FPSLREB Decisions

REASONS FOR DECISION

[1]    The purpose of this decision is to determine the compensation to be awarded to Gilles Alain Loyer in lieu of reinstatement.

[2]    Mr. Loyer was dismissed on October 11, 2001, and his grievance was heard in 2003. I subsequently rendered a decision (2004 PSSRB 17) in which I concluded that the dismissal had to be rescinded because the employer had acted hastily and inappropriately.

[3]    At the hearing in 2003, I found that Mr. Loyer continued to display an aggressive attitude towards the members of the institution's management and that I had to determine compensation in lieu of reinstatement, with the parties' agreement.

[4]    The parties filed written notes on this subject in June and July 2004.

Arguments of the Parties

[5]    The employer contends that Mr. Loyer is not beyond all reproach and that the adjudicator's decision indicates that the employer has the right to act through such means as suspending Mr. Loyer without pay until he files a medical certificate.

[6]    The employer rejects the grievor's claims that he must be reimbursed for all the prejudice that he has suffered. It argues that aggravated damages are awarded only in the case of a breach of a contract of employment in exceptional circumstances. As indicated in Augustin Ernest Chénier v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 27, the conduct of which the employer is accused must be "particularly reprehensible, malicious or arbitrary" for such damages to be awarded.

[7]    The employer concludes by noting that Mr. Loyer has already obtained $22,503.93 in severance pay, representing 23.45 weeks salary. Six months' compensation would be fair in these circumstances.

[8]    The grievor for his part is claiming compensation equivalent to three years' salary and that the amount of the actual loss incurred is approximately $268,621.41.

[9]    In support of his claims, the grievor notes that two and a half years have passed since his dismissal and the adjudicator's award, which represents $123,250.

[10]    He further argues that the accumulated sick days and lost vacation leave must be taken into account.

[11]    Given that Mr. Loyer is 50 years old and was dismissed, the possibility of finding employment is virtually nil. He should be awarded $107,500 in compensation for the loss of employment.

[12]    Finally, the grievor refers to Gary Doucette v. Treasury Board (Department of National Defence), 2003 PSSRB 66, in which the adjudicator awarded 12 months' compensation in this regard. In light of the circumstances of this case, the grievor considers that three years' compensation would be fair.

Reasons for Decision

[13]    After analyzing the parties' arguments and considering the case law that was submitted, as well as the evidence adduced during the hearing, I have concluded that Mr. Loyer is not entitled to compensation equivalent to three years' salary for the reasons indicated below.

[14]    As I indicated in the decision pertaining to the dismissal, the employer had to take action with respect to Mr. Loyer's conduct. Although I hold a different opinion concerning the manner of proceeding, the employer's conduct can in no way be described as reprehensible, malicious or arbitrary and aggravated damages are not appropriate in this case.

[15]    In my decision of March 1, 2004, I indicate that the employee was entitled to deal with Mr. Loyer severely by, for example, suspending him without pay. The fact that the dismissal was rescinded accordingly does not mean that there is a retroactive effect to September 28, 2001. The payment of compensation appears to be a justified and complete form of corrective action in light of all of the circumstances.

[16]    Mr. Loyer is the victim of his own conduct. During 1999 and 2000, he demonstrated that he was mistrustful of his superiors, withdrew into himself, took notes and contested every negative comment made towards him.

[17]    On this point, I find that his conduct is similar to that noted by the adjudicator in Doucette (supra):

The re-introduction of Mr. Doucette back into the workplace, with all the surrounding circumstances of his behaviour problems and the difficulty in finding meaningful work for him, is a recipe for further conflict and tension within the workplace that is not in anyone's interests, including the grievor's. Mr. Doucette's explanation for his insubordination on April 16, 2002, also supports a conclusion that reinstatement is not appropriate. He explained his behaviour by saying that he felt that his "job was on the line", causing him to "shut down". If he were reinstated, his job would remain "on the line" and, as is demonstrated by his behaviour, he cannot cope with this level of stress.

[18]    To draw a parallel with Doucette (supra), I would say that Mr. Loyer felt threatened and that he succumbed by rebelling against his superiors and co-workers.

[19]    Finally, I must conclude that Mr. Loyer was subject to a disciplinary measure as a result of his refusal to undergo a medical examination, which is why, as I mentioned earlier, the rescinding of the dismissal does not mean that Mr. Loyer should have been returned to his duties retroactively to the dismissal of September 28, 2001.

[20]    Even if he had filed a satisfactory medical report after a few months, his previous conduct gave no indication that he could have functioned suitably at the institution.

[21]    A relationship of trust between employer and employee works both ways. Mr. Loyer's challenging and distrustful attitude indicates that he had lost trust in the employer. Such an attitude could only shake the employer's trust in its relationship with Mr. Loyer.

[22]    As noted in the parties' written submissions, I must take certain criteria into account in setting compensation. It is necessary to take into account the nature of the employment, the employee's age (50 years), the circumstances of the dismissal and employment prospects. To this, I would add the employee's obligation to attempt to mitigate the damage.

[23]    The parties provided little objective information concerning opportunities or difficulties in terms of finding work. However, taking into account these factors as a whole, notably the nature of the employment and the employee's age, I believe that the compensation should be equivalent to a sufficient period of time to enable the employee to find a new career path.

[24]    On the basis of these various considerations, I believe that compensation equivalent to one year of salary would be appropriate. The amount of the compensation is to be calculated on the basis of the salary level applicable in October 2001. The fact that Mr. Loyer has the benefit of his severance pay must also be taken into account.