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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.