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160-2-45, 161-2-744, 166-2-26174 and 26307
Lundin and Treasury Board and Fellegi (Statistics Canada)
Before: M. Korngold Wexler
Appearances: B. Lundin, for the Grievor/Complainant; L. Chabursky, for the Employer/Respondent
Decision rendered: January 19, 1996
Termination - Incompetence - Unfair labour practice - Complaint under section 23 of the Public Service Staff Relations Act alleging a violation of subparagraph 8(2)(c)(i) of the Act - Right to belong to an employee organization - Occupational health and safety - Complaint of reprisal for exercising right to refuse to work - Employee file - Jurisdiction - the grievor, a mathematician, was terminated from his position as an MA03 on the basis of incompetence - he filed a grievance against his termination, a second grievance as well as two complaints - the second grievance alleged that his personnel file contained performance appraisals in contravention of the collective agreement as they were not on the proper forms - the first complaint alleged that the termination constituted an unfair labour practice because it had the effect of negating the grievor's right to belong to an employee organization and because it constituted a violation of section 57 of the Act - the second complaint alleged that the grievor was terminated as a result of refusing to work in areas where fumes emanating from painting and carpeting were present - the adjudicator found that she was without jurisdiction to entertain the second grievance as the grievor failed to secure the requisite approval of the bargaining agent both for the filing of the grievance and its referral to adjudication as it alleged a contravention of the collective agreement - she also commented that she could not have found for the grievor on the merits of the second grievance in any event as the grievor should have known the significance of the negative appraisals on file and did not object to their form nor their content until his termination - the adjudicator also denied the grievance regarding termination as the employer had satisfied its burden of establishing that the grievor was terminated for his shortcomings in the performance of his duties - the shortcomings included the poor grammar, incoherence and incorrect methodology of his reports as well as his refusal to follow his superior's instructions - the employer had apprised the grievor of his shortcomings and had provided him with ample opportunity to address them, but to no avail - the grievor had never raised his concerns for his health as a basis for his poor performance, and in any event, his vulnerability to the fumes complained of had been accommodated by the employer - with regard to the complaint under the occupational health and safety provisions of the Canada Labour Code, the Board ruled that the complainant had never invoked his right of refusal to work and in any event, the employer had demonstrated great patience and flexibility in accommodating him - the grievor's complaint alleging that his termination was a reprisal for having acted on his concerns for his health and safety was not substantiated - with regard to the complaint alleging a contravention of the grievor's right to belong to an employee organization, the Board found that his removal from the bargaining unit was a necessary consequence of his termination for just cause - the argument with regard to a violation of section 57 of the Act was without merit.
Cases cited: Marc Paquet v. Treasury Board (160-2-25); Alfred Koller v. Treasury Board (160-2-27); Vincent Bonfa v. Treasury Board (160-2-32); Murray v. Voyageur Colonial Ltd. (1991), 85 di 18 (C.L.R.B.); Sheila Green (1992), 90 di 186, C.L.R.B. no. 983; Don Koski (1992), 88 di 191, C.L.R.B. no. 950; Greg Horrill / Seller [C.L.R.B. no. 1120, rendered on May 18, 1995].