Three whistleblower scientists fired by federal government for failure to complete work assignments – discharge of two upheld by adjudicator, one reinstated

In July 2004, the federal government fired three scientists (Drs. Chopra, Haydon and Lambert) for alleged insubordination in failing to complete work assignments, shortly after suspending them for, among other things, publicly accusing Health Canada of succumbing to industry pressure by approving drugs of questionable safety. All three filed grievances against both the suspensions and the discharges. Seven years later, on August 4, 2011, after 150 days of hearing, Adjudicator Ian Mackenzie of the Public Service Labour Relations Board upheld the suspensions of the three grievors, and dismissed the termination grievances of Dr. Chopra and Dr. Haydon. In his view, they had deliberately underperformed, and this conduct, combined with their previous suspensions, which he also upheld, showed a lack of respect for the employer which made the employment relationship "unsalvageable." However, the grievance against the termination of Dr. Lambert was allowed and reinstatement was ordered because, in his case, the alleged failure to complete assigned work had not been established. On September 2, 2011 an application was filed for judicial review.

The Facts:

The grievors, Dr. Shiv Chopra, Dr. Margaret Haydon and Dr. Gerard Lambert, were all veterinary drug evaluators at Health Canada. They were responsible for making scientific assessments and evaluations of veterinary drug products and for making recommendations as to the safety and efficacy of pharmaceutical products for use in animals and fish.

All three grievors had their employment terminated for cause on July 14, 2004. In each case the grievor's termination was based not on whistleblowing but on performance issues, i.e. on failure to complete assigned work as requested and during the time allotted; behaviour which, because it was deliberate, amounted in the employer's view to insubordination. The termination letter given to each grievor indicated that his or her disciplinary record and "continued unwillingness to accept responsibility for work assigned" led to a decision by the employer that the "the bond of trust" between the employer and employee had been "irreparably breached" and that the relationship was "no longer viable."

The Decision:

Dismissal of Chopra upheld

With respect to Dr. Chopra, Adjudicator Mackenzie concluded that he had in fact been insubordinate in failing to complete an assignment he had been given on the subject of mounting human resistance to bacteria-killing (anti-microbial) drugs used in food animals. His claim that he was confused regarding the directions he was given was not credible. At no point did Dr. Chopra indicate to his employer that he did not understand the assignment; he simply decided it was not worthy of his attention. Moreover, he sought to change the scope of the assignment. However, in the employment relationship, Mackenzie held, an employee is required to follow legitimate instructions. As he observed, "the workplace is not a democracy in which supervisors must convince employees of the merits of following a particular order." While noting that he was "not qualified to opine on whether Dr. Chopra's views of the merits of the approach set out in the assignment were valid," Mackenzie asserted, "that is not the point." Rather, Dr. Chopra was required to "work on the assignment and to complete the tasks." While it was "open to him to also include his scientific opinion on the weaknesses of the [employer's] approach," it was "not open to him," according to Mackenzie, "to simply ignore the tasks." At the time of his insubordination, Dr. Chopra had three suspensions on his record (two for "going public;" one for insubordination in failing to return to work as ordered) and the "only mitigating factor at play" – his long service – was not sufficient, in Mackenzie's view, to mitigate his actions. Rather, Dr. Chopra had demonstrated that "he is incapable of being supervised" and his grievance was dismissed.

Dismissal of Haydon upheld

Turning next to Dr. Haydon, Mackenzie also concluded that she behaved in an insubordinate manner. Though initially handling the matter as a performance issue, the employer ultimately concluded that her lack of productivity and the quality of her work amounted to an intentional act of misconduct. Specifically, the employer determined that the amount of time Dr. Haydon spent preparing an "inadequate, incoherent and inconclusive" report was a purposeful attempt to "avoid and evade" work assigned to her. Mackenzie found that Dr. Haydon's "conscious disregard of the standards and work expectations of a senior evaluator … rendered her conduct deliberate." Furthermore, she provided no reasonable explanation to explain her failure to perform at a level acceptable for a senior evaluator and she refused to recognize any deficiencies in her work, maintaining instead that she "worked to the best of her abilities at the relevant time." In Mackenzie's view, the employer's initial efforts to give Dr. Haydon a chance to demonstrate an improvement in performance could not be considered condonation. In conclusion, Mackenzie found that Dr. Haydon's disciplinary record (two suspensions for "going public") demonstrated an "underlying defiance of her employer" as well as a "fundamental inability to accept supervision and direction." According to the adjudicator, the employer had proven that the employment relationship was not salvageable and the grievance was dismissed.

Dismissal of Lambert quashed

Having upheld the dismissals of both Dr. Chopra and Dr. Haydon, Adjudicator Mackenzie then considered Dr. Lambert's situation. Dr. Lambert's employment was terminated because of his failure to provide an update on his progress on an assignment and his failure to demonstrate any progress on that assignment. Although the employer concluded that these failures amounted to insubordination, Mackenzie did not agree, finding instead that the employer did not fairly assess Dr. Lambert's progress on the assignment. Since "any meaningful assessment of work progress should include discussions with the employee in question," Mackenzie took issue with the employer's failure to properly discuss Dr. Lambert's progress with him in the first month of the assignment period. Moreover, the employer's assessment of Dr. Lambert's progress was premature, given that it came well before his deadline for completing the assignment had expired. Finally, Dr. Lambert's situation was distinguishable from that of the other doctors because "he had not communicated to the employer or demonstrated by his actions the intention not to complete the work." Although the adjudicator found that Lambert's 10 day suspension for insubordination in failing to complete assigned tasks was justified, he quashed Lambert's termination as unduly hasty. Mackenzie ordered his reinstatement, while giving the parties an opportunity to negotiate compensation for lost income and benefits.

Editors' Note: On September 2, 2011, an application for judicial review of the adjudicator's decision was filed on behalf of Drs. Chopra, Haydon and Lambert. Readers will be kept apprised of further developments.

Comment:

At the time he received his notice of termination, Dr. Lambert was on sick leave and Adjudicator Mackenzie found that the employer was too quick in concluding that he was insubordinate. Rather, it "should have inquired about the possible impact of the illness on the ability of Dr. Lambert to complete his assignment prior to determining whether or not he was insubordinate." Although Dr. Chopra and Dr. Haydon were also on sick leave when their employment was terminated, Mackenzie did not similarly compel the employer to consider the possible impact of their illnesses on their actions. This was in part due to differences in attitude and intention. As noted above, when Dr. Lambert went on sick leave, the deadline for completing his work had not yet expired and "he had not communicated to the employer or demonstrated by his actions the intention not to complete the work." In the adjudicator's view, this distinguished the situations of Dr. Chopra, "who had clearly communicated his intention not to complete [his] assignment," and Dr. Haydon, who "had also shown her reluctance to complete [her] assigned task."

However, several aspects of the case are troubling. Thus, while the adjudicator found that the government treated Dr. Lambert unfairly, he does not appear to have considered the fact that the government's unfair treatment of Dr. Lambert could be said to cast doubt on the bona fides of its decision to discharge Chopra and Haydon. If insubordination was not established, in the case of Dr. Lambert, why was he dismissed? Was the real reason for dismissal a desire to get rid of an employee for speaking out in the media? And if that was the employer's motivation with respect to Dr. Lambert, why would it not also be the case with respect to Drs. Haydon and Chopra? Should the evidence with respect to Lambert not have been taken into account in determining management's motivation with respect to the penalty imposed on Chopra and Haydon?

Moreover, was it legitimate to take into account discipline for "going public" with criticisms of the employer in assessing the penalty for non-performance of work assignments? In other cases, where a culminating incident is established, arbitrators look at the degree to which previous misconduct is related in nature to the culminating incident, on the basis that the principle of progressive discipline requires that, except in extreme circumstances, employees should be given an opportunity to correct their errors. Here, it can hardly be said that the previous conduct is related. Haydon had not previously been disciplined for insubordination. And Chopra's previous insubordination was of a different kind altogether; it consisted of staying home without authorization, but only after a 6-year telework arrangement was abruptly cancelled without explanation, and because of a concern, when he returned to work, about an office environment in which he had to work with hostile colleagues.

The adjudicator's ruling in the instant case has also drawn criticism from commentators. In a recent opinion piece in the Toronto Star by David Hutton, executive director of FAIR (Federal Accountability Initiative for Reform), entitled "Effectively silencing Canada's whistleblowers," Hutton laments the adjudicator's decision to uphold the firing of two of the three scientists, whom he credits with having brought to the attention of Canada and the international community the dangers associated with a bovine growth hormone which was later banned in Canada and most other developed countries. Noting that Drs. Chopra, Haydon and Lambert are "known internationally and regarded as heroes" for their role in the banning of the growth hormone, Hutton concludes that "Canadian scientists who sacrificed their careers to keep our food safe are still being punished for their efforts."

In these circumstances, it is doubly unfortunate that Canada's former Public Sector Integrity Commissioner, Christiane Ouimet, declined to deal with the scientists' complaints, saying that it was "not in the public interest" to do so. Ouimet abruptly left her job in 2010, amid charges that she had failed in her duty to protect government whistleblowers by closing hundreds of files without proper investigation. The three scientists' files are now the subject of a review currently being conducted of most of the files that were closed by the former Integrity Commissioner in order to determine whether they should be reopened. For further details regarding the 2010 Auditor-General's Report on the failures of the Integrity Commissioner and her Office, see Lancaster's Labour Law eNewsletter, March 3, 2011, Issue No. 278.

Chopra, Haydon and Lambert v. Treasury Board (Department of Health)
Public Service Labour Relations Board
Grievance Adjudication
Ian Mackenzie
August 4, 2011