FPSLREB Decisions
Decision Information
Termination - Incompetence - grievor was employed as a driver on a military base - he had four minor accidents which in the employer's opinion were preventable - this led employer to suspend permanently his military driving privileges - employer then terminated grievor's employment effective September 21, 1994, for incompetence as a professional driver and for the loss of his departmental driver's permit - accidents occurred on August 18, 1992, December 20, 1993, and February 15 and May 19, 1994 - evidence established that at the relevant times grievor had suffered from cataracts and that employer was aware of this fact - grievor had the cataract removed from his right eye in August 1993 and from his left eye in July 1994 - adjudicator concluded that grievor's vision problems were a significant factor in the last two accidents - adjudicator doubted employer's good faith as employer had treated the four accidents in question as being the result of intentional malfeasance and had never advised the grievor that his competence was in question - also, in light of grievor's physical condition of which employer was aware, employer had an obligation to enquire into his medical status before making a decision to terminate his employment - employer's failure to do so undermined the reasonableness of the employer's appraisal of grievor's lack of competence - neither could employer hide behind its decision to revoke grievor's departmental driver's permit - adjudicator directed employer to reinstate grievor retroactive to the date of his termination. Grievance allowed. Cases cited: Bell Canada v. Hallé et al. 29 CCEL 213; Re Hertz Canada Ltd and Office & Technical Employees' Union, Local 378 (1995), 46 L.A.C. (4th) 416; Kampman v. Treasury Board 1995 1 F.C. 306.
Decision Content
File: 166-2-26518 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN HARVEY EARL DEERING Grievor and TREASURY BOARD (National Defence)
Employer Before: P. Chodos, Deputy Chairperson For the Grievor: David Landry, Public Service Alliance of Canada For the Employer: S. Maureen Crocker, Counsel Heard at Medicine Hat, Alberta, August 17, 18; November 8, 9 and 10, 1995; written argument submitted on December 1 and 15, 1995.
Decision Page 1 DECISION Mr. Deering was employed as a Vehicle Driver (GL-MDO-4) at Canadian Forces Base, Suffield until the termination of his employment effective September 21, 1994, pursuant to paragraph 11(2)(g) of the Financial Administration Act. As of the date of his termination the grievor was 44 years old and had been employed with the department for 17 years. The termination was preceded by a decision to suspend him; the reasons for that suspension as well as the subsequent termination of employment are outlined in a letter to the grievor from Colonel K.T. Eddy, the Base Commander, dated June 22, 1994. The text of that letter reads as follows:
(Exhibit G-2) As a result of the series of preventable accidents caused by you, I have conducted a review of your work performance and circumstances surrounding each accident. In all cases I agree with the investigator's findings that you could have, if you had employed the principles taught to you on the various driver improvement courses, prevented all of the accidents. Moreover, in your last accident involving a civilian car, you left the scene and failed to report the incident to your supervisor, MSE Safety or the Military Police.
I find this type of behaviour inexcusable. This behaviour along with your previous driving record has left me no recourse but to suspend permanently your military driving privileges.
As a GL-MDO-4, your employment is dependent on your holding a DND 404 (Driver Operator Permit). Since there are no duties in your substantive position to perform, I am seeking to terminate your employment for cause - non- disciplinary. Therefore, until a decision is made by higher authority on my recommendation, you will be placed in a supernumery position and assigned other duties.
The letter of termination dated September 21, 1994 states the following: Further to my letter dated 22 Jun 1994 , this is to advise you that the Commander of Land Forces Command has exercised his delegated authority under Section 50 (A) of the Public Service Terms and Conditions of Employment Regulations, to terminate your employment effective upon receipt of this letter.
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Decision Page 2 The decision to terminate your employment for cause - non-disciplinary is a result of you continuing to prove yourself incompetent as a professional driver and not being able to maintain the departmental driver operator permit DND 404.
...
As noted in Exhibit G-2, the reasons given for his non-disciplinary termination were related to several accidents attributed to Mr. Deering while driving vehicles belonging to the Department of National Defence. The first accident took place on August 18,1992; at that time Mr. Deering was employed as a mechanic. Mr. Deering acknowledged that he had ran over a barricade in the road which had fallen down; he was disciplined for this incident (the extent of the disciplinary action was not put in evidence); he had not grieved this matter as he agreed that he had been at fault. Three of those accidents occurred while Mr. Deering was employed as a driver. The first of these accidents happened on December 20th, 1993. At that time the grievor was travelling west in a military vehicle known as a CE (Construction Engineering) Taxi. Mr. Deering had dropped off some passengers and was proceeding down a road known as Coyote Road; he had earlier noticed three deer in a field off to his right. On his way back he glanced over for a period of a second to a second and a half and saw only two deer; when he brought his eyes back to the road the third deer had jumped out of a ditch on his left side, and ran across the road, causing him to hit the animal. He stated that he was travelling approximately 50 kilometers an hour at the time, that the weather was overcast and that light rain had turned to snow making the road surface slippery. Mr. Deering also testified that when he saw the deer he immediately applied his brakes with relatively light pressure in order to delay the lockup of the wheels.
Mr. Deering contacted the Military Police as well as the Base Transportation Dispatch Office. The non-commissioned officer responsible for dispatching vehicles, Master Corporal Sturgess and Sergeant Reginald Lafrenière investigated the accident scene and took a statement from Mr. Deering (Exhibit E-5). A "skid test" was performed at the scene of the accident. According to MCpl Sturgess, their test revealed that had Mr. Deering been travelling at 50 kilometers per hour it would have produced skid marks of 10.6 meters; however, the skid marks measured at the accident scene were 19.4 meters on the right side and 21.4 meters on the left side of Public Service Staff Relations Board
Decision Page 3 the vehicle. According to MCpl Sturgess, applying a formula in general use by various police authorities, the skid marks from Mr. Deering's vehicle indicated that he was travelling at a speed of approximately 68 kilometers per hour.
In his Accident Cause Analysis Report MCpl Sturgess concluded that the speed at which Mr. Deering was travelling at the time was unsuitable for the prevailing conditions and, had he been travelling at the posted speed of 50 km., he would have been able to stop in time and thereby avoid hitting the deer. He also noted that the "mediate cause" of the accident was due to the driver's inattention in that Mr. Deering had indicated to him that he was "watching the deer in the field". MCpl Sturgess further testified that Mr. Deering had completed in November of 1993 the Defensive Driving Course (DDC) and the Professional Drivers Improvement Course (PDIC); these courses specifically direct that driving habits must be altered in accordance with weather conditions; furthermore, both courses teach the principle of "eye lead" time, that is emphasizing the importance of paying attention to the road in front of you, looking ahead to see any possible hazards, and the importance of checking mirrors. MCpl Sturgess noted in his report that, as well as the accident resulting in the death of the deer, the DND vehicle sustained "minor damage". Exhibit E-11 indicates that the amount of the damage was $582.56 in total.
In cross-examination MCpl Sturgess maintained that Mr. Deering told him that he was "watching" the deer; he had not asked the grievor how long he had been watching the deer.
On January 19, 1994 Mr. Deering received from Major D.H. Phillips, the Base Transportation Officer, a "Letter of Counselling - Performance" which made reference to the December 20th accident as well as an earlier accident which occurred on August 18, 1992 while Mr. Deering had been employed on the Base as a mechanic. Both accidents were described in the letter as being "preventable". This letter goes on to state the following:
(Exhibit E-25) Public Service Staff Relations Board
Decision Page 4 ... While the accidents you were involved in were minor in nature, they cannot be overlooked. The fact that both were preventable by you, relative to your experience and training, indicate there is room for improvement and possibly the need for remedial training. Additionally, they represent an unnecessary expense to the Crown. The purpose of this letter is to provide you with formal notice of counselling with respect to your performance as a Machine Driver Operator Class 04 (GL-MDO-04).
... In both cases you had direct control of the outcome, however, for whatever reason, you failed to employ the knowledge and techniques taught to you. To assist you and update your knowledge, you will be course loaded on the next available Professional Driver Improvement Course (PDIC). Further, you are encouraged to ensure full awareness of, and pay attention to, your surroundings prior to undertaking and during any driving assignment. In short, look at the 'big picture' and not focus your attention on the 'little things' or on any one specific item. The combination of these should improve your driving record.
Should your performance in the future continue to indicate that you are not exercising the principles of safe driving as taught to you on DDC, SBC and PDIC, then I will have no option but to recommend either strong disciplinary action or a formal performance review with regards to your status of an GL-MDO-04.
This letter of counselling in no way diminishes or sets precedent on any other disciplinary action that might have been taken against you in the past, nor is it intended to make you unduly nervous. It is, however, a step towards helping you improve and hone your driving skills/habits. Remember, your supervisors, the MSE Safety staff and myself, are here to assist and help you improve these skills.
Major Phillips testified that he had had discussions with Mr. Deering when he presented him with Exhibit E-25. He indicated at that time that he was concerned about his perceived poor driving habits and that as a professional driver Mr. Deering should be cognizant of his responsibilities as a driver and that there were different driving programs available which should be pursued. Major Phillips testified that
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Decision Page 5 Mr. Deering appeared "startled" that he was given a formal letter; he does not believe that Mr. Deering provided an explanation for the accident at that time.
Major Phillips identified Mr. Deering's job description (Exhibit E-24); he noted that virtually all of his time is involved in driving a light truck known as a "construction engineering taxi". Mr. Deering would be required to have a civilian licence as well as a military driver's operating permit known as DND 404.
On February 15, 1994 Mr. Deering was involved in another accident. He was transporting two electricians with their equipment to Building 398 on the Base; he was backing his vehicle onto a sidewalk towards the east door of the building in order to unload the two electricians and their equipment. On the driver's side of the vehicle was a large tree; on the opposite side was a stump; according to Mr. Deering, he saw the stump in his right hand mirror; however, because of the need to avoid the tree on the other side, he had to use a slight "S" maneuver, whereupon he lost the stump in the mirror, hit the stump with the right side of the truck and thereby damaged a back light. Mr. Deering testified that he had often backed into this space and had done so once or twice the previous day; it was also common for others to do so as well. He noted that the adjacent road is a high traffic area and consequently he backed onto the sidewalk in order to avoid tying up traffic.
Sergeant Lafrenière investigated this accident along with a Corporal McAllister. Sergeant Lafrenière questioned Mr. Deering at the accident scene; he asked him why he had not used one of the passengers as a guide; according to Sergeant Lafrenière Mr. Deering merely shrugged his shoulders. In his Accident Cause Analysis Report (Exhibit E-19) Sergeant Lafrenière concluded that the direct cause of the accident was "unsafe backing" on the part of Mr. Deering; he noted that the grievor failed to comply with the teachings of the DND safe backing course by not enlisting the aide of a guide, or doing a "proper walk-around" to identify potential hazards. Sergeant Lafrenière also noted that the "mediate cause" was Mr. Deering's "attitude". Sergeant Lafrenière observed in his report that "the DND driver stated in his statement that the tree appeared to be further away than what actually was in his mirror. The DND driver had been operating the same vehicle for approximately six months and should have noticed during that time that on the right mirror there is a warning stating "OBJECTS IN THIS MIRROR ARE CLOSER THAN THEY APPEAR". Therefore, his neglect of this warning also
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Decision Page 6 contributed to the damage on the vehicle." (Exhibit E-19) He concluded that the estimated cost of the repair was $595.99. Sergeant Lafrenière stated that he later saw Mr. Deering in his office and discussed with him why the accident had happened. He again told him that he should have had a passenger act as a guide; however, Mr. Deering made no comment at that time. He recommended that Mr. Deering again attend a safe backing course.
Following the February 15 accident Major Phillips gave Mr. Deering what he described as a "discipline letter" dated March 7, 1994. He also indicated to him at that time that he would bring this matter to the attention of a more senior officer, the Base Technical Services Officer, for his review and that another meeting would be arranged regarding this matter. Major Phillips then took steps to have Mr. Deering's DND driver's licence suspended. Major Phillips concluded, after reviewing Sergeant Lafrenière's report, that Mr. Deering had "clearly disregarded" the lessons taught in the safe backing course in that he had not enlisted the aid of a guide, nor had he done a walk-around. He felt at the time that Mr. Deering had suitable training to realize that he had not followed the proper procedures. In his testimony, Mr. Deering maintained that using a guide would not have prevented the accident; he had seen the stump; however, he had hit it because of a distortion in the mirror and weakness in depth perception in his right eye.
As a result of the accident his licence was suspended for a period of three weeks; subsequently he met with a Major Ludwar, the Technical Services Officer. According to Mr. Deering he specifically mentioned the distortion of his vision as a result of the mirror. Mr. Deering received a letter of reprimand dated March 18, 1994 and signed by Major Ludwar. This letter stated in part:
(Exhibit G-14) In examining this case and arriving at the above sanction I have considered any mitigating circumstances, and your recent performance and disciplinary records. I note that attitude and inattention were determined as causes to your last two vehicle accidents; these same traits are a carryover from your previous work history. I also note that you did receive Safe Backing instruction in 1991, the lessons of which apply to the instant case. Nonetheless, I find the mitigating circumstances in the instant case are such that progressive disciplinary measures will not be followed. In
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Decision Page 7 my judgment, shortly after you accepted your MDO drivers position you should have been given the requisite safety training, namely the Defensive Driving course, which is a condition of your employment, the fact that you did not receive this training until just recently is the reason the above decision has been rendered.
In addition to this sanction, I have instructed the BTNO to course load you on the next available Safe Backing course. In so doing you will have received all the necessary safety training which is current and relevant to you undertaking your duties as a professional driver. I fully expect that you will undertake your duties in a responsible and safe manner.
I caution you Mr. Deering, should you fail to heed the training you are given and should there be further evidence of you being inattentive to safe driving procedures, I will not be so considerate as in the instant case and more severe disciplinary action will be taken which could lead to your discharge from the Public Service of Canada.
(emphasis added)
Mr. Deering stated that he did not grieve this matter as he agreed that he had erred in hitting the stump.
On May 19, 1994 the grievor was again involved in an accident while in control of a departmental vehicle. On that day Mr. Deering had dropped off a passenger at the front doors of the Canex building. He parked the car perpendicular to the doors in a designated loading zone. He then backed up in order to drive out of the parking lot; while doing so, he was seen by Corporal McAllister (who was entering the parking lot in front of the Canex building at the time) striking a vehicle. Corporal McAllister observed Mr. Deering stopping his vehicle, getting out of the vehicle and doing a quick inspection of the car which he had struck. Corporal McAllister testified that Mr. Deering then returned to his vehicle and drove off; Corporal McAllister went into the Canex snack bar and ascertained that the vehicle was owned by a Master Corporal Paul. A statement was obtained from MCpl Paul in which he indicated that the front end of his vehicle had been moved six to eight inches "so that it was the longer parked straight". He also stated that his vehicle had been damaged; he had obtained estimates of the damage, one in the amount of $383. and the other
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Decision Page 8 in the amount of $410. Subsequently the Department had authorized payment of $393. as compensation .
There was some disputed evidence as to exactly where MCpl Paul had parked his vehicle and whether it was legally parked; however, Mr. Deering acknowledged that he had seen MCpl Paul's vehicle when he had backed up his vehicle as he was departing from the Canex loading area. It was Mr. Deering's testimony that as he was backing up he noticed a vehicle in the left hand mirror; he immediately hit his brakes, whereupon his vehicle rocked because of the sudden stop; he heard some noise, which he attributed to the ladder rack on the truck which is held together by chains. Mr. Deering stated that he walked to the back of his vehicle to see if he had hit the other car, because he knew he had come pretty close. He observed that there was a space between the vehicles; upon quick inspection he saw no visible damage to either vehicle. He therefore presumed that he had not made contact and then drove away. When he returned to the Construction Engineering Dispatch Office he was told to report back to the Canex parking lot. MCpl Sturgess was there, and asked him if he knew why he was summoned; Mr. Deering replied, "No"; whereupon MCpl Sturgess told him that he had hit another vehicle; Mr. Deering replied that he was not aware of having struck a vehicle; he then gave a statement to the Military Police (Exhibit E-14). MCpl Sturgess showed him what appeared to be a scuff mark on MCpl Paul's vehicle; Mr. Deering stated that there may have been a hairline crack as well.
In cross-examination Mr. Deering stated he felt that it was not necessary to use a guide or a walk-about on May 19 as he was aware that the car was there; he agreed that he could have parked his vehicle so as to avoid the need to back up; he also agreed that he had not followed the training that he received from the safe driving courses. He also acknowledged that he may not have noticed damage done to MCpl Paul's vehicle, as he had done only a quick inspection.
Following this accident MCpl Sturgess prepared another accident analysis report wherein he attributed the mediate cause of the accident to be Mr. Deering's failure to "comply with the teachings of the Safe Backing Course by not enlisting the aid of a guide, or by not doing a proper walk-around to recognize any potential hazards in the area into which he was backing. Also, the teachings of the Safe Backing Course
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Decision Page 9 teaches to back only when necessary. Failure to comply was the contributing factor to this accident." (Exhibit E-16)
Upon reviewing MCpl Sturgess' report Major Phillips wrote a memorandum to the Base Technical Services Officer dated May 31, 1994 (Exhibit E-30) in which he noted the several accidents that Mr. Deering had been involved in and the various driver improvement courses which Mr. Deering had received. Major Phillips concluded that Mr. Deering's DND driver's licence should be suspended; as well he recommended "that the Base Commander permanently suspend Mr. Deering's military driving privileges as being unsuitable to holding a DND 404. It is a recommendation that does not come easily, however, it is my considered opinion and that of my senior supervisors, that Mr. Deering does not look upon his responsibilities in a responsible manner." (Exhibit E-30) Major Phillips had advised Mr. Deering of the steps that he would be taking in a meeting on May 27, 1994, confirmed in a memorandum to Mr. Deering dated June 9, 1994 (Exhibit E-31).
Major Phillips testified that he took this action pursuant to his authority under a directive entitled "Guidelines for Administrative Services and Transport for National Defence", and in particular paragraph 136 which provides that "An employee's DND 404 may also be suspended following an administrative decision by the CO based on the B Tn O's assessment of the employee's suitability to hold a DND 404." (Exhibit E-32). In a memorandum dated June 17, 1994 to the Base Civilian Personnel Officer, Major Phillips reviewed the actions that he had taken and his reasons for doing so:
(Exhibit E-33) . . . 10. Every attempt has been made, through counselling and training, to ensure that Mr. Deering was provided with the opportunity to carry out his duties in an efficient and responsible manner. ... I personally provided, as did his supervisors, Mr. Deering with one on one counselling and presented him with a letter of counselling after his 20 Dec 93 accident. After his 15 Feb 94 accident, I requested an investigation and he was subsequently presented with a letter of reprimand by the SO2 Tech Ops.
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Decision Page 10 11. The seriousness of his last accident, 20 May 94, that of backing out of a "No Parking Zone" and striking a civilian car, cannot be overstressed. After hitting the car he was seen to get out of his vehicle, walk to the rear, then get back into his vehicle and drive off. He made no attempt to report this accident.
12. Once I was notified of the circumstances, I suspended his military driver permit pending a recommendation for permanent suspension by the Base Commander. This action was deemed necessary in the interest of safe vehicle operation.
13. As Mr. Deering has failed to follow simple and accepted safe driving practices, it is my recommendation that consideration be given to terminate Mr. Deering's employment for cause - non disciplinary.
After the May 19 accident Mr. Deering was no longer permitted to work as a driver; he performed labouring work in the Transport Section and was subsequently assigned to the Labour Shop in the Construction Engineering Section following receipt of the June 22 letter from the Base Commander (see G-2, supra); he remained in that shop until his termination on September 21.
In cross-examination Major Phillips attributed Mr. Deering's accidents to a "lax attitude" on his part. He also stated that he viewed the grievor's actions in leaving the scene of the accident and not reporting it as "willful misconduct". Major Phillips had recommended that Mr. Deering be terminated for non-disciplinary reasons as he no longer had a DND 404 and therefore could not be employed as a driver. He also stated that in his view it was clear that Mr. Deering knew the rules and regulations respecting safe driving and that he "intentionally did not follow the rules".
Mr. Peter Stauffer was the Mobile Support Equipment Officer at the time of Mr. Deering's employment as a driver at CFB Suffield. Mr. Stauffer noted that within a short period of time Mr. Deering had received more training than any one else, in his experience. He observed that any further training would be fruitless, given the amount of training Mr. Deering had already had, without demonstrating any improvement in his performance.
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Decision Page 11 Mr. Paul Howe was the Base Technical Services Officer at CFB Suffield from July 1993 to October 1994. He was the recipient of much of the documentation emanating from Major Phillips concerning the decision to suspend and ultimately terminate the employment of Mr. Deering. Mr. Howe did not have first hand knowledge of the events respecting Mr. Deering's conduct, nor did he have any direct contact with him in the course of those events or at any time following the recommendation to terminate the grievor's employment. Mr. Howe testified that he had agreed with the recommendation to terminate Mr. Deering's employment for non-disciplinary reasons rather than to demote him because he had already been demoted in 1992; he did not feel it was appropriate to give him another opportunity. He also noted that there was a "tremendous shrinkage" of staff following the February 1994 budget and accordingly there were no vacant positions at that time. He observed that he would not want to employ Mr. Deering as a driver, or even as a mechanic, because of his poor regard for safety.
Mr. Howe signed a memorandum dated August 1994 in his capacity as Acting Base Commander, which was forwarded to more senior officers within National Defence; the memorandum outlines Mr. Deering's employment history with the Department from the date he was taken on strength in September 1977. The memorandum recounts Mr. Deering's work performance in his previous position as a vehicle mechanic, including the decision to demote him in May 1993. Paragraph 9 of this memorandum states the following:
(Exhibit E-42) ... 9. Management has given this employee every opportunity to improve his work performance; guidance, counselling, training, voluntary demotion to a different type of work, more counselling, more training. It appears that even discipline did not correct Mr. Deering's deficiencies and he continued to perform in a less than satisfactory manner. As a driver, Mr. Deering is often responsible for the safety of others. His accidents to date have resulted in monetary costs to the Base and fortunately have not resulted in physical damage to any personnel. Management is left with no option but to proceed with "Release for Cause", non-disciplinary as Mr. Deering continues to prove himself incompetent as a professional driver.
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Decision Page 12 Mr. Deering's representative objected to the admissibility of this memorandum on the grounds that it violates clause M-33.04 of the PSAC Master Agreement. That provision states:
M-33.04 The Employer agrees not to introduce as evidence in a hearing relating to disciplinary action any document from the file of an employee the content of which the employee was not aware of at the time of filing or within a reasonable period thereafter.
Mr. Landry noted that Mr. Deering. had never been apprised of the contents of this document. It is my conclusion that given the employer's position that Mr. Deering was terminated for non-disciplinary reasons, and its continued reliance on that ground during the course of this hearing, the admissibility of this document does not violate the terms of clause M-33.04; however, in my view much of the contents of Exhibit E-42 is of little relevance; in its communication to the grievor the employer made it clear that the basis for termination was his performance as a driver, and in particular his involvement in four accidents while driving a DND vehicle. Accordingly, his alleged work performance outside that context is irrelevant and beyond the purview of this hearing.
Mr. Ivan Jessie testified on behalf of the grievor. He has been employed at CFB Suffield for 20 years, ten years as a MDO-6. Mr. Jessie stated that he is aware that a driver is supposed to circle a vehicle or use a guide when backing up; however, this is not done on a routine basis in practice. He also testified that it is not uncommon for drivers on the Base to have accidents involving deer; a year ago he had done so while driving a military vehicle in circumstances similar to Mr. Deering's accident on December 20th; he received no discipline for his accident.
Mr. Clifford Anten has been employed at CFB Suffield since 1976 as an Electrician. He testified that he often drives vehicles as part of his work responsibilities. He stated that it is not common practice for civilian or military drivers to follow prescribed procedures when backing up; he has been a shop steward for five years in total out of his twenty-seven years working at CFB Suffield; he has never encountered anyone being disciplined for failing to use a guide, or not circling a vehicle when backing up. Public Service Staff Relations Board
Decision Page 13 Mr. Garry Sletvold also testified on behalf of the grievor. It had been Mr. Sletvold's responsibility to pick up the deer that had been killed as a result of the December 20th accident; he observed that on the side where the deer jumped out there is a ditch parallel to the road, with an elevation of between three and four feet .
The grievor testified that he was suffering from cataracts which had affected his vision, and he believes this condition contributed to the accidents which had occurred on February 15 and May 19, 1994. He had become aware in May 1993 that he had a cataract in his right eye; at that time he did not feel it affected his driving. Upon being assigned as a driver to the Construction Engineering Section he advised Mr. Stauffer of his condition, and that he was scheduled for cataract surgery in July. Mr. Stauffer testified that he asked Mr. Deering at the time whether the operation would affect his vision; according to Mr. Stauffer, Mr. Deering replied that the operation would in fact correct his vision. Mr. Deering had his surgery in August, 1993; as a result he regained 20/20 vision in his right eye. After a period of convalescence Mr. Deering returned to work in September. According to Mr. Stauffer he inquired from Mr. Deering how he was feeling and was told by him that his vision was better than it was before; Mr. Deering then indicated that he did not have any visual restrictions. He never again raised his visual condition with Mr. Stauffer, although he did present a physician's certificate of disability (Exhibit E-39) indicating that he would be fit to return to duty on September 10, 1993.
Mr. Deering stated that while he regained 20/20 vision in his right eye, his left eye increasingly deteriorated as a result of a cataract condition in that eye. Mr. Deering stated that his peripheral vision was affected, that he had difficulty seeing things on his left side. Dr. Brent Rinaldi, Mr. Deering's Ophthalmologist indicated that Mr. Deering had a posterior subcapsular cataract, that is a cataract at the posterior surface of the lens. Dr. Rinaldi noted that when he examined Mr. Deering in December, 1993 his visual acuity in his left eye was 20/30-3; by February of 1994 this had deteriorated further to 20/60.
The employer's expert witness in ophthalmology, Dr. John MacKay, explained that the numbers used in describing vision are in fact a definition of visual acuity; the top figure represents the distance in feet that the object is located; the bottom figure represents the distance at which the test object subtends an angle of five minutes of
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Decision Page 14 arch on the retina. The lower down the eye chart one can read, the better one's visual acuity. Dr. MacKay noted that the usual requirement for a provincial class 3 licence provides that 20/30 is acceptable (see Exhibit E-37). Dr. MacKay stated that a person's visual acuity is derived from his or her "best eye". That is, with a visual acuity of 20/20 in one eye and, for example, 20/60 in the other, a person is considered to have a visual acuity of 20/20. He noted that the Alberta Motor Vehicle Branch would accept the vision in the best eye when granting a licence. He noted as well that a person having a vision problem is responsible for informing the licensing authority of that fact.
Dr. MacKay observed that there would be no significant distortion in visual acuity if only one eye has a cataract. Following an examination of pictures taken at the accident scene on February 15 and May 19, 1994 Dr. MacKay maintained that the grievor should have had no difficulty in seeing either the stump or MCpl Paul's vehicle. He suggested that potential glare would not be a problem in either case as the weather appeared to be overcast.
In cross-examination Dr. MacKay stated that with a cataract at the back end of his lens the grievor would experience cloudiness in focussing, varying with the amount of light available. He agreed that light is generally brighter outside than in an office, and that more glare would cause more cloudiness in the lens; he maintained that a cataract does not affect peripheral vision. He agreed that, in accordance with the "Alberta Medical Examination for Motor Vehicle Operators Form", in August 1993 the grievor was not sufficiently visually fit to obtain a class 3 licence. He also agreed that if in February 1994 he had a visual acuity of 20/60 in his left eye the grievor would also have been unfit to hold a class 3 licence at that time. He believes the Motor Vehicle Branch does not rigidly follow its standard in actual practice.
Dr. Rinaldi testified on behalf of the grievor that the cataract which Mr. Deering had in February, 1994 would particularly be a problem if there is a glare. He stated that in February 1994 Mr. Deering's visual acuity was 20/100 in the light. He agreed that in normal light conditions a cataract would have little effect on peripheral vision. However, he stated that a cataract does have an effect on depth perception, that is, it can affect the ability to detect distances, for example, when backing up a vehicle. He
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Decision Page 15 also observed that Mr. Deering's condition in his left eye deteriorated further between February and July 1994.
In cross-examination Dr. Rinaldi stated that at no time was he aware that Mr. Deering was employed as a driver. Upon viewing the pictures taken at the February accident scene, he agreed that the grievor would have no difficulty seeing the stump, or MCpl Paul's car at the May 19th accident site. Dr. Rinaldi also testified that a person would not be permitted to hold a class 1 licence with Mr. Deering's condition, because of difficulties in depth perception.
On May 5, 1994 the grievor was examined by a military physician. According to Mr. Deering he couldn't see the eye chart with his left eye. He obtained from the employer's files through Access to Information Exhibit G-13, a document entitled "General Physical Examination Report" which appears to confirm that Mr. Deering had vision problems. On May 16, 1994 Mr. Deering sought and obtained sick leave for a period of several weeks in July for the purpose of having a cataract operation on his left eye. As a result of that operation his vision was restored to 20/20.
Argument Counsel for the employer submitted that, pursuant to the adjudication decisions in Stitt (Board file 166-2-25981) and Hogan (Board file 166-2-26360), the following factors are relevant in determining whether the termination of Mr. Deering for non-disciplinary reasons is justified: (1) was the grievor advised what was expected of him; (2) was the employer fair and upfront in bringing its concerns about the grievor's failings to his attention; (3) did the employer provide an opportunity and assistance for the grievor to improve his performance; (4) is it established that the grievor's performance did not improve in respect of the identified failings; (5) did the employer warn the grievor of the potential consequences. Ms. Crocker reviewed the evidence and submitted that the employer met the criteria outlined above. Specifically, the grievor was advised repeatedly as to what was expected of him as a professional driver; after each accident the employer brought to his attention his failure to follow proper procedures and what those procedures were; furthermore he was given ample opportunity to establish that he had learned from his mistakes; in addition, he was provided with several courses with respect to safe driving and the proper procedure to be followed when backing up a vehicle. He was also warned Public Service Staff Relations Board
Decision Page 16 several times of the potential consequences of his continued failure to observe the procedures. Counsel for the employer maintained that the grievor's work history led to the reasonable conclusion that he was incompetent as a professional driver in the sense of his failure to demonstrate fitness required for the position and to perform an integral part of his duties.
Ms. Crocker also maintained that the decision to revoke the military licence, that is, the DND 404, following a review of his performance and training was a proper exercise of the authority of the Base Transportation Officer given the safety concerns and the discretion which that officer had. Counsel referred to the decision of the Public Service Commission Appeal Board in the Otto case (PSC 81-31-DND-2R) wherein the Board upheld the recommendation to release an employee following the revocation of the appellant's DND 404 driving licence. Counsel also referred to the judgment of the Federal Court, Trial Division in Kampman v. Treasury Board [1995] 1 F.C. 306 involving an employee whose employment was terminated for incapacity following the revocation of her enhanced reliability status. Counsel noted the court's pronouncement that "while wilful incapacitation may indeed be the subject of disciplinary proceedings that does not prevent a dismissal being recommended on the same facts." Counsel also maintained that the Kampman decision stands for the principle that Major Phillips' exercise of his discretion to revoke the DND 404 licence is not reviewable, if he considered the proper elements involved in that decision. In support of this submission counsel also referred to the decision of the Supreme Court of Canada in Thomson v. The Queen (1992), 89 D.L.R. (4th) 218.
Counsel for the employer also cited the adjudication decision in Fundy Cable Limited (decision of Donald MacLean under the Canada Labour Code, dated November 4 ,1994, unreported) which noted the Federal Court judgement in Bell Canada v. Hallé, et al, 29 CCEL 213 wherein the Court adopted the test noted above and also observed: (at p. 221) "... What the employer must prove . . . is that he acted with complete objectivity, responsibly, independent of any passing whim, without discrimination and solely for the good of the enterprise."
Ms. Crocker also maintained that the required nexus is missing between his visual condition and the employer's concern with respect to his accidents, as related to the issue of safe driving techniques. Moreover, Mr. Deering never raised the issue
Public Service Staff Relations Board
Decision Page 17 of his condition when discussing the accidents with either Mr. Phillips or Mr. Sturgess, that is, he brought no evidence of any restrictions or problems to their attention. Accordingly, the employer should not bear the costs of any back pay in these circumstances.
The grievor's representative replied that a non-disciplinary termination is clearly reviewable under paragraph 11(2)(g) of the Financial Administration Act. Mr. Landry submitted that an adjudicator is not limited, as was the case under section 31 of the Public Service Employment Act, to deciding whether the Deputy Minister exercised his opinion in good faith. Pursuant to the 1993 amendments, an adjudicator can exercise his or her remedial authority on the basis of the principles respecting work place equity. That is, the language of subparagraph 92(1)(b)(ii) of the Public Service Staff Relations Act and paragraph 11(2)(g) of the Financial Administration Act is very different from that of former subsection 31(1) of the Public Service Employment Act. Accordingly, the court's decision in Kampman (supra) under subsection 31(1) must be read with caution, particularly given the very limited right of review under that section, compared to the Public Service Staff Relations Act. Mr. Landry submitted that, in any event, the judgement in Kampman (supra) recognizes the Appeal Board's right to review the decision of the Deputy Head to recommend termination on the grounds of revocation of enhanced reliability status; that right of review now rests with the adjudicator under the Public Service Staff Relations Act.
Mr. Landry reviewed the evidence respecting the various accidents; he maintained that Mr. Deering was not at fault for the December 20, 1993 accident; with respect to the accidents on February 15 and May 19, 1994, it is the grievor's submission that these were as a result of his deteriorating visual condition. Mr. Landry noted that the employer had issued a written reprimand in respect of the February 15th accident; in his submission, the employer cannot now turn around and say that the accident was beyond his ability. With respect to the May 19th accident the grievor's actions were a matter of conscious choice; this doesn't go to incompetence or incapacity but rather is a disciplinary matter. Mr. Landry also argued that the employer was well aware of Mr. Deering's physical problems; it was aware that he was scheduled for surgery and had in fact had the surgery; there is also the
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Decision Page 18 evidence of ExhibitG-13 indicating that the grievor was examined by the employer's doctor and found to have had visual problems on May 5th, 1994.
In his written submission Mr. Landry noted, inter alia, the following: (page 8) The grievance is against the discharge effective September 21, 1994, and the letter of September 21, 1994 gives two reasons: (1) incompetence; and (2) no 404. The accident on the 19th of May (as previously argued) does not reveal incompetence as it involved choice. The loss of a 404 is exactly the same as the first reason. He lost his 404 because the employer judged him incompetent due to the May 19th accident. Both the dismissal and the lost 404 were effective recommendations of Major Phillips. They were caused by the accident of May 19th which, according to Major Phillips, was caused by misconduct, ...
Mr. Landry concluded his written submission as follows: The allegations of the 19th of May do not show incompetence, but misconduct. Mr. Deering had an accident on the 15th of February, 1994, for which he received a written reprimand. Since misconduct is no longer an issue, the factual arguments have not been repeated. The employer had a choice between 11(2)(f) or 11(2)(g). They chose "(g)" and stand on incompetence. This termination is a discharge for misconduct; as such, it is not proven. To discipline, the employer would have had to use progressive discipline (written reprimand) to discharge, so it used non-disciplinary reasons in bad faith as a foil to the grievor's rights.
The Act makes a distinction between 11(2)(f) and 11(2)(g). The employer may terminate under one or the other, but cannot choose the wrong one and change the grounds at adjudication.
In her written rebuttal, counsel for the employer noted again that "... a loss of qualification of employment (here the DND 404) renders a person incapable of performing his or her work (page 9 Kampman)." Ms. Crocker also stated the following:
(page 4) Public Service Staff Relations Board
Decision Page 19 ... The Employer's position is that to "insist on a rigid division between culpable and non-culpable activity is impracticable in many cases ..." (Crane Canada Inc. and U.A. Loc. 170, Re, (1990) 14 L.A.C. (4th) 253 @ 276, copy enclosed).
The Employer pursued both disciplinary action to correct Mr. Deering's behaviour and training to assist him to improve his performance. Based on its overall experience with Mr. Deering, the department came to the reasonable conclusion that he was incompetent as a professional driver. Neither counselling, training, nor corrective discipline had any effect upon his performance deficiencies. His continued failure to follow safe driving techniques and involvement in preventable accidents, despite training and counselling, served to undermine the employment relationship.
... the evidence does not demonstrate that his failings in performance - - relating to safe and expected driving practices - - are likely to improve.
Reasons for Decision The issue in this case is whether the employer was justified in terminating Mr. Deering's employment for non-disciplinary reasons pursuant to its authority under paragraph 11(2)(g) of the Financial Administration Act. A collateral issue is the extent to which the employer's decision to revoke his military driving licence (i.e. DND 404) pursuant to a departmental directive, is reviewable by an adjudicator under subparagraph 92(1)(b)(ii) of the Public Service Staff Relations Act. It should be noted at the outset that the employer indicated that it was not seeking to have this matter considered as a disciplinary action, in the event that I conclude that this was not a proper termination of employment pursuant to paragraph 11(2)(g) of the Financial Administration Act. In other words, the employer was content to rely entirely on its submission that this is a proper termination under that provision. The relevant provisions of the PSSRA and the FAA are as follows:
91.(1) Where any employee feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the
Public Service Staff Relations Board
Decision Page 20 employer, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award, or
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
92.(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii)termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
11.(2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but
Public Service Staff Relations Board
Decision Page 21 notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,
(f) establish standards of discipline in the public service and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct, and the circumstances and manner in which and the authority by which or whom those penalties may be applied or may be varied or rescinded in whole or in part;
(g) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed in the public service, and establishing the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;
11.(4) Disciplinary action against, and termination of employment or demotion of, any person pursuant to paragraph 2(f) or (g) shall be for cause.
Before addressing the legal issues raised by this case, it is necessary to review the evidence and make certain findings of fact. The employer's case rests exclusively on the grievor's involvement in four accidents: the first occurring in August, 1992 while the grievor was employed as a mechanic; subsequently the grievor was demoted, for reasons not related to the accident, to his current position as a driver. While in that position the grievor was involved in three other accidents all of which were of a minor nature. The first occurred on December 20, 1993 when the vehicle the grievor was driving hit and killed a deer that had leapt in front of the vehicle. I accept the employer's evidence that the grievor had been travelling at a speed which was inappropriate for the driving conditions at the time, and was in excess of the posted speed limit. However, I am not prepared to conclude that the grievor was inattentive as alleged by the employer. It was the grievor's evidence that he gave a momentary glance toward the field where he had earlier seen the deer. While Mr. Stauffer
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Decision Page 22 maintains that the grievor told him that he had "watched" the deer - from which he concluded that Mr. Deering had been inattentive - Mr. Stauffer did not ask how long he was watching. I accept the grievor's testimony in this regard.
With respect to the accident on February 15, 1994 there is no question that the grievor was responsible for hitting the stump with the vehicle he was driving at the time. He was clearly aware of the existence of this potential hazard. However, this raises the question as to whether the grievor's visual condition played a role in that accident. The essentially uncontradicted evidence of his ophthalmologist, Dr. Rinaldi, is that Mr. Deering's cataract condition is likely to have had an effect on his depth perception, which would make backing up a vehicle more difficult for him. The evidence of Dr. MacKay, which was confirmed by Dr. Rinaldi, is that a person's visual acuity is determined by his vision in his best eye which would have been at the time 20/20. However, Dr. MacKay made no observation concerning the effect of cataracts on depth perception; in any event, if there is any discrepancy between the evidence of Dr. MacKay and Dr. Rinaldi in this regard I prefer the evidence of Dr. Rinaldi who was personally familiar with Mr. Deering's physical condition. Accordingly, I find that Mr. Deering's visual condition was a significant contributing factor to his accidents on February 15 and May 19, 1994.
I also find, that on May 19th, 1994 Mr. Deering had in fact backed into Corporal Paul's vehicle; that is, he made contact with that vehicle and thereby likely caused some very minor damage. Again, Mr. Deering admitted that he was aware that Corporal Paul's vehicle was behind his own; Mr. Deering did not dispute that he was concerned that he may have hit Corporal Paul's vehicle at the time and that was the reason why he had immediately stopped his vehicle and "quickly inspected" Corporal Paul's vehicle. In view of these circumstances, and the observation of Corporal McAllister, as well as the evidence that Corporal Paul's vehicle did suffer some slight damage, I have concluded that Mr. Deering did in fact hit that vehicle. However, I also conclude that this accident was likely due to Mr. Deering's visual condition which, according to Dr. Rinaldi, deteriorated further after February. I would note as well Exhibit G-13, which is dated May 5th, and appears to be a medical report from the employer's physician indicating that Mr. Deering had a visual problem. While there may be questions concerning the details surrounding comments made on this document, it appears to be an official employer report; in my view if the employer Public Service Staff Relations Board
Decision Page 23 wished to challenge its authenticity in any way, it had a duty to call evidence in that respect, keeping in mind that the document was found in the employer's possession.
In light of the factual conclusions noted above, has the employer met the burden of establishing that it had reasonable grounds for terminating Mr. Deering's employment? In my view it clearly did not do so. In both the Stitt and Hogan cases (supra) the employer was unambiguous in its communications with the grievors that what was at issue was the grievors' competence to perform their duties. In this case the employer's actions were anything but unambiguous; following each incident the employer treated Mr. Deering's actions as constituting willful misconduct. The documentation emanating from the employer makes it very clear that it regarded his conduct as largely a disciplinary issue, rather than a matter of incompetence or incapacity. Major Phillips in his testimony was very candid in stating that in his view, Mr. Deering knew very well what was expected of him, that he must have understood the employer's directives concerning the procedures to be followed in driving vehicles on the base, but willfully disregarded them. In his first "counselling" letter following the December 20th accident, Major Phillips stated that any subsequent incidents would be addressed as either a disciplinary matter or a performance review. After the February 15th accident Mr. Deering was issued with a disciplinary letter from Major Ludwar. It would appear therefore that the employer chose to view his actions as a matter concerning misconduct. Yet, following the May 19th accident, which undoubtedly had aspects of misconduct and was viewed as such by Major Phillips, the employer in effect shifted gears and terminated the grievor for allegedly non-disciplinary reasons.
These circumstances raise serious questions as to the department's good faith in dealing with the grievor on this matter, particularly in light of the evidence concerning Mr. Deering's physical condition. The department was well aware, prior to his termination, that Mr. Deering had cataracts - a condition that was quite correctable with surgery; given this information, any meaningful investigation of his ability to perform as a driver should have included an assessment of his medical condition. The employer could have, for example, referred Mr. Deering to an Ophthalmologist of its choosing; instead it appears to have closed its mind to any avenue or conclusion that might not result in Mr. Deering's dismissal. As noted above, I find that Mr. Deering's vision problems were an important factor in the accidents. It is evident Public Service Staff Relations Board
Decision Page 24 that the employer had not addressed or even considered that fact in coming to its decision to revoke his military driving license and to terminate his employment. Had it done so, in good faith, it could not reasonably have come to the conclusion on September 21, 1994 that the grievor was no longer able to perform the requirements of his position. In the Bell Canada judgement (supra) the Court noted that what must be determined is "the reasonableness of the employer's appraisal of the employee's lack of competence" (at p. 221). In my view the employer has failed to meet this onus. In so concluding I wish to make clear that I do not disagree with the finding in the Crane Canada arbitral award that often a rigid distinction between culpable and non-culpable activity is not practical. However, the distinction does exist, as noted in Brown and Beatty, Canadian Labour Arbitration, (3rd), chapter 7:3510. I would suggest that the recent arbitral award in Re Hertz Canada Ltd. and Office & Tecnical Employees' Union, Local 378 (1995) 46 L.A.C. (4th) 416 (Hope) is rather illuminating, given the facts in the instant case. This case also concerned a grievor who was dismissed because of a vehicle accident; at p. 439 the learned arbitrator observed:
Turning first to the question of the accident, the evidence supports the conclusion that the grievor was the causative factor. He caused the damage to the vehicle and thus his conduct was deserving of a disciplinary response. ... it is clear that the employer did have a disciplinary rule relating to such accidents ... The evidence supports the conclusion that the grievor acted in breach of the rule in the sense that his actions were the direct cause of damage to the employer's vehicle in an amount in excess of $150.
Whether the accident is seen as having been caused by an error in judgment, as that term is used in the authorities, or a degree of advertent or inadvertent negligence, the employer was entitled to use discipline to bring home to the grievor and to other employees the importance of exercising care so as to avoid such damage. However, the seriousness of any breach of the rule must be measured in the context of the particular facts. Furthermore, the employer is and was required under the industrial relations principles implicit in the legislation to adopt a remedial approach to the discipline of employees, including the use of progressive penalties as a necessary prelude to dismissal.
The progressive discipline approach has particular efficacy in circumstances such as those present here where the offence does not involve deliberate misconduct.
Public Service Staff Relations Board
Decision Page 25 I agree with Arbitrator Hope (and at least initially the department did as well) that in circumstances such as the instant case a disciplinary approach is called for, including however the application of the principle of progressive discipline.
The question also arises as to whether the revocation of the grievor's DND 404 license is determinative of this issue in favour of the employer. In support of this submission counsel for the employer relies primarily on the Kampman and Otto decisions (supra). An examination of those decisions demonstrates why this submission cannot succeed given the circumstances of the instant case. In Kampman (supra) Mr. Justice Strayer stated: (at p.318) "A careful reading of Ahmad indicates that while deference should be shown by the Board in the first instance to the opinion formed by the deputy head, it can review the decision on matters of law, on the issue of good faith, and on the facts with the criterion being correctness." I would suggest that the same authority and responsibility to review decisions of the employer applies a fortiori to an adjudicator pursuant to subparagraph 92(1)(b)(ii) of the PSSRA. In this instance, as I have already stated, relevant and critical facts were ignored by Major Phillips and the Base Commander when they came to their conclusion to terminate Mr. Deering's employment. In addition, for the reasons noted above, I have serious doubts whether that conclusion was arrived at in good faith.
In the Otto case the appellant was convicted of impaired driving and subsequently of dangerous driving; on both occasions his provincial driver's license was suspended. As a result of that suspension the Department of National Defence suspended Mr. Otto's DND 404 on the first occasion; it warned him that another provincial suspension would result in the revocation of his DND 404 and termination of his employment. The second suspension resulted in his termination, which was the subject of the appeal. In dismissing the appeal the Appeal Board Chairman concluded: (P.10) " it is clear that in the view of the Department, two suspensions of a driving license within a short period of time were sufficient to cause loss of confidence in the responsibility of the driver. I am unable to find anything unreasonable in such a conclusion."
Public Service Staff Relations Board
Decision Page 26 It is readily apparent that the circumstances in this case are radically different from the Otto decision. There was no independent body which reviewed the facts in Mr. Deering's case; he never had his provincial driver's license suspended; indeed, he continues to hold a class 3 provincial license, and there is no suggestion that it has ever been under any threat of suspension. In my view justice would be ill-served if the department could simply hide behind Major Phillips' decision to recommend revocation of Mr. Deering's DND 404, and in effect the decision to dismiss him, without the possibility of a full review of the facts which are relevant to that decision. Such a conclusion is untenable and would run entirely contrary to the purpose and intent of subparagraph 92(1)(b)(ii) of the PSSRA.
In conclusion, I find that the employer's decision to terminate the grievor's employment pursuant to paragraph 11(2)(g) of the Financial Administration Act was unreasonable and unwarranted. Accordingly, the employer is directed to reinstate Mr. Deering retroactive to the date of his termination. I shall remain seized of this matter for a period of one month from the date of this decision, in the event the parties encounter any difficulties in its implementation.
P. Chodos, Deputy Chairperson.
OTTAWA, February 8 1996.
Public Service Staff Relations Board