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Date: 20160922

Files: 166-02-34330, 34331,


34767 and 34768
Citation: 2016 PSLREB 89

Public Service Staff Relations Act

Before an adjudicator
BETWEEN

SHIV CHOPRA AND MARGARET HAYDON

Grievors
and
DEPUTY HEAD
(Department of Health)

Employer
Indexed as
Chopra v. Deputy Head (Department of Health)

In the matter of grievances referred to adjudication pursuant to section 92 of the


Public Service Staff Relations Act
Before:

Ian Mackenzie, adjudicator

For the Grievors:


For the Employer:

David Yazbeck, counsel


Caroline Engman, counsel

Heard at Ottawa, Ontario,


March 24 to 27, 2015.

REASONS FOR DECISION


I. Introduction

[1]

The grievors, Shiv Chopra and Margaret Haydon, judicially reviewed my decision

on their grievances against their suspensions and terminations of employment (2011


PSLRB 99). The Federal Court allowed the judicial review in part and remitted the
matter to me for redetermination in accordance with its reasons (Chopra v. Canada
(Attorney General), 2014 FC 246). In March 2015, I heard submissions on the issue of

the employer's condonation of the grievors' conduct that led to their suspensions as
well as submissions on the appropriateness of the terminations were I to allow the
suspension grievances in whole or in part.
[2]

The employer appealed the Federal Court's decision. The Federal Court of

Appeal's decision, upholding the judicial review decision, was issued on September 22,
2015 (Chopra v. Canada (Attorney General), 2015 FCA 205).
II. Overview of the Federal Court's decision

[3]

The Federal Court wrote extensive reasons. I have set out the order in the next

section. I have also set out portions of the reasons that relate to the issues before me.
A . .Judgment and order

[4]

The Court made the following order:

Dr. Chopra's 10-day suspension was upheld;

Dr. Haydon's 10-day suspension for speaking out was remitted back
to me to determine the issue of condonation by the employer;

Dr. Chopra's 20-day suspension for speaking out was remitted back
to me to determine the issue of condonation by the employer;

Dr. Chopra's termination grievance was remitted back to me to


determine the appropriateness of the disciplinary sanction only if his
20-day suspension is varied or set aside; and

Dr. Haydon's termination grievance was remitted back to me to


determine the appropriateness of the disciplinary sanction based on
a) not taking into account her 2001 suspension for speaking out, and
b) taking into account any variance or setting aside of her 10-day
suspension for speaking out.

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B. Reasons

[5]

In the course of making its order, the Federal Court made observations in the

reasons that have a bearing on this rehearing.


1. Stale discipline of Dr. Haydon

[6]

The Federal Court noted that I had not addressed the issue of the employer's

reliance on discipline imposed on Dr. Haydon in 2001. It found that Diane Kirkpatrick
testified that she had relied on both the 2001 and 2004 suspensions in coming to her
decision to terminate Dr. Haydon's employment. The 2001 discipline was subject to
the "sunset clause" in the collective agreement and did not form part of the grievor's
disciplinary record at the time her employment was terminated.
2. Speaking-out grievances

[7]

The Federal Court directed me to further consider the argument of condonation

as it would apply to the employer's delay in imposing discipline on the grievors for
speaking out.
[8]

The Federal Court summarized the relevant legal principles of condonation (at

paragraphs 109, 110, and 196 to 198), which I have addressed in the reasons section of
this decision. However, the Federal Court made some observations about the facts in
this case that the grievors have submitted are relevant to this rehearing.
[9]

The Federal Court stated (at paragraph 205) that "[t]he relevant question was

whether they [the grievors] were made aware in a timely manner that their employer
believed that their comments warranted discipline." The Federal Court found that the
failure to warn the grievors that their statements warranted discipline had to be
considered in light of the positive comments the Deputy Minister made with respect to
testimony Dr. Chopra and Dr. Haydon gave in Senate hearings. The Federal Court noted
that the grievors' testimony. before the Senate Committee on Agriculture and Forestry
also included criticisms of their supervisors' qualifications and allegations of pressure
and of reprisals.
[10]

The Federal Court found that the grievors were told that the fact-finding

processes were not disciplinary in nature and that the employer allowed them "to
make numerous public statements over an extended period without ever advising
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them that it believed that their comments warranted discipline" (at paragraph 208).
[11]

The Federal Court found that the employer was aware of the comments, and

concluded that there is no argument that the delay imposing discipline could be
justified on the basis that the employer had only recently become aware of them.
[12]

The Federal Court also noted that Ms. Kirkpatrick knew of the grievors' intent to

speak out in advance of the comments, on at least two occasions, and that she did not
instruct them not to speak out but rather reminded them of their responsibilities as
public servants (at paragraph 210).
[13]

The Federal Court noted that although Ms. Kirkpatrick wrote to counsel for the

grievors (on July 31, 2003) that inappropriate activities may result in disciplinary
action, " ... at no point prior to the imposition of discipline did she inform Drs. Chopra
and Haydon that she considered their comments to have been inappropriate" (at
paragraph 211).
[14]

The Federal Court also found that the employer had made no suggestion that

there was any kind of" ... 'culminating incident', following which

employ~r

forbearance

was no longer possible" (at paragraph 212).


[15]

The Federal Court noted that even if it was reasonable for the employer to wait

for the Public Service Integrity Officer (PSIO) investigation report (of March 21, 2003),
this did not explain why it took a further 8 months to impose discipline on Dr. Chopra
and a further 10 months on Dr. Haydon (at paragraph 214).
[16]

The Federal Court noted that I did not address the employer's explanation that

Dr. Chopra's absence from the workplace between February and May of 2003
contributed to the delay. It also noted that it "is not apparent" why it took the
employer a further seven months after he returned to work to discipline him for his
public comments (at paragraph 215). The Federal Court also noted that it was not
apparent how Dr. Haydon's absence from the workplace in January of 2004 could
explain why no discipline was imposed on her in the nine months between the release
of the PSIO report and her absence from the workplace (at paragraph 215).
[17]

The Federal Court noted that the discipline imposed on the applicants (the

grievors) was based in part on the repetitive nature of their alleged misconduct. The
question of whether the delay imposing discipline had prejudiced the grievors was a
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factor to consider when assessing the suspensions (at paragraph 216).


[18]

The Federal Court also stated as follows:

[218] I am not prepared to speculate as to what the


applicants would or would not have done, had they been
disciplined for speaking out in a timely manner. The purpose
underlying the arbitral jurisprudence relating to delay and
the principle of condonation is to give employees an
opportunity to modify behaviour that an employer believes
warrants discipline. While Drs. Chopra and Haydon may [sic]
have been aware that discipline was a possibility, they never
had a chance to make an informed decision whether or not
to risk continuing with their public comments as their
employer failed to tell them that it viewed their comments as
warranting discipline prior to actually imposing that
discipline.
[219] Once again, the implications of all of this are not for
me to decide, but were matters to be determined by the
Adjudicator who was required to balance Health Canada's
explanation for the delay against whatever prejudice had
been suffered by Drs. Chopra and Haydon as a result. No
such balancing exercise was undertaken by the Adjudicator
in this case.
III. Scope of the rehearing

[19]

The parties raised issues about the scope of the rehearing that arose in the

context of the employer speaking to an exhibit (G-267) prepared by Dr. Kirkpatrick and
setting out a chronology of events. Counsel for the grievors argued that I did not rely
on this exhibit in the original decision and that it was not open to the employer at the
rehearing to re-argue its case. He noted that the employer never relied on this
chronology to support the delay. It was introduced at the point of the hearing when Dr.
Lambert's termination was being reviewed (in 2011 PSLRB 99). Counsel for the grievors
submitted that it would be inappropriate to rely on it for the purpose of the
condonation analysis. Counsel for the grievors argued that I was very limited in the
scope of this hearing and that it was not up to me to "shore up" my decision. He
submitted that I was limited to reviewing what was set out in the Federal Court's
decision.
[20]

Counsel for the employer referred me to paragraph 414 of the decision, at

which the Federal Court stated that the rehearing was to be based on the record. Had
the Federal Court intended to limit the scope of the hearing to what was in its or my

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decision, it would have stated so, she submitted. Counsel for the employer submitted
that I was entitled to take all the evidence into account. She noted the practical
impossibility of including all the evidence in a decision.
[21]

I reserved my determination on this objection at the rehearing.

[22]

I find that the document relied upon by the employer (Exhibit G-267) is properly

before me and can be considered in this rehearing. The Federal Court was clear that
the .rehearing of the suspension grievances should be based solely on the existing
record, with no new evidence to be adduced by either party. It also stated that the
parties would have an opportunity to make additional submissions with respect to the
outstanding issues. The Federal Court did not limit the parties in their submissions.
Therefore, I find that it was open to both parties to refer to evidence on the record in
their submissions. I have addressed the merits of the employer's submissions on this
document (Exhibit G-267) in my reasons. As will be seen, I determined that Ms.
Kirkpatrick's activities (as set out in Exhibit G-267) did not excuse or explain the
significant delay in imposing discipline on the grievors after the PSIO investigation was
concluded.
IV. Summary of the arguments

[23]

The parties made extensive oral submissions and relied on submissions made to

the Federal Court. I have summarized the oral submissions, and I have considered all
the submissions in corning to this decision.
A. For the grievors

[24]

Counsel for the grievors submitted that the Federal Court decision was clear

that there had been condonation. They also submitted that the principles of
progressive discipline required that they be reinstated to their positions.
[2 5]

Counsel submitted that I was also bound by the findings of the Federal Court on

stale discipline of Dr. Haydon.


[26]

Counsel for the grievors closely reviewed the relevant sections of the Federal

Court decision that I have summarized earlier in this decision.


[2 7]

Counsel submitted that the grievors were not disciplined for their conduct and

that when their conduct was repeated, again, it was not disciplined. He stated that the
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Federal Court noted that there did not appear to be a difference between the
statements made that were upheld by an earlier Federal Court decision (Haydon v.
Canada, [2001] 2 FCR 82 (T.D.); "Haydon No. 1") and those made for which the grievors
were disciplined. Counsel submitted that the grievors were entitled to assume that
they could continue to abide by the standards set out in that earlier Federal Court
decision.
[28]

Counsel referred me to the decision of the Ontario Court of Appeal in Mcintyre

v. Hockin, [1889] 0.]. No. 36 (QL) at para. 13, which refers to "any considerable time"
when weighing whether condonation occurred and stated that the delay in this case
was beyond any considerable time. He also submitted that the deputy head could be
considered a sophisticated employer that knows the appropriate steps to take when
imposing discipline. Counsel reviewed a range of decisions involving speaking out
grievances in which the delays in imposing discipline were significantly less that the
delays in this case. He also referred me to the Treasury Board's "Guidelines for
Discipline" (Exhibit G-288) that state that discipline should be conducted in a timely
manner.
[29]

Counsel also relied on the four factors of condonation set out as follows in

Canadian Union of Public Employees, Local 1718 v. Stapleford Medical Management


Inc., [2007] S.LA.A. No. 3 (QL) at para. 81:

1.
2.

3.
4.

unreasonable delay may indicate employer condonation;


the employee's right to procedural fairness must be

preserved;
delay effectively denies the grievor the opportunity to
defend himself or herself;
the requirement for expeditious discipline is a general
arbitral principle applicable even in the absence of
evidence of prejudice or unfairness to the employee.

[30]

He submitted that all four of these factors were at play in this case.

[31]

Counsel submitted that the Federal Court made a finding that the deputy head

took no action and that it did not warn the grievors (at paragraph 199). He also
submitted that the Federal Court made a finding that the employer's fact-finding

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exercise was not a disciplinary process and therefore is not a factor in determining the
condonation issue.
[32]

Counsel also submitted that the Federal Court found that the employer had " ...

allowed Drs. Chopra and Haydon to make numerous public statements over an
extended period of time without ever advising them that it believed that their
comments warranted discipline" (at paragraph 208). Counsel submitted that it was an
absolute obligation on the employer to advise the grievors that their behaviour was
inappropriate.
[3 3]

Counsel also submitted that the Federal Court was clear that the employer did

not rely on a culminating incident in its discipline and that it was not open to the
employer to do so at this rehearing.
[34]

Counsel submitted that the Federal Court concluded that there was nothing to

support the seven- and nine-month delays imposing discipline. He also submitted that
the employer could not rely on the repetitive nature of the grievors' comments, since it
allowed them to make those comments. He stated that if the repetitive nature of the
acts is removed, an essential part of the grounds for discipline is removed.
[3 5]

Counsel also submitted that the Federal Court's statement that the grievors " ...

never had a chance to make an informed decision whether or not to risk continuing
with their public comments as their employer failed to tell them that it viewed their
comments as warranting discipline prior to actually imposing that discipline" (at
paragraph 218) was conclusive and determinative of the speaking-out grievances.
[36]

Counsel submitted that the grievances against the discipline for speaking out

should therefore be allowed. In addition, he submitted that the termination grievances


should also be allowed because the employer relied on progressive discipline when
terminating the grievors' employment.
[3 7]

Counsel referred me to Tel us Communications Inc. v. Telecommunications

Workers Union, 2012 CanLII 39240, on the doctrine of culminating incident. He

submitted that a culminating incident had not been established and that I had decided
the appropriateness of the termination of Dr. Chopra's employment based on his
disciplinary record. He also stressed the importance of progressive discipline and
stated that if one step in that progression is rescinded, then each of the other steps is
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affected. He submitted that the 20-day suspension was the most significant
disciplinary action of the 3 suspensions used to justify terminating Dr. Chopra. He
stated that therefore, it follows that if the 20-day suspension is removed, the
termination cannot be justified. He further submitted that the task is then to look at
the appropriate amount of discipline, short of termination.
[38]

With respect to Dr. Haydon, counsel submitted that her 10-day suspension must

be rescinded for the reasons set out by the Federal Court. In light of the removal of
this significant discipline, the termination of her employment was not justified.
[39]

Counsel submitted that in King v. Deputy Head (Canada Border Services

Agency), 2010 PSLRB 125 (upheld in 2012 FC 488 and 2013 FCA 131), the employer
relied on progressive discipline to support termination. In that case, there were similar
acts of misconduct, which is not so in this case. Also, 45 days of suspension were on
the record. In this case, the grievors will be left with disciplinary records of well below
45 days. In addition, with the rescinding of Dr. Chopra's 20-day suspension, over half
of the total amount of discipline will have been removed from his disciplinary record.
[40]

Counsel submitted that any decision other than overturning the terminations

would allow the employer to re-argue its case.


[41]

With respect to Dr. Haydon's termination of employment, counsel argued that

the sunset clause of the collective agreement is a mandatory and substantive right; see

Labourers' International Union of North America, Local 506 v. Tri-Krete Ltd., [2012]
O.L.A.A. No. 302 (QL) at para. 80. In that case, the arbitrator stated that an employer
does not have just cause to discipline if it relies on prior discipline covered by the
sunset clause. Counsel submitted that a discharge is null and void if an employer
relied on prior stale discipline to support it.
[42]

Counsel submitted that the grievances against the discipline for speaking out

should be allowed and that the grievors should receive lost pay and benefits for the
lengths of their suspensions. The grievors should be reinstated to their positions, less
any appropriate discipline. He also submitted that I should retain jurisdiction if the
parties are unable to come to an agreement on the losses suffered by the grievors and
to address any issues arising out of my order.

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B. For the employer


[43]

Counsel for the employer submitted that I was not bound by the Federal Court's

analysis and comments about the grievors speaking out. She submitted that the only
direction in the Federal Court's decision is for me not to consider Dr. Haydon's 2001
suspension. The Federal Court order simply states that the matter is remitted back to
me, in accordance with the Federal Court's reasons. Counsel submitted that I am not
bound by the Federal Court's analysis because it is in the very nature of a judicial
review that the judge does not "step into the shoes" of the adjudicator to make
findings of fact. She submitted that the judge sent this decision back to me to
complete the condonation analysis and that it did not direct me to make certain
findings.
[44]

I was referred to Rafuse v. Canada (Minister of Human Resources Development),

2002 FCA 31, in which the Federal Court of Appeal held that a court is not free to
substitute its findings of fact on judicial review. I was also referred to Canada (Minister
of Citizenship and Immigration) v. Maan, 2005 FC 1682, and Parmalat Canada Inc. v.
Sysco Corporation, 2008 FC 1104. Counsel submitted that the phrase "in accordance
with these reasons" simply means that the Federal Court has set out the issues that I
ought to have looked at and then provides guidance on examining them.
[45]

Counsel submitted that the Federal Court did not ask me to make a finding of

condonation. Rather, it directed me to look at the argument of delay when imposing


discipline and whether there ought to be consequences as a result of the delay. She
noted that the Federal Court (at paragraph 218) stated that it "was not prepared to
speculate" and that at paragraph 219, it stated that the " ... implications of all of this
are not for [it] to decide".
[46]

Counsel submitted that my task is to weigh the prejudice to the grievors against

the reasons for the delay. With respect to condonation, counsel referred to Mcintyre, in
which the Ontario Court of Appeal stated as follows at para. 13:

... No doubt the employer ought to have a reasonable time to


determine what to do, to consider whether he will dismiss or
not, or to look for another servant. So, also, he must have full
knowledge of the nature and extent of the fault, for he
cannot forgive or condone matters of which be (sic) is not
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fully informed. Further, condonation is subject to an implied


condition of future good conduct ....

[4 7]

Counsel submitted that condonation takes an active gesture of forgiveness on

the part of the employer. In addition, the employee ought to have some understanding
that he or she is doing something wrong. She described condonation as a "two-way
street". In the case of delay, the employee does not know that the employer does not
approve, which is where the prejudice to the employee comes in to play. She described
this as the employee not knowing the employer's intent.
[48]

Counsel stated that a delay is a procedural and not a substantive issue; see

British Columbia v. British Columbia Government & Service Employees' Union (1995), 47

LAC. (4'h) 2 38
[49]

at 245.

Counsel submitted that when looking at what constitutes a reasonable amount

of time in terms of delay, one must look at the circumstances of each case (see Renae
v. Champs Mushrooms Inc., [2014] C.LA.D. No. 55 (QL)).
[SO]

Counsel also referred me to Re Nova Scotia (Public Service Commission) and

NSGEU (Maclean), 2005 CarswellNS 717, and submitted that it is important to look at

the nature of the prejudice to the employee. She also submitted that prejudice cannot
be inferred -

there must be some evidence of it; see Abitibi-Consolidated Inc. v.

International Assn. of Machinists and Aerospace Workers, Local 771, [2000] O.L.A.A. No.

81 (QL). In addition, that case set out the following questions to be answered: Was the
delay unreasonable? Did it cause the grievor to conclude that there has been
condonation? Did it prejudice the grievor's ability to defend himself or herself against
the allegations?
[51]

Counsel submitted that I was clear in my decision (at paragraph 457) on the

reasonableness of the delay imposing discipline; it was clear to the grievors that the
employer had concerns about them speaking to the media. She reviewed the evidence
of the hearing, in which Dr. Chopra publicly acknowledged that discipline was a
possibility. She also pointed out a reference he made at the Food Irradiation session in
which he acknowledged that he had received a warning from Ms. Kirkpatrick. Dr.
Chopra also acknowledged in interviews that discipline might follow from his actions.
Counsel submitted that Dr. Chopra could not resile from those statements at the
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rehearing.
[52]

Counsel also referred me to correspondence from the grievors (dated August 8,

2002; Exhibit E-15, tab C-7) about the fact-finding interviews, in which they noted that
the "... underlying issues could produce a very serious consequence to our
employment". Counsel submitted that this was a recognition that their jobs were at
stake and that it was clear that the grievors knew that the employer was not forgiving
them for their actions. Counsel also stated that the grievors' alleged belief that they
were entitled to say what they were saying because of both the Federal Court decision
(Haydon No. 1) and Mr. Dodge's statements was not supported by the grievors'

statements that their jobs were at stake. Counsel also referred me to the transcript of
Dr. Chopra's evidence, in which Dr. Chopra was disparaging of the deputy head's
comments. She submitted that this demonstrated that at the relevant time, Dr. Chopra
did not believe that the deputy head was permitting him to speak to the media.
[53]

Counsel submitted that Treasury Board policy dictated that fact-finding

investigations were not disciplinary but were a step in the process that could
ultimately

lead

to

discipline.

Counsel

submitted

that

the

Federal

Court's

misunderstanding of this was understandable. Counsel referred me to a letter in


evidence from the grievors' counsel in which he referred to the possibility of discipline
(Exhibit E-15, Tab G-6). She submitted that this was an acknowledgment by the
grievors' representative that there was a process that could lead to potential discipline.
Counsel submitted that it was clear to both the grievors and their counsel that the factfinding processes were a step on the disciplinary path.
[54]

Counsel submitted that I made a finding of fact that waiting for the results of

the PSIO investigation was reasonable. Counsel reviewed the evidence on this issue and
argued that the grievors acknowledged that they were waiting for the PSIO
investigation results.
[55]

Counsel submitted that the grievors suffered no prejudice as a result of the

delay.
[56]

Counsel submitted that Ms. Kirkpatrick outlined the different activities the

employer was engaged in during this period, including dealing with issues raised by
the grievors and a hearing before the Public Service Staff Relations Board involving Dr.
Chopra and responding to copious correspondence from counsel for the grievors
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(Exhibit G-267). Counsel stated that the employer was not "sitting back" during this
period.
[57]

Counsel submitted that a delay does not void discipline. Counsel stated that a

delay matters to the extent that it prejudices the grievors' ability to respond to the
discipline. The harassment investigation report (Exhibit G-190, tab 12) dealt with the
same issues as in the grievances. In addition, the PSIO investigation dealt with some of
the same issues.
[58]

Counsel submitted that the grievors were able to respond to the discipline

imposed by the deputy head. In addition, she referred me to testimony from Dr.
Haydon about what the grievors would have done had they been told not to make
comments to the media. Counsel argued that they suggested that they would have
continued to make comments, thus demonstrating that they had suffered no prejudice
from the employer's delay.
[59]

Counsel submitted that the grievors' responses to the fact-finding investigation

also demonstrated they suffered no prejudice as a result of the delay in imposing


discipline.
[60]

Counsel submitted that in the absence of any prejudice to the grievors, the

findings on the grievances ought not to be changed, and the adjudication decision
should be maintained.
[61]

In the alternative, counsel argued that should the suspension grievances be

denied, the terminations of employment should be upheld. The concept of progressive


discipline is not a lockstep process. The law recognizes that progressive discipline
does not apply in all cases. Counsel referred me to Brown and Beatty, Canadian Labour
Arbitration, (4'hEd), in which the authors state (at paragraph 7:4416) that some acts are

so serious and antithetical to the employment relationship that termination can be


justified without progressive discipline. Counsel submitted that in this case, the
misconduct was antithetical to a viable employment relationship with both grievors.
[62]

Counsel also referred me to UFCW (Canada), Local 1288P v. B & N Hospitalities

Inc., 2006 NBCA 29, which stated that progressive discipline was not obligatory in
cases in which the New Brunswick Court of Appeal found it would be ineffective,
considering the grievor's inability to reform his or her misconduct-generating attitude.

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She submitted that the analysis in my original decision used similar reasoning. In Dr.
Haydon's case, I concluded that she had demonstrated a " ... fundamental inability to
accept supervision and direction from her employer." She also noted that I concluded
that Dr. Haydon's behaviour could not be corrected. She submitted that I made similar
findings with respect to Dr. Chopra and that an employment relationship cannot
continue when an employee chooses what he or she wants to do.
[63]

In conclusion, counsel submitted that the Federal Court did not instruct me to

overturn the grievors' terminations but left the determination up to me. In both cases,
counsel submitted that the terminations should stand, even if the suspension
grievances are allowed.
[64]

Counsel submitted that the decision in King can be distinguished on the basis of

the specific circumstances. In that case, the employer took a progressive discipline
approach, although such an approach is not mandatory in all cases. In the Federal
Court's judicial review of that decision, it stated that the amount of discipline was " ...
within the realm of the adjudicator's powers ... " She submitted that in this case, the
Federal Court made the same observation. It stated that I should weigh the factors and
make a proper determination on the terminations.
[65]

With respect to the Telus Communications Inc. decision, counsel pointed to the

arbitrator's comments that one of the purposes of progressive discipline is to provide


an opportunity to assess an employee's rehabilitative potential. She also pointed out
the arbitrator's conclusion that the conduct was not so serious. In this case, the
misconduct is so serious that it struck at the heart of the employment relationship.
[66]

Counsel submitted that the grievors' bargaining agent did not grieve a breach of

the sunset clause of the collective agreement and that I should not view Dr. Haydon's
discharge as null and void.
C. Reply submissions

[67]

Counsel for the grievors submitted that the employer provided no authority for

the claim that I could make a decision inconsistent with the Federal Court's reasons.
The plain meaning of the Federal Court's instruction to redetermine "in accordance
with these reasons" is that I am bound by those reasons.
[68]

Counsel submitted that the Rafuse decision dealt with the issue of granting

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leave. Also, in that case, the issue was factual determinations. In this case, I had made
determinations that the Federal Court found unreasonable. Counsel also submitted
that Maan was not relevant to the issues in this case. In addition, the statement of the
Federal Court in that decision, which was that the Board reassess the relevant facts " ...
in light of the applicable legal principles", is no different than a statement that a
decision maker redetermine an issue in accordance with the court's reasons. In
Parmalat Canada Inc., the Federal Court noted that it may be appropriate to refer a

decision for determination "... in accordance with such directions as it considers to be


appropriate ... " Counsel submitted that this is what the Federal Court did in this case
and that I must follow those directions.
[69]

Counsel submitted that with respect to his letter to Ms. Kirkpatrick referring to

discipline, the fact that someone asked about discipline indicates that it was an open
question.
[70]

Counsel submitted that the Federal Court's reference to "not being prepared to

speculate" as to what the grievors would or would not have done if they had been
disciplined for speaking out in a timely manner referred to the employer's argument
and did not affect the scope of the rehearing.
[71]

Counsel submitted that with respect to the law of condonation, to the extent

that the cases the employer provided are inconsistent with the Federal Court's
assessment of the law on judicial review, I cannot follow them.
[72]

Counsel submitted that a delay in imposing discipline may render it void (seeM.

Mitchnik and B. Etherington, Leading Cases on Labour Arbitration, Vol. 2 (Discharge


and Discipline)). Counsel also referred me to I. Christie, Employment Law in Canada, 4'h
ed., Vol. 2 (at paragraph 15.59), in which it is stated that with a long and unreasonable
delay caused by indecisive management or by bureaucratic inadvertence, the
employee's behaviour will be deemed to have been condoned.
[73]

Counsel submitted that the Federal Court did find that the grievors had suffered

a prejudice as a result of the delay; it found that they were not given a chance to make
an informed decision.
[7 4]

Counsel also submitted that the employer could not derogate from its argument

contained in its factum to the Federal Court, as it was attempting to do in this case.
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Counsel submitted that the employer's reasons presented in argument for the delay in
imposing discipline were irrelevant. The document relied on by the employer (Exhibit
G-267) related to Dr. Lambert's grievance, and it is inappropriate to rely on it for the
condonation analysis.
[75]

With respect to progressive discipline, counsel noted that the employer's

reliance on it to support the termination cannot be ignored. He submitted that the


employer was "sucking and blowing" when it relied on progressive discipline in the
original termination decision and then at the rehearing did not rely on it to support the
termination of employment. He also submitted that I could not "undo my findings" in
the original adjudication decision that progressive discipline applied to the
terminations.
[76]

Counsel submitted that my role was not to determine if the employment

relationship was no longer viable. My role, he stated, was to assess progressive


discipline. He also noted that the Federal Court Judge stated that there was no
suggestion of a "'culminating incident', following which employer forbearance was no
longer possible" (at paragraph 212).
[77]

Counsel submitted that it was beyond the scope of this hearing to reassess the

merits of the terminations. Counsel stated that in in my original decision, I referenced


all acts of misconduct in supporting the terminations. Counsel submitted that by any
standard, the grievors' misconduct was not the kind of behaviour that would warrant
termination of employment in and of itself. Counsel also submitted that the New
Brunswick Court of Appeal's decision in UFCW (Canada), Locall288P does not match
the facts in these grievances.
V. Reasons

[78]

In these reasons, I will first address the issue of condonation. Then, in light of

my conclusions on that issue, I will review the appropriateness of the terminations of


employment.
[79]

The grievors argued that the employer could not derogate from its arguments

before the Federal Court. I disagree. The Federal Court was clear that the parties were
entitled to make additional submissions based on the existing record and did not
restrict the nature of those submissions. Therefore, I have considered all the parties'
arguments in reaching this decision.
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A. Condonation

[80]

The Federal Court directed me to review the suspensions of Dr. Chopra and

Dr. Haydon on the basis of the delay imposing discipline and the principle of
condonation.
[81]

Dr. Chopra's 20-day suspension was imposed on December 9, 2003. Dr.

Haydon's 10-day suspension was imposed on February 17, 2004. The discipline was for
public statements they had made on 14 occasions over a 15-month period, between
July 2002 and October 2003. During this period, the deputy head did not warn them
that it viewed their comments as misconduct that would be subject to future
discipline.
[82]

The PSIO investigation report was issued on March 21, 2003. Dr. Chopra's

suspension came 8 months after that, and Dr. Haydon's suspension came 10 months
after it was issued. Dr. Chopra was absent from the workplace between February and
May of 2003, and his suspension was imposed seven months after his return to work.
Dr. Haydon was absent from the workplace in January of 2004. However, as the Federal
Court noted, this does not explain why no discipline was imposed in the nine months
between the release of the PSIO report and her absence from work.
[83]

I adopt the Federal Court's description of the principle of condonation, which

accords with the principle set out in the labour arbitration jurisprudence. The Federal
Court notes (at paragraph 218) that the underlying purpose of the jurisprudence on
delay and condonation is to give employees an opportunity to modify behaviour that
an employer believes warrants discipline. The Federal Court states (at paragraph 109)
that the principle of condonation requires an employer to decide whether to discipline
an employee when it becomes aware of what it considers undesirable behaviour. The
failure to do so in a timely manner can constitute condonation of the misconduct.
Once the behaviour has been condoned, the employer may not then rely on that same
conduct to justify discipline. The failure to impose discipline in a timely manner may
lead an employee to assume that his or her previous conduct was tolerated by the
employer, thus building a longer record of what the employer considers misconduct
(see Corporation of the Borough Of North York v. Canadian Union of Public Employees,
Local 373, [1979] O.L.A.A. No. 3 (QL) at para. 12). As the Federal Court notes (at
paragraph 195):

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. . . a long delay in imposing discipline may entitle an


employee to assume that their conduct has been condoned by
their employer, where no other warning or notice of
potential discipline is given. Allowing employees to believe
that their behaviour has been tolerated, thereby lulling them
into [a] false sense of security only to punish them later, is
unfair to employees ....
[84]

When assessing whether discipline ought to be set aside because of delay,

arbitrators and adjudicators consider three main factors: the length of the delay, the
reasons for the delay, and any prejudice caused by that delay. See Mitchnick and
Etherington, Leading Cases on Labour Arbitration, 2"d ed., Discharge and Discipline, at
10-60; Brown and Beatty, Canadian Labour Arbitration, 4'h ed., at para. 7:2120; and

Canadian Union of Public Employees, Local 1718 v. Stapleford Medical Management Inc.
(2007), 88 C.L.A.S. 362, at paras. 81 to 84.

[8 5]

When considering these factors, an adjudicator is required to balance the

employer's explanation for the delay against the resulting prejudice suffered by the
grievor to reach a" ... just and equitable resolution of those competing interests", per
British Columbia v. British Columbia Government and Service Employees' Union, [1995]
B.C.C.A.A.A. No. 68 (QL) at para. 33 (cited by the Federal Court at paragraph 197 of
2014 FC 246).
[86]

Although the Federal Court stated at paragraph 219 that " ... the implications of

all of this are not for [it] to decide", it did make some observations on the evidence and
on the prejudice to the grievors. I summarized those observations in the overview
section of this decision.
[8 7]

While I agree with the employer that the only directions the Federal Court gave

to me are in the judgment and order, I find that the Federal Court's observations in its
reasons, although not binding, are highly persuasive. Generally, when a court provides
a rationale for its reasons, then that rationale should be regarded as persuasive. The
Federal Court's comments reflect its view of the evidence, in light of the legal test of
condonation. I also note that the Federal Court of Appeal upheld the Federal Court's
decision without commenting on the Federal Court's observations in the decision.
[88]

The Federal Court made the following observations on the evidence:

The Deputy Minister made positive comments about the grievors'


points raised at the Senate Committee, which might have created a

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sense of security on their part.

The fact-finding processes were explicitly not disciplinary in nature.

The employer was aware of the comments soon after they were made.

On at least two occasions, Ms. Kirkpatrick knew in advance that the


grievors were going to speak out, and she did not stop them.

Ms. Kirkpatrick did not inform the grievors that their comments to
the media were inappropriate before imposing discipline.

The employer made no suggestion of a culminating incident.

No explanation from the employer was forthcoming for the delay in


imposing discipline from the date of the PSIO report.

The discipline was based in part on the repetitive nature of the


grievors' comments.

The grievors never had a chance to make an informed decision on


whether to risk continuing with their public comments.

[89]

The Federal Court's observations, in particular its statement that the grievors

never had a chance to make an informed decision, leads to the conclusion that the
grievors suffered prejudice from the employer's delay imposing discipline and its
failure to advise them of the possibility of discipline.
[90]

The Federal Court also expressed some skepticism on the rationale for the

employer's delay. There is a rationale for not imposing discipline during a fact-finding
investigation, since the fact-finding is designed, in part, to gather information to make
a decision on discipline. There is some rationale for the delay during the PSIO
investigation, since discipline during the investigation might have been perceived as
employer interference with the investigation. However, there was still a significant
delay imposing discipline after the PSIO investigation report was issued (8 months in
the case of Dr. Chopra and 10 months for Dr. Haydon).
[91]

The employer's rationale for the delay after the PSIO investigation was raised

during this rehearing. As I understand the rationale, the employer stated that it was
busy with a range of issues raised by the grievors, in addition to regular duties. This
was not directly raised in the original hearing of these grievances, as noted by the
grievors. I respect that there was a lot of activity related to the grievors during this
period, as well as Ms. Kirkpatrick's regular duties. However, this does not explain or
excuse the length of the further delay imposing discipline.
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[92]

Page: 19 of 26

Therefore, I find that the employer condoned the grievors' comments and that

they suffered prejudice as a result. Considering the Federal Court's observations on


prejudice, I find that the prejudice to the grievors outweighs the employer's reasons
for the delay. A significant factor in the prejudice to the grievors was the length of the
delay imposing discipline and the consequent lack of an opportunity for an informed
decision in relation to speaking out. Accordingly, the 10-day suspension imposed on
Dr. Haydon and the 20-day suspension imposed on Dr. Chopra are not appropriate.
Therefore, the related grievances are allowed.
B. Termination grievances
[93]

The Federal Court directed me to reconsider the sanction for Dr. Chopra's

founded insubordination in light of the outcome of my redetermination of the


speaking-out grievance. It also directed me to reconsider the sanction for Dr. Haydon's
founded insubordination in light of my redetermination of the speaking-out grievance
and without considering the discipline imposed on her in 2001.
[94]

The grievors submitted that I could not "undo my findings" on progressive

discipline in the original decision. By this I think they meant that since I referred to
progressive discipline in supporting the terminations, I am not free to ignore those
findings in this decision. I note that the Federal Court required me to review the
terminations of employment in light of my findings in this rehearing on condonation,
which means I have to reconsider my original determination on the termination of
employment grievances solely with respect to the prior discipline on record. This is a
fresh consideration of progressive discipline, as required by the Federal Court.
C. Dr. Chopra's termination of employment

[95]

When assessing the appropriateness of terminating Dr. Chopra's employment

for misconduct, I am to redetermine the matter on the basis of the revised disciplinary
record. In this case, the grievance against the 2 0-day suspension has been allowed, and
Dr. Chopra now has a disciplinary record of a 5-day suspension and a 10-day
suspension. The 5-day suspension was for speaking out with respect to anthrax (see
Chopra v. Treasury Board (Health Canada), 2003 PSSRB 115, upheld in Chopra v.
Canada (Treasury Board), 2005 FC 958). The 10-day suspension was for his refusal to

report for duty, the grievance against which was dismissed in my original decision. The
Federal Court upheld that decision.
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[96]

Page: 20 of 26

The grounds for the termination of employment were set out in the termination

letter as follows:

In early April you were assigned a project, which you agreed


was well within the scope of your duties and professional
capabilities as a senior veterinary drug evalu.ator. It was
understood and agreed that the work would be completed
within 90 days. Given concerns raised previously about your
work performance, it was considered appropriate to seek
progress updates at regular intervals.
The initial, thirty day progress review was completed on May
5, 2004. From my review, I determined that no actual work
was completed in that period and you provided no
reasonable rationale for the total lack of progress. On two
further occasions you were provided with additional specific
instructions as to what the project required but your
responses failed to demonstrate that any meaningful work as
was requested was done. Based on the foregoing, I have
concluded that you have chosen to deliberately refuse to
comply with my instructions and I have also concluded that
your conduct in that regard constitutes insubordination.
Given your previous disciplinary record and your continued
unwillingness to accept responsibility for work assigned to
you, I have determined that the bond of trust that is essential
to a productive employer employee relationship has been
irreparably breached, that there is no reasonable expectation
that your behaviour will change and that the existing
employer employee relationship is no longer viable.
On the basis of the foregoing I have decided to terminate
your employment for cause pursuant to the authority
delegated to me by the Deputy Head and in accordance with
the Financial Administration Act Section 11 (2)((). In reaching
my decision I have considered mitigating factors, particularly
your lengthy years of service.
[97]

The Federal Court's comments about Dr. Chopra's termination of employment

are relevant to my redetermination of the termination grievance. It made its comments


in the context of addressing the grievors' argument on judicial review relating to the

lack of evidence on the breakdown of the employer-employee relationship. The Federal


Court refused to address the argument as it had not been made at the adjudication
hearing. However, the Federal Court made relevant comments, stating (at paragraph
310):

.. . a plain reading of the termination letter discloses that the


only ground advanced for the termination of Dr. Chopra was
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"insubordination" based upon his conduct with respect to the


classification assignment. The comments made with respect
to the breakdown in the employer/employee relationship
were offered as a rationale for the choice of termination as
the appropriate sanction, and not as a separate, independent
ground for discipline.
[98]

Dr. Chopra now has a disciplinary record of 15 days before his termination of

employment. I now have to decide whether termination was an appropriate penalty in


the circumstances. The fact that the prior disciplinary record was reduced at this
rehearing does not change the fact that the previous misconduct was serious. Both the
5-day suspension for speaking out and the 1 0-day suspension for insubordination
were upheld by the Federal Court. The 10-day suspension was also for insubordination
and was similar to the misconduct the employer relied on for terminating his
employment. Dr. Chopra demonstrated no improvement in his behaviour from the
imposition of the 10-day suspension for insubordination to the discipline imposed
after this last act of insubordination, following which he was terminated. In addition,
he did not admit to any errors in his behaviour at the hearing of the grievances before
me.
[99]

I also note that in my original decision, I determined that Dr. Haydon's

termination was appropriate. In her case, she had a 5-day suspension and a 10-day
suspension imposed for acts of speaking out. At paragraph 820 of my 2011 PSLRB 99
decision, I stated as follows:

With the discipline already on record, terminating


Dr. Haydon's employment was not an excessive disciplinary
measure. I cannot accept Dr. Haydon's contention that her
misconduct was not similar to her previous conduct. All the
acts of misconduct demonstrate an underlying defiance of
her employer. They displayed Dr. Haydon's fundamental
inability to accept supervision and direction from her
employer.
[100] What I stated above with respect to Dr. Haydon at that time applies with even
stronger force to Dr. Chopra's circumstances before me on this rehearing.
[101] Dr. Chopra broke the bond of trust with the employer. In view of his attitude
and his failure to respond to lesser discipline, reinstatement " ... would vindicate his
actions and invite a repetition", from King (2010 PSLRB 125), at para. 219,
paraphrasing Nanaimo Regional General Hospital v. H.E.U. (1999), 81 LAC. (4th) 1 at
para. 196.

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[102] Accordingly, I dismiss Dr. Chopra's grievance against his termination of


employment.

D. Dr. Haydon's termination of employment


[103] When

assessing

the

appropriateness

of

termination

for

Dr. Haydon's

misconduct, I am to redetermine the matter on the basis of the revised disciplinary


record. The suspension of 2 001 is not to be considered. In addition, the 10-day
suspension for speaking out is no longer a consideration. As a result, Dr. Haydon has
no disciplinary record to consider from before her termination of employment.
[104] The grounds for terminating Dr. Haydon's employment were set out in the letter
of termination as follows:

In early December 2003, you and your immediate supervisor


held a discussion regarding your performance evaluation
and for the second consecutive year your performance was
assessed as being significantly below acceptable standards
for a senior veterinary drug evaluator. At that time, you
indicated that the review of submissions in your possession
would be concluded in less than two months - this
commitment was not met. In early May 2004, you were
provided with a written warning that significant
improvements were expected in your overall performance.
Your response to these events has been most disturbing.
Under no circumstances, and contrary to your assertions
otherwise, can you claim a lack of knowledge of the issues
brought to your attention during your performance
evaluation process. However, you have again chosen not to
accept any responsibility for your negative performance.
The most recent scheduled update on your work assignment
shows little evidence of any efforts or intention on your part
to achieve the significant improvements required in your
pe.rformance. Specifically, I note the commitment by you to
finally complete, by june 4, 2004, the drug submissions
which have been in your possession for over two years.
Instead of complying with the agreed instructions, you
submitted an incomplete draft document and stated that
there would be further delays in completing the assignment,
despite not having any other work assigned to you. The final
report submitted by you lacks coherency and is incomplete,
and is inadequate to reach any decision respecting the
disposition of the submissions. I conclude that the excessive
amount of time consumed by you to assemble this
inconclusive report is a deliberate and systematic attempt on
your part to avoid and evade work assigned in accordance
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with instructions given to you, and that your conduct


constitutes insubordination.
Given your previous disciplinary record and your continued
unwillingness to accept responsibility for work assigned to
you, I have determined that the bond of trust that is essential
to a productive employer employee relationship has been
irreparably breached, that there is no reasonable expectation
that your behaviour will change and that the existing
employer employee relationship is no longer viable.
On the basis of the foregoing, I have decided to terminate
your employment for cause pursuant to the authority
delegated to me by the Deputy Head and in accordance with
the Financial Administration Act Section 11 (2)({). In reaching
my decision I have considered mitigating factors, particularly
your years of service.
[105] The Federal Court's comments with respect to Dr. Haydon's termination of
employment are also relevant to my redetermination of the termination grievance. The
Federal Court stated at paragraphs 399 and 400 as follows:

[399] ... a plain reading of the letter of termination reveals


that there was really only one ground advanced for the
termination of Dr. Haydon's employment, namely her
"deliberate and systematic attempt[s] ... to avoid and evade
work assigned in accordance with instructions given to
[her]", leading to Health Canada's ultimate conclusion that
her conduct constituted insubordination.
[400] I am further satisfied that the comments made in the
termination letter with respect to the breakdown of the
employer/employee relationship were offered as a rationale
for the choice of termination as the appropriate sanction,
and not as a separate, independent ground for discipline.
The finding that the bond of trust between Dr. Haydon and
her employer had been irreparably breached was, moreover,
amply supported by the record before the Adjudicator,
including the extensive oral testimony given by Dr. Haydon
during the hearing ....
[106] Counsel for Dr. Haydon relied on the Tri-Krete Ltd. decision to support a
position that the termination of employment is null and void. The facts of Tri-Krete

Ltd. can be distinguished from the facts of Dr. Haydon's termination. In Tri-Krete Ltd.,
the employer relied on a culminating incident that was not properly part of the
disciplinary record to justify a termination of employment. In this case, the employer
relied on previous discipline that included the 10-day suspension that was part of the
grievor's disciplinary record. Although that 10-day suspension is no longer part of her

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record, it was at the time of the termination of employment. The Federal Court did not
address the argument that the termination of employment was null and void. However,
it determined that Dr. Haydon was insubordinate and that the employer's reliance on
stale discipline goes to the appropriateness of the discipline imposed. Therefore, I
conclude that the discipline was not null and void. Some discipline was clearly
appropriate, and my task is to determine whether the termination of her employment
was the appropriate sanction.
[107] I agree with the employer that there can be misconduct that justifies a
termination of employment in the absence of progressive discipline. The employer in
UFCW (Canada), Local1288P did not rely upon progressive discipline in its decision to

terminate the employment of the grievor in that case. However, in this case, the deputy
head relied on prior misconduct to support its decision to terminate Dr. Haydon's
employment. It relied on this prior misconduct in the letter of termination and in the
evidence (in which Ms. Kirkpatrick stated that she had relied on prior discipline,
including the 10-day suspension). In my view, the prior discipline was a significant
factor in the employer's decision to terminate Dr. Haydon's employment.
[108] That prior discipline is no longer part of Dr. Haydon's disciplinary record, and
the employer is prevented from relying on it to ground its decision to terminate her
employment. As a result, a significant pillar of the decision to terminate her
employment is no longer there to support it.
[109] However, Dr. Haydon's misconduct is significant, and the Federal Court
recognized it as such when it stated at paragraph 400 that "[t]he finding that the bond
of trust between Dr. Haydon and her employer had been irreparably breached was,
moreover, amply supported by the record before the Adjudicator, including the
extensive oral testimony given by Dr. Haydon during the hearing."
[llO] Dr. Haydon's insubordination warrants a significant disciplinary sanction.

However, terminating her employment was not suitable, for two reasons. Firstly, as
noted earlier, the employer relied on progressive discipline to ground its decision to
terminate her employment. Secondly, employees in like situations should be treated
equally. In this case, Dr. Chopra's employment was terminated for insubordination,
with 5- and 10-day suspensions now on his disciplinary record. In Dr. Haydon's case,
her termination of employment was not preceded by any discipline now on record.

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[111] I find that in light of the lack of a prior disciplinary record and Dr. Haydon's
length of service, a suspension of 20 days would have been an appropriate disciplinary
sanction for her acts of insubordination outlined in the letter of termination of
employment.
[112] Accordingly, discipline in the form of a 2 0-day suspension is substituted for Dr.
Haydon's termination of employment.
[113] I will retain jurisdiction to address any issues relating to the implementation of
this determination of the appropriate disciplinary sanction. I did not hear submissions
from the parties on the appropriate remedy should the termination grievance be
allowed and a lesser penalty substituted. I will leave the issue of the appropriate
remedy to the parties to resolve. I will retain jurisdiction for 120 days in case the
parties are unable to reach an agreement.
[114] For all of the above reasons, I make the following order:
(The Order appears on the next page)

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VI. Order

[115] The grievance against Dr. Chopra's 20-day suspension is allowed.


[116] The grievance against Dr. Haydon's 10-day suspension is allowed.
[117] The grievance against Dr. Chopra's termination of employment is dismissed.
[118] The grievance against Dr. Haydon's termination of employment is allowed and a
suspension of 20 days is substituted.
[119] I retain jurisdiction for a period of 120 days to address any issues relating to
the implementation of this decision.
September 22, 2016.
Ian Mackenzie,
adjudicator

Public Service Staff Relations Act