Quebec separatist wins job back with federal government

Arbitrator orders Department of Canadian Heritage to reinstate worker who promoted Canadian unity by day, was president of separatist group by night
|employmentlawtoday.com

A Quebec woman who was fired by the Department of Canadian Heritage after she became head of a separatist group has won her job back.

Edith Gendron was a senior program officer with the Department of Canadian Heritage. That department’s mandate is to move toward a more cohesive and creative Canada. According to the government, her job responsibilities included representing the department in the negotiation and implementation of official languages agreements with representatives of the provinces and of government and non-government agencies.

When Gendron was elected president of “Le Quebec, un pays!,” a Quebec separatist group, she was asked by her employer to step down from that position because it would be a conflict of interest. The government’s basic argument boiled down to the fact that she couldn’t publicly promote Canadian unity by day and then work publicly after hours on breaking up the country. Gendron refused to relinquish her position with the separatist group and the government decided to terminate her employment.

On April 29, 2004, Gendron received a termination letter from Eileen Sarkar, Assistant Deputy Minister of Citizenship and Heritage.

“Your outside activities may reasonably be perceived as likely to cause a conflict of interest and thus to impair your ability to perform your departmental duties objectively,” the letter read. “I also told you that, in accordance with the compliance measures set out in the (Values and Ethics Code for the Public Service), if you intended to retain your position in the department you would have to relinquish your outside activities that contravene the code by leaving your position as president of that organization. However, you have decided to continue those outside activities, thus maintaining the conflict of interest situation that you were asked to resolve.”

Though the federal government recognized her rights of freedom of opinion and expression, it said this freedom was subject to a duty of loyalty.

But Gendron said the employer’s decision to fire her violated her fundamental rights of expression and association

Gendron filed a grievance over her dismissal. It was heard by the Canadian Public Service Labour Relations Board.

Appearance of conflict of interest

The board said the disciplinary measures imposed on Gendron was based on a decision by the government that an apparent conflict of interest existed between her duties with the Department of Canadian Heritage and her personal activities.

“Those activities are political, but not partisan,” the arbitrator pointed out.

The board said public servants have a right to participate in the political life of the country. As early as 1985, the Supreme Court of Canada recognized the rights of public servants to express themselves, to a certain extent, on issues of public interest.

In

Fraser

, the court confirmed that public servants cannot be “silent members of society.” Being so would not be compatible with either the well-established principles that allow for free and frank discussion in a democratic society or with the size of the public service and plain common sense.

“An absolute rule prohibiting all public participation and discussion by all public servants would prohibit activities which no sensible person in a democratic society would want to prohibit,” the court said in

Fraser

.

But it also recognized that freedom of speech or expression is not absolute or unconditional. This freedom must be limited and assessed in light of other important competing values: a public servant’s duty to ensure the public service is impartial and effective.

“As a general rule, federal public servants should be loyal to their employer, the Government of Canada,” the court said in

Fraser.

“The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies.”

The board pointed out that the department hired Gendron knowing her political views and that she had some degree of partisan activity.

“It had hired (her) knowing that she was a sovereigntist and recognized her right to be a member of the organization provided that she did not criticize the policies of the department employing her,” the board said.

Employer justified in being concerned…

The board said it was clear that a “reasonable and reasonably well-informed person” could perceive an apparent conflict of interest that could impair Gendron’s work or the credibility of the program she was responsible for implementing. After all, the two organizations appear to be diametrically opposed to each other.

The fact that her position did not have decision-making authority was not really relevant in this, the board said.

“A conflict of interest can be perceived between, on the one hand, (her) personal activities as president of a sovereigntist organization, given the symbolism and visibility of that office and, on the other hand, her duties as a representative of the department with the mandate of promoting Canadian unity, despite the fact that the level of her position and her decision-making power were not significant.”

The board ruled the government was justified in considering Gendron’s outside activities to be incompatible with her duties with the department.

… but dismissal was too severe a penalty

The employer demanded that Gendron step down as president of “Le Quebec, un pays!” and terminated her employment when she refused to do so.

But that was too severe a penalty. The board said the government didn’t fully explore its options in how to deal with Gendron. It never looked at ways to adjust her position so there wouldn’t be a perception of a conflict of interest, bearing in mind that neither side alleged actual conflict of interest.

Gendron did not use or disclose information obtained in the course of her duties, or the employer’s resources, for the benefit of the organization for which she was an activist outside her work hours. In short, she did nothing to render herself unable to perform other duties in another position that would be less visible and less directly related to the objective of Canadian unity promoted by the Department of Canadian Heritage.

But the board said it would be inappropriate to reinstate her to the same position she held because the appearance of conflict of interest still existed as long as she was president of the separatist group.

Though it could be argued that Gendron placed herself in the conflict of interest and the employer had no duty to accommodate that situation, the board said her right to be involved with the separatist group is protected by the charter and the employer must deal with her choice.

“The employer has not established that it fulfilled its duty to strike a balance or to ensure minimum impairment of (her) fundamental rights,” the board said. “Termination of employment is an excessive disciplinary measure that is unwarranted in the particular circumstances of this case.”

The board’s order

The board ordered the government to reinstate her.

“Accordingly, unless at the time of her reinstatement (Gendron) is no longer president of the organization ‘Le Quebec, un pays!’ the employer must search diligently for an alternate position for her,” the board said. “It must therefore offer her a position at the same or an equivalent level that will not create a perception of impairment of her ability to perform her duties or impairment of the objectives and programs of the Department of Canadian Heritage promoting Canadian unity. During this search, (she) is to be placed on leave with pay.”

But the board also placed some restrictions on Gendron. It said she had to extend her full co-operation during the search process and accept any reasonable offer made to her.

“Ultimately, she cannot expect a perfect situation,” the board said.

Furthermore, the board said she must limit her public communications so as not to discredit the employer’s programs promoting Canadian unity.


Union calls ruling a victory for freedom of expression for all employees in the federal public service

In a press release, the Public Service Alliance of Canada (PSAC) said Edith Gendron’s reinstatement sends a clear message to all workers in the federal public service that they have political rights and the right to assert them.

“The decision rendered by the Public Service Labour Relations Board is a victory for freedom of expression and association for our membership and for the entire federal public service,” said PSAC regional executive vice-president for the National Capital Region, Ed Cashman. “The decision clearly spells out that, in this region, it is possible to freely express oneself politically and assert oneself without fear of reprisals.”

“The board’s arbitrator goes one step further,” said Cashman. “In her judgment, she indicated that ‘no public servant has an obligation to make the employer’s convictions his or her own.’ This judgment shows that one can be a loyal and competent public service employee, without having to go to sleep every night with the party in power.”

The president of the Conseil régional d’action politique de l’Outaouais, Daniel Charron, was overjoyed at what he called the total victory achieved by Gendron in this case.

“Our position is that PSAC members do have a right to fight for political options that differ from those of the party in power. This right has been forcefully reasserted in this judgment.”

Edith Gendron, a PSAC member, had been dismissed in April 2004 by Canadian Heritage after she had accepted the presidency of the sovereignist organization “Le Québec, un pays”. PSAC grieved this dismissal, which was overturned.

The judgment orders Canadian Heritage to reinstate Gendron and pay her back pay for what she had lost. The judgment also introduced the notion of reasonable accommodation in the area of freedom of expression. The board criticized Canadian Heritage for not accepting Edith Gendron’s proposal to change some of her duties to avoid any potential conflict of interest, the union said. The judgment orders the parties to examine which duties Ms. Gendron could perform, which would respect her right to operate within the “Le Québec, un pays” movement and eliminate any apparent conflict of interest.

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