        With respect to Dr. Haydon, counsel submitted that her 10-day suspension must be rescinded for the reasons set out by the Federal Court. In light of the removal of this significant discipline, the termination of her employment was not justified.

39        Counsel submitted that in King v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 125 (upheld in 2012 FC 488 and 2013 FCA 131), the employer relied on progressive discipline to support termination. In that case, there were similar acts of misconduct, which is not so in this case. Also, 45 days of suspension were on the record. In this case, the grievors will be left with disciplinary records of well below 45 days. In addition, with the rescinding of Dr. Chopra’s 20-day suspension, over half of the total amount of discipline will have been removed from his disciplinary record.

40        Counsel submitted that any decision other than overturning the terminations would allow the employer to re-argue its case.

41        With respect to Dr. Haydon’s termination of employment, counsel argued that the sunset clause of the collective agreement is a mandatory and substantive right; see Labourers’ International Union of North America, Local 506 v. Tri-Krete Ltd., [2012] O.L.A.A. No. 302 (QL) at para. 80. In that case, the arbitrator stated that an employer does not have just cause to discipline if it relies on prior discipline covered by the sunset clause. Counsel submitted that a discharge is null and void if an employer relied on prior stale discipline to support it.

42        Counsel submitted that the grievances against the discipline for speaking out should be allowed and that the grievors should receive lost pay and benefits for the lengths of their suspensions. The grievors should be reinstated to their positions, less any appropriate discipline. He also submitted that I should retain jurisdiction if the parties are unable to come to an agreement on the losses suffered by the grievors and to address any issues arising out of my order.

B. For the employer

43        Counsel for the employer submitted that I was not bound by the Federal Court’s analysis and comments about the grievors speaking out. She submitted that the only direction in the Federal Court’s decision is for me not to consider Dr. Haydon’s 2001 suspension. The Federal Court order simply states that the matter is remitted back to me, in accordance with the Federal Court’s reasons. Counsel submitted that I am not bound by the Federal Court’s analysis because it is in the very nature of a judicial review that the judge does not “step into the shoes” of the adjudicator to make findings of fact. She submitted that the judge sent this decision back to me to complete the condonation analysis and that it did not direct me to make certain findings.

44        I was referred to Rafuse v. Canada (Minister of Human Resources Development), 2002 FCA 31, in which the Federal Court of Appeal held that a court is not free to substitute its findings of fact on judicial review. I was also referred to Canada (Minister of Citizenship and Immigration) v. Maan, 2005 FC 1682, and Parmalat Canada Inc. v. Sysco Corporation, 2008 FC 1104. Counsel submitted that the phrase “in accordance with these reasons” simply means that the Federal Court has set out the issues that I ought to have looked at and then provides guidance on examining them.

45        Counsel submitted that the Federal Court did not ask me to make a finding of condonation. Rather, it directed me to look at the argument of delay when imposing discipline and whether there ought to be consequences as a result of the delay. She noted that the Federal Court (at paragraph 218) stated that it “was not prepared to speculate” and that at paragraph 219, it stated that the “... implications of all of this are not for [it] to decide”.

46        Counsel submitted that my task is to weigh the prejudice to the grievors against the reasons for the delay. With respect to condonation, counsel referred to McIntyre, in which the Ontario Court of Appeal stated as follows at para. 13:

…

… No doubt the employer ought to have a reasonable time to determine what to do, to consider whether he will dismiss or not, or to look for another servant. So, also, he must have full knowledge of the nature and extent of the fault, for he cannot forgive or condone matters of which be (sic) is not fully informed. Further, condonation is subject to an implied condition of future good conduct ….

…

47        Counsel submitted that condonation takes an active gesture of forgiveness on the part of the employer. In addition, the employee ought to have some understanding that he or she is doing something wrong. She described condonation as a “two-way street”. In the case of delay, the employee does not know that the employer does not approve, which is where the prejudice to the employee comes in to play. She described this as the employee not knowing the employer’s intent.

48        Counsel stated that a delay is a procedural and not a substantive issue; see British Columbia v. British Columbia Government & Service Employees’ Union (1995), 47 L.A.C. (4^th) 238 at 245.

49        Counsel submitted that when looking at what constitutes a reasonable amount of time in terms of delay, one must look at the circumstances of each case (see Renae v. Champs Mushrooms Inc., [2014] C.L.A.D. No. 55 (QL)).

50        Counsel also referred me to Re Nova Scotia (Public Service Commission) and NSGEU (Maclean), 2005 CarswellNS 717, and submitted that it is important to look at the nature of the prejudice to the employee. She also submitted that prejudice cannot be inferred — there must be some evidence of it; see Abitibi-Consolidated Inc. v. International Assn. of Machinists and Aerospace Workers, Local 771, [2000] O.L.A.A. No. 81 (QL). In addition, that caseset out the following questions to be answered: Was the delay unreasonable? Did it cause the grievor to conclude that there has been condonation? Did it prejudice the grievor’s ability to defend himself or herself against the allegations?

51        Counsel submitted that I was clear in my decision (at paragraph 457) on the reasonableness of the delay imposing discipline; it was clear to the grievors that the employer had concerns about them speaking to the media. She reviewed the evidence of the hearing, in which Dr. Chopra publicly acknowledged that discipline was a possibility. She also pointed out a reference he made at the Food Irradiation session in which he acknowledged that he had received a warning from Ms. Kirkpatrick. Dr. Chopra also acknowledged in interviews that discipline might follow from his actions. Counsel submitted that Dr. Chopra could not resile from those statements at the rehearing.

52        Counsel also referred me to correspondence from the grievors (dated August 8, 2002; Exhibit E-15, tab C-7) about the fact-finding interviews, in which they noted that the “... underlying issues could produce a very serious consequence to our employment”. Counsel submitted that this was a recognition that their jobs were at stake and that it was clear that the grievors knew that the employer was not forgiving them for their actions. Counsel also stated that the grievors’ alleged belief that they were entitled to say what they were saying because of both the Federal Court decision (Haydon No. 1) and Mr. Dodge’s statements was not supported by the grievors’ statements that their jobs were at stake. Counsel also referred me to the transcript of Dr. Chopra’s evidence, in which Dr. Chopra was disparaging of the deputy head’s comments. She submitted that this demonstrated that at the relevant time, Dr. Chopra did not believe that the deputy head was permitting him to speak to the media.

53        Counsel submitted that Treasury Board policy dictated that fact-finding investigations were not disciplinary but were a step in the process that could ultimately lead to discipline. Counsel submitted that the Federal Court’s misunderstanding of this was understandable. Counsel referred me to a letter in evidence from the grievors’ counsel in which he referred to the possibility of discipline (Exhibit E-15, Tab G-6). She submitted that this was an acknowledgment by the grievors’ representative that there was a process that could lead to potential discipline. Counsel submitted that it was clear to both the grievors and their counsel that the fact-finding processes were a step on the disciplinary path.

54        Counsel submitted that I made a finding of fact that waiting for the results of the PSIO investigation was reasonable. Counsel reviewed the evidence on this issue and argued that the grievors acknowledged that they were waiting for the PSIO investigation results.

55        Counsel submitted that the grievors suffered no prejudice as a result of the delay.

56        Counsel submitted that Ms. Kirkpatrick outlined the different activities the employer was engaged in during this period, including dealing with issues raised by the grievors and a hearing before the Public Service Staff Relations Board involving Dr. Chopra and responding to copious correspondence from counsel for the grievors (Exhibit G-267). Counsel stated that the employer was not “sitting back” during this period.

57        Counsel submitted that a delay does not void discipline. Counsel stated that a delay matters to the extent that it prejudices the grievors’ ability to respond to the discipline. The harassment investigation report (Exhibit G-190, tab 12) dealt with the same issues as in the grievances. In addition, the PSIO investigation dealt with some of the same issues.

58        Counsel submitted that the grievors were able to respond to the discipline imposed by the deputy head. In addition, she referred me to testimony from Dr. Haydon about what the grievors would have done had they been told not to make comments to the media. Counsel argued that they suggested that they would have continued to make comments, thus demonstrating that they had suffered no prejudice from the employer’s delay.

59        Counsel submitted that the grievors’ responses to the fact-finding investigation also demonstrated they suffered no prejudice as a result of the delay in imposing discipline.

60        Counsel submitted that in the absence of any prejudice to the grievors, the findings on the grievances ought not to be changed, and the adjudication decision should be maintained.

61        In the alternative, counsel argued that should the suspension grievances be denied, the terminations of employment should be upheld. The concept of progressive discipline is not a lockstep process. The law recognizes that progressive discipline does not apply in all cases. Counsel referred me to Brown and Beatty, Canadian Labour Arbitration, (4^th Ed), in which the authors state (at paragraph 7:4416) that some acts are so serious and antithetical to the employment relationship that termination can be justified without progressive discipline. Counsel submitted that in this case, the misconduct was antithetical to a viable employment relationship with both grievors.

62        Counsel also referred me to UFCW (Canada), Local 1288P v. B & N Hospitalities Inc., 2006 NBCA 29, which stated that progressive discipline was not obligatory in cases in which the New Brunswick Court of Appeal found it would be ineffective, considering the grievor’s inability to reform his or her misconduct-generating attitude. She submitted that the analysis in my original decision used similar reasoning. In Dr. Haydon’s case, I concluded that she had demonstrated a “... fundamental inability to accept supervision and direction from her employer.” She also noted that I concluded that Dr. Haydon’s behaviour could not be corrected. She submitted that I made similar findings with respect to Dr. Chopra and that an employment relationship cannot continue when an employee chooses what he or she wants to do.

63        In conclusion, counsel submitted that the Federal Court did not instruct me to overturn the grievors’ terminations but left the determination up to me. In both cases, counsel submitted that the terminations should stand, even if the suspension grievances are allowed.

64        Counsel submitted that the decision in King can be distinguished on the basis of the specific circumstances. In that case, the employer took a progressive discipline approach, although such an approach is not mandatory in all cases. In the Federal Court’s judicial review of that decision, it stated that the amount of discipline was “... within the realm of the adjudicator’s powers ...” She submitted that in this case, the Federal Court made the same observation. It stated that I should weigh the factors and make a proper determination on the terminations.

65        With respect to the Telus Communications Inc. decision, counsel pointed to the arbitrator’s comments that one of the purposes of progressive discipline is to provide an opportunity to assess an employee’s rehabilitative potential. She also pointed out the arbitrator’s conclusion that the conduct was not so serious. In this case, the misconduct is so serious that it struck at the heart of the employment relationship.

66        Counsel submitted that the grievors’ bargaining agent did not grieve a breach of the sunset clause of the collective agreement and that I should not view Dr. Haydon’s discharge as null and void.

C. Reply submissions

67        Counsel for the grievors submitted that the employer provided no authority for the claim that I could make a decision inconsistent with the Federal Court’s reasons. The plain meaning of the Federal Court’s instruction to redetermine “in accordance with these reasons” is that I am bound by those reasons.

68        Counsel submitted that the Rafuse decision dealt with the issue of granting leave. Also, in that case, the issue was factual determinations. In this case, I had made determinations that the Federal Court found unreasonable. Counsel also submitted that Maan was not relevant to the issues in this case. In addition, the statement of the Federal Court in that decision, which was that the Board reassess the relevant facts “... in light of the applicable legal principles”, is no different than a statement that a decision maker redetermine an issue in accordance with the court’s reasons. In Parmalat Canada Inc., the Federal Court noted that it may be appropriate to refer a decision for determination “... in accordance with such directions as it considers to be appropriate ...” Counsel submitted that this is what the Federal Court did in this case and that I must follow those directions.

69        Counsel submitted that with respect to his letter to Ms. Kirkpatrick referring to discipline, the fact that someone asked about discipline indicates that it was an open question.

70        Counsel submitted that the Federal Court’s reference to “not being prepared to speculate” as to what the grievors would or would not have done if they had been disciplined for speaking out in a timely manner referred to the employer’s argument and did not affect the scope of the rehearing.

71        Counsel submitted that with respect to the law of condonation, to the extent that the cases the employer provided are inconsistent with the Federal Court’s assessment of the law on judicial review, I cannot follow them.

72        Counsel submitted that a delay in imposing discipline may render it void (see M. Mitchnik and B. Etherington, Leading Cases on Labour Arbitration, Vol. 2 (Discharge and Discipline)). Counsel also referred me to I. Christie, Employment Law in Canada, 4^th ed., Vol. 2 (at paragraph 15.59), in which it is stated that with a long and unreasonable delay caused by indecisive management or by bureaucratic inadvertence, the employee’s behaviour will be deemed to have been condoned.

73        Counsel submitted that the Federal Court did find that the grievors had suffered a prejudice as a result of the delay; it found that they were not given a chance to make an informed decision.

74        Counsel also submitted that the employer could not derogate from its argument contained in its factum to the Federal Court, as it was attempting to do in this case. Counsel submitted that the employer’s reasons presented in argument for the delay in  imposing discipline were irrelevant. The document relied on by the employer (Exhibit G-267) related to Dr. Lambert’s grievance, and it is inappropriate to rely on it for the condonation analysis.

75        With respect to progressive discipline, counsel noted that the employer’s reliance on it to support the termination cannot be ignored. He submitted that the employer was “sucking and blowing” when it relied on progressive discipline in the original termination decision and then at the rehearing did not rely on it to support the termination of employment. He also submitted that I could not “undo my findings” in the original adjudication decision that progressive discipline applied to the terminations.

76        Counsel submitted that my role was not to determine if the employment relationship was no longer viable. My role, he stated, was to assess progressive discipline. He also noted that the Federal Court Judge stated that there was no suggestion of a “‘culminating incident’, following which employer forbearance was no longer possible” (at paragraph 212).

77        Counsel submitted that it was beyond the scope of this hearing to reassess the merits of the terminations. Counsel stated that in in my original decision, I referenced all acts of misconduct in supporting the terminations. Counsel submitted that by any standard, the grievors’ misconduct was not the kind of behaviour that would warrant termination of employment in and of itself. Counsel also submitted that the New Brunswick Court of Appeal’s decision in UFCW (Canada), Local 1288P does not match the facts in these grievances.

V. Reasons

78        In these reasons, I will first address the issue of condonation. Then, in light of my conclusions on that issue, I will review the appropriateness of the terminations of employment.

79        The grievors argued that the employer could not derogate from its arguments before the Federal Court. I disagree. The Federal Court was clear that the parties were entitled to make additional submissions based on the existing record and did not restrict the nature of those submissions. Therefore, I have considered all the parties’ arguments in reaching this decision.

A. Condonation

80        The Federal Court directed me to review the suspensions of Dr. Chopra and Dr. Haydon on the basis of the delay imposing discipline and the principle of condonation.

81        Dr. Chopra’s 20-day suspension was imposed on December 9, 2003. Dr. Haydon’s 10-day suspension was imposed on February 17, 2004. The discipline was for public statements they had made on 14 occasions over a 15-month period, between July 2002 and October 2003. During this period, the deputy head did not warn them that it viewed their comments as misconduct that would be subject to future discipline.

82        The PSIO investigation report was issued on March 21, 2003. Dr. Chopra’s suspension came 8 months after that, and Dr. Haydon’s suspension came 10 months after it was issued. Dr. Chopra was absent from the workplace between February and May of 2003, and his suspension was imposed seven months after his return to work. Dr. Haydon was absent from the workplace in January of 2004. However, as the Federal Court noted, this does not explain why no discipline was imposed in the nine months between the release of the PSIO report and her absence from work.

83        I adopt the Federal Court’s description of the principle of condonation, which accords with the principle set out in the labour arbitration jurisprudence. The Federal Court notes (at paragraph 218) that the underlying purpose of the jurisprudence on delay and condonation is to give employees an opportunity to modify behaviour that an employer believes warrants discipline. The Federal Court states (at paragraph 109) that the principle of condonation requires an employer to decide whether to discipline an employee when it becomes aware of what it considers undesirable behaviour. The failure to do so in a timely manner can constitute condonation of the misconduct. Once the behaviour has been condoned, the employer may not then rely on that same conduct to justify discipline. The failure to impose discipline in a timely manner may lead an employee to assume that his or her previous conduct was tolerated by the employer, thus building a longer record of what the employer considers misconduct (see Corporation of the Borough Of North York v. Canadian Union of Public Employees, Local 373, [1979] O.L.A.A. No. 3 (QL) at para. 12). As the Federal Court notes (at paragraph 195):

… a long delay in imposing discipline may entitle an employee to assume that their conduct has been condoned by their employer, where no other warning or notice of potential discipline is given. Allowing employees to believe that their behaviour has been tolerated, thereby lulling them into [a] false sense of security only to punish them later, is unfair to employees ….

84        When assessing whether discipline ought to be set aside because of delay, arbitrators and adjudicators consider three main factors: the length of the delay, the reasons for the delay, and any prejudice caused by that delay. See Mitchnick and Etherington, Leading Cases on Labour Arbitration, 2^nd ed., Discharge and Discipline, at 10-60; Brown and Beatty, Canadian Labour Arbitration, 4^th ed., at para. 7:2120; and Canadian Union of Public Employees, Local 1718 v. Stapleford Medical Management Inc. (2007), 88 C.L.A.S. 362,at paras. 81 to 84.

85         When considering these factors, an adjudicator is required to balance the employer’s explanation for the delay against the resulting prejudice suffered by the grievor to reach a “... just and equitable resolution of those competing interests”, per British Columbia v. British Columbia Government and Service Employees’ Union, [1995] B.C.C.A.A.A. No. 68 (QL) at para. 33 (cited by the Federal Court at paragraph 197 of 2014 FC 246).

86        Although the Federal Court stated at paragraph 219 that “... the implications of all of this are not for [it] to decide”, it did make some observations on the evidence and on the prejudice to the grievors. I summarized those observations in the overview section of this decision.

87        While I agree with the employer that the only directions the Federal Court gave to me are in the judgment and order, I find that the Federal Court’s observations in its reasons, although not binding, are highly persuasive. Generally, when a court provides a rationale for its reasons, then that rationale should be regarded as persuasive. The Federal Court’s comments reflect its view of the evidence, in light of the legal test of condonation. I also note that the Federal Court of Appeal upheld the Federal Court’s decision without commenting on the Federal Court’s observations in the decision.

88        The Federal Court made the following observations on the evidence:

• The Deputy Minister made positive comments about the grievors’ points raised at the Senate Committee, which might have created a sense of security on their part.
• The fact-finding processes were explicitly not disciplinary in nature.
• The employer was aware of the comments soon after they were made.
• On at least two occasions, Ms. Kirkpatrick knew in advance that the grievors were going to speak out, and she did not stop them.
• Ms. Kirkpatrick did not inform the grievors that their comments to the media were inappropriate before imposing discipline.
• The employer made no suggestion of a culminating incident.
• No explanation from the employer was forthcoming for the delay in imposing discipline from the date of the PSIO report.
• The discipline was based in part on the repetitive nature of the grievors’ comments.
• The grievors never had a chance to make an informed decision on whether to risk continuing with their public comments.

89        The Federal Court’s observations, in particular its statement that the grievors never had a chance to make an informed decision, leads to the conclusion that the grievors suffered prejudice from the employer’s delay imposing discipline and its failure to advise them of the possibility of discipline.

90        The Federal Court also expressed some skepticism on the rationale for the employer’s delay. There is a rationale for not imposing discipline during a fact-finding investigation, since the fact-finding is designed, in part, to gather information to make a decision on discipline. There is some rationale for the delay during the PSIO investigation, since discipline during the investigation might have been perceived as employer interference with the investigation. However, there was still a significant delay imposing discipline after the PSIO investigation report was issued (8 months in the case of Dr. Chopra and 10 months for Dr. Haydon).

91        The employer’s rationale for the delay after the PSIO investigation was raised during this rehearing. As I understand the rationale, the employer stated that it was busy with a range of issues raised by the grievors, in addition to regular duties. This was not directly raised in the original hearing of these grievances, as noted by the grievors. I respect that there was a lot of activity related to the grievors during this period, as well as Ms. Kirkpatrick’s regular duties. However, this does not explain or excuse the length of the further delay imposing discipline.

92        Therefore, I find that the employer condoned the grievors’ comments and that they suffered prejudice as a result. Considering the Federal Court’s observations on prejudice, I find that the prejudice to the grievors outweighs the employer’s reasons for the delay. A significant factor in the prejudice to the grievors was the length of the delay imposing discipline and the consequent lack of an opportunity for an informed decision in relation to speaking out. Accordingly, the 10-day suspension imposed on Dr. Haydon and the 20-day suspension imposed on Dr. Chopra are not appropriate. Therefore, the related grievances are allowed.

B. Termination grievances

93        The Federal Court directed me to reconsider the sanction for Dr. Chopra’s founded insubordination in light of the outcome of my redetermination of the speaking-out grievance. It also directed me to reconsider the sanction for Dr. Haydon’s founded insubordination in light of my redetermination of the speaking-out grievance and without considering the discipline imposed on her in 2001.

94        The grievors submitted that I could not “undo my findings” on progressive discipline in the original decision. By this I think they meant that since I referred to progressive discipline in supporting the terminations, I am not free to ignore those findings in this decision. I note that the Federal Court required me to review the terminations of employment in light of my findings in this rehearing on condonation, which means I have to reconsider my original determination on the termination of employment grievances solely with respect to the prior discipline on record. This is a fresh consideration of progressive discipline, as required by the Federal Court.

C. Dr. Chopra’s termination of employment

95        When assessing the appropriateness of terminating Dr. Chopra’s employment for misconduct, I am to redetermine the matter on the basis of the revised disciplinary record. In this case, the grievance against the 20-day suspension has been allowed, and Dr. Chopra now has a disciplinary record of a 5-day suspension and a 10-day suspension. The 5-day suspension was for speaking out with respect to anthrax (see Chopra v. Treasury Board (Health Canada), 2003 PSSRB 115, upheld in Chopra v. Canada (Treasury Board), 2005 FC 958). The 10-day suspension was for his refusal to report for duty, the grievance against which was dismissed in my original decision. The Federal Court upheld that decision.

96        The grounds for the termination of employment were set out in the termination letter as follows:

In early April you were assigned a project, which you agreed was well within the scope of your duties and professional capabilities as a senior veterinary drug evaluator. It was understood and agreed that the work would be completed within 90 days. Given concerns raised previously about your work performance, it was considered appropriate to seek progress updates at regular intervals.

The initial, thirty day progress review was completed on May 5, 2004. From my review, I determined that no actual work was completed in that period and you provided no reasonable rationale for the total lack of progress. On two further occasions you were provided with additional specific instructions as to what the project required but your responses failed to demonstrate that any meaningful work as was requested was done. Based on the foregoing, I have concluded that you have chosen to deliberately refuse to comply with my instructions and I have also concluded that your conduct in that regard constitutes insubordination.

Given your previous disciplinary record and your continued unwillingness to accept responsibility for work assigned to you, I have determined that the bond of trust that is essential to a productive employer employee relationship has been irreparably breached, that there is no reasonable expectation that your behaviour will change and that the existing employer employee relationship is no longer viable.

On the basis of the foregoing I have decided to terminate your employment for cause pursuant to the authority delegated to me by the Deputy Head and in accordance with the Financial Administration Act Section 11(2)(f). In reaching my decision I have considered mitigating factors, particularly your lengthy years of service.

97        The Federal Court’s comments about Dr. Chopra’s termination of employment are relevant to my redetermination of the termination grievance. It made its comments in the context of addressing the grievors’ argument on judicial review relating to the lack of evidence on the breakdown of the employer-employee relationship. The Federal Court refused to address the argument as it had not been made at the adjudication hearing. However, the Federal Court made relevant comments, stating (at paragraph 310):

… a plain reading of the termination letter discloses that the only ground advanced for the termination of Dr. Chopra was “insubordination” based upon his conduct with respect to the classification assignment. The comments made with respect to the breakdown in the employer/employee relationship were offered as a rationale for the choice of termination as the appropriate sanction, and not as a separate, independent ground for discipline.

98        Dr. Chopra now has a disciplinary record of 15 days before his termination of employment. I now have to decide whether termination was an appropriate penalty in the circumstances. The fact that the prior disciplinary record was reduced at this rehearing does not change the fact that the previous misconduct was serious. Both the 5-day suspension for speaking out and the 10-day suspension for insubordination were upheld by the Federal Court. The 10-day suspension was also for insubordination and was similar to the misconduct the employer relied on for terminating his employment. Dr. Chopra demonstrated no improvement in his behaviour from the imposition of the 10-day suspension for insubordination to the discipline imposed after this last act of insubordination, following which he was terminated. In addition, he did not admit to any errors in his behaviour at the hearing of the grievances before me.

99        I also note that in my original decision, I determined that Dr. Haydon’s termination was appropriate. In her case, she had a 5-day suspension and a 10-day suspension imposed for acts of speaking out. At paragraph 820 of my 2011 PSLRB 99 decision, I stated as follows: 

With the discipline already on record, terminating Dr. Haydon’s employment was not an excessive disciplinary measure. I cannot accept Dr. Haydon’s contention that her misconduct was not similar to her previous conduct. All the acts of misconduct demonstrate an underlying defiance of her employer. They displayed Dr. Haydon’s fundamental inability to accept supervision and direction from her employer.   

100        What I stated above with respect to Dr. Haydon at that time applies with even stronger force to Dr. Chopra’s circumstances before me on this rehearing.

101        Dr. Chopra broke the bond of trust with the employer. In view of his attitude and his failure to respond to lesser discipline, reinstatement “... would vindicate his actions and invite a repetition”, from King (2010 PSLRB 125), at para. 219, paraphrasing Nanaimo Regional General Hospital v. H.E.U. (1999), 81 L.A.C. (4^th) 1 at para. 196.

102        Accordingly, I dismiss Dr. Chopra’s grievance against his termination of employment.

D. Dr. Haydon’s termination of employment

103        When assessing the appropriateness of termination for Dr. Haydon’s misconduct, I am to redetermine the matter on the basis of the revised disciplinary record. The suspension of 2001 is not to be considered. In addition, the 10-day suspension for speaking out is no longer a consideration. As a result, Dr. Haydon has no disciplinary record to consider from before her termination of employment.

104        The grounds for terminating Dr. Haydon’s employment were set out in the letter of termination as follows:

In early December 2003, you and your immediate supervisor held a discussion regarding your performance evaluation and for the second consecutive year your performance was assessed as being significantly below acceptable standards for a senior veterinary drug evaluator. At that time, you indicated that the review of submissions in your possession would be concluded in less than two months - this commitment was not met. In early May 2004, you were provided with a written warning that significant improvements were expected in your overall performance.

Your response to these events has been most disturbing. Under no circumstances, and contrary to your assertions otherwise, can you claim a lack of knowledge of the issues brought to your attention during your performance evaluation process. However, you have again chosen not to accept any responsibility for your negative performance.

The most recent scheduled update on your work assignment shows little evidence of any efforts or intention on your part to achieve the significant improvements required in your performance. Specifically, I note the commitment by you to finally complete, by June 4, 2004, the drug submissions which have been in your possession for over two years. Instead of complying with the agreed instructions, you submitted an incomplete draft document and stated that there would be further delays in completing the assignment, despite not having any other work assigned to you. The final report submitted by you lacks coherency and is incomplete, and is inadequate to reach any decision respecting the disposition of the submissions. I conclude that the excessive amount of time consumed by you to assemble this inconclusive report is a deliberate and systematic attempt on your part to avoid and evade work assigned in accordance with instructions given to you, and that your conduct constitutes insubordination.

Given your previous disciplinary record and your continued unwillingness to accept responsibility for work assigned to you, I have determined that the bond of trust that is essential to a productive employer employee relationship has been irreparably breached, that there is no reasonable expectation that your behaviour will change and that the existing employer employee relationship is no longer viable.

On the basis of the foregoing, I have decided to terminate your employment for cause pursuant to the authority delegated to me by the Deputy Head and in accordance with the Financial Administration Act Section 11(2)(f). In reaching my decision I have considered mitigating factors, particularly your years of service.

105        The Federal Court’s comments with respect to Dr. Haydon’s termination of employment are also relevant to my redetermination of the termination grievance. The Federal Court stated at paragraphs 399 and 400 as follows:

[399] … a plain reading of the letter of termination reveals that there was really only one ground advanced for the termination of Dr. Haydon’s employment, namely her “deliberate and systematic attempt[s] … to avoid and evade work assigned in accordance with instructions given to [her]”, leading to Health Canada’s ultimate conclusion that her conduct constituted insubordination.

[400] I am further satisfied that the comments made in the termination letter with respect to the breakdown of the employer/employee relationship were offered as a rationale for the choice of termination as the appropriate sanction, and not as a separate, independent ground for discipline. The finding that the bond of trust between Dr. Haydon and her employer had been irreparably breached was, moreover, amply supported by the record before the Adjudicator, including the extensive oral testimony given by Dr. Haydon during the hearing….

106        Counsel for Dr. Haydon relied on the Tri-Krete Ltd. decision to support a position that the termination of employment is null and void. The facts of Tri-Krete Ltd. can be distinguished from the facts of Dr. Haydon’s termination. In Tri-Krete Ltd., the employer relied on a culminating incident that was not properly part of the disciplinary record to justify a termination of employment. In this case, the employer relied on previous discipline that included the 10-day suspension that was part of the grievor’s disciplinary record. Although that 10-day suspension is no longer part of her record, it was at the time of the termination of employment. The Federal Court did not address the argument that the termination of employment was null and void. However, it determined that Dr. Haydon was insubordinate and that the employer’s reliance on stale discipline goes to the appropriateness of the discipline imposed. Therefore, I conclude that the discipline was not null and void. Some discipline was clearly appropriate, and my task is to determine whether the termination of her employment was the appropriate sanction.

107        I agree with the employer that there can be misconduct that justifies a termination of employment in the absence of progressive discipline. The employer in UFCW (Canada), Local 1288P did not rely upon progressive discipline in its decision to terminate the employment of the grievor in that case. However, in this case, the deputy head relied on prior misconduct to support its decision to terminate Dr. Haydon’s employment. It relied on this prior misconduct in the letter of termination and in the evidence (in which Ms. Kirkpatrick stated that she had relied on prior discipline, including the 10-day suspension). In my view, the prior discipline was a significant factor in the employer’s decision to terminate Dr. Haydon’s employment.

108        That prior discipline is no longer part of Dr. Haydon’s disciplinary record, and the employer is prevented from relying on it to ground its decision to terminate her employment. As a result, a significant pillar of the decision to terminate her employment is no longer there to support it.

109        However, Dr. Haydon’s misconduct is significant, and the Federal Court recognized it as such when it stated at paragraph 400 that “[t]he finding that the bond of trust between Dr. Haydon and her employer had been irreparably breached was, moreover, amply supported by the record before the Adjudicator, including the extensive oral testimony given by Dr. Haydon during the hearing.”

110        Dr. Haydon’s insubordination warrants a significant disciplinary sanction. However, terminating her employment was not suitable, for two reasons. Firstly, as noted earlier, the employer relied on progressive discipline to ground its decision to terminate her employment. Secondly, employees in like situations should be treated equally. In this case, Dr. Chopra’s employment was terminated for insubordination, with 5- and 10-day suspensions now on his disciplinary record. In Dr. Haydon’s case, her termination of employment was not preceded by any discipline now on record.

111        I find that in light of the lack of a prior disciplinary record and Dr. Haydon’s length of service, a suspension of 20 days would have been an appropriate disciplinary sanction for her acts of insubordination outlined in the letter of termination of employment.

112        Accordingly, discipline in the form of a 20-day suspension is substituted for Dr. Haydon’s termination of employment.

113        I will retain jurisdiction to address any issues relating to the implementation of this determination of the appropriate disciplinary sanction. I did not hear submissions from the parties on the appropriate remedy should the termination grievance be allowed and a lesser penalty substituted. I will leave the issue of the appropriate remedy to the parties to resolve. I will retain jurisdiction for 120 days in case the parties are unable to reach an agreement.

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

VI. Order

115        The grievance against Dr. Chopra’s 20-day suspension is allowed.

116        The grievance against Dr. Haydon’s 10-day suspension is allowed.

117        The grievance against Dr. Chopra’s termination of employment is dismissed.

118        The grievance against Dr. Haydon’s termination of employment is allowed and a suspension of 20 days is substituted.

119        I retain jurisdiction for a period of 120 days to address any issues relating to the implementation of this decision.

September 22, 2016.