Date: 19991222
Docket: T-953-98
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
AND:
BARRY GREEN
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of a decision of the Public Service Staff Relations Board ("PSSRB"), rendered by Phil Chodos, Vice-Chairman, on April 6, 1998. The applicant seeks to have the decision set aside on the grounds that the adjudicator failed to observe principles of natural justice and based his decision on erroneous findings of fact without regard to the material before him.
[2] The respondent Barry Green had been employed as an air traffic controller at the Sudbury Tower for approximately twenty years. He was dismissed on May 29, 1995, for disciplinary reasons, namely, that he left an air traffic control tower completely unattended for approximately thirty-five minutes during the middle of the day. Mr. Green grieved the dismissal and his grievance was referred to adjudication under section 92 of the Public Service Staff Relations Act.
[3] By decision dated June 14, 1996, the initial adjudicator who heard the case, Rosemary Vondette Simpson, dismissed the grievance, finding that the employment relationship was irretrievably broken and that the mitigating factors were insufficient to warrant modification of the penalty of dismissal.
[4] The respondent then sought judicial review of that decision in this Court. By order dated July 8, 1997, Cullen, J. allowed the application for the following reasons:
| There is no issue as to the necessity of disciplinary action in this case. The issue is the severity of the penalty imposed. In my view, the adjudicatory erred in her assessment of the mitigating factors by ignoring relevant evidence before her. The factors she ignored are so significant that I conclude that the adjudicator's decision is based on an error in law, and is patently unreasonable." |
[5] Cullen, J. ordered the matter be referred back to a different adjudicator to determine the appropriate penalty, taking into consideration the principles of corrective and progressive discipline and the reasons of the Court.
[6] The order of Cullen, J. was appealed to the Federal Court of Appeal on August 7, 1997. At present no date has been set for the hearing of that appeal. Concurrent with the Notice of Appeal, counsel for the employer requested the Public Service Staff Relations Board to refrain from scheduling any further hearing of the matter until the appeal had been disposed of. That request was denied and a hearing before another adjudicator, Vice-Chairperson Phil Chodos, was scheduled for February 25, 1998.
[7] At a pre-hearing meeting on February 24, 1998, counsel for the employer indicated his client's desire to call witnesses to give evidence which was given before Adjudicator Simpson but which was either not recorded or was incompletely recorded in her decision. In addition, he wished to adduce evidence concerning the matter expressly remitted to Adjudicator Chodos, namely, whether the penalty of dismissal should be mitigated. In response, Adjudicator Chodos stated that if such an application were made at the hearing it would not be granted.
[8] At the commencement of the hearing, Adjudicator Chodos determined that the record before him was the decision of Adjudicator Simpson, the exhibits filed before her, and the affidavits filed by the parties on the application before Cullen, J. This determination reflected the previously stated views of Mr. Chodos at the pre-hearing meeting. In his decision of April 6, 1998, Adjudicator Chodos stated:
| . . . I determined the record upon which the proceeding should be based is the adjudication decision of Mrs. Simpson, the exhibits which were filed as part of that proceeding, and the affidavits of Mr. Monte Pacey and Mr. Steven Cooper who are, respectively, the Ontario Regional Director of the Canadian Air Traffic Control Association, and the Regional Staff Relations Officer, Ontario Region, Transport Canada; these affidavits were filed in respect of the application for review in the Federal Court, Trial Division. |
[9] During the course of the hearing, counsel for the employer attempted to submit a copy of a decision of PSSRB member Turner, dated April 18, 1994, wherein an earlier grievance of Mr. Green's had been dismissed thereby sustaining a two-day suspension imposed upon him for falsifying department records. This decision had been received in evidence by Adjudicator Simpson and was relevant with respect to the respondent's character and credibility, and therefore the issue of the penalty. Adjudicator Chodos refused to receive the Turner decision, stating that he was bound by the finding of Cullen, J. that the respondent had "23 unblemished years of service".
[10] By decision dated April 6, 1998, Adjudicator Chodos allowed the grievance in part, ordered the reinstatement of the respondent and substituted a period of three month's suspension and three months of leave without pay for that of dismissal.
[11] The Attorney General of Canada, on behalf of the employer, now seeks judicial review of that decision on the grounds that the Adjudicator failed to observe the principles of natural justice and based his decision on erroneous findings of fact made without regard to the material before him.
[12] I am allowing the application for the following reasons.
[13] In accordance with the Public Service Staff Relations Act, a grievance arbitrator has a wide discretion with respect to the evidence and manner in which the proceedings before him or her are to be conducted. However, this power is not absolute and is subject to the rules of natural justice which guarantee procedural fairness. In adjudicative proceedings to consider a grievance against disciplinary action taken by an employer, natural justice requires that an opportunity be provided to the parties to present and cross-examine witnesses and to adduce documentary evidence relevant to the adjudicator's findings of misconduct and the appropriateness of the penalty imposed. The substantial control which the legislation bestows upon an adjudicator to direct the proceedings does not empower the adjudicator to disregard or unduly limit the presentation of relevant evidence.
[14] In the present case, once the issue of the appropriate penalty was remitted by Cullen J. to Mr. Chodos, the adjudicator was required to provide both parties with an opportunity to be heard on that issue. The adjudicator's refusal to allow the employer to call witnesses to give evidence relevant to the issue of penalty and his refusal to consider the decision of Adjudicator Turner, which was also relevant to the question of penalty, constituted a denial of the employer's right to be heard.
[15] Furthermore, it is apparent from his decision that Adjudicator Chodos relied on the employer's failure to adduce evidence disputing the existence of the respondent's "unblemished" disciplinary record in concluding that the penalty was too harsh. He stated at p. 12 of his decision:
| While these circumstances do not excuse his action, they do explain why an experienced controller with 23 years of unblemished service would engage in apparently uncharacteristic behaviour and manifest such lapse of judgment. While the grievor's evidence in this respect is largely uncorroborated, the employer has not provided any evidence which would suggest some ulterior, nefarious motive for his conduct. If Mr. Green was not under some stress or in an emotional state, why did he, with many years of evidently unblemished experience, act in the manner that he did? |
[16] This was clearly an error on the adjudicator's part. A tribunal cannot refuse to entertain evidence and then rely on the absence of that evidence as the reason for its decision. By refusing to allow the applicant to tender the Turner decision as evidence of the respondent's past misconduct and to dispute the respondent's assertion of his unblemished record, Mr. Chodos not only breached the rules of natural justice by denying the employer the opportunity to be heard, he also ignored available evidence which was directly relevant to the issue before him.
[17] I am satisfied therefore, that the appropriate course to follow is to set aside the decision of Adjudicator Chodos and to refer the matter back to the PSSRB for reconsideration by a different adjudicator in accordance with these reasons and the rules of natural justice.
JUDGE
OTTAWA, Ontario
December 22, 1999