[2017] 3 F.C.R. D-8
Labour Relations
Appeal from Federal Court decision (2015 FC 617) dismissing application for judicial review of adjudicator’s decision (2013 PSLRB 80) dismissing appellant’s grievances filed under Public Service Labour Relations Act[1], S.C. 2003, c. 22, s. 2 — Appellant civilian clerk with RCMP, possessing reliability status — RCMP management noting deficiencies in appellant’s performance, attitude — Levying suspension against appellant — Later electing to revoke appellant’s reliability status, followed by termination of position while appellant on sick leave — Adjudicator determining, inter alia, that RCMP management’s decision to review appellant’s eligibility for reliability status, decision to revoke that status not constituting acts of disguised discipline, not made in bad faith or in violation of appellant’s rights to procedural fairness — Consequently holding that merits of revocation could not be subject of grievance — Main issue whether adjudicator’s disguised discipline assessment supportable — Adjudicator’s conclusion on issue of disguised discipline unsupportable — Adjudicator failing to address impact of decision on appellant — Unreasonably focussing assessment of disguised discipline issue almost exclusively on employer’s lack of bad faith in deciding to initiate security review process, to eventually revoke appellant’s reliability status — Employer’s subjective intent not determinative of whether employer engaging in disguised discipline — Objective assessment of what actually occurred required by adjudicator — Revocation of appellant’s reliability status, termination acts of disguised discipline — Reasons for revoking appellant’s reliability status normally grounds for discipline — RCMP already embarked on process of levying discipline — Revocation selected as means of removing appellant from workplace — Holding otherwise leading to unreasonable result that employer could evade protection provided to employees against termination without cause merely because it had good faith belief that employee no longer loyal, reliable or trustworthy — Upholding adjudicator’s decision in this case leading to hollowing out of cause protection enshrined in Act — Appeal allowed.
Bergey v. Canada (Attorney General) (A-283-15, 2017 FCA 30, Gleason J.A., judgment dated February 10, 2017, 64 p.)