Professional Documents
Culture Documents
Before an adjudicator
BETWEEN
Grievors
and
DEPUTY HEAD
(Department of Health)
Employer
Indexed as
Chopra v. Deputy Head (Department of Health)
[1]
The grievors, Shiv Chopra and Margaret Haydon, judicially reviewed my decision
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]
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;
Page: 2 of 26
B. Reasons
[5]
In the course of making its order, the Federal Court made observations in the
[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]
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
Public Service Staff Relations Act
Page: 3 of 26
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
employ~r
forbearance
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
Public Service Staff Relations Act
Page: 4 of 26
[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]
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
Page: 5 of 26
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]
[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 corning 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.
[2 5]
Counsel submitted that I was also bound by the findings of the Federal Court on
Counsel for the grievors closely reviewed the relevant sections of the Federal
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
Public Service Staff Relations Act
Page: 6 of 26
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]
v. Hockin, [1889] 0.]. 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
1.
2.
3.
4.
preserved;
delay effectively denies the grievor the opportunity to
defend himself or herself;
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
Page: 7 of 26
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.
[3 3]
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.
[3 5]
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
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
Public Service Staff Relations Act
Page: 8 of 26
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]
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
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.
Page: 9 of 26
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]
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
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:
Page: 10 of 26
[4 7]
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
LAC. (4'h) 2 38
[49]
at 245.
of time in terms of delay, one must look at the circumstances of each case (see Renae
v. Champs Mushrooms Inc., [2014] C.LA.D. No. 55 (QL)).
[SO]
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 -
International Assn. of Machinists and Aerospace Workers, Local 771, [2000] O.L.A.A. No.
81 (QL). In addition, that case set 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
Public Service Staff Relations Act
Page: 11 of 26
rehearing.
[52]
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]
investigations were not disciplinary but were a step in the process that could
ultimately
lead
to
discipline.
Counsel
submitted
that
the
Federal
Court's
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]
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
Public Service Staff Relations Act
Page: 12 of 26
(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 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]
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.
Page: 13 of 26
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
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
Page: 14 of 26
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
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 (seeM.
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.
[7 4]
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.
Public Service Staff Relations Act
Page: 15 of 26
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]
Counsel submitted that it was beyond the scope of this hearing to reassess the
[78]
In these reasons, I will first address the issue of condonation. Then, in light of
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.
Public Service Staff Relations Act
Page: 16 of 26
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]
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]
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):
Page: 17 of 26
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"d ed., Discharge and Discipline, at
10-60; Brown and Beatty, Canadian Labour Arbitration, 4'h 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.
[8 5]
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.
[8 7]
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]
Page: 18 of 26
The employer was aware of the comments soon after they were made.
Ms. Kirkpatrick did not inform the grievors that their comments to
the media were inappropriate before imposing discipline.
[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.
Public Service Staff Relations Act
[92]
Page: 19 of 26
Therefore, I find that the employer condoned the grievors' comments and that
The Federal Court directed me to reconsider the sanction for Dr. Chopra's
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]
for misconduct, I am to redetermine the matter on the basis of the revised disciplinary
record. In this case, the grievance against the 2 0-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.
Public Service Staff Relations Act
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The grounds for the termination of employment were set out in the termination
letter as follows:
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Dr. Chopra now has a disciplinary record of 15 days before his termination of
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:
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assessing
the
appropriateness
of
termination
for
Dr. Haydon's
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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
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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), Local1288P 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."
[llO] 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.
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[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 2 0-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:
(The Order appears on the next page)
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VI. Order