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This matter was settled in mediation.
Tribunal File No. PSDPT-TPFD-2011-02
Application by the Public Sector Integrity Commissioner of Canada
to the Public Servants Disclosure Protection Tribunal
In the Matter of:
Atomic Energy Canada Limited
Notice of Application
Pursuant to subsection 20.4(1) of the Public Servants Disclosure Protection Act, S.C., 2005, c. 46 (the “Act”), the Interim Public Sector Integrity Commissioner of Canada
(the “Interim Commissioner”) hereby makes an application to the Public Servants Disclosure Protection Tribunal (the “Tribunal”) for a determination of whether or not a reprisal, as defined under subsection 2(1) of the Act, was taken against Wayne Roberts (the “Complainant”).
Type of Order Requested
- Pursuant to paragraph 20.4(1)(a) of the Act, should the Tribunal find that a reprisal was taken against the Complainant, the Commissioner intends to seek an order respecting a remedy in favour of the Complainant.
Basis for the Application
- This Application relates to an allegation that the Complainant’s employment with Atomic Energy Canada Limited (AECL), a Crown corporation, was terminated on September 10, 2008 as a reprisal measure for having made a protected disclosure of wrongdoing, as defined under the Act.
- On March 11, 2009, the Complainant filed a reprisal complaint with this Office alleging that his termination of employment was a reprisal. The former Public Sector Integrity Commissioner of Canada (the “Commissioner”) refused to deal with the complaint on the basis that it had not been filed within the prescribed period of 60 days as required by subsection 19.1(2) of the Act. However, following the Commissioner’s initial decision, the Complainant provided additional information and on this basis, the Commissioner extended the time limit to file a complaint pursuant to subsection 19.1(3) of the Act.
- On April 28, 2009, the former Commissioner decided to deal with the complaint pursuant to subsection 19.4(2) of the Act and she directed that further inquiries be conducted to obtain additional information and clarify various issues before determining if an investigation is warranted.
- On March 2, 2011, I decided to commence an investigation in relation to this complaint. The investigation was completed on August 23, 2011.
- Having considered the investigator’s report of findings and the factors stated at subsection 20.4(3) of the Act, I am of the opinion that an application to the Tribunal is warranted in relation to this complaint.
- Pursuant to paragraph 20.4(3)(a) of the Act, there are reasonable grounds for believing that the Complainant’s termination of employment was a reprisal measure taken against the Complainant.
- Pursuant to paragraph 20.4(3)(d) of the Act, I have also determined that it is in the public interest to make an application to the Tribunal, having regard to all the circumstances relating to this complaint.
Summary of the Complaint
- The Complainant was at all material times a public servant employed by AECL as the Warehouse Materials Manager at the Bruce Nuclear Plant Re-Tube Project (the “Project”) near Kincardine, Ontario. He worked for AECL from May 23, 2006 until his termination of employment.
- On several occasions during his employment, the Complainant had discussions with his supervisor and other managers regarding the management of site commodities, procurement processes, accounting practices and the purchase of promotional items at the Project. The Complainant believed that there was serious mismanagement in these areas. According to the Complainant, management either ignored or failed to take action to address his concerns.
- On December 7 and 13, 2007, the Complainant sent e-mails to the Senior Officer designated under the Act to receive disclosures at AECL to disclose what he believed to be wrongdoing in regard to these concerns. According to the Complainant, these disclosures of wrongdoing to the Senior Officer were examined only summarily by AECL officials without satisfactory results.
- In May 2008, the Complainant met with his supervisor for his performance review at which time he was informed that he was a “source of conflict”. In July 2008, he received his performance review which was “mostly satisfactory”.
- On September 10, 2008 and without prior notice, the Complainant’s employment was terminated effective immediately. On this date, the Complainant’s supervisor and two other officials from AECL Human Resources met with the Complainant at his office at which time he was informed that his “services are no longer required”. The Complainant was given a termination letter and other documents explaining the terms and conditions of his termination of employment. There are no reasons stated in the letter for his termination. When the Complainant asked why he was being terminated, he was told “things aren’t working out.”
- AECL offered the Complainant a termination payment of $21,538.40 in lieu of a notice representing 16 weeks pay. He was required to accept the payment and sign a Post-Employment Release (the “Release”) by September 24, 2008. The Complainant accepted the payment and signed the Release on September 16, 2008.
- The Release includes the terms and condition of his termination, a confidentiality clause and a provision that the Complainant would not disparage AECL, and that he was not to commence or continue any claims or proceedings in any court of law or under the provisions of any legislation. The Release stipulates that it is a complete bar to any legal proceedings of any sort that the Complainant may initiate against AECL.
- The Complainant alleges that his termination of employment was a reprisal for having made protected disclosures of wrongdoing to his supervisors and to the Senior Officer.
The aforementioned information is provided to the best of my knowledge and belief.
Signed at Ottawa, Ontario, this 7th day of September 2011.
Original signed by:
Interim Public Sector Integrity Commissioner