Bergey v. Canada (Attorney General)

Bergey v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2017-02-10
Neutral citation
2017 FCA 30
File numbers
A-283-15
Notes
A correction was made February 23, 2018
Digest
Decision Content
Date: 20170210
Docket: A-283-15
Citation: 2017 FCA 30
CORAM:
NADON J.A.
GAUTHIER J.A.
GLEASON J.A.
BETWEEN:
VALERIE BERGEY
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on September 13, 2016.
Judgment delivered at Ottawa, Ontario, on February 10, 2017.
REASONS FOR JUDGMENT BY:
GLEASON J.A.
CONCURRED IN BY:
NADON J.A.
GAUTHIER J.A.
Date: 20170210
Docket: A-283-15
Citation: 2017 FCA 30
CORAM:
NADON J.A.
GAUTHIER J.A.
GLEASON J.A.
BETWEEN:
VALERIE BERGEY
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
GLEASON J.A.
[1] This appeal concerns the breadth of protection from termination without cause provided to employees under the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (the PSLRA) and the ability of public service employers to choose to terminate employees for security-related reasons and thereby shield their termination decisions from review for cause.
[2] The appellant, Valerie Bergey, was a federal public servant with over ten years’ service, whose last assignment involved working as a civilian clerk at an RCMP district office in Prince George, British Columbia. While so employed, she was a member of a bargaining unit represented by a component of the Public Service Alliance of Canada and at certain points during her tenure was the local union president. As a civilian clerk, Ms. Bergey’s duties included entering data into the Central Police Information Center (CPIC) system, updating files and providing detachment personnel notice of scheduled court appearances. As a condition of her employment, Ms. Bergey was required to possess reliability status, the lowest level of security status required of federal government employees.
[3] Over the period from 2001 to 2004, RCMP management noted deficiencies in Ms. Bergey’s performance and attitude toward co-workers. More specifically, Ms. Bergey was insubordinate and rude toward her managers and others with whom she worked. She also developed the habit of sending lengthy e-mails to other employees and RCMP members in which she re-hashed workplace events, oftentimes insulting her managers in them. In addition, Ms. Bergey was believed to have temporarily removed documents from RCMP files and to have failed to perform important tasks. As a consequence, an improper arrest was made and officers missed scheduled court appearances. Ms. Bergey was also believed to have lied to co-workers and supervisors, including during investigations into her conduct. She made harassment complaints, which were investigated and found to be without merit. A co-worker filed a harassment complaint against Ms. Bergey, which was found to be substantiated. As matters in the workplace deteriorated, Ms. Bergey began surreptitiously tape-recording her conversations with management.
[4] RCMP management initially spoke to Ms. Bergey about several of these issues, and when that did not lead to improvement in her performance and behaviour, levied a three and then a 10‑day suspension. As matters came to a head, Ms. Bergey left work on sick leave, and while she was away, one of her managers initiated the process to have Ms. Bergey’s reliability status revoked so she could be terminated. RCMP management elected to follow this course as opposed to waiting until Ms. Bergey returned to work from her sick leave and then terminating her employment for disciplinary reasons in the event her behaviour did not improve.
[5] The security review process culminated in the revocation of Ms. Bergey’s reliability status. Termination followed as Ms. Bergey’s position – like that of many federal public servants – required that she possess a valid reliability status. The grounds invoked by the RCMP for stripping Ms. Bergey of her reliability status were principally workplace incidents for which management had either already disciplined Ms. Bergey or had elected to not make the subject of discipline. Some of these incidents were several years old.
[6] Ms. Bergey filed a number of grievances under the PSLRA, seven of which were referred to adjudication and heard by the predecessor to the Public Service Labour Relations and Employment Board (the PSLREB or the Board). The adjudicator who heard the grievances conducted a multi-day hearing over the period from 2008 to 2010, during which 12 witnesses testified. The adjudicator issued her decision only in July 2013, over two and one half years after the completion of the hearing: Bergey v. Treasury Board of Canada (Royal Canadian Mounted Police) and Deputy Head (Royal Canadian Mounted Police), 2013 PSLRB 80 (available on CanLII).
[7] In her decision, the adjudicator dismissed all seven grievances, finding that cause existed for the 10-day suspension, that she lacked jurisdiction to hear the grievances challenging Ms. Bergey’s suspension from employment and the suspension and revocation of Ms. Bergey’s reliability status, that there had been no violation of Ms. Bergey’s rights to union representation under the applicable collective agreement and that the employer possessed cause to terminate Ms. Bergey’s employment because she had lost the reliability status she needed to work for the RCMP. In reviewing these issues, the adjudicator determined that management’s decision to review Ms. Bergey’s eligibility for reliability status and the decision to revoke that status did not constitute acts of disguised discipline and had not been made in bad faith or in violation of Ms. Bergey’s rights to procedural fairness. In consequence, the adjudicator held that the merits of the revocation could not be the subject of a grievance referred to the Board as the adjudicator found that she would possess jurisdiction to review the merits of the revocation only if it were an act of disguised discipline, had been made in bad faith or if there had been a violation of Ms. Bergey’s procedural fairness rights. The adjudicator therefore determined she could not look into the merits of why the reliability status was revoked and found that the mere fact of its revocation was sufficient to justify Ms. Bergey’s termination.
[8] Ms. Bergey made an application for judicial review of the adjudicator’s decision to the Federal Court. In a decision dated May 12, 2015, the Federal Court dismissed her application: Bergey v. Canada (Attorney General), 2015 FC 617, 481 F.T.R. 19 [Bergey]. Ms. Bergey has appealed that decision to this Court.
[9] For the reasons that follow, I have concluded that Ms. Bergey’s appeal should be allowed as the adjudicator’s determination that Ms. Bergey was not the subject of disguised discipline is unreasonable. While I recognize that PSLREB adjudicators are entitled to significant deference in respect of decisions like this, which are within the heartland of the Board’s expertise and turn in substantial part on factual determinations, I believe that the decision in the present case cannot stand as it is premised on a fundamental misunderstanding of what constitutes a disciplinary decision. In this case, the security review process was used as means to terminate Ms. Bergey’s employment because her supervisors were dissatisfied with her workplace performance and behaviour. While these concerns might well have impacted Ms. Bergey’s reliability as an employee (and therefore her entitlement to reliability status under the employer’s policies), they were also disciplinary in nature. Ms. Bergey should therefore have been accorded the right to have the reasons for her termination reviewed under the cause standard. The interpretation of the PSLRA adopted by the adjudicator deprived Ms. Bergey of this right and, if allowed to stand, would largely hollow out the protection from dismissal without cause afforded to employees under the PSLRA. I would therefore allow this appeal and remit several of Ms. Bergey’s grievances to the PSLREB for re-determination in accordance with the directions set out below.
I. Background [10] To place these issues in context, it is helpful to review the applicable statutory and employer policy provisions as well as the case law of the PSLREB (or predecessor iterations of that Board) and of the courts on issues such as these. It is also necessary to set out in some detail the relevant facts as found by the adjudicator and to review the reasoning of the adjudicator.
A. The Relevant Statutory and Policy Provisions [11] Turning to the statutory provisions, it is important to note that the relevant provisions in the PSLRA (or predecessor versions of the statute) have been the subject of significant amendment. Care therefore must be taken in reading the older case law decided under predecessor versions of the statute.
[12] The current provisions in the PSLRA provide the PSLREB jurisdiction to adjudicate challenges to terminations of indeterminate (i.e. non-probationary) employees of the federal government or of organizations like the RCMP that are part of the core public administration as defined in the PSLRA. These include both terminations for disciplinary reasons and, in most instances, those that are non-disciplinary in nature. By virtue of the combined effect of provisions in the PSLRA, the Financial Administration Act, R.S.C. 1985, c. F-11 (the FAA) and the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA 2003), all terminations of indeterminate employees may only be made for cause.
[13] Prior to 1993, the jurisdiction of the Board (then called the Public Service Staff Relations Board or PSSRB) was much more circumscribed; the Board was then limited to adjudicating disciplinary dismissals and could not adjudicate terminations made for non-disciplinary reasons. Terminations for non-disciplinary reasons – such as those levied by reason of an employee’s incompetence or incapacity to perform his or her job – were made by the Public Service Commission (the PSC) under section 31 of the former Public Service Employment Act, R.S.C. 1985, c. P-33 (the PSEA). The PSC’s decisions were subject to appeal to an internal Appeal Board, and the decisions of the Appeal Board were subject to judicial review before the Federal Courts. As is more fully discussed below, terminations for incompetence or incapacity made under section 31 of the PSEA included decisions to terminate an employee due to his or her loss of a security status required by the employer.
[14] Section 31 of the PSEA was abrogated in 1993 and the PSSRB was provided jurisdiction over challenges to terminations for incapacity or incompetence of indeterminate employees in what is now termed the core public service. At the same time, the FAA was amended to provide deputy heads of governmental institutions authority to release employees for incapacity or incompetence. In addition, the FAA was amended to provide that the authority of the employer to release indeterminate employees for incapacity or incompetence was limited to situations of cause.
[15] In 2005, the provisions in the PSLRA and FAA were further amended to clarify the breadth of the jurisdiction of the Board over non-disciplinary terminations of indeterminate employees and to underscore that terminations of such employees for any reason could only be made for cause. At the same time, a provision was added to the PSLRA that excepted from the matters that could be grieved by an employee (and therefore that could be referred to adjudication before the Board), employer actions taken “under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada” (PSLRA, subsection 208(6)).
[16] Releases of probationary employees are not – and never have been – subject to review by the Board on their merits under a cause standard. Rather, as in the private sector, the employer in the federal public service is afforded a broader ability to release employees during their probationary periods if they are deemed to be unsatisfactory.
[17] All the relevant predecessor and current statutory provisions are set out in the Appendix to these Reasons. It is sufficient for me to detail below only the key provisions that are currently in force (which were likewise in force at the time of Ms. Bergey’s termination).
[18] The key provisions in the PSLRA are sections 208, 209 and 211, which provide in relevant part as follows:
Individual Grievances
Griefs individuels
Presentation
Présentation
Right of employee
Droit du fonctionnaire
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
208 (1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le droit de présenter un grief individuel lorsqu’il s’estime lésé :
(a) by the interpretation or application, in respect of the employee, of
a) par l’interprétation ou l’application à son égard :
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(i) soit de toute disposition d’une loi ou d’un règlement, ou de toute directive ou de tout autre document de l’employeur concernant les conditions d’emploi,
[…]
[…]
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
b) par suite de tout fait portant atteinte à ses conditions d’emploi.
[…]
[…]
Limitation
Réserve
(6) An employee may not present an individual grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
(6) Le fonctionnaire ne peut présenter de grief individuel portant sur une mesure prise en vertu d’une instruction, d’une directive ou d’un règlement établis par le gouvernement du Canada, ou au nom de celui-ci, dans l’intérêt de la sécurité du pays ou de tout État allié ou associé au Canada.
[…]
[…]
Reference to adjudication
Renvoi d’un grief à l’arbitrage
209 (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to
209 (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, le fonctionnaire peut renvoyer à l’arbitrage tout grief individuel portant sur :
[…]
[…]
(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;
b) soit une mesure disciplinaire entraînant le licenciement, la rétrogradation, la suspension ou une sanction pécuniaire;
(c) in the case of an employee in the core public administration,
c) soit, s’il est un fonctionnaire de l’administration publique centrale :
(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or
(i) la rétrogradation ou le licenciement imposé sous le régime soit de l’alinéa 12(1)d) de la Loi sur la gestion des finances publiques pour rendement insuffisant, soit de l’alinéa 12(1)e) de cette loi pour toute raison autre que l’insuffisance du rendement, un manquement à la discipline ou une inconduite,
[…]
[…]
Exception
Exclusion
211 Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to
211 L’article 209 n’a pas pour effet de permettre le renvoi à l’arbitrage d’un grief individuel portant sur :
(a) any termination of employment under the Public Service Employment Act; or
a) soit tout licenciement prévu sous le régime de la Loi sur l’emploi dans la fonction publique;
(b) any deployment under the Public Service Employment Act, other than the deployment of the employee who presented the grievance.
b) soit toute mutation effectuée sous le régime de cette loi, sauf celle du fonctionnaire qui a présenté le grief.
[19] Subparagraph 209(1)(c)(i) of the PSLRA incorporates by reference paragraphs 12(1)(d) and 12(1)(e) of the FAA. The cause requirement is provided in subsection 12(3) of the FAA. These provisions state in relevant part:
Powers of deputy heads in core public administration
Pouvoirs des administrateurs généraux de l’administration publique centrale
12 (1) Subject to paragraphs 11.1(1)(f) and (g), every deputy head in the core public administration may, with respect to the portion for which he or she is deputy head,
12 (1) Sous réserve des alinéas 11.1(1)f) et g), chaque administrateur général peut, à l’égard du secteur de l’administration publique centrale dont il est responsable :
[…]
[…]
(d) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service whose performance, in the opinion of the deputy head, is unsatisfactory;
d) prévoir le licenciement ou la rétrogradation à un poste situé dans une échelle de traitement comportant un plafond inférieur de toute personne employée dans la fonction publique dans les cas où il est d’avis que son rendement est insuffisant;
(e) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service for reasons other than breaches of discipline or misconduct; and
e) prévoir, pour des raisons autres qu’un manquement à la discipline ou une inconduite, le licenciement ou la rétrogradation à un poste situé dans une échelle de traitement comportant un plafond inférieur d’une personne employée dans la fonction publique;
[…]
[…]
For cause
Motifs nécessaires
(3) Disciplinary action against, or the termination of employment or the demotion of, any person under paragraph (1)(c), (d) or (e) or (2)(c) or (d) may only be for cause.
(3) Les mesures disciplinaires, le licenciement ou la rétrogradation découlant de l’application des alinéas (1)c), d) ou e) ou (2)c) ou d) doivent être motivés.
[20] Finally, the “core public administration” is defined in subsection 2(1) of the PSLRA and subsection 11(1) of the FAA as follows:
PSLRA
Loi sur les relations de travail dans la fonction publique
2 (1) The following definitions apply in this Act.
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
[…]
core public administration has the same meaning as in subsection 11(1) of the Financial Administration Act. (administration publique centrale)
administration publique centrale S’entend au sens du paragraphe 11(1) de la Loi sur la gestion des finances publiques. (core public administration)
FAA
Loi sur la gestion des finances publiques
11 (1) The following definitions apply in this section and sections 11.1 to 13.
11 (1) Les définitions qui suivent s’appliquent au présent article et aux articles 11.1 à 13.
[…]
core public administration means the departments named in Schedule I and the other portions of the federal public administration named in Schedule IV. (administration publique centrale).
administration publique centrale Les ministères figurant à l’annexe I et les autres secteurs de l’administration publique fédérale figurant à l’annexe IV. (core public administration).
[21] The RCMP is listed in Schedule IV of the FAA.
[22] Turning now to the relevant policies, both the federal government (through Treasury Board as the employer of public servants) and the RCMP have promulgated policies governing the security clearance or security status that employees are required to possess. These policies are enacted pursuant to the authority set out in its current iteration in sections 7, 11 and 11.1 of the FAA. At the times relevant to Ms. Bergey’s employment, the Treasury Board policies governing security status were entitled Personnel Security Standard (introduced in June 1994) and the Government Security Policy (introduced in February 2002). In addition, Ms. Bergey’s status was subject to the RCMP’s own Personnel Security Guidelines, which track the Treasury Board policies identified above. The key difference between the policies is that the RCMP provided for its own “RCMP Reliability Status” as of May 2004; in all other pertinent respects, the RCMP policy simply applies the Treasury Board’s requirements.
[23] Reliability status refers to an employee’s reliability, trustworthiness and loyalty insofar that the employee can be trusted to deal with confidential matters and government property. It is the lowest level of security status. Currently (and under policies in place at the relevant times) all RCMP employees and all federal public servants in long-term positions are required to hold at least a reliability status. Under the RCMP’s Personnel Security Guidelines, designated officials within the RCMP are empowered to grant and revoke an employee’s reliability status. In the case of employees in federal departments, reliability status may be granted and revoked by a departmental security officer.
[24] A security clearance at the Secret or Top Secret level, on the other hand, is a higher level clearance that is required of employees who deal with classified information in the course of their work. Only the RCMP Commissioner (or the Deputy Head in the case of other federal departments) can grant or revoke an employee’s security clearance.
[25] The RCMP policy and the Personnel Security Standard (and its replacement Standard on Security Screening) both provide that an employee whose reliability status is suspended or revoked can pursue redress via statutory grievance procedures under the PSLRA and judicial review by the Federal Court. By contrast, an employee whose security clearance is revoked can seek third-party review by the Security Intelligence Review Committee (SIRC) under section 42 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23. SIRC review is not open to employees who lose their reliability status.
B. The Relevant Case Law Generally [26] As noted, prior to 1993, decisions to release for non-disciplinary reasons of incapacity or incompetence under section 31 of the PSEA could not be adjudicated under the predecessor version of the PSLRA, the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the PSSRA).
[27] Prior to its repeal, section 31 of the former PSEA was considered by this Court in a long series of cases that culminated in Kampman v. Canada (Treasury Board), [1996] 2 F.C. 798, 134 D.L.R. (4th) 672 (C.A.) [Kampman], a reliability status revocation case. These cases established the following five-point framework that was applicable to decisions under section 31 of the PSEA.
[28] First, because section 31 of the PSEA provided its own administrative redress scheme, decisions made pursuant to that section were not grievable as subsection 91(1) of the PSSRA prohibited grievances for matters where an alternative mode of redress was available as was confirmed in (Re) Cooper v. the Queen [1974] 2 F.C. 407 at paras. 15-16, 50 D.L.R. (3d) 294 (C.A.).
[29] Second, determinations made pursuant to section 31 of the PSEA were valid if they were “honestly formed”. In Ahmad v. Canada (Public Service Commission Appeal Board), [1974] 2 F.C. 644 at paras. 3-5, 51 D.L.R. (3d) 470 (C.A.), this Court noted that a decision that was not “honestly formed” may be indicated by: (1) the decision-maker’s failure to apply statutory or legal direction, (2) proof of bad faith on the part of the decision-maker or (3) evidence that the decision-maker was wrong because the decision was based on incorrect factual information provided to the PSC by the employee’s managers.
[30] Third, the burden to prove bad faith was held to be high. In Dansereau v. Canada (Public Service Appeal Board), [1991] 1 F.C. 444 at 9-10, 122 N.R. 122 (C.A.) [Dansereau], this Court determined that bad faith could be shown where no warning was provided to the targeted employee, assuming no unusual or urgent circumstances precluded such a warning. Thus, section 31 of the PSEA was interpreted as including an implied duty to warn long-term employees about their incapacities/incompetence in order to provide them with an opportunity for correction (Dansereau at 9-10; Clare v. Canada (Attorney General), [1993] 1 F.C. 641 at 26, 100 D.L.R. (4th) 400 (C.A.) [Clare]).
[31] Fourth, this Court held that an employer’s failure to apply the law included breaches of an implied duty to refer employees to assistance programs (in the case of employees suffering from addictions) where those programs were established by the employer (Clare at 22). This Court clarified that this duty arose in situations where the duty to warn had also arisen (Clare at 22).
[32] Lastly, this Court held that the key consideration for deeming someone “incapable” or “incompetent” was permanence. If the debilitation was temporary, a termination under section 31 of the PSEA was likely inappropriate. Permanent incapacity or incompetence, on the other hand, likely merited termination (Clare at 14-15).
[33] As mentioned, this Court considered reliability status revocation in Kampman and there confirmed that reliability status revocation decisions fell under the umbrella of section 31 of the PSEA. Because section 31 terminations fell outside the jurisdiction of the Board given subsection 91(1) of the PSSRA (alternative administrative proceedings preclude grievances), this Court in Kampman held that an employee who loses her or his status must follow the section 31 administrative process, which was animated by the principles highlighted in the preceding paragraphs.
[34] At the same time as these principles were being developed, the Board developed the notion of disguised discipline, under which the Board characterizes certain decisions that the employer claims are non-disciplinary – and therefore non-adjudicable – as being in fact disciplinary in nature, which then clothes the Board with jurisdiction over such decisions and permits it to review them for cause. This Court and the Federal Court have both recognized the legitimacy of this approach: Basra v. Canada (Attorney General), 2010 FCA 24, 398 N.R. 308 [Basra]; Canada (Attorney General) v. Frazee, 2007 FC 1176, 319 F.T.R. 192 [Frazee]; Chamberlain v. Canada (Attorney General), 2012 FC 1027, 417 F.T.R. 225 [Chamberlain].
[35] Thus, through the doctrine of disguised discipline, the PSLREB (and prior iterations of the Board) were and are able to review employer decisions that the employer claims are shielded from review by the Board. For example, the Board has jurisdiction to review demotions if it determines that what in fact transpired was a disciplinary decision to demote the employee as, for example, occurred in Robitaille v. Deputy Head (Department of Transport), 2010 PSLRB 70 at paras. 228-230, 103 C.L.A.S. 9 (affirmed on this question in Canada (Attorney General) v. Robitaille, 2011 FC 1218 at para. 34, 219 A.C.W.S. (3d) 202 and appealed on unrelated grounds in Canada (Attorney General) v. Robitaille, 2012 FCA 270, 230 A.C.W.S. (3d) 348). Similarly, the Board, both previously and currently, has jurisdiction to review decisions that result in termination, suspension or financial penalty claimed to be of an administrative nature if the Board finds that such decisions are in fact disciplinary in nature as occurred, for example, in Grover v. National Research Council of Canada, 2005 PSLRB 150, 85 C.L.A.S. 57 (affirmed by this Court in Canada (Attorney General) v. Grover, 2008 FCA 97, 377 N.R. 239), Salter v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 117, 116 C.L.A.S. 221 and McMullen v. Canada Revenue Agency, 2013 PSLRB 64, 115 C.L.A.S. 65.
[36] Where the Board determines that the employer’s actions constitute a disguised act of discipline, as this Court noted in Basra at paragraphs 24 to 29, the PSLREB is tasked with reviewing what occurred and deciding whether the employer possessed cause to impose the sanction or take the measure in question. If so, then the grievance will be dismissed; if not, the PSLREB will fashion a remedy, which, in the case of a termination, is usually reinstatement with back pay and reinstatement of benefits, but may also be monetary compensation in lieu of reinstatement. (See the decision of this Court in Bahniuk v. Canada (Revenue Agency), 2016 FCA 127, 484 N.R. 10 [Bahniuk] for a discussion of the remedial approach of the PSLREB.)
[37] The case law recognizes that distinguishing between a disciplinary and a non-disciplinary employer action requires consideration of both the employer’s actual (as opposed to stated) intentions in taking the action and of the impact of the action on the employee’s career. As I noted in Chamberlain at paras. 56-57:
Determination of whether an act is disciplinary is a fact-driven inquiry and may involve consideration of matters such as the nature of the employee’s conduct that gave rise to the action in question, the nature of the action taken by the employer, the employer’s stated intent and the impact of the action on the employee. Where the employee’s behaviour is culpable or where the employer’s intent is to correct or punish misconduct, an action generally will be viewed as disciplinary. Conversely, where there is no culpable conduct and the intent to punish or correct is absent, the situation will generally be viewed as non-disciplinary ([Lindsay v. Canada (Attorney General), 2010 FC 389 at para. 48, 369 F.T.R. 64]; [Frazee at paras. 23-25]; Basra v Canada (Deputy Head - Correctional Service), 2008 FC 606 at para 19, [2008] FCJ No 777).
Some situations are obviously disciplinary; these would include, for example, situations where the employer overtly imposes a sanction (like a suspension or termination) in response to an employee’s misconduct. Others are more nuanced and require assessment of the foregoing factors to determine whether the employer’s intent actually was to discipline the employee even though it may assert it had no such motive. Justice Barnes explained the requisite inquiry in the following terms in Frazee at paragraphs 21-25:
[T]he issue is not whether an employer’s action is ill-conceived or badly executed but, rather, whether it amounts to a form of discipline […] an employee's feelings about being unfairly treated do not convert administrative action into discipline […]
The question to be asked is whether the employer intended to impose discipline and whether its impugned decision was likely to be relied upon in the imposition of future discipline […]
It is accepted, nonetheless, that how the employer chooses to characterize its decision cannot be by itself a determinative factor. The concept of disguised discipline is a well known and a necessary controlling consideration which allows an adjudicator to look behind the employer's stated motivation to determine what was actually intended. […]
The problem of disguised discipline can also be addressed by examining the effects of the employer's action on the employee. Where the impact of the employer's decision is significantly disproportionate to the administrative rationale being served, the decision may be viewed as disciplinary […] However, that threshold will not be reached where the employer's action is seen to be a reasonable response (but not necessarily the best response) to honestly held operational considerations.
Other considerations for defining discipline in the employment context include the impact of the decision upon the employee's career prospects, whether the subject incident or the employer's view of it could be seen to involve culpable or corrigible behaviour by the employee, whether the decision taken was intended to be corrective and whether the employer's action had an immediate adverse effect on the employee […]
[citations omitted]
[38] Donald J.M. Brown and David M. Beatty, in their leading work on labour arbitration, Canadian Labour Arbitration (4th ed.) (Toronto: Thomson Reuters, 2006) [Brown & Beatty], similarly recognize the foregoing as the requisite inquiry in distinguishing disciplinary from non-disciplinary actions, stating at paragraph 7:4210:
In deciding whether an employee has been disciplined or not, arbitrators look at both the purpose and effect of the employer's action. The essential characteristic of disciplinary action is an intention to correct bad behaviour on an employee's part by punishing the employee in some way. An employer's assurance that it did not intend its action to be disciplinary often, but not always, settles the question.
Where an employee's behaviour is not culpable and/or the employer's purpose is not to punish, whatever action is taken will generally be characterized as non-disciplinary.
[39] In terms of non-disciplinary terminations, subsequent to 1993 the Board has exercised its expanded jurisdiction and reviewed on their merits employer releases for incapacity or incompetence. For example, the Federal Court in McCormick v. Canada (Attorney General) (1998), 161 F.T.R. 82 at paras. 10, 19, 24, 85 A.C.W.S. (3d) 583 upheld a decision of the Board in which it determined that the employer had cause for termination under paragraph 92(1)(b) of the PSSRA and the relevant provisions of the FAA where medical issues had rendered an employee incapable of fulfilling his job duties for the foreseeable future. The Federal Court came to the same conclusion in Scheuneman v. Canada (Attorney General), [2000] 2 F.C. 365 at para. 59, 176 F.T.R. 59 (affirmed in Scheuneman v. Canada (Attorney General), 266 N.R. 154, 102 A.C.W.S. (3d) 118), upholding the Board’s decision to deny the grievor’s disability-driven discrimination claim on the basis that the employer had cause for termination where the grievor refused to accept the employer’s reasonable strategies for accommodation.
[40] In a somewhat similar vein, in Jamieson v. Canada (Attorney General), 2005 FC 410 at para. 37, 271 F.T.R. 248, the Federal Court upheld a decision of the Board that found the employer had cause to terminate a pipefitter who lacked a newly-imposed licensing requirement for steam pipefitting because the Board considered whether the employer had cause to establish the requirement in question. In upholding the Board’s decision, the Federal Court held that it would have been insufficient for the Board to focus solely on whether the employee met as a technical matter the newly-imposed licensing requirement without considering whether the requirement was valid. In other words, the Court held that the Board was required to review the merits of the employer’s decision to require employees to possess the steam pipefitting certification.
C. The Case Law Regarding Terminations following the Loss of Security Status [41] Turning now, more specifically, to the Board’s treatment of issues like those that arise in the present case, the case law of the Board concerning its jurisdiction to inquire into terminations for loss of a required security status is mixed.
[42] In several cases, where the employee was terminated by reason of the loss of the requisite reliability status (as opposed to a security clearance) the Board held that it possessed jurisdiction to inquire into the merits of the revocation decision to determine if the employer possessed cause, and, if not, to order reinstatement. In these cases, the Board held that the 1993 amendments to the PSSRA that provided it jurisdiction over non-disciplinary terminations likewise afforded it the authority to consider whether the employer had a valid reason to revoke the grievor’s reliability status and thereby terminate his or her employment.
[43] More specifically, in Treasury Board (Revenue Canada-Customs and Excise) and Gunderson, Re, 40 C.L.A.S. 384, 1995 CarswellNat 3359, the first of these cases, Adjudicator Chodos stated at paragraphs 43 and 48 as follows:
[…] in my view section 92 of the Public Service Staff Relations Act, as amended, makes no qualification or distinction between the adjudicator's authority to review and provide redress in respect of a disciplinary discharge (that is, under paragraph 11(2)(f) of the Financial Administration Act), and a termination on the grounds of, for example incapacity (that is, under paragraph 11(2)(g)). Accordingly, I believe that it is incumbent upon me to review the reasons for the employer's decision to terminate the employee for incapacity, and to determine whether that decision was fair and reasonable in all of the circumstances, and if necessary, to fashion an appropriate remedy.
[…]
The question of [the employee’s] termination in November, however, raises some different issues. It need hardly be said that termination of employment, in the context of labour relations, is the ultimate penalty that can be imposed on an employee. Accordingly, it is universally recognized that with some exceptions, an employer is obliged to fully and clearly inform an employee of any concerns that it has about the employee's performance or conduct and to provide a sufficient time frame to allow the employee to take corrective measures. These principles apply, whether the conduct of the employee is willful, that is, of a disciplinary nature, or is as a result of perceived incompetence or incapacity.
As Mr. Gunderson had not been provided the requisite warning, Adjudicator Chodos set aside the termination decision that had been made due to Mr. Gunderson’s loss of reliability status.
[44] A similar tack was taken by the Board in Heyser v. Deputy Head (Department of Employment and Social Development), 2015 PSLREB 70, 124 C.L.A.S. 162 [Heyser], Féthière v. Deputy Head (Royal Canadian Mounted Police), 2016 PSLREB 16, 126 C.L.A.S. 246 [Féthière] and Grant v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 37, 2016 CarswellNat 2268 [Grant], where the Board found that it possessed jurisdiction to inquire into the merits of the employer’s decision to revoke a grievor’s reliability status by virtue of the provisions in paragraph 209(1)(c) of the PSLRA. I note, however, that the decisions in Heyser and Féthière are the subject of judicial review applications that are pending before this Court and the application for judicial review in Grant was recently dismissed on grounds unrelated to the jurisdictional issue.
[45] Standing in contrast to these cases, the Board has stated in several other instances that it does not possess jurisdiction to inquire into the merits of an employer’s decision to revoke a reliability status or security clearance unless these decisions are acts of disguised discipline or were taken in bad faith or in violation of an employee’s rights to procedural fairness: Hillis v. Treasury Board (Department of Human Resources Development), 2004 PSSRB 151, 79 C.L.A.S. 272 [Hillis]; Zhang v. Treasury Board (Privy Council Office), 2005 PSLRB 173, 85 C.L.A.S. 24 [Zhang]; Gill v. Treasury Board (Department of Human Resources and Skills Development), 2009 PSLRB 19, 97 C.L.A.S. 173 [Gill]; Braun v. Deputy Head (Royal Canadian Mounted Police), 2010 PSLRB 63, 102 C.L.A.S. 67 [Braun]; Nasrallah v. Deputy Head (Department of Human Resources and Skills Development), 2012 PSLRB 12, 109 C.L.A.S. 326 [Nasrallah]. In two other cases, the employer proceeded on a disciplinary basis in addition to terminating by reason of the loss of the employee’s security status and the Board found there to be cause for the termination. The inquiry into the reasons behind the decision to also revoke the employee’s reliability status was therefore superfluous: Shaver v. Deputy Head (Department of Human Resources and Skills Development), 2011 PSLRB 43, 106 C.L.A.S. 6 [Shaver]; Gravelle v. Deputy Hea