Boreal

Shooting the Messenger

Federal Court - Memorandum of Points of Arguments

Extracts from the Applicant’s Memorandum of Points of Arguments, Court File A-399-66. Text between quotation marks is from adjudicator Thomas W. Brown’s Reason for Decision. Underlined headings are for ease of reference and were not part of the original memorandum.

The following points raised and arguments made in the Federal Court of Appeal are as valid today as they were then, perhaps more so, as the government find reasons to place additional restrictions on our freedoms because of the terrorist threat.

STATEMENT OF FACTS

1. This is an application to review and set aside a decision dated June 13, 1986 of Tom Brown an adjudicator with the Public Service Staff Relations Board.

POINTS AT ISSUE

24. Whether correspondence between a Minister of the Crown and a private citizen is privileged correspondence and whether such correspondence can be used by public servants in judicial or quasi-judicial proceedings in which they are implicated without the express consent of the writer without bringing the administration of justice into disrepute.

25. Whether a public servant’s first loyalty is to other public servants or to the government and the electorate which it represents.

26. Whether the adjudicator correctly evaluated or understood the evidence presented.

27. Whether the employer must prove that a request is reasonable before insubordination can be pretended to.

28. Whether management can ignore the progressive nature of the disciplinary process as is set out in collective agreements or as is generally understood under the general heading of the right to due process, even though the employee doesn’t represent a threat to life, physical well being, security or property.

29. Whether the adjudicator erred in implying that the applicant could have kept his job if he had turned a blind eye to management’s excesses and [willingly] participated in unethical if not illegal activities.

ARGUMENTS

Correspondence Between a Private Citizen and a Member of Parliament

30. It is respectfully submitted that correspondence between a private citizen and a Member of Parliament is privileged information and may not be introduced by civil servants as evidence in any judicial or quasi-judicial proceedings in which they are implicated without the express consent of the writer without bringing the administration of justice into disrepute.

31. The introduction as evidence by counsel for Treasury Board (External Affairs of the letter of May 17, 1985 from the Rt. Honourable Joe Clark to the applicant brings the administration of justice into disrepute by implying that justice, fairness and impartiality are not the overriding concern of the judiciary.

32. By introducing the letter as evidence the respondent indicated to the adjudicator that the Secretary of State, the Right Honourable Joe Clark was aware of, and condoned the discharge of the applicant. Should the adjudicator find in favour of the applicant, he would be in effect saying that the Secretary of State’s trust in his officials was misplaced and he was wrong in allowing his officials to discharge the applicant…

33. For the adjudicator the decision was no longer an administrative one but a political one.

34. The implication of such a decision, considering the applicant maintained and proved that the discharge was motivated by a department angered by the applicant's complaint to the Commissioner of Official Languages, did not escape the adjudicator...

35. The adjudicator, we submit was faced with two choices: 1) legitimize the employer’s deception by echoing and emphasizing the respondent’s unsubstantiated claims and ignoring or downplaying the evidence presented by the applicant: 2) accept the evidence and find that the applicant had been forced out of his job.

36. The first choice, as the adjudicator states “might attract considerable media attention” and by extrapolation embarrass the political authorities, the same authorities who are responsible for appointments to the judiciary and to most administrative bodies. The second choice held less risk. The firing of a faceless public servant for misconduct, the reputation of public servants being what it is, would attract little or no sympathy let alone media attention.

37. There was no media attention.

38. The Minister is to represent every Canadian, the acceptance as evidence of this letter would lead a reasonable man to conclude that a Minister’s first loyalty is to his officials, not the electorate. He who writes to the Minister, about bureaucratic excesses, does so at his own risk and peril, in any dispute with officialdom the Minister can’t even be trusted to remain neutral.

A Public Servant’s Loyalty

39. It is respectfully submitted that a public servant’s loyalty is first and foremost to the government and to the electorate which it represents and that the adjudicator erred in suggesting otherwise…

Consideration of the Evidence

40. It is respectfully submitted that the adjudicator erred in evaluating the evidence; a correct interpretation would have, under normal circumstances, vindicated the accused.

Official Languages

45. At no time, not during cross examination, not during closing arguments did the employer deny that any opposition to their plans to automate Paris in English would be met with a suspension.

55. The adjudicator either through misunderstanding or for reasons unknown to the applicant minimizes the problem

“On November 23, 1984, Exhibit G-15, the Commissioner’s Office wrote to the griever, advising him that his complaint was being pursued together with others of the same nature involving the Department.”

57. The adjudicator’s interpretation of what the Commissioner said is completely wrong. The Commissioner was writing about the extent of the problem not [about] the number of complaint or that the complaint was a run-of-the-mill type.

The Special Performance Appraisal (the Appraisal From Hell)

51. If unassailable proof of senior management’s vindictiveness, “dirty hands” and the proverbial “smoking gun” was needed, this was it. Failure by management to take decisive action to have the applicant dismissed for incompetence or incapacity, which such an appraisal demands, demonstrates beyond the shadow of a doubt management’s reprehensible intentions. If this appraisal is true, then there could not have been any misconduct or insubordination. Management is clearly guilty of abusing the performance appraisal process and the entire disciplinary process leading to the dismissal of the applicant discredited.

Currency Fluctuation Reporting System

59. In his Reason for Decision the adjudicator maintains that:

“... the consultant’s report was made without taking into account the required report under the currency fluctuation project and to this day the financial management system does not and cannot take into account losses and gains in currency fluctuation, which is was hoped it would, had the consultants had in hand the griever’s report.”

61. A system, The Currency Fluctuation Reporting System as described in the preceding paragraph (paragraph 60) had been in place since 1980, designed and implemented by the applicant, doing exactly what the adjudicator maintains can’t be done.

Example of Gangster-like Behaviour

73. On two separate occasions, on the pretence of having to make adjustments to  the applicants pay checks, management intercepted and refuse to give the employee his pay.

A Request Must Be Reasonable

[for insubordination to have occurred]

What Should Have Been Self-Evident

78. While the adjudicator may not have been cognizant of the advances made in information storage technologies, common sense dictates that he should have understood the applicant’s explanation that it is impossible to describe the content of a filing cabinet if he is not allowed to look inside as it is to describe the contents of a computer system if you are not allowed access to it… The accusation that the applicant could possibly meet management’s conditions without access to the information the applicant needed is a “red herring.” This may be the first instance of a computer being used as a blunt instrument

Evidence of the Impact of Managements Unreasonable Requests on the applicant

79. Assuming that the adjudicator didn't understand the explanation in the previous paragraph, he should have appreciated that during the period in which the applicant is alleged to have not worked for nineteen days, which even the adjudicator admits is an exaggeration, that the applicant was where management had been pushing him all along, physically and emotionally incapable of any kind of action.

“He admitted that he could not say for sure whether he had done any work during those nine (sic) day. It was a stressful for him. He cannot remember. One grievance followed another; one disciplinary hearing followed another...”

A Request To Travel Back In Time

82. The request that the applicant call his supervisor at the beginning of each day was made in a letter delivered by the Department messenger and received by the applicant during the afternoon of the second day. The applicant could not have fulfilled the requirements of that letter unless he could travel back in time.

“… I direct you to call me personally at the beginning of each working day in which you do not intend to report for work due to your illness.”

83. There is also evidence in this letter that the employer was attempting to set up a case for abandonment of post which would have denied the applicant the right to appeal.

“Please be advised that non-compliance with my directives may be subject to disciplinary action. Furthermore, if you do not contact me and/or if I am unable to contact for a period of five working days your position will be declared abandoned.”

84. The adjudicator, while in agreement that it was impossible to meet the conditions errs in maintaining the applicant is still guilty of not meeting the employer's impossible conditions:

“He failed, perhaps through no fault of his own, to satisfy management that he was legitimately away from work and can only be considered to have been absent without leave, in the circumstances.”

Progressive Nature of the Disciplinary Process

88. The disciplinary process, if not abused, is meant to bring about a change of behaviour in an employee by imposing harsher and harsher penalties leading to dismissal if the penalties are found not to have had the desired effect. It goes without saying, that it is impossible to observe the effect on behaviour without the punishment being served except in theory but people are not judged on theories but on observable and provable facts.

89. The applicant was dismissed on the basis of a letter of reprimand, after the employee, had received a deferred ten day suspension, without pay but before it was served. The decision to dismiss was made before the employee served his suspension...

“… He was accordingly told during a disciplinary hearing on April 9, 1985, upon his return from an absence which the employer considered to have been unauthorized, that a recommendation was being made for his discharge.”

90. There is no disagreement that the decision to dismiss was made before the applicant served his [deferred] ten day suspension...

92. The employer’s position in any event is absurd. They had already made the decision to dismiss the employee, why go through the charade of having (pretending) the applicant (has) served his ten day suspension without pay. The employer is trying to pay lip service to the progressive nature of the disciplinary process. But is lip service enough considering that a dismissal for misconduct from the Public Service amounts to a life sentence.

93. The adjudicator finds nothing reprehensible about this subterfuge and errs in not dismissing the respondent’s case [Treasury Board/Foreign Affairs] on the basis of this tactic alone…

“I have no reason to believe that more progressive disciplinary measures ... would have any effect whatsoever on the griever. It would only have made a more classical approach to progressive discipline.

94. The classical approach is synonymous with the right of due process and is the only protection afforded an individual against arbitrary dismissal. The arbitrator errs and sets a dangerous precedent by claiming that the progressive nature of the disciplinary process can be ignored without substantial justification and “I have no reason to believe …” is not substantial justification. If this decision is allowed to stand, it’s a signal to every manager that the progressive nature of the disciplinary process can be ignored whenever its stands in the way of arbitrary action by management and the reason can be as trivial as failing to complete a report on time.

Suggestion Unbecoming an Adjudicator

95. The adjudicator in his Reason for Decision makes the following remark:

“The grievor was the author of his own misfortune. His discharge was justified.”

96. That the applicant was the author of his own misfortune goes without saying. The adjudicator errs in implying that the applicant should not have complained about the Paris project and allowed the department to carry on as normal, oblivious to rights guaranteed by law, thereby keeping his job.