FPSLREB Decisions

Suspension (5 days) - Public criticism of employer - Duty of loyalty - Freedom of expression - the grievor, a drug evaluator in the Human Safety Division, Bureau of Veterinary Drugs, Health Protection Branch, Health Canada, had been invited by Heritage Canada to participate as a member of a panel at the Employment Equity Annual Meeting on March 26, 1999 - as part of this panel, the grievor expressed the opinion that "nothing (was) being done" at Health Canada in the field of employment equity - the employer considered this public statement to be a breach of the grievor's duty of loyalty to his employer and imposed a five-day suspension upon the grievor - the grievor, on the other hand, believed that he was merely exercising his right to freedom of expression - the background leading up to this grievance is the following - the National Capital Alliance on Race Relations (NCARR), of which the grievor was the president at the relevant time, had filed a complaint with the Canadian Human Rights Commission (CHRC) alleging discrimination by Health Canada against persons who are visible minorities employed by that department, contrary to section 10 of the Canadian Human Rights Act (CHRA) - a Canadian Human Rights Tribunal found, on March 19, 1997, in favour of the complainant and ordered Health Canada to implement a special corrective measures program - the evidence established that Health Canada had proceeded to implement these measures in consultation with the bargaining agents - one year after the order was issued, the CHRC had expressed in its annual report of 1998 the view that the Department had "already implemented most elements of the tribunal's order, demonstrating that, once committed to action, a federal agency can quickly achieve improved results" - furthermore, on March 24, 1999, the Chairman of the Employment Equity Committee of the NCARR had issued a progress report in which he stated that "in respect of the first year of compliance with the Tribunal Order, NCARR is satisfied that Health Canada has made a serious effort and has achieved reasonable progress" - on March 19, 1998, Health Canada organized a forum on employment equity where the grievor expressed the opinion that "nothing was happening" at Health Canada - it was the grievor's repetition of this opinion on March 26, 1999, at the Heritage Canada Employment Equity Annual Meeting, which led the employer to impose the disciplinary sanction in question upon him - the adjudicator expressed the opinion that it was her responsibility as a member of the Board and as an adjudicator appointed under the Public Service Staff Relations Act to render decisions which are in conformity with the values protected by the CHRA and the Charter - she concluded that the grievor had expressed a personal opinion, which he was entitled to do even if it was not shared by other persons in Health Canada - in addition, he was entitled to hold this opinion even if, to some people, he was wrong - public servants have the right to express themselves publicly on issues such as employment equity, equality before the law and the right to the protection of the law without discrimination based on race, national or ethnic origin and colour - these issues relate to rights which are protected by provincial and federal human rights legislation and reflect fundamental Canadian values that, as such, extend beyond the boundaries of the employment relationship - the adjudicator found that, because of the complexity and scope of the issue and the element of subjectivity involved in the perception and identification of the existence of racism, discrimination and employment inequity, there cannot be an absolute conclusion on these matters, that is, absolute in such a way as to preclude an individual (or department) from forming and expressing an opinion thereon - furthermore, by clamping down on individuals who voice their opinions on fundamental issues such as racism, discrimination and employment equity, a department simply risks reinforcing the perception that there is validity to the claim that racism does exist within that department - the adjudicator concluded that the grievor's comments constituted an exception to the duty of loyalty which he owed to the employer and, furthermore, he was speaking on an important public issue. Grievance allowed. Cases cited:Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455; Haydon v. Canada, [2001] 2 F.C. 82 (T.D.).