Puxley v. Canada ( Treasury Board )
T-452-93
MacKay J.
12/1/94
23 pp.
Application to set aside PSSRB Adjudicator's decision upholding employer's disciplinary action against applicant, but reducing financial penalty -- Also seeking order directing removal from applicant's record of any reference to misconduct and discipline imposed -- Applicant air traffic controller at Halifax airport -- On March 25, 1991 working shift with one colleague for which three controllers ordinarily scheduled -- As senior controller responsible for composition of certain messages sent by Automatic Terminal Information Service (ATIS) intended for information of pilots interested in operational, technical information relating to safe conduct of flight in vicinity of airport -- Applicant composing two messages, colleague one, including information about staff shortages and overtime reduction -- Local daily paper reporting fact messages sent on ATIS -- Manual of Operations (MANOPS) listing information in detail to be included in ATIS message -- Including direction aircraft be informed of reason for delay if take-off clearance may be delayed by more than three minutes and if reason for delay not apparent -- Applicant receiving letter of reprimand characterizing actions as "act of very serious misconduct" and imposing $1,200 fine -- Colleague's actions characterized as "act of misconduct" and no fine imposed -- Application allowed -- (1) Adjudicator failed to observe principles of natural justice by denying him opportunity to cross-examine employer's witness after recalled to give supplementary testimony -- By cross-examination concerning action of other controller and discipline involved, applicant seeking justification for differences in disciplinary action taken in two cases -- Required understanding status as senior controller on shift merely result of coincidence of scheduling listing his name first -- Adjudicator failed to act fairly by providing opportunity for applicant to question witness on evidence relevant to Adjudicator's finding of misconduct and as to appropriateness of penalty -- (2) Adjudicator failed to meet appropriate standard of natural justice by limiting cross-examination of employer's witness on evidence of investigation and knowledge of other ATIS messages -- Questions relevant to applicant's position disciplinary action discriminatory in relation to action or lack thereof directed at other controllers believed to have engaged in similar practices -- Failure to permit this questioning second instance of procedural unfairness -- While not unlimited discretion to cross-examine witness, applicant having right to question on very basis on which disciplinary action taken so far as within reasonable efforts of employer to determine on records available and within its control, and to require showing of just cause for disciplinary measures compared with similar cases -- (3) Failure to meet standards of fairness required by principles of natural justice by refusing to admit into evidence certain documents advising funds for overtime severely reduced and establishing contingency plan for procedures to be followed when staffing limitations applicable -- Applicant considering documents relevant as giving rise to incidents herein and providing no guidance concerning ATIS messages when contingency plan in operation -- Documents ought to have been admitted -- Their exclusion, when formed basis of explanation and justification in part for actions, constituted failure to provide procedural fairness -- PSSR Act, ss. 25(c), 95.1 not including within adjudicator's discretion to manage proceedings over which presides power to exclude relevant evidence, documentary or oral, or cross-examination on evidence offered where questioning seeking to establish case of one party or to weaken case of other by questions not clearly irrelevant to matters before adjudicator -- (4) Absence of clear evidence establishing Adjudicator biased -- Taken together, procedural decisions resulting in denial of fairness -- (5) Adjudicator erred in not considering claim to remove reprimand from record -- Error of fact must be perverse or capricious or without regard to evidence before adjudicator, and must be one upon which ultimate decision based for Court to intervene -- Failure to address reprimand part of grievance failure to exercise discretion -- Error of law, arising from interpretation of MANOPS or other directives not warranting Court's intervention unless patently unreasonable -- Adjudicator's determinations under PSSRA protected by privative clause, s. 101 -- Adjudicator's interpretation and application of MANOPS and directives not patently unreasonable -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 18.4 (as enacted idem) -- Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 25(c), 95.1 (as enacted by S.C. 1992, c. 1, s. 117), 101.