FPSLREB Decisions

File: 160-2-49 Canada Labour Code, Before the Public Service Part II Staff Relations Board BETWEEN ROBERT MARTIN Complainant and TREASURY BOARD (Solicitor General Canada - Correctional Service)

Employer

RE: Complaint under Section 133 of the Canada Labour Code Before: Rosemary Vondette Simpson, Board Member For the Complainant: Himself For the Employer: Jock Climie, Student-at-Law, and Charlene Sullivan Heard at Bathurst, New Brunswick, January 9, 1996.

Decision Page 1 DECISION The complaint brought by Mr. Robert Martin, formerly a CO-1 with Correctional Service Canada, reads as follows:

Re: Retaliation by employer I feel harassed by my employer because of the complaint that I placed regarding non-smoking and air quality.

(1) since the Public Service Staff Relations Board meeting of June 28/95 I have been placed on permanent midnight, then modified to evenings & midnight. (2) innuendo pertaining to my possible dismissal for incapacity. (3) breach of agreement to maintain confidentiality of my case & related agreements. (4) I applied through access of information for anything with my name relating to this complaint and received nothing.

Mr. Martin referred me to a memorandum dated August 24, 1995 from Mr. Robert Reid, Labour Services Centre, Atlantic Region, to Mr. Luc Sarrazin, Labour Affairs Officer, New Brunswick Region. Mr. Martin stated that this memorandum provides a further elaboration of the details of his complaint against the employer. It reads as follows:

Harassment Complaint - Robert Martin vs CSC As you know, I met with Mr. Robert Martin on Wednesday August 23, 1995 to initiate action to resolve his complaint alleging harassment by his employer contrary to Section 133 or 147 of the Canada Labour Code. We met while he was off duty, at a neutral site (Tim Horton’s in Douglastown). The meeting was attended by Mr. Martin, his wife, their 13 year old son, and me.

Here, in chronological order, are the circumstances alleging to support his contention that he is being harassed, as presented to me by Mr. Martin at that meeting:

MAY 23, 1995 While exercising his right to refuse dangerous work pursuant to Section 128 of the CLC, claiming that he was effected (sic) by cigarette smoke, he was assigned to work in an area that was also not free of smoke while his case was being decided.

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Decision Page 2 After the refusal, and despite the fact that a level three grievance started earlier, was still in effect excluding him from work in the main buildings of the institution, he was ordered to work in the building.

MAY 24, 1995 J.K. Hare, Correctional Supervisor, apparently referring to the action taken under the Canada Labour Code, allegedly made the following remark to Mr. Martin: “Shut your fuckin mouth and do your time”.

JUNE 24 (four days before PSSRB hearing on Mr. Martin’s refusal to work)

Mr. Martin was called to J.K. Hare’s office with witnesses A. Crowe (union) and Mr. McCaully (management). Mr. Hare mentioned the complaint first according to R. Martin thereby setting the tone of the meeting. Mr. Hare then set about taking away provisions of the light duty agreement previously arranged. He said that Mr. Martin would loose:

- Full three Shift Rotation - Overtime - Statutory (General ) Holiday pay

He also implied that the inmate population would riot due to Mr. Martin’s actions to have smoking ceased in the facility. He further implied that the union had turned against him (Mr. Martin) for the same reason.

JUNE 29-30, 1995 (one to two days after hearing) John Harris met with R. Martin. In attendance was M. Nicholson (Union Rep). Mr. Harris stated that Mr. Martin could be released for incapacity to perform job. He said words to the effect of: “if the institution is up to government standards and inmates are still allowed to smoke, then you will be released for incapacity because you cannot perform all the duties assigned to you”.

Statements of a personal nature were made by Mr. Harris: “you have been seen in Tim Horton’s surrounded by smoke”.

It was implied that Mr. Martin had no choice but to sign a document stipulating terms of the light duty assignment. Changes had been made to the agreement and day shift was eliminated from the rotation.

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Decision Page 3 Mr. Martin stated that he felt threatened by Mr. Harris’ tone during the meeting. He had just finished the midnight shift and was tired. He did however wait for three hours for the meeting with Mr. Harris. (He has not yet (23-8-95) received remuneration for that time.)

He later retracted the signing of that document and delivered message (sic) to that effect to Harris, Hutcher, Hare, Banister, Monk, Nicholson. (His reaction was noted in a memo from Harris dated 14-7-95.)

JULY 11, 1995 While on sick leave R. Martin was telephoned by Mr. Harris. He said he did not believe his physician’s certificate. (Stated...”you don’t look sick”.)

-Asked R. Martin for personal medical information (“what’s wrong with you?”)

-Asked if he could consult Mr. Martin’s physician. This was denied by Mr. Martin.

Mr. Martin learned that Mr. Harris subsequently did contact Mr. Martin’s doctor (according to both the physician and the physician’s clerk.)

JULY 27, 1995 J. Harris called Mr. Martin’s house. Spoke with 13 year old son, Steven. Told him that R. Martin was being sent to a doctor in Halifax. This caused the youth to be upset as he did not know the extent of his father’s illness. Mr. Harris then gave the youth a complicated set of travel instructions for his father. Included were train schedules, reservations for accommodations and his appointment time with the doctor in Halifax.

JULY 28, 1995 R. Martin called Mr. Harris’ clerk. He was told that the train tickets would be delivered to his house at around 14:00 hrs. As Mr. Martin was not being paid to wait for tickets he did not. Therefore he never received same.

According to Mr. Harris there were no vehicles available to drive to Halifax. Mr. Martin contacted a Marshall Gaston at the Garage and was told that there were four vehicles available.

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Decision Page 4 Harris also reiterated that he was not paying overtime, mileage. Lieu time was assumed by the employer. R. Martin agreed to go if a vehicle was provided. Mr. Harris also stated that Mr. Martin was too ill to drive. Mr. Martin denied that this was true, he says he was well enough to drive but had asked for a “co-pilot” (apparently this had been OK’d before in certain cases.)

NOTE: According to Mr. Martin the significance of sending him on the train to Halifax, is that it also purveys a message. It is the norm that newly released officers are sent from the Institution by train. When staff need to travel they take government (or in some cases their own) vehicles.

JULY 28, 1995 Mr. Martin hand-delivers his doctor’s certificate to the institution and reiterated his agreement to go to Halifax if a vehicle was provided. Mr. Sharpe was contacted and denied the request stating that Mr. Martin did not have certification of ability to drive on a highway. (Note: there was no known requirement for this before.)

AUGUST 1, 1995 Although this was the first day back after his sick leave and it is normal to allow 3 days to produce a doctor’s certificate action had already been taken to withhold his pay. This pay was deducted all at once again contrary to the norm for these situations.

Mr. Martin did not refer to a specific section of the Code that he believed was being violated by the Employer. However, I draw your attention to Section 147(a).

Therein it is given that... “No employer shall dismiss, suspend, lay off or demote any employee or impose any financial or other penalty on an employee or refuse to pay the employee remuneration in respect of any period of time that the employee would, but for the exercise of his rights under this Part, have worked or take any disciplinary action against or threaten to take such action against an employee because that employee...(iii)has acted in accordance with this Part or has sought the enforcement of this part...”

As you know, enforcement of this Section requires that we prove that the penalty has been applied to the employee. Therefore, the details above will have to be verified as

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Decision Page 5 authentic, demonstrated as actual punative (sic) measures and proven to be linked to Mr. Martin’s actions under the Code and or Regulations.

Mr. Martin’s complaint to the Board is made under section 133 of the Canada Labour Code (CLC). That section of the CLC reads as follows:

133. (1) Where an employee alleges that an employer has taken action against the employee in contravention of paragraph 147(a) because the employee has acted in accordance with section 128 or 129, the employee may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.

... (3) An employee may not make a complaint under this section if the employee has failed to comply with subsection 128(6) or 129(1) in relation to the matter that is the subject-matter of the complaint.

(4) Notwithstanding any law or agreement to the contrary, a complaint referred to in subsection (1) may not be referred by an employee to arbitration.

... (6) A complaint made pursuant to subsection (1) in respect of an alleged contravention of paragraph 147(a) by an employer is itself evidence that that contravention actually occurred and, if any party to the complaint proceedings alleges that the contravention did not occur, the burden of proof thereof is on that party.

At the beginning of the hearing, the parties informed me that Mr. Martin was no longer an employee of Correctional Service Canada. He accepted a cash buy out and is now working for a private company. Also, at the beginning of the hearing the parties were given some time to discuss the outstanding issues. After this discussion the parties reported to me that they had agreed to narrow the issues. These issues were set out by Mr. Martin as follows:

It was his contention that the employer had taken retaliatory action against him for invoking his right to refuse work under sections 128 and 129 of the CLC. He took the position that the way he was treated in the assignment of light duties to him

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Decision Page 6 constituted disguised disciplinary action against him. Mr. Martin stated that as a result of the restrictions placed upon him in the assignment of light duties, it was necessary for him to incur a $71.00 financial expense. Because of the shifts he was assigned to he lost the opportunity he would normally have to use the telephone at work. He incurred a number of telephone charges relating to calls to Personnel in Moncton and to others relating to his safety concerns. He asked by way of remedy that the employer be ordered to pay his telephone bill. Mr. Martin also contended that Mr. Harris had called him at home and on one occasion improperly used Mr. Martin’s son to convey a message to him. Mr. Martin asked that an order be given to Mr. Harris ordering him not to call Mr. Martin at home again.

Mr. Martin also claimed that the employer’s denial of sick leave for 15 days in July 1995 is disciplinary in nature and retaliation by the employer for exercising his right to refuse work. By way of redress, an order should be issued ordering the employer to pay the 15 days of sick leave. Mr. Martin has grieved the denial of this sick leave and the grievance has been referred to adjudication.

Evidence The first witness called by the employer was Mr. Hatcher, Deputy Warden, Atlantic Institute. Mr. Hatcher has known Mr. Martin since he came to the Institution approximately one and one-half years ago. When Mr. Hatcher came to the Institution, he was made aware shortly thereafter of Mr. Martin’s concerns regarding his health. Mr. Martin had found the workplace to be unhealthy and a risk to his health because of the presence of cigarette smoke. Mr. Hatcher took some interim steps to deal with the problem when Mr. Martin’s illness was reaffirmed by doctors. Mr. Hatcher took some interim measures to take Mr. Martin off regular duties and place him on light duties. According to the National Heath and Welfare assessment of Mr. Martin, Mr. Martin was classified as a “Type B”, i.e. fit for duty with limitations. Mr. Martin’s limiting condition was his vulnerability to smoke. Mr. Martin’s previous duties involved the observation of inmates at a variety of posts. There is a great deal of smoke emanating from the inmates, 99 percent of whom smoke. Mr. Martin was given duties at the principle entrance to the Institution, on the mobile units and in the tower. Initially, he was given all three shifts to work in these posts. Tests to assess the quality of air were arranged through Labour Canada. The results were quite good;

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Decision Page 7 the quality of air in the Institution was equivalent to or better than many government buildings. There were, however, burnt particles in the air from cigarette smoke, although in very small amounts. At that point, Mr. Hatcher considered putting Mr. Martin on a full range of duties again. However, because of his concern for the burnt particles in the air, even though these amounts were minuscule, he requested further clarification from Health Canada. His concern was whether or not Mr. Martin’s health required that he work only in areas that were entirely free from smoke or whether or not the quality of air being rated as excellent he could be placed anywhere. The response which he received from Health Canada made it clear that Mr. Martin must work in areas that were entirely free from smoke. At that stage, Mr. Hatcher decided to enter into a formal light duty agreement with Mr. Martin. This agreement was negotiated on June 23 or 24, 1995 with Officer Hare and signed on June 30, 1995. Although Mr. Martin signed the agreement on June 30, he withdrew his signature later on the same day. As a result of a previous adjudication hearing on June 28, 1995, the parties attempted to try to settle the matter. Although Mr. Martin had originally been scheduled to work on the midnight shift only, as a result of the attempts to settle the matter he was allowed by Mr. Harris to attempt to work evening shifts as well on certain designated posts. The posts and shifts that Mr. Martin was considered capable of working on were determined by the necessity of limiting his contact with visitors, other officers and the inmates themselves. It was only on the midnight shift that the employer could guarantee that there would be no exposure to smoke. This is because inmates were locked up at 10:00 p.m., visitors were very infrequent and there was less contact with other staff because there was less need to relieve other officers and otherwise interact with them. Mr. Martin spoke to Mr. Hatcher directly and requested that he be given an opportunity to do day shifts as well. Mr. Hatcher refused because of the clear direction he had received from Health Canada that Mr. Martin’s workplace was to be free of all smoke. His decision had nothing to do with Mr. Martin’s action in refusing to perform work. Even though some areas were designated non-smoking, there could be inadvertent exposure to smoke. For example, when one is working at the principle entrance post sometimes visitors enter the post while still smoking and must be asked to put their cigarettes out. They are then required to extinguish their cigarettes but smoke continues to linger in the air. On the day shift there is a continuing problem of staff having to be relieved and reassigned to cover other positions and also to take care of minor crises when these occur. These crises are

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Decision Page 8 more likely to occur on the day shift because of the increased activity that takes place on the day shift and the fact that inmates can be moving about and smoking almost anywhere throughout the whole Institution during the day.

When asked by the grievor whether there was any significance to be attached to the fact that an ordinary light duty form was not used for Mr. Martin’s agreement, the witness testified in cross-examination that there was no significance to be attached to this omission. Mr. Martin’s agreement was printed on ordinary stationary to provide ample space for details of his health problem.

The witness also testified that midnight shifts were often used as light duty for officers where it was necessary to limit contact with inmates. For example, female officers who were pregnant often requested the midnight shift in order to reduce contact with inmates who might be violent. Similarly, in Mr. Martin’s case since the primary source of smoke in the Institution came from the inmates, reducing his contacts with the inmates was necessary in order to reduce his contact with smoke.

Also testifying for the employer was Mr. John Harris, Living Unit Manager. He was directly involved when Mr. Martin, in late May 1995, invoked his right to refuse work under Part II of the CLC. The circumstance of Mr. Martin’s refusal was that he had been assigned motorized patrol duties and when he entered the vehicle he found cigarette butts in the ashtray. This indicated to Mr. Martin that someone had been smoking in the vehicle prior to his shift. When Mr. Harris learned of the refusal, he decided to redeploy Mr. Martin to the tower. Shortly after Mr. Martin was redeployed to the tower, Mr. Luc Sarrazin, the Safety Officer, contacted Mr. Harris. Mr. Sarrazin gave Mr. Harris some instructions on how to deal with the situation. Mr. Harris then called Mr. Martin who was in the tower. Although the tower was not a designated smoke free area, Mr. Martin was, however, to be alone in the tower at the time. Mr. Martin informed Mr. Harris that he was exercising his right to refuse work in a number of other posts as well. He refused work in the gallery, in the control bubble, on mobile, and anywhere in the main building where there might be smoke in the atmosphere. Mr. Sarrazin visited the Institution and met with Messrs. Martin and Harris and a Mr. Tom Sharp. Mr. Sarrazin asked Mr. Martin if there had been any change in the air quality since he had made his last tests at the Institution. When

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Decision Page 9 Mr. Martin stated that there had been no change, Mr. Sarrazin ruled that the air quality was not unsafe.

Mr. Harris testified that his relationship with Mr. Martin up until July 28, 1995 had been congenial. The fact that Mr. Martin had submitted concerns about the quality of air did not concern him because he was interested in improving the quality of air himself. He stated that he is asthmatic.

When the light duty agreement dated June 25 was signed on June 30, Mr. Martin attended the meeting at which the signing took place with his union representative, Mr. Murdoch Nicholson. Prior to this, on June 25, Mr. Martin had agreed with Officer Hare verbally that his shifts be restricted to the midnight shift. Mr. Harris stated that on June 28, 1995 he “stuck out his neck” and in order to settle the matter had committed himself to allowing Mr. Martin to work evening shifts. When Mr. Harris spoke to Mr. Hatcher, the Deputy Warden, the next morning at the Institution, Mr. Hatcher did not agree to allow Mr. Martin to work day shifts. Mr. Harris denied Mr. Martin’s claim that he had been refused working day shifts by management as a retaliation for his previous refusal to perform work. Mr. Harris stated that this had never entered into any of the discussions that he had with anyone. In fact, both he and Mr. Hatcher had wrestled extensively with the problem of having Mr. Martin do day shifts and yet keep him in a smoke free environment. The witness stated that even if the Institution declared a post to be smoke free, there was no guarantee that it would in fact always be “smoke free”. He gave the example of drugs in the Institution. Even though the Institution is supposed to be drug free, clearly drugs do get in there anyway and are consumed within.

In cross-examination, Mr. Harris stated that he had not threatened Mr. Martin with release for incapacity. Also in cross-examination, Mr. Harris stated that when he deployed Mr. Martin to the tower post on May 23 after Mr. Martin had exercised his right to refuse work, he chose that post because he thought that it would be free of smoke since Mr. Martin would be alone there.

Mr. Harris also stated that there was nothing punitive towards Mr. Martin when he spoke to Mr. Martin’s son and left a message with him. The boy clearly understood the message and was not at all perturbed by it.

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Decision Page 10 He testified that Mr. Martin had been refused sick leave because management had never been actually satisfied that he was ill during the period of sick leave requested. Although the illness was certified by a doctor, he had no knowledge of the nature of the illness. Mr. Martin visited the Institution during his period of requested sick leave and according to Mr. Harris "looked as well as he does today". He was suspicious. He was also concerned that Mr. Martin had originally requested family related leave and then asked that his request for leave be changed to certified sick leave. This raised questions that needed answers.

On July 24, he requested of Mr. Martin that he undergo a full medical assessment. His information was that Mr. Martin was not well enough to travel by himself. He therefore made arrangements for him to travel by train because he thought there would be less stress on Mr. Martin and he would be more comfortable traveling by train. Mr. Martin expressed his unhappiness with the arrangements and would not cooperate in making himself available to receive the tickets. Several attempts to deliver the travel documents personally to Mr. Martin at his home failed. He called Mr. Martin at his home on July 25 regarding the latter's rest days. His son answered. He was polite and cooperative. He repeated the message back to Mr. Harris. The son seemed perfectly at ease.