FPSLREB Decisions

I. Grievances referred to adjudication

1 Thu-Cùc Lâm ("the grievor") has worked for Health Canada ("the employer") since 1998. In 2000, she began working as a consultant for the Population and Public Health Branch (PPHB), Quebec Region.

2 The grievor received a disciplinary measure in 2003 and two more in 2004. In addition, in 2003 she reported a harassment situation.

3 The grievor filed grievances to contest those three disciplinary measures and filed another grievance regarding the discrimination and harassment. The grievances were referred to adjudication in 2005, and the hearing took place at various sessions between March 2006 and January 2007.

4 Common evidence was presented for all of the grievances at the hearing. The grievances heard at the hearing were the following:

• PSSRB File No. 166-02-36587: 2-day suspension, September 24, 2003;
• PSSRB File No. 166-02-36588: 10-day suspension, February 3, 2004;
• PSSRB File No. 166-02-36589: 20-day suspension, October 28, 2004; and
• PSSRB File No. 166-02-36590: discrimination and harassment (articles 1 and 19 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada, Programme and Administrative Services Group).

5 This decision summarizes the common evidence and the parties' arguments and sets out the reasons for the decision on each grievance. A separate order was issued for each grievance.

6 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35.

II. Summary of the common evidence

7 The evidence pertains to events that occurred between the year 2000 and October 28, 2004. The grievor received a letter of warning on August 13, 2003 (Exhibit E-5), a letter of reprimand on September 22, 2003 (Exhibit E-1(a)) and a disciplinary measure on September 24, 2003 (a two-day suspension) (ExhibitE-1(b)).

8 Two managers provided detailed testimony on the events that occurred between the year 2000 and August 13, 2003. I consolidated those testimonies and then returned to the letter of August 13, 2003.

9 Suzette Jeannotte was a coordinator (PM-05) in the Childhood-Youth Unit at the PPHB, Health Canada, from 1987 to 2002. From September 2002 to April 2003, she was Program Manager. She reported to Sylvain Tremblay, Director of Programs and Jean-Louis Caya, Regional Director, the PPHB.

10 As the coordinator, Ms. Jeannotte managed three programs: the Community Action Program for Children (CAPC), the Canada Prenatal Nutrition Program (CPNP) and the Aboriginal Head Start On Reserve program. These programs were aimed at different organizations and were overseen by about 20 consultants, including the grievor.

11 These programs were complementary to provincial programs under the Régies régionales de la santé (in the case of Quebec).

12 Each consultant analyzed funding applications that were submitted by organizations, made recommendations and monitored the contribution agreements (compliance with the project and deadlines). The consultant offered support to the organizations.

13 The grievor joined the PPHB in October 2000.

14 Ms. Jeannotte indicated that by November 2000, the grievor was making her requests directly to Mr. Tremblay. Ms. Jeannotte indicated that he had asked the grievor to go through her coordinator. The grievor indicated that she was autonomous and did not require constant supervision.

15 In 2001, management and project leaders had a long discussion about how files were allocated. The grievor wanted the Montréal files. A discussion took place with the two Montréal area consultants, Mr. Desrosiers and the grievor. According to Ms. Jeannotte, the grievor criticized the rating system that was being used to allocate files.

16 Ms. Jeannotte indicated that the workplace atmosphere grew tense during the file allocation discussions. Two consultants, Dominique Parisien and Gertrude Trudel, told Ms. Jeannotte that they felt that the grievor was pressuring them to support her point of view. The files were finally allocated in the fall of 2001.

17 In June, July and October 2002, three organizations complained about the grievor (Exhibits E-2, E-3 and E-4); they were Amitié Soleil, Les Services d'Aide à la Famille Juive and Maison des Familles de VilleLaSalle.

18 Michel Gaussiran was assigned to meet with the organizations that had filed the complaints and to report afterward (Exhibits E-11, E-12 and E-14).

19 According to Ms. Jeannotte, managers were often shifted around between September 2002 and September 2003 because of Mr. Tremblay's departure. Ms. Jeannotte acted as director of programs and a senior consultant (Mr. Gaussiran) acted as coordinator.

20 In the fall of 2002, Ms. Jeannotte and Mr. Gaussiran met with the grievor. They talked about management, teleworking and training. According to Ms. Jeannotte, the grievor wanted to be managed on a results basis. Management wanted to monitor her work and check her progress on files and the methods she used on them. Ms. Jeannotte finally agreed that the grievor would be managed on a results basis, but she would have to occasionally fill Mr. Gaussiran in on her work.

21 Mr. Gaussiran felt that the grievor too often asked to work at home (telework), making coordination difficult. Management wanted her to take courses related to organizational requirements rather than university classes on bioethics.

22 As I previously indicated, before coming to the letter of August 13, 2003, I will address the testimony of the second manager who reported on the events that occurred between 2000 and 2003.

23 Mr. Gaussiran has worked at Health Canada for 20 years. In 2000, he was the team leader for the CAPC, and in July 2002 he became Acting Coordinator.

24 From March to July 2002, the consultants had to analyze applications for project renewal from the organizations; there were 128 CAPC projects and 128 CPNP projects. Each consultant had 40 to 45 projects. Management permitted the consultants to work at home.

25 In September 2002, the consultants spent more time at the office. However, the grievor continued to telework from September to December 2002. Her position was that if she had a meeting in the afternoon, then she could work at home in the morning.

26 After talking to Ms. Jeannotte, Mr. Gaussiran asked the grievor to draw up a written agreement on teleworking. The grievor refused.

27 In the summer of 2002 and again in October 2002, management received complaints from organizations for which the grievor did related work. Mr. Gaussiran was asked to investigate and report. He prepared reports (Exhibits E-11, E-12 and E-14) for Mr. Caya. As part of his investigation, Mr. Gaussiran met with representatives of the organizations and asked for details on the allegations contained in their letters. Without being able to discuss the individual allegations, Mr. Gaussiran found that overall, the complaints were serious. He indicated that he had asked the people with whom he met to sign the report he had prepared on their statements.

28 In 2003, Mr. Gaussiran authorized the grievor to work at home from time to time. However, beginning in March 2003 he restricted the amount of telework allowed but did authorize 10 days of telework in March 2003. On March 6 and 7, 2003, the grievor had to attend classes. She subsequently asked Mr. Gaussiran for two days of telework to complete reports, which he refused.

29 On March 18, 2003, a meeting was held with the grievor, which was attended by the union representative, Alain Bélanger, to discuss the matter with Mr. Gaussiran and Guy Aucoin (Mr. Caya's replacement). Everyone was seated around a small table. The grievor asked Mr. Gaussiran why he had not granted her the two days. Mr. Gaussiran replied, pointing a finger at her, "[translation] that he no longer trusted her."

30 In June 2003 Mr. Gaussiran learned that the grievor had filed a complaint against him because he had intimidated her by pointing his finger close to her face.

A. On the first disciplinary measure, September 24, 2003 (two-day suspension)

31 I return to Ms. Jeannotte's testimony and her explanation of the circumstances leading up to the August 13, 2003 warning, which was followed by a reprimand on September 22, 2003 and a disciplinary measure on September 24, 2003.

32 In May 2003, Ms. Jeannotte, accompanied by Mr. Chagnon, Mr. Tremblay and Mr. Gaussiran, met with the grievor, who was accompanied by her union representative, to tell her about the findings of the investigation into the complaints from the three organizations. The grievor requested a written response.

33 The grievor replied in writing on May 16, 2003 (Exhibit F-28). According to Ms. Jeannotte, she denied all of the allegations and said that the analysis of the files had been superficial. The grievor indicated the following in her conclusions:

[Translation]

…

V - Conclusion:

Taking into account management's unilateral decision to conduct an investigation by appointing Michel Gaussiran to carry out the investigation, management has created a situation that makes it impossible for me to take charge of these three files. De facto, I refuse to resume these three projects.

As for the verification recommendation, it is unacceptable and prejudicial to my integrity and skill. Without evidence or justification, one has to wonder about the very essence of the motive for making such a recommendation: why check my files and not those of the other consultants? What redress situation is Michel contemplating in his statements? I propose that management give me the opportunity to check which files came under Michel Gaussiran's responsibility based on the analysis criteria in my files for preparing my project visits, and I shall return and present you with a report…

…

34 The grievor ended her letter with the following recommendations:

[Translation]

…

Recommendations:

As a preventive measure, due to the precedent set by management in its handling of these three files, here are my recommendations:

• my project visits are to be recorded, with the organization's approval,
• I shall be accompanied on my project visits at my request,
• I shall be consulted on all issues pertaining to my files as soon as the client calls any management level other than myself, and
• any investigation must be justified and conducted by a neutral third party in the presence of an employee representative.

35 Ms. Jeannotte said that she was shocked by the grievor's response, which appeared to blame management and Mr. Gaussiran. Lucie Myre, Director General, Quebec Region, informed her that the grievor had filed a harassment complaint against Mr. Gaussiran. Ms. Jeannotte decided to be perfectly clear with the grievor about management's expectations and sent her a letter on August 13, 2003 (Exhibit E-5). She reproached her for the following:

• treating telework as an acquired right;
• being resistant to any control measure;
• being absent from meetings, which did not foster a good understanding of management's expectations;
• contesting the project renewal approach by the joint committee;
• having entered into conflicts with the organizations; and
• denying the complaints and blaming people in the organizations.

36 On September 8, 2003, the grievor wrote to Ms. Jeannotte (Exhibit E-6). She criticized the amount of time that management had taken in conducting the investigation into the three complaints. She said that the accusations about her interpersonal problems were unfounded. She wrote the following:

[Translation]

…

You are correct in your observation that our working relationship has recently become very strained. The reason?

- It is due to my fair and well-founded observations and comments, by the way, on different files, such as my critical analysis of the partisan approach used to reallocate files in October 2001, the creation of positions (PM-02 and others) for people who have been targeted and not according to the Unit's requirements, the heavy structure of the different sections, the assignment of vague tasks and the presence of multiple but irrelevant procedures … and decisions that run contrary to HC policies, including: access to English translation during CAPC consultations (you had the nerve to ask me to do the translation and approach the organization to justify the request for bilingual services that it made to Anne Turmaine!). These are but a few examples …

- You do not accept a way of thinking, working and speaking that does not resemble yours. This is the core of the problem in the Children's Unit. Failing to acknowledge reality is merely a blind pursuit. I am on management's blacklist because I dared to refuse two assignment offers: one for health reasons and the other for integrity reasons towards me from HC and from the clientele that I serve with pride and commitment. Any weakness that I may have I prefer to deal with at the source. Otherwise, I have the same right as anyone else to grow in a position for which I am overqualified in terms of my skills (knowledge), experience (know-how) and personality (manners).

- Your insecurity about my shrewd analytical abilities regarding the files more than once would have created a public confrontation if I had not had the good sense to step back and leave you the limelight. The most recent event is reflected by your own statements at the meeting (February 2003) that you called to collect ideas and arguments about the Quebec proposal to harmonize appraisal applications. I quote you: "You are doing my work."

…

37 After that, on September 17, 2003, the grievor sent Ms. Jeannotte an email (Exhibit E-8) about a telework request. In that email, she said she no longer wished to deal with Mr. Gaussiran, her "[translation] aggressor."

38 In that email, the grievor pointed out that Ms. Jeannotte felt that the harassment complaint was unfounded and that she would pursue the complaint and the teleworking issue with Mr. Caya (Exhibit E-8).

39 On September 22, 2003, the grievor applied to take courses without going through Mr. Gaussiran (Exhibit E-9). Taking these events into account, Ms. Jeannotte sent a letter of reprimand on September 22, 2003 (Exhibit E-1).

40 I refer to the testimony given by Mr. Caya explaining the disciplinary measure of September 24, 2003.

41 Mr. Caya indicated that in the summer of 2003 he was on sick leave. Ms. Jeannotte called to tell him that there were problems with the grievor. When he returned to work in September 2003, Mr. Caya said that he found the grievor making requests about her university education. In addition, Mr. Caya specified that she had approached him, seeking to amend the decisions on her training and telework requests.

42 Mr. Caya found that in view of the previous reminder that she had been given, the grievor kept repeating requests to different managers in the hierarchy. He did not like the tone of her requests, which was why he had given her a two-day suspension as a disciplinary measure (ExhibitE-1(b)).

B. On the second disciplinary measure (10-day suspension)

43 I refer to the testimonies of Nathalie Pelletier, Aline Bernier, Judith Bujold, Mr. Gaussiran and Mr. Caya concerning the events that occurred between September 24, 2003 and February 3, 2004.

44 In October 2003, the CAPC had residual monetary amounts to re-use. The operations committee (comprising federal and provincial government representatives) was to review the recommendations on the use of those residual amounts. The team of consultants met on November 12, 2003 (Exhibit E-16).

45 The grievor submitted three projects. However, management had recommended that only one be submitted to the operations committee.

46 On December 8, 2003, Ms. Bernier warned Mr. Gaussiran that the grievor was going to meet with the Régie régionale de la santé to discuss projects. He had cautioned her to take this step (Exhibit E-17).

47 The grievor had insisted on having the other two projects presented. She said that those projects had been supported by the Régie régionale de la santé and that it was up to the operations committee to decide (Exhibit E-17).

48 During his testimony, Mr. Gaussiran indicated that on December 17, 2003 he had conveyed information to the grievor (Exhibit E-18). Mr. Gaussiran pointed out that he addressed the grievor using the formal "vous" because he wanted to maintain a certain distance because of her harassment complaint against him. In 2004, Mr. Gaussiran decided to stop using the formal "vous" when speaking to her. In February 2004, Ms. Bernier became the grievor's supervisor.

49 In cross-examination, Mr. Gaussiran explained the manner in which he had conducted the investigations with the three organizations that had filed complaints against the grievor.

50 Ms. Bernier held the coordinator's position in the fall of 2003. She was absent from work and returned in November 2003.

51 Ms. Bernier related an incident that occurred in late November 2003. Ms. Pelletier, a program consultant, had sent some organizations a letter about purchasing food supplements (Exhibit E-22). Ms. Pelletier wanted the organizations to know that they could make all of their purchases at once at the beginning of the year.

52 The grievor warned Ms. Bernier about the letter that Ms. Pelletier was going to send out. The grievor indicated that the organizations were autonomous and should not be guided in their purchasing. Ms. Bernier tried to intercept the letter but was not successful.

53 Management decided to manage the risk and to directly contact any organizations that reacted.

54 On December 3, 2003, Ms. Bernier found out that the grievor had sent some organizations a letter about their purchasing, indicating that this was a correction to Ms. Pelletier's letter (Exhibit E-21).

55 Ms. Bernier indicated that she had witnessed another incident involving the grievor. At a team meeting on December 2, 2003, she noticed that the grievor was addressing Mr. Gaussiran using the formal "vous," and that he was responding in kind. Normally in meetings consultants referred to one another by their first names, for instance "Michel, you pointed out that …" rather than "Mr. Gaussiran you have…" She also noted the length of the grievor's interventions. Ms. Bernier said that she found it disruptive, and indicated as much to Mr. Caya in writing (Exhibit E-20).

56 In cross-examination, Ms. Bernier said that she had not noticed whether Mr. Gaussiran and the grievor had addressed each other using the informal "tu" before December 2, 2003.

57 Ms. Pelletier worked as a program consultant for the PPHB. In the fall of 2003, she held the acting team leader position in Ms. Bernier's absence.

58 Ms. Pelletier confirmed the incident related to the letter she had sent to the organizations concerning their purchasing and the correction made by the grievor.

59 Ms. Bujold is a program consultant for the PPHB. She had been absent for a lengthy maternity leave, and when she returned, she attended the December 2, 2003 team meeting.

60 Ms. Bujold noticed that the grievor and M. Gaussiran were addressing one another using the formal "vous." She said that she sensed some ill feelings. Ms. Bujold had difficulty with the tension between those two people. She pointed out that the grievor was arrogant with Mr. Gaussiran. She decided to write to Mr. Caya (Exhibit E-44).

61 Mr. Caya indicated that he sent the grievor copies of the letters from Ms. Bujold and Ms. Bernier. He then met with the grievor in the presence of her union representative on December 22, 2003. Mr. Caya drew the grievor's attention to the following incidents:

• the letter of correction that she sent out on December 3, 2003;
• the December 2, 2003 meeting and the comments made by Ms. Bernier and Ms. Bujold; and
• the December 2003 meeting with the Régie régionale de la santé and her attitude with respect to the management of the residual amounts under the CACP projects.

62 Mr. Caya received a written response from the grievor. While her letter contained some pertinent information, Mr. Caya noted that she blamed the managers and defended her position. The grievor talked about intimidation from the people around her. Mr. Caya noted that, in her response, the grievor wrote to him as follows: "[translation] … want this letter filed in my personnel file as well as in yours."

63 In addition, in closing his testimony, Mr. Caya noted that the grievor had pointed out in her letter that she had filed a complaint with the Canadian Human Rights Commission and that he was cited as a respondent.

64 Mr. Caya felt that the grievor was not listening to the remarks that were being made to her in an effort to improve the work atmosphere. Considering that he had already imposed a disciplinary measure on September 24, 2003 (two days), he imposed a more severe measure on February 3, 2004 (10 days).

65 In his letter of February 3, 2004 (Exhibit E-1(c)), he specifically reproached the grievor as follows:

[Translation]

…

We reviewed your December 23 response and, unfortunately, we find that you continue to adopt the same attitude of denying any error and/or misconduct on your part. Moreover, your explanations of facts and actions in question are either erroneous and/or incomplete. Your actions show that you continue to refuse to comply with internal operating/management procedures, which amounts to insubordination.

The behaviours for which you are being reproached by this letter are the following:

1. your disrespectful attitude towards your manager (re: December 2, 2003 team/unit meeting);
2. your attitude, which has as a consequence cast doubt on the competency and professional image of your colleague, who at the time was serving as acting manager (re: Your December 3, 2003 letter to the CLSC Lac St-Louis);
3. your attitude in connection with the management of the file related to the use of residual CAPC/CPNP amounts, in spite of regional management's directions, leaving the Department vulnerable to criticism and potentially damaging relations with the province (re: Your December 9 meeting with the Régie régionale de Montréal).

…

C. On the third disciplinary measure

66 For the events that occurred between February 3 and October 8, 2004, I refer to the testimonies provided by Lise Pelletier, Mr. Caya and DominiqueParisien.

67 In February 2004, Ms. Bernier became the grievor's supervisor. Ms. Bernier indicated that in the spring of 2004, she had to discuss the work schedule with the grievor, who was not taking her 15-minute breaks, preferring instead to leave at 17:00 rather than at 17:30.

68 Ms. Bernier noted that the grievor was requesting overtime whenever she had to work beyond 17:00. Also, when she was absent, she would request leave for 6.5 hours rather than 7.5 hours. Ms.Bernier detailed all of this in a June 21, 2004 email (Exhibit E-24).

69 The union representative, Mr. Bélanger, intervened on this point (Exhibit E-23).

70 Following this, management asked to invalidate the work schedule agreement that Mr. Gaussiran and the grievor had reached on May 2, 2003 (Exhibit E-19). On August 5, 2004, Lise Pelletier informed the grievor that the May 2, 2003 agreement was no longer valid (Exhibit E-25).

71 According to Ms. Bernier, Mr. Gaussiran apparently had agreed that the grievor would not take her 15-minute breaks in the morning and afternoon and that she would leave at 17:00 instead of at 17:30 at the end of her workday.

72 Ms. Bernier indicated that on September 7, 2004, the grievor asked her if she could work from 09:30 to 17:00 without any breaks on Tuesdays until December 31, 2004 so that she could attend her university classes (Exhibit E-26). Ms. Bernier replied that she had to take her breaks and finish at 17:30 unless she started her days at 09:00 instead of at 09:30. The grievor refused to start earlier and wrote the following (Exhibit E-28):

[Translation]

…

2- Thank you for your concern for my well-being by forcing me to take breaks: my biological constitution is accustomed to taking breaks at the end of the day because I often have to reconcile my responsibilities as a caregiver with my work after my workday.

…

73 Ms. Bernier indicated that there were several emails exchanged on this subject (Exhibits E-29, E-30 and E-31).

74 Another incident involving the grievor was related to a car rental on September 22, 2004. The grievor had claimed overtime for returning the car to the car rental location near her home, after which she came to the office. Ms. Bernier denied the overtime (Exhibit E-36).

75 Ms. Bernier indicated that a team meeting had been called for July 16, 2004 at 09:15. The grievor asked why that time had been chosen. The meeting was moved to 09:30 to enable her to attend since she started her workday at 09:30, but she did not show up (Exhibits E-39 and E-40).

76 Ms. Bernier noted another incident involving the grievor. In the spring of 2004, the consultants were asked to prepare reports on the projects that they were supervising. There were changes to the questionnaire. Most of the consultants submitted their forms in June, but the grievor was late in submitting hers. According to Ms. Bernier, she submitted her report but refused to indicate the objectives to which the organizations' actions corresponded. Afterwards, she simply appended a copy of the project action plans (Exhibits E-41 and E-42).

77 Ms. Bernier indicated that in September 2004 she found it difficult to supervise the grievor. A number of problems arose and she had to write several emails. Ms. Bernier decided to speak to Mr. Caya. Ms. Bernier said that she was desperate and thinking of leaving her management position and returning to her PM-04 group and level position.

78 Ms. Parisien was an analyst with the PPHB. She confirmed Ms. Bernier's observation concerning the filling out of the questionnaire. According to her, the grievor only provided basic information and prepared her reports at the last minute.

79 Ms. Pelletier replaced Ms. Jeannotte as the program manager in 2004. Her two team leaders were Mr. Gaussiran and Ms. Bernier.

80 Lise Pelletier confirmed Ms. Bernier's statements about the grievor's work schedule and overtime.

81 Ms. Pelletier reported that the consultants had been asked to sign up for the CAPC and the CPNP project renewal committees. The grievor was looking after the CAPC project, but she only signed up for the CPNP committee for September 2004.

82 After some consideration, Ms. Pelletier asked the grievor to take part in the CAPC committee. According to her, the grievor criticized management's position on this point, stating that this was not the way to foster discussion because she had had extensive experience with the CPNP (Exhibit E-49). The grievor was excluded from the CPNP committee and was asked to participate in the CAPC committee.

83 Mr. Caya talked to Ms. Bernier and other managers about the incidents related to the grievor. He noted that from February to September 2004, the grievor and her manager had exchanged 273 emails.

84 Mr. Caya met with the grievor and her union representative on October 19, 2004 to discuss her file. He talked about the work schedule and her 17:00 departures. Mr. Caya talked about her participation in the CPNP and about the fact that she had requested management's real reasons for its request that she change committees, etc. He filed a report of the October 19, 2004 meeting (Exhibit E-50).

85 Mr. Caya noted that the grievor had had altercations about the production of reports and tools used in the CPNP. According to him, the grievor left after 17:00 on September 21, 2004. Mr. Caya said that he passed by her office at 17:00 and all of her things had been put away. He later saw her leave the building at around 17:20 even though she claimed to have left at 17:30.

86 For all of these reasons, and based on his managers' report, Mr. Caya deemed it appropriate to impose a disciplinary measure (20-day suspension) on the grievor on October 28, 2004 (Exhibit E-1(d)).

87 The grievor has worked at the PPHB, Health Canada, since 1998. From 1998 to 2000, she was a regional development officer and after 2000, a consultant in the PPHB. Before that, she had worked for the Régie régionale de Montréal and in banking.

88 The grievor explained that from 2000 to 2002 she had been looking after CPNP and CAPC projects. In 2004, the Director of Programs allocated the projects.

89 She pointed out that until 2002, her supervisors had never reproached her at the professional level. There are no criticisms in her performance report (Exhibit F-11). Management apparently only made one comment on her training plan in connection with university courses. She said that she preferred to use her training allowance on university courses at the master's level rather than attending symposiums.

90 In the summer of 2002, three organizations made complaints. After that, the grievor was removed from those three projects.

91 The grievor explained that Amitié Soleil had changed into a Centre de la petite enfance (CPE), which reported through the Quebec provincial government; hence federal funding was to be on a value-added basis. Thus, it was important to review the action plan and focus on value added, because the federal government does not fund the same activities as the provinces.

92 In the case of Les Services d'Aide à la Famille Juive, the federal government funded individual requirements. The projects were based on the overall client profile.

93 In the case of Maison des Familles de Ville LaSalle, even the Régie régionale de la santé et des services sociaux du Québec had realized that there were operating problems.

94 The grievor indicated that she had always worked in a professional manner with those three organizations.

95 The grievor then talked about the March 18, 2003 meeting, where she alleges that Mr. Gaussiran harassed her. When she asked Mr. Gaussiran why he refused to grant her two days of telework, he replied that it was "[translation] because he no longer trusted her," and with that he pointed his finger a few inches from her face.

96 The grievor said that she was marked by this encounter. She saw her doctor and had to take a few days' sick leave. She discussed this incident with Ms. Jeannotte in June 2003 (verbal complaint) and filed a written complaint on October 31, 2003 (Exhibit F-24).

97 On September 24, 2003, when she received the disciplinary measure, the grievor indicated that she had wanted to discuss the March 2003 incident with Mr. Gaussiran, but Mr. Caya did not want her to.

98 Afterwards, on October 6, 2003, she met with Ms. Myre, Director General for the Quebec Region, who told her that there had not been any harassment. According to Ms. Myre, Mr. Gaussiran always moved his hands around when he talked, and he would have had absolutely no intention of intimidating the grievor., Ms. Myre confirmed that the complaint had been dismissed in writing on November 25, 2003 (Exhibit F-25).

99 The grievor informed Mr. Bélanger, who then questioned management about the decision concerning the absence of harassment (Exhibit F-31).

100 With respect to the use of the formal "vous" used between the grievor and Mr.Gaussiran, the grievor explained that Mr. Gaussiran had started it; it was his preference. Thus, she had to use the same style. At the December 2, 2003 meeting, she had to intervene several times because she was leading the meeting. In her opinion, she never used an arrogant tone with Mr. Gaussiran.

101 Regarding the August 2004 negotiations concerning the work schedule, the grievor stated that it had always been her understanding that she could from time to time leave at 17:00 instead of at 17:30 if she did not take any breaks during the day.

102 The grievor was surprised that the employer would reproach her for being absent from the team meetings because this had never been discussed with her. She pointed out that she took part in most of the meetings.

103 The grievor indicated that in September 2003 she informed Mr. Caya that she would no longer go through Mr. Gaussiran for her requests because she had filed an intimidation complaint against him (Exhibit F-40).

104 In terms of the March 2003 gesture, the grievor indicated that Mr. Gaussiran had admitted that he was sorry but that he would not apologize. She wondered what would have happened had she made the gesture.

105 With respect to the letter of correction that she sent to the organizations in her area in December 2003, the grievor indicated that somebody had called from one of the organizations about the letter from her colleague, Nathalie Pelletier. The organization believed that it was autonomous, and it did not wish to be told how to organize its purchasing. Thus, the grievor alerted the organizations in her sector. In her opinion, management never forbade her from communicating with them (Exhibits F-41 and F-42).

106 Regarding the incident related to the use of residual CAPC amounts, the grievor felt that the employer should deal with the Régie régionale, which set the priorities. According to her, the Régie was not a federal government client but a partner (Exhibits F-43 and F-44).

107 With respect to the reasons for the reproaches contained in the October 28, 2004 disciplinary measure (20 days), the grievor pointed out that she understood that the change in work schedule, once a week, so that she could attend her university classes, was a one-time arrangement.

108 The grievor explained that she had chosen to participate in the CPNP committee in 2004 because she had wanted to retain and develop her expertise. She could also have contributed to that committee.

109 The grievor pointed out that it was not her fault that she could not attend the team meeting on July 16, 2004, as she had other meetings that morning.

110 The grievor explained that in the Montréal area, organizations worked in partnerships and that there were well-established reference frameworks. She believed that she had properly filled out the evaluation form. At management's request, she added the reference to the work plan by attaching an extract from each organization's action plan.

111 Mr. Bélanger had accompanied the grievor to the March 2003 meeting. He saw that when Mr. Gaussiran pointed his finger at the grievor, she jumped back. According to him she was frightened, and he felt that this meeting had disturbed her.

112 Mr. Bélanger indicated that he had tried to settle the issue verbally but had to recommend that the grievor file an official complaint.

113 Mr. Bélanger admitted that he had indicated to the managers that overall, the March meeting had gone well.

114 The parties had agreed to file all of the joint evidence in the file on the harassment matter that had prompted the grievance. This grievance denounced the failure to comply with articles 1 and 19 of the applicable collective agreement.

III. Summary of the arguments

A. For the employer

115 The employer maintained that the grievances had to be considered in light of the accumulation of actions and attitudes. The grievor had refused to be supervised. Her emails and the tone of her responses demonstrated a lack of respect.

116 The employer referred to the tone of the letter that the grievor sent on September 8, 2003 (Exhibit E-6), in which she criticized the Regional Director about her way of doing things and the amount of time taken by the managers to inform her. The employer pointed out that this was compounded by the grievor's acts of insubordination and her attitude. All of those factors pushed management to act, in particular in the letter of August 13, 2003 and in the reprimand of September 22, 2003.

117 According to the employer, the two-day suspension was justified by the fact that the grievor was showing insubordination (Exhibit E-10) and using an offensive tone of voice when calling her supervisor an "aggressor" (Exhibit F-23).

118 According to the employer, several factors justified the 10-day suspension that was imposed in February 2004.

119 The first factor was the December 2003 meeting. More than just the issue of the use of the formal "vous," it is important to consider the tone of the exchanges and the impression made on the grievor's work colleagues, as evidenced by the complaint made by one of them (Exhibit E-44). As well, there are the emails in which the grievor criticizes the managers for their management.

120 The second factor was the letter of correction that the grievor sent to the organizations. Although she was aware of management's position, given that Ms.Bernier had told her that they would manage the risk, the grievor justified her action by saying that a phone call would have taken too long. The grievor concluded that it was her duty to take action.

121 The third factor was in reference to the grievor's actions in connection with the residual amounts allocation issue. Despite management's stated position, the grievor said that she disagreed; she saw herself as the regional messenger.

122 Mr. Caya also indicated that he had taken into consideration the fact that the grievor did not feel targeted but that she instead explained that the managers were at fault. According to Mr. Caya, the grievor had attempted intimidation in her letter to him (Exhibit E-42). In that letter, the grievor stated that his comments should be recorded both in her file and the director's. She mentioned that his name appeared in the harassment complaint.

123 According to the employer, the 20-day suspension was also justified by a number of factors. It is important to refer to Ms. Bernier's testimony, in which she indicated that she was desperate about managing the grievor and that she had considered returning to a consulting position.

124 Several facts came together. Confrontations took place over the work schedule and finally, the grievor secured the concessions that she had wanted, to finish at 17:00. The grievor never entertained the thought of starting at 09:00 and finishing at 17:00.

125 With respect to the multi-ethnic training issue (Exhibit E-37), the grievor had indicated that she would decide whether she would withdraw from that file.

126 The grievor had contested the employer's decision requesting that she take part in the CAPC instead of the CPNP.

127 The time of the team meeting was changed for the grievor, but she was away the morning of July 16, 2004.

128 There was a debate about the submission of the form. The grievor contested the requirements and appended a copy of the action plan.

129 The employer pointed out that it was necessary to consider the accumulation of actions and attitudes and had tried to make the grievor understand that she had to change her attitude.

130 More severe disciplinary measures were imposed because the grievor did not understand the situation and did not change her behaviour.

131 The employer pointed out that Enniss v. Treasury Board (Indian and Northern Affairs Canada), PSSRB File Nos. 166-02-17728 to 17732 and 17849 (19890228), referred to obstruction by the employee, the accumulation of friction and provocative attitudes:

…

Turning to the second grievance relating to alleged acts of insubordination, I find that the grievor did, as claimed by the employer in the letter of discipline (Exhibit E-2), fail to participate in a meeting with the parents on September 23, 1987. She also failed to attend the monthly meetings of the staff. She finally failed to submit long-range plans. The instructions given to the grievor were clear and she cannot claim that they were not. She admitted during her testimony that the facts as alleged were accurate.

…

Concerning the fourth grievance relating to further allegations of misconduct and insubordination, there is evidence to the effect that the grievor was once more obstinate and insubordinate as alleged in the letter of discipline (Exhibit E-5). The grievor admitted that she was requested another time to submit long-range plans. She failed to comply with the request.

…

132 In Varzeliotis v. Treasury Board (Environment Canada), PSSRB File Nos. 166-02-9721 to 9723, 10273 and 10879 (19831011), reference is made to the grievor's disrespectful behaviour. The grievor defied authority and doubted his supervisors:

…

In arbitral jurisprudence, insubordination is perceived as a subjective evaluation of the attitude of an employee. Forms of misconduct that may be categorized as insubordination include "failure to follow the instructions of a supervisor", and "defiant and disrespectful behaviour toward a supervisor". The grievor was discharged on the allegation that he was insubordinate for having engaged in these types of misconduct. The employer bears the onus of establishing that the facts and circumstances adduced in evidence support the decision made, both as to its determination that the conduct of grievor was deserving of discipline and as to the penalty selected. The test I propose to apply is as follows:

1. Has the employer established just and reasonable cause for some form of punitive discipline?
2. Has the employer established that the penalty selected was just and reasonable or was the response excessive?
3. If the response was excessive, what penalty, if any, should be substituted.

…

133 The employer maintained that based on its arguments, the grievances contesting the disciplinary measures should be dismissed.

134 According to the employer, the common evidence on file on the harassment did not prove that the employer had failed to comply with the collective agreement. The grievance should be dismissed.

B. For the grievor

135 The grievor's counsel pointed out that the employer did not react properly after the March 18, 2003 incident when the manager pointed his finger at the grievor.

136 The grievor indicated verbally that she had been harassed. According to the policy on harassment (Exhibit F-10), the employer could have separated the parties involved if it deemed it necessary.

137 The employer did not act, and the grievor had to file a written complaint.

138 The grievor's counsel pointed out that she and her union representative had forwarded the harassment complaint to the Regional Director.

139 Ms. Myre informed Ms. Jeannotte of the harassment complaint. Ms.Jeannotte did not comply with the grievor's request to separate the parties involved (Exhibit F-36).

140 The managers forwarded a letter of warning in August 2003 and a reprimand in September 2003, but nothing was done about the harassment issue.

141 In July 2003, Ms.Jeannotte deemed the harassment complaint to be unfounded without having interviewed the grievor or the union representative, and Ms. Myre dismissed it in November 2003.

142 With respect to the harassment complaint, considering the grievance's wording (Exhibit F-8), she was asking for nothing more than an apology from Mr. Gaussiran. The grievance refers to articles 1 and 19 of the collective agreement.

143 With respect to the harassment complaint, the grievor's counsel maintained that the hearing before the adjudicator was a new case and that the adjudicator could formulate his conclusions about the reported harassment situation. The grievor's counsel referred to Samra v. Treasury Board (Indian and Northern Affairs Canada), PSSRB File No. 166-02-26543 (19960911), which states the following:

…

Counsel for the grievor submitted in argument that the report of the investigating committee was flawed because Sandy Thomson, who chaired it, had been involved in hearing the initial complaint. While it might have been wiser to not have Sandy Thomson sit on or chair this committee, I do not believe that the process is flawed because of it. This hearing was, in a sense, a trial de novo and the persons who were interviewed by the committee also testified at this hearing. It is my view that the grievor was not prejudiced in any way and, in any event, whatever procedural irregularities resulted from the investigation were cured in the hearing before me: Tipplev. Canada (Treasury Board) F.C.A. Sept 26, 1985, File No. A-66-85.

…

[Emphasis in the original]

144 With respect to the letters of complaint from the organizations, the employer did not try to get the grievor's version.

145 The grievor, in her testimony, pointed out that when an organization becomes a CPE, the federal government's contribution takes a different form.

146 The grievor's counsel pointed out that Mr. Gaussiran had investigated the letter of complaint without meeting with the grievor.

147 With respect to the first disciplinary measure, the grievor's counsel pointed out that the employer was referring to only a few factors in justifying its letter of August 13, 2003 and its reprimand of September 22, 2003. According to the grievor's counsel, the letter of August 13, 2003 was only in reaction to the grievor's request to deal with someone at a level in the hierarchy higher than Mr. Caya to address her harassment complaint.

148 The September 24, 2003 suspension (two days) was based on only two factors: the training that the grievor continued to request and the fact that she had not forwarded her requests to her immediate supervisor, whom she described as "[translation] her aggressor."

149 The facts underlying the reproaches occurred on the same day as the letter of reprimand. The email request was not addressed to Mr. Gaussiran. How could the employer deduce that Mr. Gaussiran had been offended? Since she had had a disagreement with her superior, it was normal that the grievor would prefer to deal with the Director.

150 With respect to the 10-day suspension, the facts underlying the reproaches are not related to those indicated in the previous two-day suspension. The employer's sanction is exaggerated.

151 The elements on which the employer based itself are inconsequential.

152 With respect to the use of the formal "vous," that situation was initiated by Mr. Gaussiran. They had been using the formal "vous" since June 2004, and Mr. Caya had indicated that he had only been brought up to date on the situation in December 2004. The grievor's counsel pointed out that the grievor had never been asked about the use of the formal "vous." It was only after Ms. Bujold sent a letter that Ms. Bernier sent another along the same lines.

153 With respect to the letter of correction, nobody took into consideration the letter from Ms.Pelletier, which requested that a reference be made to each project leader. On that point, the reproach was that the grievor had raised doubts about her colleague's competence, whereas in their testimonies the managers talked about her having failed to comply with the decision not to write to the organizations.

154 On the use of the residual amounts, the grievor was reproached for having gone counter to some of management's decisions. The evidence showed that the meeting of December 9, 2003 was already set. The grievor had not conveyed any specific information to a third party.

155 The grievor made valid arguments in pointing out that the Régie régionale de la santé et des services sociaux du Québec submitted its projects to the operations committee.

156 The grievor's counsel indicated that the employer could not change its position during the hearing. He was referring to an extract from Mahoney c. Alliance, Compagnie mutuelle d'assurance-vie, [1991] R.J.Q. 1115 (C.S.) 1121, which stated the following:

[Translation]

…

… In principle, it cannot bring up reasons during the presentation of its case that are different from those which led to its decision. If it gave its reasons to the employee, the latter is entitled to expect that the evidence will be limited to these reasons, or the way the latter was treated would be deemed inequitable and arbitrary.

…

157 With respect to the work schedule issue and the discussions that had extended over three weeks, the employer did not identify the specific fact that it was reproaching.

158 In terms of multi-ethnic training, the employer finally reproached her for defending her project.

159 The employer talked about her absence from meetings. The grievor testified that she had attended most of those meetings.

160 With respect to the CPNP project questionnaires, management did not act to address the issue while the questionnaires were being prepared.

161 The grievor's counsel had maintained that the employer was amassing facts to impose a more severe disciplinary measure. According to him, an employer is responsible for notifying an employee of situations that will no longer be tolerated rather than waiting and handling the situation more severely afterwards. The following decision supports this point (Maan v. Treasury Board (Transport Canada), 2003 PSSRB 100):

…

[255] The employer cannot, in my view, be cognisant of events, which may prove to be acts of misconduct, and silently document them (referred to as "black booking") then use them as a culminating factor to justify a termination of employment…

…

162 According to the grievor's counsel, the 20-day suspension and the earlier ones were unjustified. Moreover, among the references to the previously-cited decisions, the grievor's counsel submitted a case law list to which the adjudicator could refer.

IV. Reasons

A. The first disciplinary measure

163 The employer imposed the first disciplinary measure on the grievor on September 24, 2003.

164 On August 13, 2003, before this disciplinary measure, the Acting Regional Director sent the grievor a letter outlining the manner in which she was performing her functions.

165 That letter provided a summary of different events that had occurred between October 2000 and the summer of 2003. Mr. Caya, Ms. Jeannotte, Mr. Gaussiran and the grievor testified about the incidents that took place during that time. No disciplinary measures were imposed.

166 I am not required to rule on the incidents that took place during that period. The facts were only provided to explain the context for certain subsequent events.

167 In its letter of suspension, the employer alleged two reasons for imposing the two-day suspension:

[Translation]

…

1. You continue to submit requests for approvals related to your university courses along with your other requests despite the countless times we referred you to your immediate supervisor.
2. In addition, you persist in showing a continued lack of respect towards him (see the email of September 22, 2003).

…

168 In his testimony, Mr. Gaussiran explained that in September 2002, the grievor had continued to telework even though the other consultants were working from the office. He stated that the grievor's position was that if she had an afternoon meeting, then she could work at home in the morning. He had attempted to reach an agreement with her but she had refused to comply.

169 In her letter of August 13, 2003, Ms. Jeannotte reiterated management's position on teleworking and indicated that the grievor had tried to have the decision amended by sending several messages to her supervisor and his superiors (Exhibit E-5):

[Translation]

…

Despite this, throughout this period, your employer responded to your request to telework. Instead of taking this decision as the granting of a privilege, you considered teleworking to be an acquired right. Because of this you took your employer's decision to withdraw this privilege badly and attempted through every possible means to have this decision amended by sending message after message to your supervisor and his superiors to argue the point.

…

170 On September 17, 2003, the grievor sent a one-page email to Ms. Jeannotte (Exhibit E-8) asking her for half days of telework before her afternoon meetings.

171 The grievor indicated that her September 3, 2003 request to telework had been denied by Mr. Gaussiran. Moreover, the grievor mentioned that "[translation] the intimidation and telework issues had been addressed to Jean-Louis [Mr. Caya]." On the telework request, the grievor addressed herself to each of her managers in turn.

172 I notice that in September 2003, the grievor once again made the same requests as in September 2002. The grievor's action could have been excused if no one had warned her that it was improper for her to try to get something by pursuing all of her superiors.

173 This was not the case in this situation. The letter of August 13, 2003 explicitly addressed this situation. The grievor's representative rightly insisted on the fact that an employee had to be warned of the employer's expectations.

174 On September 22, 2003, the grievor bypassed her supervisor and turned to management (Exhibit E-9). In her September 17, 2003 email about telework, the grievor talked about her supervisor, indicating that she no longer wanted to deal with "[translation] her aggressor" (Exhibit E-8). In her September 22, 2003 email, she repeated that Mr. Gaussiran was "[translation her aggressor" (Exhibit E-10).

175 I realize that the grievor had filed a harassment complaint against Mr. Gaussiran. However, I do not see why the grievor had to repeat the word "aggressor" in each of her emails.

176 Assessing a disciplinary issue is always a delicate matter when, at the same time, an employee has undertaken procedures relative to harassment.

177 On the telework issue, the evidence showed that the issue was discussed in September 2002 and that the grievor brought up the issue again in 2003. Mr. Gaussiran testified that he wanted to control her telework in 2002, and he held his position in 2003.

178 I find it difficult to conclude that the refusals to approve telework in 2003 were motivated by the fact that there had been an incident between Mr. Gaussiran and the grievor in May 2003, even though she indicated that she no longer wanted to deal with her "aggressor."

179 I will come back later in more detail to the March 2003 incident during which the grievor felt intimidated by the fact that Mr. Gaussiran pointed his finger at her.

180 To set the context for the events surrounding the September 24 disciplinary measure, I will refer to certain points in the grievor's harassment complaint.

181 The grievor's counsel referred to the policy manual that came into effect on December 4, 2001 at Health Canada (Exhibit F-10) and pointed out that in cases of intimidation the employer could separate the parties involved if it deemed this to be necessary. There is no automatic separation of the parties. It is important to consider the nature of the infraction and the dealings between the parties and to separate them if it becomes necessary.

182 In this case, the grievor pointed out that she had had difficulties with her supervisor, Mr. Gaussiran, regarding her requests for telework and training courses.

183 In its letter of suspension, the employer talked about the requests for training and other matters including the request for telework dated September 12, 2003, which was one week before the disciplinary measure.

184 I believe that the employer was justified in considering the use of the word "aggressor" as disrespectful in the two successive emails that the grievor sent to management.

185 I consider the two-day disciplinary measure justified.

B. The second disciplinary measure

186 On February 3, 2004, the employer imposed a 10-day suspension on the grievor. It was based on three factors:

1. her disrespectful attitude towards her manager during the December 2, 2003 team meeting;
2. the December 3, 2003 letter of correction; and
3. her attitude in the management of the file related to the use of residual amounts (December 9 meeting with the Régie régionale de la santé et des services sociaux (Montréal region)).

187 The employer also reported on the meeting of December 22, 2003 and the grievor's written response of December 23, 2003.

188 Regarding the December 2, 2003 team meeting, the evidence demonstrated that Mr. Gaussiran initiated the use of the formal "vous." At that time, he and the grievor had been using the formal "vous" with one another for several weeks.

189 Mr. Caya indicated in his testimony that he was not aware that the grievor and Mr. Gaussiran were using the formal "vous" in the fall of 2003. In Ms. Bernier's case, the evidence showed that she had attended a meeting before December 2, 2003, and that at that time the grievor and Mr.Gaussiran were using the formal "vous" to address one another.

190 It is true that Ms. Bernier returned to work at the end of October 2003, but I find it odd that she did not notify Mr. Caya of the fact that Mr. Gaussiran and the grievor had been using the formal "vous" before December 2, 2003.

191 I consider that the employer could have resolved this issue long before now. Nonetheless, another consultant, Ms. Bujold, testified that she had noted condescending comments. She had sent a letter to the Director (ExhibitE-44). She mentioned that her colleague (Mr. Gaussiran) was being unduly reminded of his functions and the manner in which he should conduct his professional activities.

192 Ms. Bujold's letter supported the employer's position when it reproached the grievor for her disrespectful attitude on December 2, 2003. Even if the use of the formal "vous" was not initiated by the grievor, the employer was entitled to reproach her for having used a condescending tone.

193 On the matter of the letter of correction sent by the grievor on December 3, 2003, the evidence showed that Ms. Bernier had indicated to the grievor that management had decided to manage the risk if the organizations questioned the letter Ms. Pelletier sent on November 12, 2003 (Exhibit E-22).

194 The evidence showed that the grievor and Ms. Bernier had unsuccessfully tried to retrieve the November 12, 2003 letter.

195 The way to correct or cancel the letter of November 12, 2003 would have been for management to send another letter. Management decided to manage the risk and to respond in an ad hoc manner if any of the organizations raised questions.

196 Since management decided not to send a second letter, I do not understand why the grievor felt that she could send one to the organizations she served and that she could use the title "correction." I believe that the grievor can be reproached for this action.

197 Concerning the issue of the file pertaining to the use of residual amounts, the evidence showed that the grievor attended the December 3, 2003 meeting with the Régie régionale because that meeting had been planned in advance.

198 The agenda filed by the grievor showed that the discussion was supposed to address the authorized project. It is difficult to determine whether the discussion covered the other two projects that were submitted.

199 I do not believe, as the grievor's counsel claimed, that the employer's reproach concerned only the December 2, 2003 meeting.

200 In effect, in its letter the employer mentioned the grievor's attitude and referred to the grievor's December 23, 2003 response following her meeting about the issues of the use of residual amounts.

201 In her December 23, 2003 response (Exhibit E-46), the grievor did not discuss the substance of the issue; she only criticized Mr. Caya, explaining how, in her opinion, the system worked:

[Translation]

…

I cannot believe what I have read! You consider the RR06 a client? …It is, rather, the key decision-making body allowing the CAPC and CPNP to be operational in their territories. The Canadian health law clearly defines the province's full jurisdiction for organizing, planning and distributing direct services to the population within its territory. Hence the need for us to negotiate an agreement with the province to be able to target at-risk clients to finance our projects! In this sense, RR06 is our counterpart: I would remind you that the memorandum of understanding for jointly managing the two programs in question clearly sets out the roles and responsibilities of Health Canada and the MSSS (through the Régies régionales). There is a mutual obligation for the two parties to exchange key information so that the RR06 can prepare appropriate recommendations to the members of the O.C. about the key issues within its territory! This is the least we can expect within the perspective of ensuring horizontal and multi-sectoral collaboration …

…

[Emphasis in the original]

202 In her testimony on this matter, the grievor indicated that she was acting as the messenger of the Régie régionale in an effort to convey the PPHB's expectations.

203 The grievor mentioned that there was a memorandum of understanding between the federal government and the provinces (and in this case, the Régie régionale). However, I believe that it was possible that federal government managers, in particular those in the PPHB, established their own lists of priorities.

204 I think it is normal for the PPHB to ask its managers to comply with its instructions. It is very admirable that an employee would be willing to serve as the messenger for the Régie régionale. In such a case, that employee would have to show some restraint in discussions with his or her employer and refrain from using an accusatory tone if the employer imposed certain limits. In her letter of December 23, 2003 and in her testimony, the grievor did not show any such restraint. The grievor could be held to task for her attitude in this matter.

205 In light of the preceding, I believe that the employer was justified in imposing a disciplinary measure on February 3, 2004. This instance concerned an issue related to the grievor's attitude. The disciplinary measure was for 10 days and followed a previous two-day disciplinary measure.

206 Although this measure may seem severe, I do not see any attenuating circumstances in the grievor's behaviour that would provide the opportunity to reduce it to a less severe measure, even considering the concept of graduated sanctions.

C. The third disciplinary measure

207 On October 28, 2004, the employer imposed a disciplinary measure (20 days) on the grievor. In its disciplinary letter, the employer referred to an October 19, 2004 meeting with the grievor. She followed up on that meeting in an email.

208 The employer reproached the grievor as follows:

[Translation]

…

I reviewed the information you provided to us during this meeting and that which you subsequently sent us by email. Unfortunately, I see that you persist in your attitude of denial.

The behaviours for which you are being reproached essentially fall within the following two categories:

a) Constantly challenging management's requests/decisions.

• September 7, 2004 email to your supervisor (work schedule)
• September 10, 2004 request for non-pre-authorized overtime (Form)
• September 15, 2004 email to your supervisor (multi-ethnic training)
• September 16, 2004 email to your supervisor (work schedule)
• September 16, 2004 email to your manager (CPNP renewal committee)
• September 21, 2004 email to your manager (unauthorized 5:00 p.m. departure)

b)      Disrespectful attitude towards team members/management.

• June 15, 2004 absence from the program consultants' meeting
• July 16, 2004 absence from most of the CPNP renewal meeting
• July 19, 2004 email to your supervisor (CPNP project follow-up tools)
• September 7, 2004 late arrival for the team meeting.

…

209 To justify its disciplinary measure, the employer referred to the September 15, 2004 email on multi-ethnic training (Exhibit E-37). In that email, the grievor responded to Ms. Bernier's position on project budget cuts.

210 The grievor pointed out that the final decision was up to the committee and that the budget cut had been made by Ms. Bernier without consulting her. In closing, the grievor indicated that she would notify her of her decision about whether or not to continue her mandate, as Ms. Bernier had suggested.

211 At the hearing, the grievor did not show that Ms.Bernier had suggested that she withdraw from the project. In the document that the grievor produced as a summary of the August 19 meeting (Exhibit F-46), the grievor wrote that Ms. Bernier had told her the following in connection with the budget cut: "[translation] . . . 60K without the follow-up session for the stakeholders: take it or leave it."

212 I must note that the multi-ethnic issue was discussed and that in her email the grievor criticized her supervisor and mentioned that she was considering withdrawing from this mandate.

213 It would be expected that the grievor would have had serious discussions with her supervisor about the budget that should be granted to a project without making criticisms and saying that she would withdraw if she were not fully satisfied. In this case, I note that the grievor made negative remarks about her supervisor. While it should be taken in context, I believe that the tone of the September 15 email was a factor that the employer had to take into consideration in its disciplinary measure.

214 As one of the factors in its reproach, the employer then referred to the September 16 email that the grievor sent to her supervisor concerning her work schedule. In that email (Exhibit E-28), the grievor indicated that she was holding firm to her opinion that the 09:30 to 17:00 schedule without breaks would be possible.

215 In her email, the grievor indicated that she dared hope that the two parties had negotiated in good faith. She thanked her supervisor, rather sarcastically, for her concerns and for thinking about her well-being by forcing her to take her breaks. The grievor indicated that her biological constitution was accustomed to taking breaks at the end of the day.

216 While it may have been acceptable for the grievor to want to debate this case with her supervisor, the tone she used and her sarcastic expression of gratitude were completely inappropriate. Moreover, the grievor challenged management's decision. I believe that this email should be considered among the factors justifying the disciplinary measure.

217 The September 16, 2004 email dealt with the CPNP renewal committee. The evidence showed that the grievor preferred to sit on the CPNP committee because she claimed to have a great deal of experience in this area and was interested in it and she could share her expertise.

218 In her September 16, 2004 email, the grievor argued that the exchange of expertise should be an option. She reminded the employer that this option was part of the code of ethics and part of the operating principles of Health Canada's Montréal office. The grievor added that the code of ethics and the principles were also posted on the wall near the office's main entrance.

219 The grievor's statements are out of place and suggest that managers were not complying with the rules on the exchange of expertise.

220 Not only did the grievor make an inappropriate reference to the posted operating principles, she erred in the rationale she used in her argument.

221 The evidence showed that the grievor had been looking after the CAPC project but that she also had extensive experience with the CPNP. Participation in the CAPC committee would have given other consultants who had expertise in the CAPC the opportunity to benefit from the grievor's expertise in the CPNP. The exchange of expertise does not always work in the interests of only one of the parties. In this case, the managers could not be accused of breaching the code of ethics and the operating principles by asking the grievor to share her expertise with members of the CAPC committee.

222 As another factor justifying its disciplinary measure, the employer referred to an email dated September 21, 2004.

223 The evidence showed that there were numerous discussions and email exchanges in August and September 2004 about the work schedule that the grievor desired. On August 5, 2004, Ms. Pelletier indicated to the grievor that she could not have a 09:30 to 17:00 schedule without breaks (Exhibit E-25). On September 7, 2004, the grievor asked Ms. Bernier to allow the 09:30 to 17:00 schedule on Tuesdays so that she could attend her university classes.

224 Ms. Bernier responded to the work schedule issue on September 14 and 21, 2004 by reiterating Ms. Pelletier's position (Exhibits E-27 and E-29). The grievor indicated that she wanted the 09:30 to 17:00 schedule. Ms. Pelletier replied that she refused this request and that if the grievor wanted to leave at 17:00, she would have to apply for leave (Exhibit E-31). The grievor replied that she would leave at 17:00 and make up the time the next day.

225 After this, more discussions took place about the work schedule, and the employer finally agreed to the 09:30 to 17:00 schedule without breaks for the grievor on Tuesdays so that she could attend her university classes.

226 Although in practice it is not possible to determine when she left the office on September 21, the grievor indicated in her email that she would leave at 17:00 and make up the time the next day, whereas Ms. Pelletier had told her that if she was going to leave at 17:00 she would have to request leave from her supervisor.

227 Even if the grievor felt it was legitimate to raise the issue of the 09:30 to 17:00 work schedule once again, she could not challenge her manager's instruction to request leave from Ms. Bernier. In this case, the idea of "follow orders then grieve" applied.

228 I believe that the employer was entitled to use the September21, 2004 email in which the grievor indicated that she would be leaving at 17:00 as justification for its disciplinary measure.

229 The other factor for which the grievor was reproached was her absence from the July 16, 2004 meeting. The evidence showed that on July 15, 2004, the grievor questioned why the meeting had to start at 09:15. The July 15, 2004 email (Exhibit E-40) showed that Caroline M. Boucher changed the time of the meeting to 09:30 after talking to the grievor so that she could attend.

230 The grievor did not contradict the reference made in that email. She simply stated that she had to take care of a file and that she had a meeting at 11:00. She even left a note in this regard.

231 The evidence showed that the grievor had discussed the time of the meeting with Ms.Boucher, who had changed it to 09:30.

232 I conclude that it was disrespectful of the grievor not to have arranged to be available for the meeting of July 16, 2004 at 09:30 before taking steps to have the time changed to 09:30. This lack of respect was ill advised because she did not attend. While it may have been a small matter, the employer was justified in using it.

233 The other reproach was the July 19, 2004 email, which referred to the tools used for CPNP project follow-up. In her email, the grievor challenged the rationale for redoing the questions on the form. She indicated that this involved the introduction of new tools and that it was a pilot project.

234 Management asked the grievor to fill out the questions on the form dealing with compliance with objectives.

235 The evidence showed that to fill out the form, all the grievor had to do was refer to the organizations' action plans. The grievor finally referred to those plans, but did nothing more than staple them to the form rather than incorporate them.

236 The grievor pointed out in her email that it was a pilot project and that some of the questions were superfluous. I consider that the grievor could have used other arguments during the discussions with her supervisor. Although it was a pilot project, what she was asked to do was feasible. I believe that the employer was justified in using this in its disciplinary measure.

237 Concerning the other elements contained in the October 28, 2004 disciplinary letter, the employer was unable to show that the facts used were a challenge to management's decision or a lack of respect.

238 Thus, I cannot use the following items as justification for a sanction:

1. the September 7, 2004 email;
2. the September 10, 2004 request for overtime;
3. the absence from the June 5, 2004 meeting;
4. the late arrival at the September 7, 2004 meeting; or
5. the allegation that the grievor apparently missed most of the CPNP renewal meetings.

239 The September 7, 2004 request for a 09:30 to 17:00 schedule without breaks on Tuesdays to attend university classes was properly addressed and the grievor believed that it was a one-time request. That email cannot be considered a challenge to a decision. It was the grievor's first request since Ms. Pelletier's decision in August 2004.

240 The September 10, 2004 request for overtime when the grievor returned the rental car cannot be considered a challenge to a decision by management.

241 With the exception of her absence on the morning of July 16, 2004, the evidence presented does not allow me to conclude that the absence from the June 5, 2004 meeting and the late arrival to the September 7, 2004 meeting were signs of lack of respect towards members of the team and management.

242 However, I consider other elements raised by the employer as valid grounds for reproach that support the October 28, 2004 disciplinary measure, including the email on multi-ethnic training, the September 11 email (the schedule), the email on the CPNP renewal committee and the September 21 email, the absence from the July 16 meeting, and finally, the July 19 email on the tools for the CPNP project follow-up.

243 The incidents related to the challenges to decisions and disrespectful attitudes for which the employer provided valid evidence pertain to project management, committee operations and guidance for the grievor's activities. Although the issue of attendance at some of the meetings or the lack of respect for the work schedule are important, ensuring harmoniously-run projects and activities is of primary importance in creating a validating work environment for the grievor and the other consultants and managers.

244 The grievor's counsel pointed out that the employer could not accumulate the incidents and then act severely. What the grievor is being reproached for is her attitude of challenging decisions and criticizing her superiors. However, in my view the determining factor is the fact that she persisted, failed to understand the reproaches and would not admit that she was sometimes to blame.

245 Since what we are dealing with here is attitude and behaviour modification, I think it is normal, in this case, after a first disciplinary measure to give the grievor a chance to change her ways. If over the following four months there had been only one accusatory email or email challenging decisions, the employer would have seen an improvement. It was only after some time had passed that the employer was able to prepare an assessment and see that the grievor had persisted in her attitude five or six times.

246 In her testimony and in the documentary evidence presented, the grievor never admitted any responsibility for the incidents mentioned. This factor must be taken into consideration.

247 In view of the fact that the grievor had already received a disciplinary sanction on September 24, 2003 and another on February 3, 2004, she should have made an effort to correct her behaviour.

248 For all of these reasons, I believe that the employer was justified in imposing a severe disciplinary measure on October 28, 2004. In this regard, I believe that the 20-day suspension imposed by the employer was valid.

D. The grievance related to the breach of articles 1 and 19 of the collective agreement

249 With respect to this grievance, the parties referred to the previously presented common evidence. The grievor filed a copy of the complaint that she had made to the Canadian Human Rights Commission. There was no evidence at the hearing on the allegations contained in this complaint. It is for that reason that I am relying on the common evidence to rule on this grievance.

250 The grievor's grievance contains the following statement:

[Translation]

I contest the decision by Health Canada (Appendix 3) regarding the handling of my harassment complaint.

Whether in the November 26, 2003 decision or the manner in which the investigation was handled, the employer's representatives failed to respect the spirit and letter of the Health Canada and Treasury Board policies on harassment.

Due to these facts and those expressed in the harassment complaint (Appendix 4) the employer has contravened the:

Health Canada policy on harassment,

Treasury Board policy on harassment,

collective agreement article 1,

collective agreement article 19, and

all other articles in the collective agreement and pertinent policies.

The requested corrective measures are as follows:

1. That the investigation be handled in accordance with the Health Canada policy on harassment;
2. That I be given a copy of the investigation report along with the investigators' findings;
3. That Mr. Gaussiran apologize to me in writing for his inappropriate gesture; and
4. To be represented by the PSAC and to be present at every step of this grievance, at the employer's expense.

251 All of the documents filed at the hearing as part of common evidence and the testimonies provided by Mr. Gaussiran and Mr. Bélanger and the grievor allow a summary to be drawn up of the events pertaining to the harassment issue raised by the grievor.

252 On March 18, 2003, the regional director and Mr. Gaussiran met with the grievor, who was accompanied by Mr. Bélanger, to discuss the resumption of two days of teleworking. During the discussions, Mr. Gaussiran pointed his finger close to the grievor's face and said: "[[translation] I no longer trust you." According to Mr. Bélanger, the grievor jumped back.

253 In the following days, Mr. Bélanger thanked the Director General for the meeting. The grievor felt intimidated by Mr. Gaussiran's gesture at the meeting and was later distressed to the point of having to return home before seeing her doctor.

254 The chronology of events was as follows:

• June 3, 2003: verbal complaint from the grievor to Ms.Jeannotte;
• July 3, 2003: written complaint to Ms. Jeannotte and request to no longer report through Mr. Gaussiran as her supervisor in the hierarchy;
• August 25, 2003: response from Ms. Jeannotte indicating that based on an investigation, she considered the harassment complaint unfounded; and
• October 3, 2003: meeting called by Lucie Myre, Director General, Quebec Region.

255 At the October 3, 2004 meeting, Mr. Gaussiran indicated that he was deeply sorry for his gesture. The grievor wanted an apology. Mr. Gaussiran indicated that he would not apologize because he often made gestures with his hands when he talked.

256 During the hearing, the grievor made the following reflection: "[Translation] Would he have asked me to apologize had I made the gesture?"

257 The grievor and her union representative indicated that all they wanted was an apology.

258 As part of the harassment complaint she filed with her employer, and subsequently the grievance filed with the Board, the grievor requested that she be separated from her immediate supervisor, referring to the Treasury Board Secretariat Policy on the Prevention and Resolution of Harassment in the Workplace (Exhibit F-57).

259 The Policy on the Prevention and Resolution of Harassment in the Workplace states the following in connection with the expectations of delegated managers:

g) They are expected to separate the complainant and respondent, hierarchically, physically, or both, for the duration of the complaint process, if they deem it necessary.

260 The grievor mentioned the requests to be separated from her immediate supervisor and her complaint, especially when she disagreed with his decisions. This was the case in September 2003 (Exhibit E-8) when he refused to allow the telework. On that point, the evidence showed that the supervisor had taken the same position as in September 2002.

261 Although there was a certain tension between the grievor and her supervisor, the evidence did not show that he acted in a partial or discriminatory way when it came to supervising the work, issuing approvals and making other decisions concerning the grievor.

262 The employer did not consider it necessary to separate the grievor and the respondent, and I find that the grievor did not provide evidence showing that this decision should be challenged.

263 In her grievance, the grievor referred to article 19 of the collective agreement. Clauses 19.01 and 19.02 read as follows:

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

19.02
a) Any level in the grievance procedure shall be waived if a person hearing the grievance is the subject of the complaint.
b) If, by reason of paragraph (a), a level in the grievance procedure is waived, no other level shall be waived except by mutual agreement.

264 That article talks about a number of things, including intimidation and harassment against an employee because of age, race, etc. The evidence has not shown that it applies to the grievor's case.

265 The grievance refers to article 1 of the collective agreement. Clauses 1.01 and 1.02 read as follows:

1.01 The purpose of this Agreement is to maintain harmonious and mutually beneficial relationships between the Employer, the Alliance and the employees and to set forth herein certain terms and conditions of employment for all employees described in the certificate issued by the Public Service Staff Relations Board on June 7, 1999 covering employees in the Program and Administrative Services Group.

1.02 The parties to this Agreement share a desire to improve the quality of the Public Service of Canada and to promote the well-being and increased efficiency of its employees to the end that the people of Canada will be well and efficiently served. Accordingly, they are determined to establish, within the framework provided by law, an effective working relationship at all levels of the Public Service in which members of the bargaining units are employed.

266 That article indicates that the purpose of the collective agreement is to maintain harmonious relationships between the employer and employees. In clause 1.02, the text reads: "… a desire to … promote the well-being … of its employees … Accordingly, they are determined to establish, within the framework provided by law, an effective working relationship …"

267 In my view, the Treasury Board policy on harassment in the workplace (Exhibit F-57) is consistent with the objectives of article 1 of the collective agreement.

268 As a result, the grievor was entitled to expect the employer to address her complaint against the respondent in a manner that was consistent with this policy.

269 Ms. Jeannotte, Acting Director General, did not meet with either the grievor or her union representative during her investigation. It was only on October 3, 2003 that Ms. Myre, Director General of the Quebec Region, called a meeting between the grievor and the respondent, who said that he was sorry for the gesture that he had made.

270 Ms. Myre found that it was an involuntary gesture on the part of the respondent (he talks with his hands) and that he had said that he was sorry. As a result, she dismissed the complaint.

271 I agree with the view of the grievor's lawyer that the grievance hearing is a new procedure and that the adjudicator can, through the new hearing, remedy the breach that occurred in the handling of the grievor's complaint.

272 In view of the evidence submitted at the hearing, I do not share the employer's conclusion on the complaint and the manner in which the employer handled it.

273 The evidence showed that the grievor jumped back when the respondent pointed his finger. The union representative confirmed as much and indicated that the grievor felt intimidated, did not feel well after this incident and went to see her doctor.

274 Regarding the intimidation, in my view it was not a matter of finding a guilty party. It was a matter of avoiding situations in which a person would feel intimidated.

275 I believe that the respondent's gesture was not intended to intimidate or harass. The people who were present were seated at a table and when the respondent pointed his finger at the grievor, his hand was a few inches from her face and she felt intimidated.

276 The respondent said that he was sorry that the grievor had felt intimidated or harassed.

277 Although the respondent manager's gesture was involuntary, I believe that the employer should take into consideration the fact that the grievor felt intimidated.

278 In my opinion, the employer should have told the grievor that it was sorry that she had felt intimidated.

279 The employer should have indicated that it did not want such a situation to occur again. I do not believe that we can tolerate having employees and managers pointing their fingers at one another in meetings, particularly as in this case, where the parties were seated next to one another.

280 For the reasons listed above, I do not believe that there was any breach of article 19 of the collective agreement concerning discrimination.

281 However, I believe that the employer did not comply with the letter and spirit of article 1 of the collective agreement and improperly applied the Treasury Board Policy on the Prevention and Resolution of Harassment in the Workplace. The hearing remedied the process, but the employer should reconsider its decision on the validity of the complaint. Article 19 does not apply to the grievor's case.

282 In light of the spirit and letter of article 1 of the collective agreement and based on the Treasury Board Secretariat's policy on harassment, the employer must reconsider its decision of October 3, 2003. It would be preferable for the employer to let the grievor know that it is sorry for the March 18, 2003 incident and that it hopes that such incidents will not occur again in the future.

283 For each grievance, I make the following order:

V. Order

284

1. Order for grievance 166-02-36587:
   
   The grievance is dismissed.
2. Order for grievance 166-02-36588:
   
   The grievance is dismissed.
3. Order for grievance 166-02-36589:
   
   The grievance is dismissed.
4. Order for grievance 166-02-36590:
   
   
   1. The grievance is allowed in part.
   2. The employer must reconsider its decision of October 3, 2003. It would be preferable for the employer to let the grievor know that it is sorry for the March 18, 2003 incident and that it hopes that such incidents will not occur again in the future.

July 9, 2007.

P.S.L.R.B. Translation

Jean-Pierre Tessier,
adjudicator