Critical Job Interest Protection
in the Public Service of Canada
Introduction
Canadian labour relations policy favors a grievance procedure
culminating in arbitration as the appropriate method to resolve
disputes arising during the life of a collective agreement. However,
most collective agreements confer upon the duly certified bargaining
agent exclusive control of the grievance channels. The result may be
catastrophic for the individual employee who finds himself in the
hands of an unfriendly union. To mitigate this harsh effect, several
approaches have developed.
One judicial theory states that an individual employee may, in
certain circumstances, ignore the grievance procedure entirely and
proceed directly to the courts to enforce perceived expectations
arising under the collective agreement.” The respective labour rela-
tions legislation of Manitoba, New Brunswick, Newfoundland and
Nova Scotia make provision for an employee to present a personal
grievance to the employer at any time.2 In addition, the provinces
of Ontario and British Columbia impose upon the bargaining agent
“the duty of fair representation” in matters relating to the repre-
sentation of employees’ interests 3 Finally, the Government of Cana-
‘This
is the approach taken in Re Grottoli v. Lock & Son Ltd (1963) 39
D.L.R. (2d) 128, and Hamilton Street Railway Co. v. Northcott (1966) 58 D.L.R.
(2d) 708.
For a criticism of these cases see B. Adell, Labour Law – Collective
Agreement – Right of Individual Employee to Sue Employer (1967) Can.Bar
Rev. 354 et seq.
2 Labour Relations Act, S.M. 1972, c.75, s.114; Industrial Relations Act,
R.S.N.B. 1973, c.I-4, s.105; The Labour Relations Act, R.S.N. 1970, c.191, s.33;
Trade Union Act, S.N.S. 1972, c.19, s.14.
According to the editor of Labour Relations Law, Industrial Relations
Centre, Queen’s University, Kingston (1974) “there is virtually no authority
defining the scope of employee rights under these provisions or reconciling
them with the statutory position of a trade union as exclusive bargaining
agent” (at 384).
3The Labour Relations Act, R.S.O. 1970, c.232, s.60; Labour Code of British
Columbia, S.B.C. 1973, c.122, s.7. For an analysis of the Ontario legislation see
C. Riggs, “The Duty of Fair Representation Under the Labour Relations Act”
in Labour Law, The Employee, Union Member, Trade Union and Employment
Standards, Department of Continuing Education, The Law Society of Upper
Canada, Osgoode Hall, Toronto, April 1975, B-1 et seq.
McGILL LAW JOURNAL
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da has by statute4 conferred upon its public servants the right to
refer a grievance to adjudication without invoking the aid or approval
of the bargaining agent in matters relating to the employee’s “critical
job interests”.’
The purpose of this article is to explain the nature and scope
of the statutory protection afforded federal public servants with
regard to their “critical job interests”, particularly in relation to
discharge, and to describe the various safeguards for individual
rights developed in the case law pursuant to the provisions of the
enabling legislation.
Statutory protection of critical job interests in the
federal Public Service
Section 91 of the Public Service Staff Relations Act” confers upon
the individual employee7 the right to refer a grievance 8 to adju-
dication where the grievance relates to the interpretation or applica-
tion of a provision of a collective agreement or an arbitral award.
The grievance may not be referred to adjudication until the employee
has exhausted the grievance procedure.9 Moreover, he must obtain
the approval of the bargaining agent to refer the matter to adjudi-
cation and the bargaining agent must signify its willingness
to
represent the employee in the adjudication proceedings.
However, in matters relating to disciplinary action resulting in
discharge, suspension or a financial penalty, the employee may refer
4 Public Service Staff Relations Act, R.S.C. 1970, c.P-35.
5 The phrase “critical job interests” has been coined by the American
commentator, Professor A. Blumrosen in Legal Protection for Critical Job
Interests: Union Management Authority Versus Employee Autonomy (1959)
13 Rutgers L.R. 631.
6Supra, note 4.
supra, note 4.
“Employee” is defined by s.2 of the Public Service Staff Relations Act,
8 “Grievance” is defined by s.2 of the Public Service Staff Relations Act, ibid.
9 The right to present a grievance to the employer is governed by s.90 of the
Public Service Staff Relations Act, ibid. For an explanation of the interplay
between ss.90 and 91 of the Public Service Staff Relations Act, ibid., see J.
Finkelman, Notes for Introductory Remarks to the Special Joint Committee
of the Senate and House Of Commons on Employer-Employee Relations in the
Public Service of Canada, Minutes of Proceedings and Evidence of the Special
Joint Committee of the Senate and House of Commons on Employer-Employee
Relations in the Public Service, Issue no. 1, 1, 32. See also Re Cooper [1974]
2 F.C. 407, 412 per Pratte J., and H. Arthurs, Collective Bargaining by Public
Employees in Canada: Five Models, Institute of Labor and Industrial Relations,
Wayne State University (1971), 50.
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COMMENTS – COMMENTAIRES
his grievance to adjudication on his own initiative once he has
exhausted the grievance procedure. He need not obtain the approval
of the bargainning agent, nor must he invoke its aid. The adjudicator
is assigned by the Public Service Staff Relations Board 0 and his
decision may be reviewed and set aside by the Federal Court pursuant
to section 28 of the Federal Court Act.”
The adjudicators have given a broad interpretation to what
constitutes disciplinary action.:’ However, the Public Service Em-
ployment Act’ 3 makes provision for the termination of the services
of an employee for reasons other than discipline and these pro-
visions may serve to bar completely a reference to adjudication.
For example, if an employee has been absent from duty for a period
of one week or more for other than proper reasons, he may be
declared to have abandoned his position, whereupon he ceases to be
an employee; 14 similarly, a probationary employee may be dismissed
for cause during the probationary term; 15 an employee may be
“laid off” because of lack of work or the discontinuance of a func-
tion 0 and an employee may be “released” from the Public Service
for reasons of incompetence or incapacity.’ The Act also provides
the employee with the right to appeal his “release” to an independent
Appeal Board established by the Public Service Commission.18
Suppose the services of an employee have been terminated
pursuant to one of the provisions of the Public Service Employment
Act and the employee considers that in reality the action taken
10 S.92 of the Public Service Staff Relations Act, supra, note 4, as am. by
S.C. 1974-75, c.67, s24. For a more detailed explanation of the adjudicative
process in the Canadian Public Service see E.B. Jolliffe, Adjudication in the
Canadian Public Service (1974) 20 McGillLJ. 351.
14 Public Service Employment Act, ibid., s.27.
15 Ibid., s28.
10 Ibid., s.29.
171bid., s.31.
18 Ibid.
11 S.C. 1970-71-72, c.1. Until October, 1975 the decision of the adjudicator
could also be “appealed” to the Public Service Staff Relations Board pursuant
to s.23 of the Public Service Staff Relations Act, ibid. That section was repealed
by S.C. 1974-75, c.67, s.11.
12 See, e.g., Godfrey (166-2-98) (Morin). In referring to the various decisions
of the adjudicators and the Public Service Staff Relations Board, I have used
the system of citation established by the Board.
‘3 R.S.C. 1970, c.P-32. This Act makes provision, inter alia, for the establish-
ment of the Public Service Commission which is charged with maintaining the
merit principle and is responsible for the recruitment, appointment, training,
promotion, transfer and release of federal public servants.
McGILL LAW JOURNAL
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against him was disciplinary in nature. Can the employee refer the
matter to adjudication to determine whether the action taken was in
truth disciplinary and if so, whether the discipline was warranted in
the circumstances?
In Attorney General of Canada v. The Public Service Staff
Relations Board,9 the applicant had been appointed to a position
with the Office of the Commissioner of Official Languages. Within
the delay prescribed by the probationary period, the employee was
notified that he would be rejected on probation. He instituted a
grievance under section 90(1) of the Public Service Staff Relations
Act 20 on the ground that the rejection on probation was in reality
a disciplinary measure, and unjustified in the circumstances. At
each level of reply in the grievance procedure, the employer answered
that the rejection on probation was properly taken in accordance
with section 28 of the Public Services Employment Act. 2′
The employee eventually referred the matter to adjudication22
under section 91 of the Public Service Staff Relations Act. The em-
ployer’ objected to the jurisdiction of the adjudicator to hear the
reference on the ground that the action taken by the employer was
not disciplinary in nature and thus could not be a proper subject
matter for a reference to adjudication. The employee maintained
that it was an established principle that where such an objection
was made by the employer, the employee could prove on the balance
of probabilities that the matter should be characterized as disci-
plinary in nature rather than as a rejection on probation; if the
employee was, successful in establishing this, the adjudicator would
then have jurisdiction to render a decision on the merits, notwith-
standing the fact that the dismissal had occurred during the pro-
bationary period.2 3
Adjudicator Weatherill accepted the employee’s argument and
clothed himself with jurisdiction to determine the true nature of
the termination of employment. On being referred to the Public
Service Staff Relations Board, 24 the decision was affirmed.
19 Federal Court of Appeal, A-689-75, as yet unreported.
20Supra, note 4.
21 Supra, note 13.
2 2Jacmain (166-2-1510) (Weatherill).
23 Some examples where this principle has been discussed are: Randall
(166-2-61)
(Martin); Czubrewicz
(166-2-58)
(Arthurs); Shaw (166-2-68) (Arthurs); Proudlove
(Jolliffe); Chimirri (166-2-224) (Jolliffe);
(Arthurs); Dubois
(166-2-41)
(Arthurs); Malouin (166-2-63)
(166-2-69) (Arthurs); Gallant (166-2-121)
Fardella (166-2-734)
(Meyer) esp.2.
24 Treasury Board v. Jacmain (168-2-87)
(Brown).
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COMMENTS – COMMENTAIRES
However, the Federal Court of Appeal, Heald J., Urie and Ryan JJ.’
concurring, set aside the decision of the Public Service Staff Rela-
tions Board. According to Mr Justice Heald, section 91 of the
Public Service Staff Relations Act did not expressly confer juris-
diction upon adjudicators in matters relating to rejection for cause
during the probationary period. Since the Act was silent on this
matter, it was improper for the adjudicator to have assumed
jurisdiction:
[T]he whole intent of section 28 [of the Public Service Employment Act]
is to give the employer an opportunity to assess an employee’s suitability
for a position. If, at any time during that period, the employer concludes
that the employee is not suitable, then the employer can reject him without
the employee having the adjudication avenue of redress. To hold’ that a
probationary employee acquires vested rights to adjudication during his
period of probation is to completely ignore the plain meaning of the
words used in section 28 of the Public Service Employment Act and section
91 of the Public Service Staff Relations Act. Mr Jacmain clearly had the
right to grieve under section 90 of the Public Service Staff Relations Act.
His grievance was considered and rejected. However, not all grievors
under section 90 are entitled to adjudication under section 91. The right
to adjudication is restricted to those grievors bringing themselves within
the four corners of section 91(1) which, on the facts here present, Mr
Jacmain has not been successful in doing.25
On the basis of Attorney General of Canada v. The Public Service
Staff Relations Board it would appear that adjudicators will in the
future be prevented from lifting the probationary veil. Moreover,
the logic of Mr Justice Heald’s argument dictates that the mere
invocation by the employer of any provision of the Public Service
Employment Act regulating the termination of an employee’s services
for causes other than discipline will serve as a complete bar to ad-
judication. Since this decision of the Federal Court of Appeal runs
contrary to established adjudicative practice, it may well serve as a
basis for future litigation.
Management rights and discharge for just cause
Traditional management rights such as the determination of
manpower requirements, the allocation and effective utilization of
manpower resources, the determination of the requirements for
training and development of personnel, the classification of positions
and the determination and regulation of pay, hours of work and
leave are reserved to the Treasury Board as the Public Service
2 5 Attorney General of Canada v. The Public Service Staff Relations Board,
supra, note 19, 10.
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Employer 6 by the provisions of section 7(1) of the Financial
Administration Act. 2
7 The Treasury Board also has the right to
“establish standards of discipline in the public service and prescribe
the financial and other penalties including suspension and discharge,
that may be applied for breaches of discipline or misconduct”.
Although the Act does not specifically state that an employee
may not be discharged from the Public Service for reasons other
than just cause, the adjudicators have given it
this interpreta-
tion. For example in Larivire2 9 the grievor was a penitentiary
guard subject to the Penitentiary Act 0 and the Public Service
Staff Relations Act,3 1 but not to the Public Service Employment
Act 3 2 Counsel for the employer submitted that the grievor was
properly discharged pursuant to the provisions of the Penitentiary
Act and that the power of the adjudicator was limited to reviewing
the procedural correctness of the discharge and not to questioning
whether ‘the dismissal was in substance improper.3 3 Adjudicator
Morin disagreed:
We are fully agreed on the fact that the Adjudicator must not substitute
himself for the Employer to thus impose his own personal point of view.
However, we believe that the Adjudicator should do more than verify
whether the dismissal procedure was respected and whether there
26 S.2 of the Public Service Staff Relations Act, supra, note 1, defines
“employer” to mean:
“Her majesty in right of Canada as represented by,
(a) in the case of any portion of the public service of Canada specified
in Part I of Schedule I, the Treasury Board, and
(b) in the case of any portion of the public service of Canada specified in
Part II of Schedule I, the separate employer concerned.”
Some examples of portions of the Public Service of Canada specified in Part I
of Schedule I as represented by the Treasury Board are: Canadian Transport
Commission, Public Service Commission, Immigration Appeal Board and Staff
of the Supreme Court. Included also are all commonly known departments of
Government such as: National Defense, Post Office, Health and Welfare, and
Consumer and Corporate Affairs. Some examples of portions of the Public
Service of Canada specified in Part II of Schedule I, that is, the separate
employers concerned, are: National Film Board, Economic Council of Canada,
and the Public Service Staff Relations Board. For a more detailed explanation
of the nature of Crown employment in Canada, see D. Stanley, Prerogative
in Private and Public Employment (1974) 20 McGill L.J. 394, 397 et seq.
27 R.S.C. 1970, c.F-10.
28Ibid., s.7(1)(f).
29 (166-2-8)
(Morin).
30 R.S.C. 1970, c.P-53.
31 Supra, note 4.
32 Supra, note 13.
.3 3 Larivi~re, supra, note 29, 6.
19761
COMMENTS – COMMENTAIRES
actually exists a cause for such a decision. In each case, we have to look
for the real cause of the disciplinary measure, then we must verify
whether the acts committed by the employee are sufficiently serious to
justify the penalty inflicted ….z4
The procedure to adduce evidence at adjudication in disciplinary
cases and the burden of proof
In accordance with the general evidentiary principle that he who
alleges must prove, the adjudicators have considered that in dis-
charge cases the onus of justification rests initially with the em-
ployer.35
As to the nature of the burden of proof, the Public Service em-
ployer need only prove its case on the balance of probabilities as in
civil matters and not beyond a reasonable doubt as in criminal
matters. However, this standard is subject to the qualification that
“it must be applied with caution in respect of an alleged breach of
discipline or misconduct which also appears to have elements of a
criminal offence”.3 6
Nevertheless, even where criminal elements are present, the
burden of proof on the employer remains that of the balance of
probabilities. In Bell,3 7 the representative for the grievor argued
that where the employer based its disciplinary action on conduct
which was “tantamount to a criminal offence” it was incumbent
upon the employer to establish “beyond a reasonable doubt” that
the actions were justified 8 Adjudicator Beatty responded:
If
this ever was the accepted arbitral position in the private sector
(which I doubt) it is clear that it is no longer so now. It is clear from
a review of the awards in the private sector, as well as those in the
public sector … 39 that even where the grounds of discharge relied upon
34 Ibid., 6-7.
35 See Stewart (166-2-2000)
36 Ibid., 26.
37 (166-2-1788)
38 Ibid.
3 9 Adjudicator Beatty was referring to Dixon (166-2-555)
(Jolliffe) 24-25.
(Beatty) 30.
(Jolliffe). Chief
Adjudicator Jolliffe’s exact words in the Dixon decision were: “To put the
proposition in other words, the standard of proof at the adjudication of a
disciplinary case under the Public Service Staff Relations Act resembles the
standard of proof recognized at a civil trial, not at a criminal trial.
With that proposition, I am in general agreement, subject to an important
qualification. When the basis for disciplinary action is the employer’s opinion
or belief that the employee has committed an offence for which he could be
prosecuted under the Criminal Code, the principles of natural justice and
common sense require an adjudicator to assess ‘the balance of probabilities’
with great care and caution –
and by tests which would satisfy a judge rather
McGILL LAW JOURNAL
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by the employer embrace conduct of a criminal nature, the adjudication
of an employee’s discharge grievance falls to be determined by the civil
burden of proof, viz. on the balance of probabilities.40
The nature of the discipline
Once the employer has established on the balance of probabilities
that there existed just cause to discipline the employee, a question
arises as to the nature of that discipline.
In
the private sector, there are two main viewpoints on the
nature of industrial discipline. Some argue that such discipline is
analogous to criminal law, others maintain that it
is analogous to
contract law. The first viewpoint has been summarized as follows:
[The criminal law and industrial discipline] are means deliberately used
to attain compliance with approved ways of behaving. The criminal law
is directed to reducing criminal behaviour, and industrial discipline is
directed to reducing violations of the laws of the plant … [both]
employ the same kind of sanction: the organized, negative sanction. By
‘organized’, I mean that the sanctions are made and applied by the
community’s organs of authority, as contrasted with spontaneous reactions
of persons in the community, which sociologists call ‘informal’ sanctions.
By ‘negative’, I mean that the sanctions operate through disapprobation
and discouragement, in a word, through punishment, as contrasted with
those which operate
through approbation and encouragement, often
denominated ‘positive sanctions’. In short, both criminal law and industrial
discipline are organized sanctioning systems resting on the use of
punishment.41
The second viewpoint emphasizes that the relationship between state
and citizen as reflected in the criminal law is primarily prohibitive,
and is distinct from the relationship between employer and em-
ployee, which is characterized largely by affirmative and positive
elements. According to this latter viewpoint, the relationship is a
bargain, “an exchange of services for wages”, 42 ill-defined though the
terms may be:
The employers’ obligations are enforced through the collective agreement
and the grievance procedure. The employee’s obligations are enforced
through a system of inducements and sanctions including those we call
industrial discipline. The thrust of industrial discipline is prohibitive to
than by tests which would satisfy an auditor or administrative superior.” (at
29)40 Supra, note 37.
41 S. Kadish, “The Criminal Law and Industrial Discipline as Sanctioning
Systems: Some Comparative Observations” in Proceedings of the 17th Annual
Meeting National Academy of Arbitrators (1964) 125-128; taken from Labour
Relations Law, supra, note 2, 304.
42 Labour Relations Law, ibid.
19761
COMMENTS – COMMENTAIRES
some extent: thou shalt not lift company property, thou shalt not slug
thy foreman, etc. But the affirmative commands are more prominent and
more significant. They include dependability, diligence, collaboration,
conformity, and all the other requirements for efficient production in a
complex organization.
A disciplined worker, therefore, is not merely one who keeps out of
fights, refrains from smoking in the washroom, and otherwise obeys the
rules of comportment. He also makes a positive contribution more or less
equivalent to what was contemplated when the employment relationship
was originally sealed.43
In the Public Service of Canada the criminal law analogy is
generally accepted 44 and three important consequences result: The
first is the issue of providing the employee with due notice of the
forbidden conduct. Second is the question of the zight of the em-
ployer to suspend an employee indefinitely pending the results of a
court proceeding in which he is involved. Third is the determination
of the nature of the factors to be considered in assessing the ap-
propriate penalty in the circumstances.
1. The issue of providing due notice to the employee of the
forbidden conduct
The principle that the employer must provide the employee with
due notice of the forbidden conduct is well recognized in the case
law developed pursuant to the Public Service Staff Relations Act.
Its best expression may be found in a decision of the Federal Court
of Appeal, Norman L. Wright v. Public Service Staff Relations Board:
[A]n employee cannot, as a matter of substance, be dismissed for
disciplinary reasons or misconduct without being informed of what is
alleged against him in such terms that he can make his answer thereto,
not only before he is discharged but also at each stage of the grievance
procedure.45
Moreover, the adjudicators have recognized as applicable to the
Public Service the classical doctrines developed in the private sector
imposing “due process” on the employer’s power to discipline,
namely, the doctrine of the “culminating incident”, and the doctrine
of “condonation”.
a) The doctrine of the culminating incident
This principle requires the employer to prove that the “cul-
minating incident” itself was of such a nature as to warrant dis-
43 Ibid., 304-305.
44 See e.g., Bell, supra, note 37.
45 [1973] F.C. 765, 779.
McGILL LAW JOURNAL
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cipline. Only after such a case has been made can the employer raise
the employee’s previous record to justify the specific disciplinary
action in question. The doctrine
… stands as a shield for aggrieved employees whose work record is
somewhat tarnished by past misconduct. It guards against the chance
that an aggrieved employee will be judged guilty of the most recent dis-
ciplinary offence charged against him in part on his tarnished record of
behaviour in the work place.46
An example of the application of the doctrine is the case of
Vogel.4 7 The employer gave no formal notice to the grievor of the
culminating incident upon which it was relying to serve as a spring-
board to the grievor’s past disciplinary record. Adjudicator Norman
sustained the grievance on the ground, inter alia, that fairness
demanded that before an employer could “rely upon an incident
which in itself merits some disciplinary action as a springboard to
an employee’s past disciplinary record, that culminating incident
ought itself to have been the occasion of a formal disciplinary step
by the employer”. 48
Within the context of the Public Service Staff Relations Act the
doctrine of the “culminating incident” has been extended so that
the employer may not attack the credibility of the aggrieved em-
ployee as a witness by introducing into evidence his past disciplinary
record until the culminating incident has been proven. In Shanks, 40
counsel for the employer submitted that the adjudicator could
assess the aggrieved employee’s credibility as a witness not only on
his testimony as it pertained to the “culminating incident”, but also
on his disciplinary record as a whole. In rejecting this argument,
Adjudicator Norman pointed out that the culminating
incident
doctrine had been evolved in order to avoid “guilt by accumulation” 0
46 Shanks (166-2-619)
(Norman) 3. See also Gosnell (166-2-1467, 166-2-1471)
(Jolliffe) 39: “The rule is not a mere legalistic technicality, as some may
imagine. The rule is based solidly on irrefutable logic and fundamental prin-
ciple. It would be irrational and illogical to presume that misconduct must
have occurred today because it is known that misconduct occurred in the
past. Further, any such presumption of guilt is contrary to a basic principle
of British jurisprudence, which Canada has been fortunate to inherit. That
principle demands respect in the employment relationship as it does in the
courts and elsewhere.”
For a statement of the rule in the private sector see Re United Steel-
15 L.A.C. 416, 419
workers of America and Aerocide Dispensers Ltd (1963)
per Laskin J.
(Norman).
47 (166-2-1473)
48 Ibid., 15.
49 Supra, note 46.
0 Ibid.
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COMMENTS – COMMENTAIRES
Since the employer was bound to prove the necessity for disciplinary
action on the basis of the incident before the adjudicator, without
reliance on earlier misconduct, the employer must be prevented
from in any way referring to such past misconduct until its “initial
burden of proving the case on the balance of probabilities” 5 ‘ had
been discharged.
b) The doctrine of condonation
The common law doctrine of condonation is described by
MacLennan J.A. in McIntyre v. Hockin:
When an employer becomes aware of misconduct on the part of his
servant, sufficient to justify dismissal, he may adopt either of two courses.
He may dismiss, or he may overlook the fault. But he cannot retain the
servant in his employment, and afterwards at any distance of time turn
him away. … If he retains the servant in his employment for any
considerable time after discovering his fault, that is condonation, and he
cannot afterwards dismiss for that fault without anything new. No doubt
the employer ought to have a reasonable time to determine what to do,
to consider whether he will dismiss or not, or to look for another servant.
So, also, he must have full knowledge of the nature and extent of the
fault, for he cannot forgive or condone matters of which he is not fully
informed. Further, condonation is subject to an implied condition of
future good conduct, and whenever any new misconduct occurs, the old
offences may be invoked and may be put in the scale against the offender
as cause for dismissal.52
The leading case invoking the doctrine of condonation as a bar
to discharge from the Public Service is Vogel.53 In that case the
grievor was charged on July 30, 1973 with deliberately wasting time.
Noted also were disturbing other employees, extremely poor work,
creating a greater work load for others, and consuming a bottle of
beer during normal working hours without permission. He was
suspended for five days and at the same time warned of impending
release if work did not improve. In faot, within a few weeks of this
disciplinary action having been taken, his work having not improved,
the grievor was discharged. The letter of dismissal stated:
You have been aware for some time of the dissatisfaction this base has
had with your work and attitude and have been warned on many
previous occasions that your dismissal was imminent if you persisted
along these lines. As a result of your own decision not to conform to
requirements this dismissal has come about.54
51 Ibid., 4.
52 (1889) 16 O.A.R. 498, 501 et seq.
63 Supra, note 47.
54 Ibid., 1.
McGILL LAW JOURNAL
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However, prior to the hearing before the adjudicator, the employer
had given the grievor no indication that any incident subsequent to
July 30, 1973 had been relied upon as a basis for discharge. The
grievor’s representative pleaded condonation, and the adjudicator
agreed that there were grounds for invoking the doctrine. The
employee had not been advised at the time of, or shortly after, the
incident subsequent to July 30, 1973 “that he was in any kind of
jeopardy of being discharged … [and] he ought to have been so
advised as a matter of fairness … in order to invest time in seeking
other employment if he chose to do so”Y5
2. The right of the employer to suspend an employee indefinitely
pending the results of a court proceeding in which the
employee is involved
Related to the issue of “due process” is the problem of whether
an employer may suspend indefinitely an employee who is involved
in court proceedings, pending the outcome of such proceedings. A
typical example of this situation is the Guenot case.”‘ The grievor,
a Customs Officer at the Department of National Revenue, was
arrested at his place of work by the R.C.M.P. on January 19, 1974
and charged with assisting in smuggling automobile and truck parts
and accessories valued at over $200.00, contrary to section 192 of
the Customs Act. 7 On the same day, he was suspended indefinitely
pending the resolution of his case in the courts. Adjudicator Sim-
mons heard the grievance on June 27, 1974 and learned at that time
that the earliest date at which the matter could be disposed was
May, 1975. The grievor sought reinstatement during the intervening
months while the matter would remain unresolved before the courts,
and claimed that he had not received any information from the
R.C.M.P. which would enable him to prepare a defense to the charge.
In the meantime, he pleaded innocence and denied any involvement
whatsoever.
The evidence at adjudication indicated that the grievor could
undertake duties other than those performed at the time of his
arrest and that he was willing to take any type of work. However,
55 Ibid., 20. Adjudicator Norman also stated that “[e]xceptions to the prin-
ciple might include cases where no injustice is being done to the affected
employee due to prior notice having been communicated to him and cases
where the incident was not within the knowledge of the employer at the
time of disciplinary action being taken against the employee” (at 15).
(Simmons), now reported at (1974) 6 L.A.C. 400.
56 (166-2-1498)
57R.S.C. 1970, c.C40.
19761
COMMENTS – COMMENTAIRES
the employer would not consider the possibility of continuing to
employ the grievor even in a position which would not require him
to meet the public, because the employer had lost trust in him.
Moreover, the employer decided that due to the seriousness of the
charge, the operation and morale of the Department would be
affected if the grievor had been retained in any position.
Reviewing the relevant decisions in the private sector relating
to the right of the employer to suspend an employee who has been
arrested and charged with an offence, Adjudicator Simmons con-
cluded that the employer does not have an untrammelled right to
suspend such an employee, and furthermore he cannot completely
disassociate himself from the matter to await disposition by the
courts, but must, within a reasonable period of time, objectively
consider the possibility of reinstating the grievor.58 Relying on
Phillips Cables Ltd,59 Adjudicator Simmons considered the following
as indices of an objective assessment: What impact would the
grievor’s presence at work have on its business operation as well as
on the efficiency and morale of the other employees; was arrest and
charge work-related; could the employee be sufficiently supervised
so as to remove him from constant suspicion; could he be moved
to another work area to remove the source of conflict.6 0
Adjudicator Simmons considered that the question of what consti-
tutes a reasonable period of time within which the objective assess-
ment should be made depended on the circumstances of each case.
On the evidence before him, he found that continued suspension of
the grievor was unwarranted and that the employer had failed to
consider objectively the possibility of reinstatement. Accordingly,
he ordered that the grievor be reinstated without loss of com-
pensation and without prejudice to the right of the employer to
institute discharge proceedings should further information about the
nature of the grievor’s ‘offense become available.6 ‘
The question of indefinite suspension pending the results of a
court proceeding in which the employee was involved was again
raised in Horsfield 2 The grievor was arrested at his place of work
by the R.C.M.P. on March 22, 1974 and charged with the offense of
forgery, contrary to section 324(1) (b) of the Criminal Code,63 and
58 Supra, note 56, 8, 10.
59 (1974) 5 L.A.C. (2d) 274 (Adams).
160 Supra, note 56, 10.
6i Ibid., 14-15.
62 (166-2-1568) (Simmons).
63 R.S.C. 1970, c.C-34.
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was told to remain at home until he received further instructions.
He continued to receive compensation until May 13 at which time
he was notified that he was to be suspended without pay. The
court appearance was postponed until October 1, 1974, the first
day of the preliminary hearing was October 7, 1974, and the next
scheduled hearing was to have been January 27, 1975. At the grievance
heard on October 28, 1974, the grievor alleged, inter alia, that the
peremptory action taken by the employer in suspending him was a
denial of natural justice.
Adjudicator Simmons affirmed the view he expressed in Guenot
that while an employer may suspend an employee indefinitely
pending the results of a court proceeding in which the employee is
involved, it must objectively consider the possibilities of reinstate-
ment to active employment within a reasonable period of time. He
found on the evidence that the employer had not demonstrated, on
the balance of probabilities, that its business operation would be
adversely affected by the grievor’s presence at work or that it was
not possible for the employer to supervise the employee without
shouldering an unreasonable burden, and there was no evidence to
lead him to conclude that the efficiency or morale of the other
employees would be detrimentally affected if the employer reinstated
the grievor. Accordingly, he ordered that the grievor be reinstated
without prejudice to the right of the employer to institute discharge
proceedings at a later date. The issue of lost compensation was not
raised.
3. Factors in assessing the appropriate penalty
In readjusting the disciplinary measures taken by the employer,
the adjudicators have asked themselves the following questions:
Was the discipline imposed reasonably related to the gravity of the
offense? Was its aim correction? Were mitigating factors accounted
for?
Immediate dismissal has been upheld in cases where the offense
has apparently made a continuing working relationship impossible.
For example, in Chevalier” where the discharge was based on the
ground of assault on a superior accompanied by acts of insubor-
dination and lying, with no extenuating circumstances, provocation
or excuse pleaded, discharge was held to be justified. Similarly in
Larivi~re95 a discharge was upheld where the grievor had uttered
abusive and menacing words toward a superior and had inten-
64 (166-2-1617) (Garant).
65 (166-2-8) (Morin).
19761
COMMENTS –
COMMENTAIRES
tionally and without any justification assaulted another employee in
the course of his duties.
In another case, McKendry, 6 the grievor was discharged for,
inter alia, purchasing shares in a company while it had business
pending with the employer. Chief Adjudicator Jolliffe found that
disciplinary action was in order and discharge the appropriate
penalty on the ground that the employee’s actions were in conflict
with the fundamental principle that public servants must not use,
for private gain, information to which they have access and which is
otherwise unavailable to the general public. 7
On the other hand, in some cases, the potential value to the
Public Service of a reformed employee was considered more im-
portant than immediate dismissal. For example, in Baker,6
the
grievor, a postal employee, was discharged for a violation of section
55 of the Post Office Act.69 During the course of his duties, he had
taken out of an unsealed envelope a pamphlet entitled “Sex Educa-
tion”, read a little and passed it along to a fellow employee. Chief
Adjudicator Jolliffe reduced the penalty to suspension without pay
or other benefits for seven months on the grounds that the absolute
prohibition of section 55 of the Post Office Act was not being uni-
formly enforced at the grievor’s Post Office, a fact of which the
employees were aware, the grievor was cooperative and straight-
forward with his supervisor at his investigation, and his demeanor
as a witness at the adjudication hearing was such as to suggest that
he was not dishonest.
Similarly, in Segin70 the grievor had been discharged for theft
of two dollars from the mail but had been acquitted of a criminal
charge. Chief Adjudicator Jolliffe found that the grievor did not
intend to steal the money in the legal or ordinary sense of the word.
The penalty of discharge was reduced to a suspension without pay
or benefits for eight months since there were mitigating circums-
tances: The employee had intended only to “borrow” the money
for a temporary period of time, he had a good record, there were
“grounds for expecting his redemption” and he was “capable of
rehabilitating himself as a reliable and trusted employee”.7’
66 (166-2-674) (Jolliffe); Substantive issue available in summary form only,
infra, note 67.
07 lndex to Adjudication Decisions, Staff Relations Division, Personnel
Policy Branch, Treasury Board (166-2-674).
68 (166-2-123) (Jolliffe).
69 Post Office Act, R.S.C. 1952, c.212, s.55, now R.S.C. 1970, c.P-14, s.58.
70 (166-2-396) (Jolliffe).
71 Ibid., 12.
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The criteria upon which adjudicators have determined that some
other, reduced penalty would be more appropriate than discharge
were reviewed in Stewart:
[Liong-term suspension for a very serious offence is more appropriate than
discharge, provided that the employee has a good record, provided that
there are extenuating circumstances and provided further that there are
reasonable grounds for expecting the employee’s redemption.7 2
The problem of alcoholism
Alcoholism has given rise to a number of interesting decisions
concerning the appropriate penalty to be awarded. According to the
case law, alcoholism is considered to be a sickness and not per se
just cause for discipline. “Society and the law no longer regard
punishment or discipline as the appropriate response to pathological
conditions, whether of the mind or of the body. 73
Nevertheless, where alcoholism results in an assault on a super-
visor, the employee may be subject to disciplinary action:
such as assaulting a supervisor –
the employee may be discharged.74
Alcoholism and other forms of addiction are increasingly recognized by
administrators and personnel men as among the most difficult and
costly problems confronting management in North America. It is obvious
that when addiction leads to a single outburst of outrageous misconduct
–
However, where the employer has accepted responsibility to
promote, encourage and even insist upon the diagnosis, treatment
and rehabilitation of an employee who has been addicted to alcohol,
and to the extent that the employer has failed to live up to its
own self-imposed responsibilities, there will be a good defense to a
discharge action for assault, insubordination, poor attendance and
poor reporting practices by an alcoholic. In Emburyf 5 the grievor
was discharged on just such a basis. His defense was that the
penalty of discharge was too severe in the circumstances, since the
employer had not given him ample notice of the gravity of his
alleged misconduct and his poor work performance was due to an
alcoholic problem which he had solved by the time of the hearing,
notwithstanding the employer’s failure to avail him of the oppor-
tunity to undergo the employer’s rehabilitation program.
Chief Adjudicator Jolliffe found that the grievor had committed
an unprovoked assault on the supervisor, and the question to be
decided was whether the penalty of discharge was appropriate in
72 Supra, note 35, 74.
73 Washbrook (166-2-133) (Jolliffe) 22.
74Embury (166-2-618) (Jolliffe) 21.
75 Ibid.
19761
COMMENTS – COMMENTAIRES
the circumstances. An important issue considered in resolving the
question was whether the employer had any responsibility for the
unsatisfactory employment record of the grievor. The Chief Adju-
dicator found that the employer had been aware of the grievor’s
alcoholic problem for several years and had not responded by
imposing progressive discipline or insisting on diagnosis and treat-
ment, a program which the employer had itself designed to deal
with problem drinking and drug misuse. The document setting out
the appropriate program made it clear that the Post Office had
undertaken the responsibility of promoting, encouraging and at
times insisting “upon the diagnosis, treatment and rehabilitation of
employees who have become addicts”.70 While this required a joint
employer-employee effort, responsible management could no longer
“sit back and allow conditions to deteriorate to the point where
employment must be terminated”.77
On the issue of whether it was appropriate to take into consid-
eration the rehabilitation of the employee after the event leading
to his discharge, the Chief Adjudicator considered that
… it would be highly artificial in considering disciplinary penalties to
pretend that the only relevant information about an employee is whatever
would have been available at the time of his offence, and that information
subsequently available should be excluded from consideration. To be
realistic, evidence as to his character and potential value which comes
to light after the offence may be as important as anything available before
the offence.7 8
Since the employer was not diligent in affording the grievor an
opportunity to rehabilitate himself through the employer’s own
rehabilitation program and since the grievor had produced con-
siderable evidence regarding the possibility of his own rehabilitation,
Chief Adjudicator Jolliffe found that discharge was unwarranted in
the circumstances and substituted a suspension without pay for
eleven months.
The extent of the adjudicator’s authority to order remedial action
The extent to which an adjudicator may take remedial action
under the Public Service Staff Relations Act7 9 on disciplinary
measures instituted by the employer has not been as thoroughly
canvassed as it has in the private sector. 0 In fact, adjudicators have
76Ibid., 19.
77 Ibid.
78 Ibid., 27.
79 Supra, note 4.
80 See, e.g., E.E. Palmer, The Remedial Authority of Labour Arbitrators
(1960) 1 Current Law and Social Problems 125, 152; Re International Assoc.
McGILL LAW JOURNAL
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consistently maintained their prerogative to reduce a penalty of
discharge
to one of suspension where the circumstances have
warranted it. Although the employer has never formally challenged
this position by way of reference to the Public Service Staff Relations
Board or the Federal Court of Appeal, the question arose in the
Paraschyniak case.”‘ Counsel for the employer submitted to the
Chief Adjudicator that he had no jurisdiction to reduce the penalty
of discharge. Chief Adjudicator Jolliffe responded as follows:
It has been urged that I have no “jurisdiction” to reduce the penalty.
If this novel suggestion had any merit, I would have expected it to be
tested in the courts long ago ….
In this case, I am not acting under powers conferred by a collective
agreement. The grievor had a statutory right to grieve and to refer his
grievance to adjudication under Section 90 and 91 of the Public Service
Staff Relations Act. In hearing and determining the case, I am exercising
the jurisdiction vested in me by Section 92, 94, 95 and 96 of the Act.
Under Section 96(2) I have a duty to render a decision, and under
subsection
the employer and the employees are bound
thereby. The “jurisdiction” or “power” to decide this case is to be found in
the provisions of the statute rather than the language of an agreement.82
(4) and
(5)
Conclusion
The question of the legal rights of an individual employee in the
collective bargaining setting is part of the general problem of
finding a balance between liberty and authority. The Government
of Canada has considered it appropriate to confer upon its public
servants an unfettered right to refer to adjudication matters relating
to their “critical job interests”. The case law that has subsequently
been developed has ensured that principles of natural justice shall
apply to decisions concerning the question of whether or not an
employee should be discharged. In view of the current research
and development in the entire area of collective bargaining, the
provisions of the Public Service Staff Relations Act might well serve
as a model for the general approach to the question of individual
rights in the administration of the collective agreement.
Stephen R. Gibson*
of Machinists and S.K.D. Manufacturing Ltd (1969) 20 L.A.C. 231 (Weiler); P.
Weiler, In the Last Resort: A Critical Study of the Supreme Court of Canada
(1974), 143.
81 (166-2-1184) (Jolliffe).
82 Ibid., 43-45.
* Member of the Bar of Quebec.
I would like to thank Mr G. Plant, Registrar, Public Service Staff Relations
Board, Ottawa, for making readily available to me the various decisions of
the Federal Court of Appeal, the Public Service Staff Relations Board and
the adjudicators, upon which the research for this article is based.
