The Public Service Labour Relations Board issued an award on April 4th that illustrates the balancing of interests that defines the scope of a public servant’s duty of loyalty.
Adjudicator Love upheld a five-day suspension for conduct he characterized as making a “deliberate and unwarranted attack” on public officials and government. The grievor, a clerk in the Department of Public Works and Government Services, paid for a full-page advertorial in the National Post to take issue with the manner in which the government handled his application for an internal job competition. In particular, the grievor alleged that the Minister abused his power and that the Ethics Commissioner, the Treasury Board President and the Auditor General dropped the ball with respect to his case.
Adjudicator Love balanced the grievor’s right of expression against the government’s recognized interest in maintaining a public service that demonstrates impartiality, neutrality, fairness and integrity. He considered the following factors in upholding the government’s penalty:
- the grievor published the advertorial four days before a federal election
- the subject matter of the advertorial was of a personal rather than public interest
- the advertorial directly attacked individuals
- the advertorial lead readers to believe the greivor held a position of some responsibility
- the advertorial was published in a national newspaper, with high visibility
- the issues raised by the advertorial were sensitive, relating to abuse of power and lack of integrity, and were published around the same time the department was under scrutiny during the Gomery Inquiry
- the advertorial inaccurately suggested that the grievor had exhausted all internal avenues
Adjucator Love ends by stressing the seriousness of defaming public officials without justification: “Cases such as Chopra (see paragraph 44 of that decision) make it clear that, even if an employee exhausts internal recourses before going public, certain communications may still breach the duty of loyalty, if they attribute inappropriate motives to a minister and his or her department.”
MacLean v. Treasury Board (Department of Public Works and Government Services), 2011 PSLRB 40.
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