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DISCIPLINE AND DISCHARGE - Progressive discipline - Available sanctions - Suspension - Grounds - Insubordination

Wednesday, April 05, 2017 @ 11:04 AM  

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Appeal by Bergey from dismissal of application for judicial review of an adjudicator's decision dismissing her grievances against her employer, the Royal Canadian Mounted Police (RCMP). The appellant was a civilian RCMP member. Over the period from 2001 to 2004, RCMP management noted deficiencies in Bergey’s performance and attitude. She was insubordinate and rude toward managers and others with whom she worked. In addition, she was believed to have temporarily removed documents from RCMP files, to have failed to perform important tasks and to have lied to co-workers and supervisors. RCMP management spoke to the appellant about the issues, and when there was no improvement, it levied a three and then a 10-day suspension. Bergey’s reliability status, the lowest level of security status required of federal government employees, was revoked primarily for the workplace incidents for which she had already been disciplined or for which no disciplinary action had been taken. As a result of the revocation of her reliability status, her employment with the RCMP was terminated for cause. The appellant filed a number of grievances, seven of which were referred to adjudication. The adjudicator dismissed all seven grievances, finding that there was cause for the suspension, that she lacked jurisdiction to hear grievances challenging Bergey’s suspension from employment and the revocation of her reliability status, and that there had been no violation of Bergey’s rights to union representation. The adjudicator concluded that management’s decision to review the appellant’s eligibility for reliability status and the decision to revoke that status were not disguised acts of discipline and had not been made in bad faith or in violation of Bergey’s rights to procedural fairness. Bergey applied for judicial review of the adjudicator’s decision. The Federal Court dismissed her application finding that the adjudicator's conclusions were reasonable. The appellant appealed.

HELD: Appeal allowed. There was no merit to Bergey’s allegations of bias and the Board’s delay in rendering the decision did not amount to a violation of her procedural fairness rights. However, the adjudicator’s determination that the appellant was not the subject of disguised discipline was unreasonable. In the present case, the security review process was used as means to terminate the appellant’s employment because her supervisors were dissatisfied with her workplace performance and behaviour. While those concerns might have impacted her reliability as an employee, and therefore her entitlement to reliability status, they were also disciplinary in nature. The appellant therefore should have been accorded the right to have the reasons for her termination reviewed under the cause standard.

Bergey v. Canada (Attorney General), [2017] F.C.J. No. 142, Federal Court of Appeal, M. Nadon, J. Gauthier and M.J.L. Gleason JJ.A., February 10, 2017. Digest No. TLD-Apr32017007