Green and Treasury Board (Transport Canada)

Full Text

166-2-26720
Green and Treasury Board (Transport Canada)

Before: P. Chodos
Appearances: P. Barnacle, for the Grievor; R. Snyder, for the Employer
Decision rendered: April 6, 1998

Termination (disciplinary) - Absent without leave - Air Traffic Controller - Progressive discipline - Mitigating factors - grievor's employment was terminated because he left the Tower unattended for a period of 35 minutes to attend to personal needs and to have lunch - in an earlier decision the adjudicator found that the grievor's actions merited termination and dismissed his grievance: (1996) 29 PSSRB Decisions 24 - the Federal Court, Trial Division, upheld the grievor's application for judicial review of the adjudicator' s decision and referred it back to "a different adjudicator to determine the appropriate penalty, taking into consideration the principles of corrective and progressive discipline, and the reasons for this decision": Green v. Canada (Treasury Board) (1998), 134 F.T.R. 108 - the employer has appealed that decision to the Federal Court of Appeal: Court file A-542-97 - the different adjudicator referred to the jurisprudence which established that, if an employer is going to deviate from the accepted approach of progressive discipline, he must provide compelling justification for discharge as the only response available to him - having considered the relevant mitigating factors, the adjudicator determined that discharge was too severe a penalty under the circumstances and substituted a three-month suspension without pay therefor - the mitigating factors included the grievor's 23 year unblemished disciplinary record, the fact that he was not feeling well at the relevant time, that he was upset to find himself on duty alone which limited his ability to take adequate meal and relief breaks and that he could not find work as an air traffic controller elsewhere - in addition, the adjudicator accepted the grievor's offer to share the burden of the delay resulting from the adjudication and judicial process and directed that the grievor be considered to be on leave without pay for an additional period of three months.

Grievance allowed in part.

Case cited: Whittley (166-2-16199).