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LABOUR RELATIONS - Employees - Harassment - Work place violence

Monday, October 02, 2017 @ 8:38 AM  

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Application by Chickoski for judicial review of a decision that rejected his grievance against his supervisor’s decision to impose a Performance Action Improvement Plan (Action Plan) on him. Chickoski was employed as the Regional Director General, Prairie Region for Health Canada. Chickoski's grievance alleged that the Action Plan was part of a continuing campaign of harassment by his supervisor against him. His grievance also constituted a complaint of work place violence under Part XX of the Canada Occupational Health and Safety Regulations (OHS Regs). The grievance was denied by the Assistant Deputy Minister, Regulatory Operations and Regions Branch, Health Canada (ADM) due to her determination that she did not have jurisdiction over the grievance under s. 208(2) of the Federal Public Service Labour Relations Act (PSLRA). Section 208(2) of the PSLRA stipulated that an employee could not present an individual grievance in respect of which an administrative procedure for redress was provided under any Act of Parliament, other than the Canadian Human Rights Act. The ADM determined that the work place violence complaints procedure set out in the OHS Regs constituted an "administrative procedure for redress" of which Chickoski had not availed himself and that he was therefore precluded from filing an individual grievance under s. 208(2) of the PSLRA. Chickoski alleged the decision was procedurally unfair because he was not given the formal opportunity to be heard and make submissions before the decision was made and because he was not provided with a briefing note the ADM relied on in making her decision. Chickoski also alleged that the decision was unreasonable because the personal remedies he sought in his grievance could not be awarded under Part XX of the OHS Regs and as such there was no "administrative procedure for redress" available to him as stipulated in s. 208(2) of the PSLRA.

HELD: Application allowed. The standard of review of the merits of the decision was reasonableness. The standard of review for issues of procedural unfairness was correctness. The procedure followed by the ADM was fair to Chickoski. The record confirmed that Chickoski had been made aware of the briefing note contents and recommendations before the decision was made and had responded with his position more than once. Chickoski knew the case he had to meet and made submissions that were known to the ADM before the decision was made. For the same reasons, there was nothing in the briefing note that caused the decision to be procedurally unfair. On the issue of the reasonableness of the decision, the reasons provided by the decision-maker should have allowed a reviewing court to understand why the decision was made and to determine whether the outcome was within the range of acceptable outcomes. Here, before relying on s. 208(2) of the PSLRA, the ADM should have reviewed the nature of Chickoski's grievance to determine whether it could give rise to a finding of work place violence. There was no evidence that anyone at Health Canada conducted a review of Chickoski's allegations to consider whether or not the actions of his supervisor could qualify as work place violence under the OHS Regs. Without first conducting such a preliminary review, it was not possible to conclude that the provisions of s. 208(2) of the PSLRA applied. Further, there had been no analysis of the conclusion that Part XX of the OHS Regs could be of personal benefit to Chickoski. The real redress that the ADM implied would be available to Chickoski under the OHS Regs was not identified in her decision. The failure of the ADM to explain in the decision why she concluded that Part XX of the OHS Regs provided an effective and meaningful alternate administrative procedure meant the Dunsmuir criteria had not been met and the decision was not reasonable. The application was allowed, the decision was set aside, and the matter was returned for redetermination.

Chickoski v. Canada (Attorney General), [2017] F.C.J. No. 813, Federal Court, E.S. Elliott J., August 17, 2017. Digest No. TLD-Oct22017001