In Walker v Canada (Attorney General), the Federal Court of Appeal set aside a decision of the Federal Public Sector Labour Relations and Employment Board upholding the dismissal of a longer-service and discipline-free public service employee because the Board decision-maker failed to consider whether the employee’s state of mind mitigated her alleged misconduct.
The employee’s union, the Public Service Alliance of Canada, argued that “many of the actions for which [the employee] was disciplined were motivated by a desire to protect herself and other employees from threatening and possibly dangerous acts of her subordinate” whom she genuinely feared.
It is well-established, the Federal Court of Appeal concluded, that a labour adjudicator’s inquiry into the appropriate penalty for alleged misconduct “requires review of all the relevant surrounding circumstances, including mitigating factor’s such as the employee’s state of mind, which has a direct bearing on culpability.” Yet, the decision-maker in this case not only failed to address this issue but went so far as to state, on a related issue, that it was “not my role to determine whether … [the employee] had a legitimate fear for her safety.”
This judicial review decision represents one of the first times where the Federal Court of Appeal has applied the Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov. Vavilov instructed that an administrative decision-maker’s failure to address fundamental arguments raised before it may result in the decision being unreasonable due to a lack of transparency and intelligibility.
As the employee’s fear of her co-worker was central to her defence, the Court of Appeal found that it was directly relevant to the issues the decision-maker was required to determine and could have changed the outcome of the case. The Court of Appeal concluded that the Board decision-maker’s “failure to consider whether such fear constituted a mitigating factor renders it decision … unreasonable as it is impossible to discern from the decision what weight would have been attributed to this factor by the Board, had it considered it.”
The Federal Court of Appeal returned the matter to a different Board decision-maker for redetermination.
Andrew Raven and Michael Fisher appeared for the Applicant.