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A-534-80
The Queen (Applicant)
v.
Pierre Marleau (Respondent)
and
Canadian Union of Postal Workers and the Public Service Staff Relations Board (Mis - en - cause)
Court of Appeal, Thurlow C.J., Urie J. and Kerr D.J.—Ottawa, January 19 and 23, 1981.
Judicial review — Public Service — Application to review and set aside the decision of an Adjudicator maintaining in part the respondent's grievance against disciplinary action taken in respect of an incident that occurred on December 18, 1979 when the respondent was abusive to supervisors — Respondent had been disciplined for using abusive language toward a supervisor in July 1979 and for threatening a super visor in November 1978 — Adjudicator did not consider the November 1978 incident in reaching his decision — Collective agreement provided that all reports concerning an infraction shall be removed from an employee's file after 12 months, except if during that period a report is received about a similar infraction — Whether the Adjudicator erred in law when he failed to consider whether the incidents of November 1978 and July 1979 were "similar" within the meaning of the collective agreement before eliminating the November 1978 incident from consideration — Application allowed and matter referred back for reconsideration — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
M. M. Galipeau for applicant.
T. A. McDougall, Q.C. and J. West for
respondent.
No one appearing for mis -en-cause the Public
Service Staff Relations Board.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Perley-Robertson, Panet, Hill & McDougall, Ottawa, for respondent and the mis -en-cause Canadian Union of Postal Workers.
Public Service Staff Relations Board, Ottawa, for itself.
The following are the reasons for judgment rendered in English by
THURLOW C.J.: This is an application under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside the decision of an Adjudicator under the Public Ser vice Staff Relations Act, R.S.C. 1970, c. P-35, maintaining in part the grievance of the respond ent, Marleau, against disciplinary action taken by the employer and substituting for his discharge from the Postal Service a period of suspension. The disciplinary action was taken in respect of an incident that occurred on December 18, 1979 when, as found by the Adjudicator, Marleau "was `abusive to supervisors and insubordinate' as stated in the disciplinary notice" and did not work as required.
In reaching his conclusion that, in the circum stances, Marleau's discharge was not warranted, the Adjudicator took into account an earlier inci dent appearing from Marleau's personal file, when Marleau was disciplined for having, on July 28, 1979 used "abusive language towards a supervi sor". The Adjudicator, however, considered that he was prevented by paragraph 10.02 of the collec tive agreement from taking into account, and accordingly did not take into account, an incident which had occurred on November 10, 1978 in respect of which Marleau had been disciplined for threatening a supervisor. The paragraph in ques tion is as follows:
10.02 Personal file
(a) The Employer agrees that there shall be only one person al file for each employee and that no report relating to the employee's conduct or performance may be used against him in the grievance procedure nor at adjudication unless such report is part of said file.
(b) No report may be placed in the file or constitute a part thereof unless a copy of the said report is sent to the employee within ten (10) days after the date of the employee's alleged infraction, or of its coming to the atten tion of the Employer, or of the Employer's alleged source of dissatisfaction with him.
(c) All reports concerning an infraction shall be removed from the file of the employee after a period of twelve (12) months, except if during that period a report is received about a similar infraction; in such a case, the first report shall nevertheless be removed from the file twelve (12) months after the second report. However, any unfavourable
report concerning an employee and any report regarding an infraction shall be removed from the file after a period of twenty-four (24) months from the date of the alleged infraction.
It will be observed that as the incident of November 10, 1978 occurred more than a year before December 18, 1979, under these provisions, it could not properly be taken into account unless the infraction was "similar" to another infraction occurring within a year of November 10, 1978, but that if there had been a similar infraction within that year, both could properly be taken into account in considering appropriate action in respect of a further infraction occurring within twelve months after the infraction of July 28, 1979.
The applicant's attack on the Adjudicator's decision was that he did not address and answer the question whether the incidents or infractions of November 10, 1978 and July 28, 1979, were "simi- lar" within the meaning of the collective agree ment and that he erred in law and misdirected himself by failing to determine the question and by eliminating the November 10, 1978 incident from consideration without having answered the ques tion.
In his decision, the Adjudicator said:
As stated above, exhibit E-3 is in connection with an infrac tion of November 10, 1978.
There is no doubt in my mind that the above paragraph 10.02 (c) refers to a period of 12 months from the date of the infraction and not from the date of a report. As far as the first sentence of paragraph 10.02 (c) is concerned, it could be possible to consider that the 12 month period is 12 months from the date of a report. However, when one reads the balance of the paragraph, particularly the concluding sentence, it becomes obvious that the 12 month period referred to in the opening sentence must mean 12 months from the date of the infraction. The date in this case being November 10, 1978, or more than 12 months before the incident with which I am concerned, it is my opinion that all reports forming part of exhibit E-3 should have been removed from the grievor's file prior to the hearing and I cannot take them into account. For the above reasons, I am maintaining the grievor's counsel's objection with regard to exhibit E-3.
It is unfortunate, I may add, that as an adjudicator, I am deprived of the whole context surrounding the grievor's con duct. It could be for this reason that the present decision will look unfair to one of the parties or even the two of them. I am precluded in view of paragraph 10.02 (c) to look into the period beyond the 12 month period previous to December 18, 1979. It
means in this case that I cannot give full consideration to the principle of culminating incident or fully explore the work record for the purpose of mitigating the penalty imposed.
Taking into consideration the grievor's admissible record or personal file which consists solely of a reprimand for abusive language towards a supervisor, I consider that the penalty which was imposed is too severe. Under usual circumstances, an employee will probably be discharged if he commits with impunity repeated infractions and has had once a long term suspension (see Brown & Beatty, Canadian Labour Arbitra tion, No. 7:4310, pages 371 et seq.). The present case however is quite unique and I am not justified in applying the doctrine of culminating incident.
In my opinion, having regard to the element of insubordination which is involved both when an employee threatens a supervisor and when he uses abusive language to a supervisor, it would have been open to the Adjudicator to conclude on the material before him that Marleau's infractions of November 10, 1978 and July 28, 1979, were "simi- lar" infractions within the meaning of subpara- graph 10.02 (c) of the collective agreement. Had the Adjudicator addressed the question of their similarity and determined that the infractions were similar, it would have been open to him to take the November 10, 1978 infraction into consideration. But unless he concluded that the infractions were not similar within the meaning of the collective agreement, he was not prevented by the agreement from taking the earlier infraction into account in reaching his decision.
In my view, the Adjudicator erred in law when he decided that under the agreement, he could not take the November 10, 1978 infraction into account, when he had not addressed the question of similarity of the infractions within the meaning of the agreement and determined that these were not similar. Without having considered the ques tion and reached a conclusion on it, the further question of whether he was prevented by the agreement from considering the infraction was not ripe for decision.
It was submitted on behalf of Marleau that the Adjudicator impliedly addressed the question and determined that the infractions were not similar but I am unable to find in the reasons anything from which such an implication could be made. Moreover, it seems to me that as the meaning of
the paragraph with respect to dates is discussed in the excerpts I have cited from the decision but no conclusion is expressed anywhere in the decision on the question of similarity of the infractions, which is of equal importance in applying the para graph, the proper inference to be drawn is that the question was not considered or resolved.
I would set aside the decision and refer the matter back to the Adjudicator for reconsideration after addressing and answering the question whether Marleau's infractions of November 10, 1978 and July 28, 1979, were similar infractions within the meaning of the collective agreement and for redetermination accordingly.
* * *
URIE J.: I agree.
* * *
KERR D.J.: I agree.
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