[2012] 3 F.C.R. D-14
Public Service
Labour Relations
Judicial review of decision by Public Service Labour Relations Board adjudicator dismissing applicant’s complaint against employer, Canada Border Services Agency (CBSA), alleging violation of non-discrimination clause of collective agreement, non-interference provision of Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (PSLRA)—Applicant engaged full-time in union matters—Employment with CBSA terminated following posting on union Web site of statements viewed by Deputy Head as counselling, procuring illegal work stoppage—Adjudicator finding that Deputy Head had general authority under Financial Administration Act, R.S.C., 1985, c. F-11 (FAA) to discipline applicant—Statements at issue constituting “counselling” or “procuring” illegal strike contrary to PSLRA, s. 194(1)—Discipline imposed appropriate, reasonable in circumstances—Adjudicator’s decision reviewed against standard of reasonableness—Issues whether: employer had authority under FAA to discipline applicant; employer had cause to discipline applicant for acting contrary to PSLRA, s. 194(1); quantum of discipline imposed appropriate—Adjudicator agreeing with employer that Deputy Head’s authority to discipline found in FAA, collective agreement—This interpretation defensible—Fact adjudicator could have accepted alternative interpretation proposed by applicant not sufficient ground to intervene—Adjudicator finding that PSLRA, s. 194(1) containing dual prohibition of: (1) counselling or procuring declaration or authorization of illegal strike, and/or (2) counselling or procuring participation of employees in illegal strike—Adjudicator rejecting applicant’s position that terms “counsel or procure” should be interpreted in manner consistent with interpretation given to these terms in criminal context, i.e. that applicant’s intention that his words or actions provoke illegal strike required for PSLRA, s. 194(1) to be engaged—Adjudicator’s broader interpretation reasonable—As to whether employer had cause to discipline applicant, apparent that adjudicator considered totality of evidence before concluding that employer meeting case of proving misconduct—Finding of misconduct thus not unreasonable—Applicant arguing that present case not about discipline for misconduct or insubordination but about fundamental right of union representative to freely address on Web site postings labour issues interesting membership without employer interference—Adjudicator finding that applicant acting contrary to PSLRA, s. 194(1) in counselling or procuring illegal strike, such behaviour not protected by collective agreement or PSLRA—These findings reasonable—As to quantum of discipline, within realm of adjudicator’s powers to give more importance to aggravating factors, objective of deterrence—Weighing of factors mentioned in impugned decision not unreasonable in the circumstances—Application dismissed.
King v. Canada (Attorney General) (T-2171-10, 2012 FC 488, Martineau J., judgment dated April 26, 2012, 85 pp.)