#20260218
Union's response:
"I cannot recommend proceeding to adjudication"

Thu, Sep 21, 2023 at 8:43 AM 

XXXX wrote:

Hello Dmitry,

Unfortunately, I do not share your point of view. I believe the chances of success of your grievance are very low and cannot recommend proceeding to adjudication for the reasons outlined below.

Your grievance was filed on or about November 10, 2022 further to a disciplinary measure imposed on October 12, 2022 in relation to various incidents that occurred between February and April 2022. Essentially, you indicated on multiple social media platforms and on your own website (www.ivim.ca) that the Government's data related to COVID-19 vaccines was skewed and questioned the vaccines' safety and efficiency, all of which while presenting yourself as a data scientist working for the Government and despite being told to refrain from doing so by your manager on several occasions. You spoke publicly at the Freedom Convoy presenting yourself as a data scientist working for the Government, shared content accusing the Government of bullying and illegal activity and invited your colleagues to various meetings to discuss vaccines’ efficiency and side effects. An investigation was launched and you were found to have breached the Values and Ethics Code for the Public Service and the CBSA Code of Conduct. You received a 5-day suspension.

After conducting extensive research and thoroughly analyzing the situation, I told you that, in my opinion, their assessment of the aggravating and mitigating factors applicable was reasonable and that a 5-day suspension was within the parameters of appropriate discipline. Although your cooperation throughout the investigation process, your clear disciplinary record and the fact that you assured your manager that all posts had been taken down and that you wouldn't be posting these types of posts in the future all worked in your favor, you repeatedly ignored your manager's instructions to stop posting information on social media and you never showed remorse or recognized that your posts were not in line with the Government of Canada's messaging. Since then, despite what you said to your manager, you continued posting. Your manager invited you to a second fact-finding meeting and you will shortly receive another disciplinary measure this time for publications posted between October 2022 and January 2023. I am worried your employer might consider terminating your employment and I therefore can only reiterate my recommendation that you stop posting anything that could be perceived as criticism of your employer, remove all publications still available online and reconsider your position.

As discussed multiple times, there is a difference between sharing an opinion and openly criticizing your employer. There is also an element of insubordination in your case which would remain true no matter the content of your posts. In my opinion, simply presenting and helping people understand the data as you claim you did would not have been a problem, but there is way more to the situation than this. As a data analyst, you questioned the data available on the Government’s website and accused your employer of misleading the population. You publicly questioned the vaccines' safety and efficiency and criticized the Government’s decisions while presenting yourself as a Government employee and you failed to follow your manager's instructions when asked to stop. I understand that you feel you've done nothing wrong, but in my opinion, your actions can be perceived as insubordination and a breach of your duty of loyalty.

As indicated in my October 14 email, the courts have held that a public service employee’s right to freedom of expression is not absolute and must be balanced against the employee’s concomitant duty of loyalty to the employer, arising from the legitimate public interest in an impartial and effective public service. It has long been recognized that federal employees must be careful and show restraint in their public criticism of government policy. The seminal decision on this issue is the Supreme Court decision Fraser v. P.S.S.R.B., [1985] 2 SCR 455.

A public service employee can express opposition "if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability" (see Fraser, para. 41). Something more than your persistent belief is necessary to show that the Government was engaged in illegal activity. The onus would be on you to provide some proof of alleged criminality. The same would apply to an allegation that the mandatory vaccination policy or any other Government policy jeopardized the life, health or safety of the public service employees or the public in general. In other words, the truth or sustainability of your critical public comments would have to be supported by evidence. Despite your assertion, with the information available to me at this time, I do not think that we have such proof. Furthermore, given your position as a senior research scientist and the work you do for your employer, I believe it would be difficult to pretend that your criticism had no impact on the public perception of your ability to perform your duties.

In cases presenting similarities with yours, similar penalties have been imposed and upheld by the Federal Public Sector Labour Relations and Employment Board (FPSLREB): see, for example, Chopra v. Treasury Board (Health Canada), 2003 PSSRB 115; MacLean v. Treasury Board (Department of Public Works and Government Services), 2011 PSLRB 40; and Mullins v. Deputy Head (Department of the Environment), 2013 PSLRB 21.

Because of the above, I did not recommend filing a grievance, but I agreed to represent you in trying to have the penalty reduced arguing that you were under a lot of stress after being placed on LWOP for non-compliance with the mandatory vaccination policy and that you needed guidance on what you could or could not say, guidance which was only provided to you long after the incidents. Between January and July 2023, we went through the first, second and final level together. At each level, your employer determined that your actions constituted misconduct and found that management properly considered the mitigating and aggravating factors. Given your continued unwillingness to cease the posting of inappropriate content despite several requests from management, your failure to recognize that your actions were inappropriate, and your lack of remorse, they concluded that the quantum of discipline imposed was not only reasonable but also lenient. Your grievance was denied at the last level on September 15, 2023 and the next step would now be to refer it to the FPSLREB. As explained, I unfortunately still believe that the chances of success of your grievance are very low and cannot recommend proceeding to adjudication.

Should you disagree with my recommendation and still wish to have PIPSC pursue your matter, you are entitled to request reconsideration under PIPSC’s Policy on Representational Services. If you wish to exercise your right to request reconsideration, you may do so by writing to Ms. Nancy Lamarche (nlamarche@pipsc.ca), Director, Regional Labour Relations, by no later than end of business day on October 5, 2023. In your email to Ms. Lamarche, please provide your reasons and any relevant supporting documents of your request for reconsideration.

As your matter doesn't relate to the collective agreement, you can also choose not to exercise your right to request reconsideration and proceed without PIPSC's representation, representing yourself or hiring external counsel at your own cost.

If you wish to request reconsideration and you want to ensure that your right to refer your grievance to the Board is protected during this reconsideration process, please let me know as soon as possible keeping in mind that your grievance has to be referred to the FPSLREB prior to October 25, 2023. I can help you refer your grievance to the Board, but please note that unless my decision is reversed, the Institute will not represent you moving forward.

I remain available if you want to discuss further.

Best regards,

XXXX(she/her/elle)

Employment Relations Officer, PIPSC, National Capital Region

Agente des relations du travail, IPFPC, Région de la capitale nationale

250 Tremblay Road, Ottawa, ON K1G 3J8

On Fri, Sep 15, 2023 at 10:56 PM Dmitry O. Gorodnichy <dmitry.gorodnichy@gmail.com> wrote:

hello L, with new evidence, included in the NCI interim reportn and open letter to PM - https://nationalcitizensinquiry.ca/commissioners-report/ 

I believe my chances are very good for winning this case in the External Arbitration. I've done nothing wrong. 

It is them who did it wrong, and  when we'll go to the Artbitration - and we will go there -it will become public that what they've been doing is wrong and what I did was right. What I did could contributed to saving lives of children, what tehy did contributed to the oppose

Please let me know which newforms need to be submitted to proceed

Thank you

Dmitry

On Fri, Sep 15, 2023 at 4:43 PM Lisa Dubé <ldube@pipsc.ca> wrote:

Hello Dmitry,

I can't say that I am surprised by this response, but it was obviously not the outcome we were hoping for.

As previously discussed, even though I was happy to try to help you reduce the severity of the sanction imposed, I am of the opinion that the quantum of discipline was reasonable and I would not recommend referring this grievance to the FPSLREB as I believe the chances of success would be very low. As you know, that would be the next step if you wanted to pursue this grievance any further. Referring a grievance to the Board has to be done in the 40 calendar days following the final level response from your employer so the deadline in your case would be October 25th, 2023. If you agree with my recommendation, we will not be referring your grievance and this file will be closed. If you don't, you will have the right to request a reconsideration of my decision (I will send you another email detailing all of this) or you can decide to pursue the grievance on your own.

Please let me know your thoughts. I would be happy to arrange a phone call next week if you'd like for us to discuss further.

Have a great weekend,

XXXXX (she/her/elle)

Employment Relations Officer, PIPSC, National Capital Region

Agente des relations du travail, IPFPC, Région de la capitale nationale

250 Tremblay Road, Ottawa, ON K1G 3J8

---------- Forwarded message ---------

From: XXXX

Fri, Jun 30, 2023 at 9:13 AM - for Levels 2 and 3 Hearings

Subject: Case - C-0060252 / Fwd: Prep meeting next week? FW: TBD guidelines Duty of Loyalty (Fraser case)

To: Dmitry O. Gorodnichy <dmitry.gorodnichy@gmail.com>

Cc: <inquiry@pipsc.ca>

Hello Dmitry,

As I was saying in my June 5th email, although I mention that you expressed yourself regarding a matter of public importance directly related to the health and safety of the population and that you therefore believe that no discipline should have been imposed in my grievance presentation, I unfortunately don't think we could convince your employer or the Board that your posts did not warrant discipline invoking that what you did falls under one of the exceptions mentioned in Fraser (namely that the vaccination policy jeopardized the life, health or safety of yourself or the population). I understand that you believe this to be true, but this would be a very difficult argument to win.

Moreover, you now received the training you were waiting for and received clarification from the OVE about what you can or cannot do and what should be avoided to insure your compliance with the Values and Ethics Code and the Code of Conduct. DG clearly explained, further to the letter of the OVE, that blog posts that could not be perceived as touching on government business in any way are lower risk, but those that comment on topics related to the Government of Canada are higher risk and should be avoided. As I previously told you, I don't believe this means that you can never write about topics related to the government, but if you aren't sure whether you are criticizing your employer or going against its messaging, it is safer to abstain. As you highlighted yourself in the document attached, "a public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties" and must "exercise caution when it comes to making criticisms of the Government".

At this point, I think that you received the information you needed to move forward and unfortunately, I do not believe that you can prove that the vaccination policy jeopardized the life, health or safety of yourself or the population. You indicate that your concerns are that there seems to be a deliberate effort to keep the very important issue of young Canadians dying since January 2022 away from any public discussion. This is also a serious allegation which would have to be substantiated by solid proof. Again, as you pointed out in the document attached, "a public servant's public attribution of inappropriate or questionable motives to government action may be a deciding factor in determining that the duty of loyalty is breached".

I will be reviewing the 2nd level grievance presentation to reflect what happened afterwards (the 2nd level response, the training), but I will not be making any substantial changes. I am happy to go ahead with the last level and try to see if the disciplinary measure can be reduced, but my assessment of the merits of your case haven't changed. If there is something specific that you would want to add, you can let me know and I will review the information, but as discussed, if you are not satisfied with my presentation and want to invoke arguments that I don't believe have merits, you would have to go ahead and represent yourself. If that is your preference, please let me know. I will otherwise send you the latest version of the grievance presentation as soon as possible (likely on Tuesday).

Best regards,

XXXX(she/her/elle)

Employment Relations Officer, PIPSC, National Capital Region

Agente des relations du travail, IPFPC, Région de la capitale nationale

250 Tremblay Road, Ottawa, ON K1G 3J8