FPSLREB Decisions

I.  Grievances referred to adjudication

1 On March 6, 2000, Catherine Focker (“the grievor”) presented a grievance (Exhibit E-1) in which she contested a written reprimand issued to her on February 9, 2000, and a subsequent suspension without pay for five-and-a-half hours on February 16, 2000. At that time, the grievor worked at the Vancouver Tax Services Office (“the Vancouver TSO”) of the Canada Customs and Revenue Agency (CCRA) as a valuation services support clerk, classified at the CR-04 level, in the Real Estate Appraisals unit, Medium Business Audit Section, Verification and Enforcement Division.

2 The written reprimand of February 9, 2000 (Exhibit E-12), reads as follows:

…

Following a verbal reprimand on February 3^rd, this is a formal written reprimand with respect to further insubordination in refusing to carry out the Team Leader’s instructions concerning two issues. The first issue concerns the creation of SUPP’s for post-appraisal time. It has come to my attention recently that you have not been including these units in our monthly statistics. We had a team meeting on February 2^nd during which we discussed and agreed upon a procedure for obtaining credit for approximately 20 consultation units not previously credited. You expressed no objection at the meeting. Later in the day you mentioned that some of the files posed a problem since the original files were closed in AIMS. We discussed alternatives and you agreed with my recommendation that in such cases we create dummy case and file numbers similar to our work for the Non-Res. Team. The following morning you refused to follow this procedure as instructed, saying it was unethical, and requesting instructions in writing. I informed you that you were being insubordinate and that such behaviour had consequences not to your benefit.

You have shown a reluctance at times to create SUPP’s for post-appraisal time and are insistent on adhering to old TOM policies no longer in place. This is causing considerable frustration among staff members and affecting the operation of the team. In addition to not following the Team Leader’s instructions on this issue you have failed to follow instructions concerning your contact with the AIMS team in Vancouver. You recently contacted their Team Leader by phone despite instructions to the contrary.

It is expected that you adhere to instructions concerning these and other relevant issues in future [sic]. Failure to do so will result in further disciplinary action.

3 For its part, the letter of suspension of February 16, 2000 (Exhibit E-16), reads as follows:

…

This is a formal notification of suspension from work for the remainder of the day from 10:45 a.m. without pay as a result of insubordination on February 15^th along with a refusal to acknowledge such insubordination this morning. It follows a written reprimand on February 9^th. Continuing insubordination will result in further disciplinary action.

4 Seven months later, on October 20, 2000, the grievor filed a second grievance (Exhibit E-2), as follows:

…

1. I grieve my suspension as detailed in the Agency’s letter dated 16/10/2000

2. I grieve the procedures followed by management in interviewing me with a view to disciplinary action without advising me of my right to union representation as specified in the contract

3. I grieve my removal from the Real Estate Appraisals Section # 443-32

…

5 The letter of suspension of October 16, 2000 (Exhibit E-24), reads as follows:

…

I have had the opportunity to carefully consider your written and verbal statements on the incident involving you and John Weldon on October 2, 2000. I have concluded that you intentionally kicked John a short while after he gave you a verbal reprimand. This action on your part represents unacceptable behaviour and a serious act of misconduct at the workplace.

In reaching my conclusion, I have noted that you have given me statements that are not credible and have provided me with contradictory information on the facts of the incident on the written statement and our phone call on October 2, 2000. During our phone conversation after I heard your presentation, I mentioned that John had indicated that you had kicked him intentionally. It is only after this statement that you alleged that John had been physically abusive, pushed and shoved you. You had not mentioned any of these allegations to the people you called after the incident nor in your written statement.

In order to impress upon you the seriousness of your misconduct, I am suspending you without pay for a period of three (3) working days. This suspension commences Tuesday October 17, 2000 to the close of business Thursday October 19, 2000.

This letter will remain on your file for the period prescribed by your collective agreement. Please note that any further act of misconduct may result in discipline up to and including termination of employment.

Since it is of paramount importance to maintain a harmonious work environment I have decided to move you to Section 444. Effective October 20, 2000 you will report to Shawn Maples on the 3rd floor in the Post Office/Winch part of the Sinclair Centre. Please contact Shawn … to arrange the moving and reporting requirements. This will be a temporary lateral move until April 30, 2001 at which time we will review your work performance, behaviour and consider your work situation. I would like you not to contact or visit the Real Estate Appraisal team until further notice. You will continue to receive CR-4 pay while performing CR-3 duties in your new work unit.

In order to resolve issues and restore a healthy and productive work environment I encourage you to consider accepting our offer, made earlier, on the possibility of having issues with John Weldon resolved using an alternate dispute resolution process.

I am counting on your co-operation to achieve this and meet the expectations of your new work unit.

…

6 Assistant Commissioner D.G.J. Tucker answered both grievances in a final-level decision dated October 8, 2002. Mr. Tucker denied the first grievance. For the second, he confirmed the decision to impose the three-day suspension but partially granted the grievance by noting that management had apologized to the grievor, as she had requested, for not providing her the opportunity of having bargaining agent representation at a meeting on October 2, 2000.

7 The grievor referred both grievances to adjudication on November 21, 2002, with the support of her bargaining agent. In both references to adjudication, she cited paragraph 92(1)(c) of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“the former Act”) as the provision applicable to the subject matter of her grievances.

8 Subsections 92(1) and (2) of the former Act read as follows:

     92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

     (2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

9 The grievor has retired since she referred her grievances to adjudication.

10 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 former Act.

11 On December 12, 2005, the CCRA became the Canada Revenue Agency (“the employer”).

II. Preliminary matters

12 The records indicate that a hearing was scheduled for these references to adjudication on six occasions between May 2005 and September 2006 but the planned hearing dates were postponed in each instance.

13 In November 2006, the grievor’s bargaining agent requested a postponement of the hearing scheduled for November 29 and 30, 2006, on the grievor’s behalf because she intended to seek alternate representation or would need time to prepare to represent herself. The hearing was postponed, on objection by the employer, and rescheduled for June 2007. Unfortunately, the hearing had to be rescheduled once more because no adjudicator was available.

14 At the hearing held November 20 to 23, 2007, the grievor represented herself. On a number of occasions, it became appropriate to provide her with procedural guidance, primarily about the distinction between factual evidence and argument and what was expected during the evidence and argument phases of the hearing. I outlined to her with considerable care that she needed to bring forward as evidence all of the facts that she wished me to consider before we moved on to the final argument phase. At the end of her testimony, she agreed that her evidence was complete. In her submissions at final argument, however, the grievor sometimes resumed a narrative of what had occurred in her workplace as if she were still testifying.

15 Most self-represented grievors are understandably unfamiliar with the adjudication process. For that reason, some greater degree of flexibility in managing a hearing is normally required where a self-represented party is involved. It remains essential, nonetheless, to safeguard fairness for both parties. In this case, I provided procedural guidance to the grievor as necessary and tried to afford her a degree of additional flexibility in her testimony and submissions. She did, nonetheless, find it difficult at times to follow the procedural guidance given to her. In particular, she strayed into offering new evidence very early during her argument and at various points after that. The employer objected. I upheld the objection and explained the grounds for my decision — that, with the evidence phase of the hearing over, it would be unfair to rely on any new “facts” not tested in cross-examination. After my initial explanation on that point, the grievor indicated that she understood and confirmed that she did not want to reopen evidence. When she resumed a narrative that included comments that were more in the nature of evidence, I reminded her of my ruling, but it had only limited effect.

16 I have limited the summary of the grievor’s final argument presented later in this decision to those of her remarks that more closely took the form of argument. For purposes of reaching a decision, I did review all of what the grievor said during her final submissions and satisfied myself that any elements of new “evidence” mentioned during her argument did not materially alter my evaluation of the merits of the case.

III.  Summary of the evidence

17 As Team Leader of the Real Estate Appraisals unit at the time of the grievances, John Weldon held administrative and functional authority for staff in the Vancouver TSO as well as for three real estate appraisers in each of the Victoria and Penticton offices of the CCRA. Mr. Weldon assumed those duties in 1995, first on an acting basis, and remained in the position until he was promoted to a regional team leader position in November 2001. The unit led by Mr. Weldon reviewed real estate and other property evaluation issues referred to it by CCRA auditors and produced appraisal reports for use by the CCRA in cases where “clients” disputed their tax treatment.

18 After completing an appraisal report, members of Mr. Weldon’s team were frequently required to perform supplementary work on the same file, sometimes months later. Before 1998, such additional work (“post-appraisal time”) was reported as part of the original unit of production in the Audit Information Management System (AIMS). Under a new procedure manual introduced in 1998, referred to as the TOM 12(25) Tax Operation Manual, appraisers were entitled to record post-appraisal time in excess of one-half hour as a separate consultation unit (Exhibit E-7). Mr. Weldon testified that appraisers wanted post-appraisal time recorded for purposes of meeting their annual budget requirement of approximately 33 appraisal units and 35 consultation units. An appraisal unit represented work performed on an original appraisal file. A consultation unit consisted of the post-appraisal time spent on a file at a later date (Exhibit E-7).

19 Mr. Weldon outlined that management circulated a draft of the new TOM 12(25) to all staff in March 1998 and sought comments. Management finalized the TOM 12(25) and put it into effect, including the new consultation unit recording requirement, in September 1998 (Exhibit E-7). Mr. Weldon testified that staff received the new system well as employees had been calling for changes to provide greater recognition of post-appraisal time. He recalled, however, that the grievor did not agree with the change and resisted it.

20 On January 14, 1999, Agnes Louie, former Team Leader, AIMS unit, contacted Alan E. Farres, Manager of the Verification and Enforcement Division at the Vancouver TSO, and asked him to advise the grievor’s team leader, Mr. Weldon, about a new procedure governing the grievor’s contacts with the AIMS unit to which Ms. Louie and Mr. Farres had agreed (Exhibit E-6). Mr. Farres followed up by discussing the new procedure with his subordinate, Mr. Weldon. Under the new procedure, management required the grievor to contact the AIMS unit only by email and instructed her to channel any of her concerns about the AIMS through her team leader. Mr. Weldon testified that the AIMS unit had been having problems with the grievor. Staff from that unit had stated that dealing with the grievor was an uncomfortable and unpleasant experience. The new procedure was a response to the problems identified by the AIMS unit. Mr. Weldon outlined that he discussed the new protocol with the grievor. He could not recall precisely how the grievor reacted but reported that he did feel that she understood the procedure as he had explained it to her.

21 On February 2, 2000, an appraiser in the Real Estate Appraisals unit, Wilf Cushnie, complained to Mr. Weldon that the grievor had refused to create supplementary files to record his post-appraisal time (Exhibit E-8). Mr. Weldon discovered approximately 20 files where consultation units had not been recorded. He convened a team meeting that day to discuss how to record post-appraisal time in the AIMS, particularly where the original appraisal case and file numbers had been closed. The solution suggested was to create dummy case and file numbers to which post-appraisal time could be cross-referenced. According to Mr. Weldon, the team agreed that the suggested solution was efficient and that it constituted a reasonable approach, particularly in view of the huge backlog of work. He stated that no one at the meeting identified problems with the suggestion.

22 Mr. Weldon outlined that the AIMS was quite cumbersome and had weaknesses. The alternative to creating dummy case and file numbers for recording post-appraisal time was to contact the AIMS unit, ask it to reopen closed files, reference the post-appraisal time and then close the files once more. Creating dummy case and file numbers was a much quicker and more efficient solution. Without such a solution, some of the post-appraisal time of appraisers would not be recorded.

23 Mr. Weldon testified that it was the grievor’s responsibility as the valuation services support clerk for the unit to implement the solution. Following the meeting, he talked with the grievor and asked her to perform the necessary work on the outstanding post-appraisal time files.

24 The next day, the grievor told Mr. Weldon that she disagreed with the new procedure and refused to implement it. She expressed her opinion that creating dummy case and file numbers was unethical. Mr. Weldon replied that the procedure was not unethical and that he would take responsibility for it. He indicated to her that refusing to do the work as directed was insubordination. He gave her a verbal reprimand and told her that he intended to speak to Mr. Farres about the situation (Exhibit E-9).

25 Mr. Weldon testified that the grievor continued to refuse to create dummy case and file numbers following the verbal reprimand. He stated that he could not understand why the grievor was bringing ethics into the issue. In his opinion, the TOM 12(25) clearly entitled appraisers to claim post-appraisal time. How to record that time was an administrative question, not an ethical issue. Mr. Weldon maintained that no one had anything to gain from following one procedure versus another.

26 On February 8, 2000, Mr. Weldon received a call from Rosemary Cheng, Team Leader, AIMS unit (Exhibit E-10). She told him that the grievor had left a message on her voice mail concerning reopening a case. Ms. Cheng believed that the grievor was not following the contact protocol required of her. Mr. Weldon talked with the grievor and reminded her of management’s previous instructions that she contact the AIMS unit only by email. He also told the grievor that he had discussed the new procedure for creating dummy case and file numbers with headquarters and that they had no problem with the approach. Mr. Weldon’s notes of the conversation (Exhibit E-11) indicated that the grievor responded by saying that Mr. Weldon was “padding the stats.” She stated that she intended to call Mr. Farres to tell him that Mr. Weldon was not doing his job. Mr. Weldon confirmed with the grievor that recording the post-appraisal time was part of her job.

27 Mr. Weldon levied a written reprimand on the grievor on February 9, 2000 (Exhibit E-12), for her continuing failure to implement his instructions both with respect to the procedure for contacting the AIMS unit and with respect to reporting post-appraisal time through the creation of dummy case and file numbers. Mr. Weldon testified that the grievor showed no remorse after receiving the written reprimand.

28 On February 15, 2000, the grievor sent a memorandum to Mr. Weldon in which she informed him that any request from the AIMS unit must be made via email (Exhibit E-13). Mr. Weldon reported that that “new procedure” was the grievor’s response to a situation where an appraiser had left her a message about closing a file right away after he was called by an employee from the AIMS unit (Exhibit E-14). She felt that Mr. Weldon must set up a policy where the AIMS unit was required to contact the Real Estate Appraisals unit only by email. Mr. Weldon reported that he spoke with the grievor, but she refused to close the file. He told her that her refusal constituted insubordination and that he would be contacting Mr. Farres to review the situation.

29 The next day, February 16, 2000, Mr. Weldon met again with the grievor to discuss her insubordinate behaviour (Exhibit E-15). She refused to acknowledge that she had behaved insubordinately the previous day. He reiterated the requirement that the grievor contact the AIMS unit by email only and told her that the AIMS unit were free to contact the Real Estate Appraisals unit in whatever way they liked. The grievor indicated that she did not know how to send an email. Mr. Weldon offered to show her. In view of the grievor’s continuing failure to follow instructions and her lack of remorse about her insubordination, Mr. Weldon imposed a suspension for the rest of that day, a period of five-and-a-half hours (Exhibit E-16). He testified that the grievor responded by stating that he had no right to do so and that it was he who was being insubordinate — to her.

30 The grievor returned to the office the following day but then took sick leave for approximately two months. After she returned to work at the end of April 2000, the situation was quite tense. In the interim, she had filed a grievance against the five-and-a-half-hour suspension (Exhibit E-1). Mr. Weldon testified that the situation did not improve in the following months.

31 In late September 2000, Ms. Cheng informed Mr. Weldon that the grievor was still trying to contact the AIMS unit by telephone and that there were continuing problems with the nature of her communications (Exhibit E-17). For example, a student in the unit had complained about the grievor’s behaviour. Mr. Weldon also learned that the grievor was trying to obtain through headquarters a new user profile for the AIMS, without his permission. The AIMS, by that time, had become the Verification and Enforcement Management System (VEMS).

32 Mr. Weldon stated that a new VEMS employee, Trena Engineer, reported that the grievor twice tried to contact her by telephone in September 2000 (Exhibit E-18). Mr. Weldon undertook to speak with the grievor again, to instruct her not to do so. In a conversation on October 2, 2000, the grievor first denied contacting the VEMS unit by telephone but then admitted having done so in response to a call from Ms. Engineer (Exhibit E-19), who was not then aware of the contact protocol. Mr. Weldon issued a verbal reprimand to the grievor and warned her that a written reprimand would follow if she again contacted the VEMS unit by telephone.

33 Mr. Weldon testified that he received a call from the Real Estate Appraisals unit’s photo supplier on October 2, 2000, asking him whether the unit had any film needing processing. The box for film drop-offs was located in the area of the grievor’s desk. Mr. Weldon testified that he asked the grievor twice whether there was any film for processing and that she refused to answer both times. Shortly after the encounter about films, Mr. Weldon recounted that he saw the grievor walking in his direction in a passageway that was five or six feet wide. Mr. Weldon stated that he moved aside to ensure that she could pass by. The grievor swung her foot out and across his shoe, striking him in the shin. He stumbled. The grievor apologized. Mr. Weldon testified that he was certain that the grievor’s action was not an accident. In his words, “it was deliberate and intended.” Mr. Weldon testified that his memory of the incident had remained clear. As a soccer player and coach for 45 years, he was certain that he knew when a kick was deliberate. Mr. Weldon reported that the incident left him in a state of shock. He returned to his office and contacted his supervisor, Nasir Amlani, Manager, Medium Business Audit Section, Verification and Enforcement Division, Vancouver TSO. They arranged to meet outside the building, where Mr. Weldon explained what had happened. He confirmed the details in a follow-up memorandum (Exhibit E-21).

34 In cross-examination, the grievor asked Mr. Weldon whether he had made the following three statements to her: “we need some young blood around here,” “I am in charge; I am the team leader; you do what you’re told,” and “you’re just a clerk; I make all of the decisions around here.” Mr. Weldon stated that he did not recall making those statements.

35 The grievor questioned Mr. Weldon about whether he was aware that the TOM 12(25) was no longer in effect in February 2000 and that “everything was online?” Mr. Weldon replied that the grievor’s understanding was not correct. The TOM 12(25) was still in effect at that time.

36 Mr. Weldon reconfirmed that he instructed the grievor to create dummy case and file numbers to record post-appraisal time. To the grievor’s statement that the procedure resulted in files showing up twice in the statistical reports, he replied that he believed that she misunderstood. There was, according to Mr. Weldon, only one production unit under the old system but under the new system, appraisers were entitled to report two units of production. To the grievor’s further statement that the original files were “down-screened” (i.e. closed) and could not be brought back into the AIMS, Mr. Weldon said that he could not recall whether original files had been down-screened but reiterated that appraisers were entitled to record post-appraisal time.

37 The grievor asked Mr. Weldon whether he subsequently asked her to remove the dummy files from the AIMS at the end of the fiscal year. He responded that he could not recall having done so.

38 When the grievor asked whether duplicating files was unethical, Mr. Weldon replied that they were not duplicating reporting. Rather, they were doing exactly what was required by the TOM 12(25).

39 The grievor questioned Mr. Weldon about why he had not provided to her his instructions in writing about the creation of dummy case and file numbers. He stated that his verbal request was sufficient and that written instructions were not necessary.

40 Asked whether he recalled that the AIMS unit requested the grievor to instruct its staff after Ms. Louie left in December 1999, Mr. Weldon replied in the negative.

41 The grievor closed her cross-examination by making a lengthy statement, the essence of which was that were she asked again today to create dummy case and file numbers, she would not do it. She stated: “It would be unethical; I don’t believe in it.”

42 In re-examination, Mr. Weldon insisted that he had proper authorization to implement what was required by the TOM 12(25) and that the TOM 12(25) was in effect during the period relevant to the grievances. He also indicated that he had discussed the procedure for creating dummy case and file numbers with Ron Dacey, the most senior appraisal consultant at headquarters, who told him that the procedure was correct.

43 Mr. Amlani was the employer’s second and final witness. An employee since 1984, he currently performs the duties of chief of appeals in the Vancouver TSO. In that role, he has responsibility for a staff numbering approximately 100. At the time of the grievor’s second grievance (Exhibit E-2), Mr. Amlani was the manager to whom the Real Estate Appraisals unit reported and, as such, the direct supervisor for Mr. Weldon.

44 Mr. Amlani testified that he was aware of the practice of creating dummy case and file numbers for reporting post-appraisal time. The equity evaluations unit for which he had been team leader had also used the same practice. Mr. Amlani stated that the practice was routine and that there was nothing unethical about it.

45 Mr. Amlani outlined that he first became involved with the grievor’s second grievance on October 2, 2000, when he received a voice mail from Mr. Weldon reporting an incident involving the grievor that morning. Mr. Amlani talked with both Mr. Weldon and the grievor on that day and summarized the contents of his conversations in written notes (Exhibit E-22). When he called the grievor that same day as part of his fact-finding investigation, she indicated to him that she wanted to have a bargaining agent representative present for a face-to-face meeting. She nonetheless agreed to talk about the incident on the telephone. In addition to his conversations with Mr. Weldon and the grievor, Mr. Amlani received a follow-up written memorandum about the incident from Mr. Weldon (Exhibit E-21) as well as a statement that the grievor gave to her bargaining agent representative who, in turn, provided it to management (Exhibit E-23).

46 Mr. Amlani convened a disciplinary meeting on October 16, 2000, at which the grievor was accompanied by her bargaining agent representative. The purpose of the meeting, according to Mr. Amlani, was to give the grievor an opportunity to bring additional facts to his attention for consideration before he rendered his decision. He received no new information and decided to proceed to deliver a written letter imposing a three-day suspension that had been prepared in anticipation of the meeting (Exhibit E-24). Mr. Amlani felt that a suspension of three days was an appropriate penalty in view of all that he had learned about the situation, including the fact that the grievor was not forthcoming about the incident. Through the letter of discipline, Mr. Amlani offered the grievor the use of alternate dispute resolution (ADR) procedures to help resolve issues in the workplace. To his knowledge, the grievor never accepted the offer of the ADR procedures. In the interim, he decided to move the grievor temporarily to another sector.

47 In cross-examination, the grievor asked Mr. Amlani whether he was aware of the new procedure manual, the TOM 12(25) (Exhibit E-7). Mr. Amlani replied in the negative. The grievor also asked whether the witness knew about the procedures that were in place at that time. Mr. Amlani again responded in the negative.

48 The grievor was the sole witness on her own behalf. She began her testimony by introducing two documents on consent: Principles of the Public Service of Canada, taken from the federal government’s website (Exhibit G-1), and an email sent on October 24, 2000, announcing that management was considering a lateral move for the grievor from her substantive position (Exhibit G-2). Under objection from the employer, I also admitted a second email dated December 4, 2001, in which the grievor noted that her substantive position in the Real Estate Appraisals unit had been advertised (Exhibit G-3), and a third email from July 24, 2000, in which an employer representative announced that another person was under consideration as a candidate for a temporary acting assignment to the substantive position then occupied by the grievor (Exhibit G-4). In the case of both of the latter exhibits, I indicated that I would bear in mind the employer’s concerns about their admissibility when I evaluated the weight to be assigned to them.

49 The grievor testified that she had worked as a clerk in the Real Estate Appraisals unit for more than 28 years, that it was the only job she had ever known and that it was one that she loved.

50 The grievor stated that the TOM 12(25) (Exhibit E-7) was no longer used in 2000. All the required documentation was online with the AIMS. For its part, the AIMS manual did not indicate that it was permissible to use duplicate down-screened files. There were “many exceptions” such as files from the appeals branch and from special investigations.

51 According to the grievor, her job description required her to compile monthly, quarterly and annual reports on the work of the Real Estate Appraisals unit. She also produced a yearly performance report for the team leader listing the number of files completed, by category. She stated that she objected when management told her not to follow procedure. She refused to comply in situations where she was instructed to input incorrect information into the AIMS. In her words, “when someone instructs me to do something unethical, it is not in my nature; I refused; I can’t do that.”

52 The grievor testified that she asked Mr. Weldon for instructions to be placed on the record about creating dummy case and file numbers but that he refused. She found his refusal strange. As it was her responsibility to create files for the Real Estate Appraisals unit, she was very concerned about security breaches and about protecting her job. If there were a security or quality review, any problems found would be on her hands. According to the grievor, Mr. Weldon told her every second week that he would charge her with insubordination if she refused to create dummy case and file numbers. In her view, his instructions were unethical and illegal. She stated: “If someone asked me to do this today, I’d still do the same thing.” She also noted that Mr. Weldon was in the habit of making notes to file and making records about everyone working on the floor.

53 The grievor recounted that she met with Mr. Farres to express her concerns about Mr. Weldon. She stated that Mr. Farres responded by closing the door to his office and pointing to two plaques on the wall that read, “rule one: the boss is always right; rule two: refer to rule one.” The grievor stated that she did not know whether Mr. Farres’ action was an attempt to intimidate her.

54 The grievor addressed the situation involving Mr. Cushnie (Exhibit E-8). She stated that it was questionable for him to report his post-appraisal time appraising 20 vehicles given the amount of time he spent on the task. She recalled that the situation was eventually resolved and that she did create the dummy case and file numbers as requested. According to the grievor, she now recognized that the work was post-appraisal time but also remarked that she was “not sure about this any more” and that she “did not recall, it’s been a long time.”

55 Concerning her contact with the AIMS unit that Ms. Cheng reported to Mr. Weldon (Exhibit E-11), the grievor testified that she had to respond to calls from appraisers and input the value changes that they reported. That task required her to contact the AIMS unit to ask them to reopen the files in question. Once the files were open, she made the necessary changes and phoned the AIMS unit back to close the files again. The grievor stated that she always used that procedure. She suggested that Ms. Cheng was not aware of procedures and did not realize the urgency of the requests from appraisers to have their post-appraisal time recorded. The grievor tried to use email, but there was often a delay of three hours using it. In the meantime, appraisers were calling her asking why the files had not yet been closed. She also stated that she had been required to train AIMS unit staff in December 1999 about reporting procedures after Ms. Louie left her job and Ms. Cheng replaced her.

56 The grievor testified that she was “from the old school, liked human contact, liked to speak on the telephone and knew some of the AIMS unit staff personally.” She stated that she had not received a lot of training on using emails and then admitted that “emails were my downfall.”

57 In response to the written reprimand on February 9, 2000 (Exhibit E-12), the grievor stated that Mr. Weldon did not know his own job. She said that she trained him to do the work but that he always had to run to other people when he had issues in the Real Estate Appraisals unit. Mr. Weldon’s testimony that there were 20 outstanding files to be reported was incorrect. Those 20 consultation units were already credited in the AIMS, and the files had been closed. She was not able to bring them back. She maintained that there was no work to record. Mr. Weldon simply wanted the numbers to show up in the year-end results. In response to a clarification question that I posed at that point, the grievor stated that, through his instructions, Mr. Weldon asked her to condone an act of fraud.

58 As to her alleged lack of remorse after being suspended for the rest of the day on February 16, 2000, the grievor stated that she could only show remorse if she had done something wrong. She indicated that “all of the intimidation and harassment made it difficult that day.” She subsequently took time off to deal with the stress and address the health complications that it had caused.

59 The grievor elaborated on what she felt was the pattern of harassment and bullying in the workplace. She accused Mr. Weldon of mentioning to her on a number of occasions that she should drop her grievance and that if she did not, “he would get [her] for this.” She mentioned that Mr. Weldon sometimes cornered her in her workstation. He told her that “we needed some young blood around here.” According to the grievor, Mr. Weldon made sure that there were never any witnesses when he confronted her.

60 The grievor described a July 24, 2000, email that announced that another person was under consideration as a candidate for a temporary acting assignment to her substantive position (Exhibit G-4) as a “type of intimidation.”

61 The grievor turned to the circumstances leading to her encounter with Mr. Weldon on October 2, 2000. She testified that her telephone contacts with Ms. Engineer occurred because the latter had asked the grievor to call her back about an AIMS file. The grievor confirmed that she did call Ms. Engineer even though she realized that she was not supposed to use the telephone. The grievor stated that the file in question had sat on Mr. Weldon’s desk from September 26 to 29, 2000, and that the appraisers wanted it done right away because they were on a time budget. She said that she wanted to please the appraisers.

62 The grievor reported that as soon as she walked in the door on Monday, October 2, 2000, Mr. Weldon verbally suspended her. In the written statement that she provided to her bargaining agent representative (Exhibit E-23), she acknowledged that a comment that she made to him at that time was disrespectful. The grievor then left briefly to talk with a colleague. When she walked back, Mr. Weldon passed by her. In her words, “I put my foot out, don’t ask me why, just a reaction on my part.” The grievor stated that she could not imagine why Mr. Weldon said that she had tried to kick him. Putting out her foot was not a deliberate action and she immediately apologized for doing so.

63 Regarding Mr. Weldon’s question to her about films for processing, the grievor stated that Mr. Weldon could have looked in the pick-up box himself. She stated that she may have been on the telephone at the time.

64 The grievor closed her testimony by reading from the Principles of the Public Service of Canada (Exhibit G-1) that public servants “… serve Canadians with integrity, honesty, equity, fairness, openness, respect, inclusiveness and courage.” She maintained that “fraud and fudging of statistics should be stopped before it gets out of hand” and that “managers should never instruct staff to do anything that is fraudulent.”

65 In cross-examination, the grievor continued to maintain that the TOM 12(25) was not in effect in 2000 and that all of the procedures were instead online with the AIMS. She confirmed that appraisers did ask her to open previously closed files to record post-appraisal time and that it was easy to do so. She stated: “All you had to do is open the file again, the appraisers made corrections and [she] would check through [their] timesheets.” She also reconfirmed that she had not followed the recording procedure required of her by Mr. Weldon. In her view, the 20 new files in question were already in her “platinum report,” and she refused to record them again.

66 Concerning the requirement to train the AIMS unit’s staff in December 1999, the employer asked the grievor whether Mr. Weldon had authorized her to perform that task. The grievor first replied in the affirmative but then suggested that it could have been someone replacing him while he was on vacation. According to the grievor, she “would not have trained without authorization; [she] was asked to do so and did, and went over twice.”

67 The employer asked the grievor to confirm that she had not used email to contact the AIMS/VEMS unit even though Mr. Weldon had instructed her to do so. The grievor said that she had difficulty with email, that her typing skills were not good and that she was “computer illiterate when [she] left the sector.” She stated that Mr. Weldon tried to help her a couple of times but that she did not know how to use the email software. Asked, then, if she had ever been able to send emails, the grievor replied that she did sometimes send emails “by chance” but that she “did not do well in that area.” The grievor confirmed that she was able to email some letters after she transferred out of the Real Estate Appraisals unit in October 2000. Before the transfer, “she did her best.”

68 Concerning the events of October 2, 2000, the employer asked the grievor whether she had felt resentment towards Mr. Weldon. She responded that she was not really angry with him but was upset about his harassment. When asked whether she had kicked Mr. Weldon, the grievor replied in the negative and stated that it was Mr. Weldon who was upset and that he was “trying to find a way to get to [her].” She went on to state that she did apologize and that she “did not know why [she] put her foot out; he had set [her] up.”

IV. Summary of the arguments

A. For the employer

69 Did the grievor’s actions amount to insubordination and if so, was management’s decision to discipline her reasonable given the circumstances at that time? Those are the issues to be decided, according to the employer.

70 The employer submitted that my jurisdiction is limited to the two suspensions referenced in the grievances (Exhibits E-1 and E-2): the first for five-and-a-half hours on February 16, 2000, and the second for three days beginning October 16, 2000. The employer argued that I was without jurisdiction to hear the part of the first grievance dealing with a written reprimand.

71 The grievor is not entitled to pursue the issue of the alleged violation of her contractual right to bargaining agent representation at a meeting with management, contested as part of her second grievance. Under paragraph 92(1)(c) of the former Act, a grievor who alleges a violation of the collective agreement requires the support of, and must be represented by, the bargaining agent in a reference to adjudication. In this case, the grievor is representing herself. The absence of bargaining agent representation constitutes a total bar to adjudication in respect of the alleged breach of the collective agreement.

72 Should the employer’s objection to jurisdiction fail, the employer argued in the alternative that the evidence clearly established that the telephone meeting on October 2, 2000, between the grievor and Mr. Amlani was investigative and fact-finding in nature, not disciplinary. The grievor indicated at the outset of the conversation that she preferred to have her bargaining agent representative present in a face-to-face meeting but volunteered to talk over the telephone about the incident involving Mr. Weldon earlier that day. Promptly conducting an investigatory interview of that type with an employee fell completely within the employer’s rights and was consistent with applicable policy. The distinction between an investigation meeting and a disciplinary meeting has been recognized in a line of adjudication decisions, including most recently Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 71. Given that the interview that the employer conducted with the grievor was investigatory rather than disciplinary, the case law supported the employer’s contention that no violation of the grievor’s rights occurred.

73 In the further alternative, Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.) (QL), established that procedural defects in or after the investigation process are remedied by the fresh opportunity at an adjudication hearing to consider the merits of the grievor's case.

74 Following either alternative argument, the aspect of the grievor’s second grievance dealing with the interview procedure and the alleged violation of a right to bargaining agent representation should be dismissed.

75 To prove misconduct in the form of insubordination, the subject of the first grievance, the employer accepted that it was the employer’s onus to demonstrate that an order was in fact given, that the order was clearly communicated to the grievor, that the person giving the order had the proper authority and that the grievor refused to acknowledge the order or to comply with it: Nowoselsky v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-02-14291 (19840724).

76 The grievor was subject to the well-established “obey first, grieve later” rule. Specific exceptions to that rule are limited to situations where an order “… would endanger [the grievor’s] health and safety, require [the grievor] to perform an illegal act or, in a case of a union official, would result in irreparable harm to the interests of other employees …”: Nowoselsky, at page 13. None of the recognized exceptions applied in the circumstances of the first grievance.

77 Mr. Weldon’s testimony demonstrated that he gave the grievor clear instructions on two issues: first, that she create dummy case and file numbers to record post-appraisal time under the TOM 12(25) that came into effect as of September 1998 (Exhibits E-7, E-8 and E-9); and second, that the grievor’s contacts with the AIMS (later the VEMS) unit should be through email and that any concerns that she might have about the AIMS/VEMS unit should be channelled through her team leader (Exhibit E-6).

78 Concerning the first order, the grievor made it no secret in her testimony that she did not believe in the new policy, perhaps due to an earnest misunderstanding or a belief that it would be unethical to do what the policy required. In any event, the evidence showed that she persistently refused to obey instructions to implement the policy despite clear orders given by her team leader. Mr. Weldon confirmed in his testimony that the policy was in effect throughout the period germane to the grievances and that headquarters had mandated him to implement the policy. Moreover, he had secured approval for the particular method of recording post-appraisal time that the grievor refused to accept.

79 The grievor’s refusal to create dummy case and file numbers to record post-appraisal time prompted appraisers to express to Mr. Weldon their concerns about the backlog of supplementary files requiring feedback (Exhibits E-8). Mr. Weldon tried to resolve the persisting operational problems at a staff meeting held on February 2, 2000, and followed up by a meeting with the grievor. Mr. Weldon’s efforts demonstrated that management consistently tried to communicate with the grievor and to find a solution to what was becoming an increasingly serious problem. The efforts were unsuccessful. The grievor continued not to comply with the directions given to her.

80 Regarding the second order, the evidence revealed that Ms. Louie of the AIMS unit wrote to Mr. Farres, in January 1999 who in turn directed Mr. Weldon to ensure that the grievor contact the AIMS unit through email only (Exhibit E-6). The grievor refused to comply. She admitted making telephone calls to the AIMS unit after being made aware of the instructions, citing her preference for human interaction as well as her computer illiteracy as reasons for non-compliance.

81 The grievor’s failure to follow instructions left Mr. Weldon with no option other than to proceed with discipline in the form of a written reprimand issued on February 9, 2000 (Exhibit E-12). Mr. Weldon’s reprimand made it absolutely clear that he expected the grievor to respect the directions given to her at the risk of further disciplinary action. Nonetheless, the grievor’s insubordination continued. Rather than comply, the grievor took it upon herself to instruct her supervisor on how he should run the work unit (Exhibit E-13). On February 16, 2000, Mr. Weldon imposed a five-and-a-half-hour suspension on the grievor as a response to her persisting insubordination.

82 The employer turned to the three-day suspension without pay challenged in the second grievance. The employer argued that the evidence concerning that incident was straightforward. On October 2, 2000, Mr. Weldon became aware that the grievor had again contacted the VEMS unit (as it had become named) by telephone, against instructions (Exhibits E-17 and E-18). He met with the grievor, imposed a verbal reprimand for insubordination and warned that a written reprimand would follow if the misconduct recurred (Exhibit E-19).

83 Very shortly after giving the grievor a verbal reprimand on October 2, 2000, Mr. Weldon was in the grievor’s work area, saw her approaching and stepped aside to let her pass. Mr. Weldon testified that the grievor, in mid-step, swung her right foot across and kicked him. He had no doubt then or at the hearing that the action was deliberate and that she had struck his shin. Both Mr. Amlani’s contemporaneous notes of what Mr. Weldon told him orally about the incident that day as well as Mr. Weldon’s written account of the encounter confirmed that version of the incident (Exhibits E-21 and E-22).

84 For her part, the grievor admitted that she stuck her foot out, although she testified that she did not know why. The grievor denied that the action was a kick. The employer asked why the grievor’s foot was out, if not to kick or trip.

85 When Mr. Amlani talked with the grievor about the incident, he formed the impression that she was not forthcoming about the alleged assault. She acknowledged that she had stuck her foot out only when confronted with information to that effect by Mr. Amlani (Exhibit E-22). She responded to the allegation by bringing up other allegations against Mr. Weldon. Mr. Amlani testified that he took into consideration the fact that the grievor was not forthcoming about the incident when he weighed how to respond. Taking all of the information available to him into account, Mr. Amlani decided that a three-day suspension was appropriate. The employer submitted that the kicking incident alone warranted the three-day penalty. Taking into account the grievor’s failure to be forthcoming about the incident, and in light of the previous discipline on file, the penalty determined by Mr. Amlani was entirely reasonable. Mr. Amlani was open to finding other ways of resolving the problems that the grievor felt she was having in the workplace. He offered the use of the ADR procedures to the grievor, but she did not pursue the offer.

86 The employer outlined areas in the grievor’s testimony that were contradictory or confusing. For example, the grievor admitted that she had created dummy case and file numbers as required by Mr. Weldon even though she testified earlier that the TOM 12(25) was not in effect at the time of the events surrounding her first grievance, that the reporting procedure was unethical, that she had refused to comply with it and that she would do so again. Concerning email, the grievor stated that she was “computer illiterate” but elsewhere in her testimony agreed that Mr. Weldon had shown her a number of times how to use email and testified that she did send emails on a number of occasions.

87 The employer concluded by stating that the employer had discharged its burden of proof. The grievor misconducted herself in both situations that led to the imposition of disciplinary suspensions. Those disciplinary measures were warranted and reasonable.

88 For further discussion of discipline for insubordination and appropriate penalties, the employer referred me to: Lambert v. Treasury Board (Agriculture Canada), PSSRB File No. 166-02-24197 (19940221); Odusanya v. Treasury Board (National Defence), PSSRB File No. 166-02-25179 (19940209); Imperatore v. Treasury Board (Revenue Canada – Customs, Excise and Taxation), PSSRB File Nos. 149-02-169 and 166-02-27963 (19980504); and Hogarth v. Treasury Board (Supply and Services), PSSRB File No. 166-02-15583 (19870331).

B. For the grievor

89 The grievor argued that she knew the procedures required in her workplace very well based on almost 29 years of service in the Real Estate Appraisals unit. When she was instructed to create dummy case and file numbers for recording post-appraisal time, there was nothing else that she could do except “say no.” If she followed the instructions, there would be duplicate information in the AIMS. In the event of a quality review of the files, it was the grievor who would be questioned about the duplicate information because she was the only person who had the computer profile to create new documents. She noted that Mr. Weldon himself had mentioned that he intended to remove that information from the statistical reports in the new fiscal year.

90 The grievor outlined that she asked Mr. Weldon many times to put his instructions about reporting post-appraisal time into writing and that he refused. According to the grievor, “had he given me [written instructions], I would have followed them.” She then stated that she “was not going to create false records that showed more statistics than we had.” Later in her argument, the grievor contended that Mr. Weldon could not keep up with all of the updates in the AIMS and should have relied on his clerk. She stated that the Real Estate Appraisals unit “was falling apart with him, but I had nothing to say about it.”

91 The grievor maintained that Mr. Weldon harassed, bullied and intimidated her throughout the whole process. In her view, he should be held accountable for his behaviour. She argued that “if you cannot manage a section, something should have been done; you can’t have managers that do not know policies and procedures.” The grievor noted that she had not experienced any problems with previous team leaders.

92 The grievor took the position that I should not have allowed into evidence the employer’s 11 exhibits that were Mr. Weldon’s notes to file. She alleged that anyone could have written the notes. She also described it as “peculiar” that Mr. Weldon was building a case against her through those notes.

93 The grievor identified as her “main point” that the function of a government employee is to set the highest standards in the workplace. Doing so does mean not “to falsify records.” At different points during her argument, the grievor used the terms “unethical,” “fraud” and “criminality” to describe what she was asked to do by Mr. Weldon with respect to creating dummy case and file numbers.

94 As to the “obey now, grieve later” rule, the grievor reiterated that she could not obey Mr. Weldon’s instructions about reporting post-appraisal time because it was not part of policy and would have jeopardized her job. The “obey now, grieve later” rule, in her view, should be changed.

95 The grievor added that “there is something terribly wrong when you injure a person and take their livelihood away.”

96 When the grievor concluded her remarks, I asked her to identify the evidence on which she relied for her contention that the instructions to create dummy case and file numbers involved fraud or criminality. She replied that “no one has the evidence any more.”

C. Employer’s rebuttal

97 The employer raised concerns about the grievor’s arguments that the procedure for recording post-appraisal time was unethical. The employer argued that there was no evidence of unethical action before me. Mr. Amlani even testified that another work unit used the same procedure that Mr. Weldon had instructed the grievor to employ.

98 Mr. Weldon’s instructions to the grievor about using email to contact the AIMS/VEMS unit were not arbitrary. Those instructions followed a contact from Mr. Farres, who had received a request from the manager of the AIMS unit regarding communications from the grievor (Exhibit E-6).

V. Reasons

A. The first grievance

1. Jurisdiction

99 The employer objected to my jurisdiction to consider the first aspect of the grievance of March 6, 2000, which relates to the February 9, 2000, written reprimand.

100 The employer’s objection is appropriate. Paragraph 92(1)(c) of the former Act limits the scope of an adjudicator’s jurisdiction in discipline cases for employees of the CCRA (as it then was), who are not covered by paragraph 92(1)(b), to those that resulted “… in termination of employment, suspension or a financial penalty.” While the evidence in this case showed that the written reprimand issued to the grievor on February 9, 2000, was followed shortly by a suspension without pay on February 16, 2000, also contested in the same grievance, the incidents that gave rise to the two disciplinary penalties were separate. Accordingly, for purposes of determining jurisdiction under paragraph 92(1)(c), the written reprimand must be examined on its own. As a form of discipline other than a termination, suspension or financial penalty, an adjudicator is barred under paragraph 92(1)(c) from accepting jurisdiction to consider the written reprimand. On that basis, I find that my jurisdiction to hear and determine the first grievance is limited to the subject of the merits of the suspension without pay on February 16, 2000.

2. Merits

101 The employer’s written notice suspending the grievor for the rest of the day on February 16, 2000, identified as the reason for discipline her “… insubordination on February 15^th along with [her] refusal to acknowledge such insubordination [that] morning …” (Exhibit E-16). The employer argued that Mr. Weldon’s decision to discipline the grievor on February 16, 2000, responded to two forms of misconduct by the grievor: she failed to comply with instructions to contact the AIMS unit by email only and she failed to record post-appraisal time in the manner directed by creating dummy case and file numbers.

102 There does not appear to be any controversy in the evidence that the grievor received an order from her employer, clearly conveyed, that she had to communicate with the AIMS unit via email only. That order originated from Mr. Farres, a manager whose authority to give the direction has not been challenged. Mr. Weldon, the grievor’s team leader, communicated the order to her. That the grievor did not comply with the order, on one occasion if not more, also does not appear to be in dispute. The uncontroverted evidence is that Ms. Cheng called Mr. Weldon on February 8, 2000, and told him that the grievor had contacted the AIMS unit by telephone concerning the reopening of a file (Exhibit E-10). The grievor herself testified, when asked about that incident, that it was her practice to communicate with the AIMS unit by telephone, at least when arranging to close a file. The grievor did not deny the occurrence reported by Ms. Cheng to Mr. Weldon at that time nor at the hearing.

103 Based on that evidence, the four conditions for proof of insubordination suggested in Nowoselsky have been satisfied: the employer gave an order; it clearly communicated that order to the grievor; the person giving the order had the proper authority to do so; and the grievor did not comply on at least one occasion. The grievor was therefore insubordinate.

104 I find, nonetheless, that the employer did not satisfy its burden to prove that insubordinate behaviour in contacting the AIMS unit was cause for the five-and-a-half-hour suspension it imposed on February 16, 2000. Mr. Weldon’s notice of discipline that day clearly specified that the targeted insubordination occurred the previous day, February 15, 2000 (Exhibit E-16). To be precise, he wrote that the grievor’s suspension was imposed “… as a result of insubordination on February 15^th … .” The employer did not place evidence before me that proved that the grievor contacted the AIMS unit in a prohibited fashion on February 15, 2000. According to the evidence, the incident that did take place on that day involving the AIMS unit was not a prohibited contact by the grievor, but rather it was her memorandum and statements to Mr. Weldon that the AIMS unit, for its part, should be required to contact the Real Estate Appraisals unit using email only (Exhibits E-13 and E-14). While discussing that issue with Mr. Weldon, the grievor refused an order to create dummy case and file numbers (Exhibit E-14).

105 It may be that the grievor’s memorandum or her comments urging a policy requirement that the AIMS unit contact the Real Estate Appraisals unit using email only, or both, were themselves insubordinate. It may also be that the reference to insubordination in Mr. Weldon’s notice of discipline was intended to include those issues. At the hearing, however, the employer argued that the misconduct that gave rise to the discipline on February 16, 2000, was the grievor’s double failure of not complying with instructions and refusing to acknowledge her insubordination. In fairness to the grievor, if those were the causes for the discipline that the employer felt were appropriate to argue at the hearing, the separate evidence of her written and oral remarks regarding contacts “from” the AIMS unit should not be given great weight here.

106 As stated above, the employer did not lead evidence of a prohibited contact by the grievor to the AIMS unit on February 15, 2000. The proximate evidence of such a contact was the one reported by Ms. Cheng to Mr. Weldon on February 8, 2000. The latter imposed a written reprimand on February 9, 2000 (Exhibit E-12), citing the grievor’s reported telephone contact with the AIMS unit as one of his reasons. Without proof of renewed failure to comply with the AIMS unit contact instructions after February 8, 2000, there was no further cause to impose discipline for that type of insubordination on February 15, 2000. The prior written reprimand disposed of the issue.

107 What remains, then, for scrutiny as the cause for discipline on February 16, 2000, was the grievor’s alleged refusal to comply with instructions to report post-appraisal time as well as her claimed failure to acknowledge that insubordination. As to the proof of the alleged insubordination, there appears once again to be no disagreement in the evidence concerning the four basic Nowoselsky conditions mentioned above: the employer gave instructions; the person giving the order had the proper authority to do so; the employer clearly communicated the instructions to the grievor; and the grievor did not comply.

108 Mr. Weldon testified that after the meeting with staff on February 2, 2000, he talked with the grievor and gave her instructions on how to implement a new procedure for reporting post-appraisal time by creating dummy case and file numbers in the AIMS. Mr. Weldon was the grievor’s supervisor and was entitled to expect that his instructions would be followed. They were clearly given and the grievor understood them. The grievor’s own testimony was unequivocal about how she responded to instructions of that type. She confirmed several times that she refused to comply with Mr. Weldon’s instructions to record post-appraisal time by creating dummy case and file numbers. Indeed, she stated voluntarily and without reservation that she would refuse the same instructions today if they were given to her again. As to the alleged occurrence of a refusal on that point on February 15, 2000, the grievor did not dispute the facts as alleged by the employer.

109 There is controversy about the grievor’s refusal in two respects. The first element is factual. The grievor testified that the TOM 12(25) was not in effect at the time Mr. Weldon imposed discipline. Mr. Weldon testified to the opposite effect. The second element is more fundamental. The grievor argued that she could not comply with Mr. Weldon’s instructions because they were unethical, fraudulent or illegal. That argument opens the issue of whether the grievor was confronted with a situation where she was justified in departing from the normal “obey first, grieve later” rule; that is to say, that her refusal to comply was proper and appropriate given the nature of the instructions that she received. While the grievor did not express the issue in those precise terms, she did contend that the “obey first, grieve later” rule should be changed. She expressed very clearly her conviction that her personal integrity precluded her from obeying the instructions as did her appreciation of the obligations placed on a public servant under the Principles of the Public Service of Canada (Exhibit G-1). Add to that her use of the terms “unethical,” “fraudulent” and “illegal” to describe Mr. Weldon’s instructions, and the result is an argument that I should exempt the grievor from the requirement to obey and absolve her of the allegation of insubordination.

110 On the first element — whether the TOM 12(25) was in effect — Exhibit E-7, introduced by Mr. Weldon, established that the TOM 12(25) did go into effect in September 1998. Mr. Weldon testified that it remained in effect throughout the period of the grievances, that it entitled appraisers to have their post-appraisal time recorded and that the new procedure worked out at a meeting with staff on February 2, 2000, was a sound option to achieve that end. Later in his testimony, Mr. Weldon confirmed that he contacted headquarters and secured agreement that creating dummy case and file numbers for that purpose was a proper approach. Mr. Amlani, crucially, reported that another section in the organization had also used the same approach and stated his view that there was nothing unethical about the practice. Unfortunately, Mr. Amlani did not offer direct corroboration that the TOM 12(25) was in effect although his remarks about the routine use elsewhere of a reporting procedure that was consistent with the TOM 12(25)’s policy requirement certainly suggest that it was.

111 In arguing the opposite, the grievor stated that the operative policies were all online with the AIMS at the times relevant to her grievances and that they had replaced the TOM 12(25). She did not, however, provide corroborating evidence for that contention. She neither presented documentation showing that the employer had suspended or terminated the TOM 12(25) nor documentation from the AIMS itself that might offer proof to that effect.

112 Based on the limited evidence available to me, I find that it is more likely than not that the TOM 12(25) was in effect at the time of the grievor’s suspension on February 16, 2000. Mr. Weldon’s unwavering testimony on that point and Mr. Amlani’s evidence that a similar reporting practice was in effect in another part of the organization weigh the balance in favour of the employer’s position. That said, I believe that my finding of fact regarding the TOM 12(25) is not pivotal for the required analysis. The basic point for the application of the Nowoselsky test remains that Mr. Weldon, in his capacity as the grievor’s supervisor, clearly instructed her how she should proceed to implement the objective of reporting post-appraisal time — an objective apparently consistent with the TOM 12(25) — and she refused that instruction.

113 Were Mr. Weldon’s instructions to create dummy case and file numbers for this purpose nonetheless unethical, fraudulent or unlawful?

114 The grievor’s justification for refusing to comply with instructions obviously makes very serious allegations against Mr. Weldon. I am confident that the grievor held then and continues to hold now a sincere belief that she is well justified in making those allegations. The strength of her conviction, however, is not proof that what she alleged was true. When a grievor seeks to mount an argument that so seriously impugns the motives and comportment of her superior, I believe that he or she bears a strong onus to substantiate her allegations. In my view, the grievor did not.

115 I infer from the grievor’s testimony that the transgression of ethics, fraud or criminality that she felt could result from Mr. Weldon’s instructions was the possibility that the work of appraisers would be double-counted and that such double-counting would pervert the system for evaluating the performance of individual appraisers or the productivity of the Real Estate Appraisals unit. At the hearing, however, there was absolutely no concrete evidence to establish that possibility. Critically, the grievor herself said that “no one has the evidence any more.” The grievor’s failure to provide even a modicum of proof in support of her allegations about Mr. Weldon’s instructions and motives, in my view, greatly discredits her case. Once more, I judge that the grievor sincerely believed that she faced a situation that was at least potentially unethical, fraudulent or illegal, but without corroborating evidence I must conclude that she was wrong. Moreover, I am troubled that the grievor offered no more than scant evidence that she did anything about her convictions other than refuse to obey Mr. Weldon, a person she clearly disrespects. She stated that she did talk with Mr. Farres about the situation, unsuccessfully, but there is no indication that she took any other step to bring the alleged fraud or illegality to the attention of any other authority within the employer or of any authority external to the employer. To the contrary, the grievor conceded in cross-examination that on at least one occasion she did create files to record post-appraisal time following the directions that she was given. That testimony suggested that her adherence to her conviction about the nature of the instructions was not consistent. She could and did choose to comply in some circumstances.

116 I find, accordingly, that the grievor did not establish grounds absolving her of the requirement to comply with Mr. Weldon’s instructions on February 15, 2000, to record post-appraisal time. Her refusal to implement Mr. Weldon’s instructions was insubordination. To be clear, this is not a case for an exception to the “obey first, grieve later” rule. The employer, in my view, did have cause to consider discipline as a response to the grievor’s behaviour.

117 As it is unnecessary to my decision, I make no finding on the further argument presented by the employer that the grievor’s refusal to acknowledge her insubordination constituted additional cause for discipline.

118 The decision that Mr. Weldon made on February 16, 2000, to send the grievor home resulted in a suspension without pay for a period of five-and-a-half hours. Coming after the recent oral and written reprimands on February 3 and 9, 2000, respectively, the penalty was modest and consistent with the application of a progressive approach. Had the penalty been significantly longer, it might have been appropriate to canvass aggravating and mitigating factors to determine whether any modification was necessary. As it is, I do not believe that I have any reason to intervene in the employer’s determination.

B. The second grievance

1. Jurisdiction

119 As part of her second grievance, the grievor contested “… the procedures followed by management in interviewing [her] with a view to disciplinary action without advising [her of her] right to union representation as specified in the contract.” The employer argued that I do not have jurisdiction to consider that aspect of the grievance because it involved the interpretation or application of a provision of the collective agreement. As such, subsection 92(2) of the former Act required that the grievor have the support of, and be represented by, her bargaining agent. The grievor was not represented by her bargaining agent at the hearing. Therefore, in the employer’s submission, the necessary precondition for adjudication expressed in subsection 92(2) was not met.

120 However well-founded, I do not believe that I need to rule on the employer’s jurisdictional objection. At no time during the hearing did either party introduce the collective agreement that the employer allegedly violated or specify which of its provisions were at issue. The grievor neither discussed “… the procedures followed by management in interviewing [her] with a view to disciplinary action …” in her testimony nor referred to that element at any point in her arguments. Without a collective agreement before me or any submissions from the grievor at the hearing about its interpretation, there is nothing that I need to decide. Accordingly, I dismiss the element of the second grievance relating to the alleged fault in the discipline procedure without further consideration.

121 Another element of the second grievance addressed the grievor’s “… removal from the real estate appraisals section # 443-32.” Beyond Mr. Amlani’s reference to the grievor’s reassignment in his disciplinary letter of October 16, 2000 (Exhibit E-24), evidence relating to the “removal” at the hearing was meager. Both the grievor and Mr. Amlani mentioned the move to another section in their testimony, but only very briefly. Neither party made specific submissions in final argument concerning the “removal.” Although the grievor asked in her grievance to “… be returned to [her] original workplace …”, she did not discuss corrective action of that type at any point during her submissions at the hearing. In large part, the hearing unfolded as if the grievor had abandoned her challenge to the employer’s decision to move her to another unit.

122 There may well be reason to question whether the employer’s action in reassigning the grievor would itself qualify as a disciplinary action resulting in termination of employment, suspension or financial penalty within the meaning of paragraph 92(1)(c) of the former Act and thus within the authority of an adjudicator. In my view, to so qualify, the employer’s decision to move the grievor to another unit would have to have been shown to have constituted a suspension, to have resulted in a financial penalty or to have affected the employment relationship in a manner equivalent to a termination of employment. The onus to establish that the employer’s decision was discipline within the meaning of paragraph 92(1)(c) belonged to the grievor. As she did not take up that challenge, I find that I need not address the removal issue further in this decision. I note, moreover, that the question of remedy for the grievor’s “removal” has likely become moot in practical terms, as the grievor has since retired.

2. Merits

123 In his October 16, 2000, disciplinary letter (Exhibit E-24), Mr. Amlani concluded that the grievor intentionally kicked Mr. Weldon on October 2, 2000. He found that she then gave statements about the incident that were, in his view, contradictory and lacking in credibility. The grievor’s misconduct and subsequent behaviour led Mr. Amlani to impose a three-day suspension.

124 The reason for discipline outlined by Mr. Amlani in his letter was the alleged assault on Mr. Weldon. The letter establishes the parameters for my consideration of the merits of his decision. While I heard evidence that the grievor continued to be insubordinate in the period leading up to and including the morning of October 2, 2000, either by communicating with persons in the AIMS/VEMS unit by telephone against orders or by refusing to create dummy case and file numbers to record post-appraisal time, Mr. Amlani did not refer in his letter to those actions as reasons for discipline. The issue to be determined, therefore, is limited to the alleged assault. Did the employer prove on a balance of probabilities that the grievor intentionally kicked Mr. Weldon or otherwise acted in a physically aggressive manner towards him? If I answer that question in the affirmative, was the resulting three-day suspension without pay reasonable in the circumstances and proportionate to the seriousness of the misconduct, taking the aggravating and mitigating factors into consideration?

125 The grievor conceded in her testimony that she “put her foot out” as she walked by Mr. Weldon at the moment of the alleged incident on the morning in question. She testified that she did not know why. She speculated that it was “just a reaction on [her] part.” The grievor stated that the action was not deliberate and recalled offering an apology for the action then and there.

126 Mr. Weldon’s recollection was that the action was deliberate, that the grievor intentionally swung her foot across his shoe striking his shin, that it caused him to stumble and that it left him in a state of shock. He remembered the grievor’s immediate apology but stated that he found it hollow, insincere and delivered without feeling.

127 No independent witness to the incident testified at the hearing. The only other source of evidence of the occurrence was Mr. Amlani’s written notes recording what Mr. Weldon told him later that day about what had occurred (Exhibit E-22). Those notes appear to recount events in a manner broadly consistent with Mr. Weldon’s oral evidence at the hearing.

128 It is not possible to know with certainty what the grievor’s state of mind was when the incident occurred and whether her action was an intentional kick or something less aggressive done without the intention to harm. On a balance of probabilities, nevertheless, I prefer as more credible the testimony given by Mr. Weldon, corroborated by Mr. Amlani’s contemporaneous notes of what Mr. Weldon reported to him that day about the incident. In contrast, the credibility of the grievor’s version of the incident was greatly undermined by her failure to give a more convincing explanation of exactly what occurred, and why. Her statement at the hearing that Mr. Weldon was trying to “set her up” was never substantiated, nor were her remarks to Mr. Amlani following the incident that “… John had been physically abusive, pushed and shoved [her] …” (Exhibit E-24). Notably, the grievor did not repeat the latter version of what occurred at the hearing.

129 I find, therefore, that the grievor intentionally kicked or struck Mr. Weldon.

130 It is difficult to imagine what extenuating circumstances, if any, could be invoked to justify the grievor’s action. By way of background, she did allege a continuing pattern of harassment on Mr. Weldon’s part and a series of statements that she believed showed his determination to be rid of her. It was obvious from her testimony that she had felt exposed and victimized for some time. Her encounter with Mr. Weldon earlier that day, in the morning, and his imposition at that time of a reprimand could only have heightened her emotions and aggravated her sense of frustration and victimization.

131 That said, the grievor’s physical response directed at Mr. Weldon cannot be excused. The grievor’s action was misconduct. I view her immediate apology after the incident as demonstrating a clear consciousness of guilt. She knew at the time that her action was wrong.

132 There is a strong consensus in the arbitral jurisprudence across jurisdictions that an act of physical aggression by an employee directed at a supervisor or manager — or, for that matter, at a co-worker — is a serious matter that warrants a serious disciplinary response. A three-day suspension without pay is well within the normal bounds of discipline for such an incident. Recognizing that there were several previous disciplinary measures imposed in 2000 on the grievor, a three-day suspension may, in fact, have been on the low end of what might have been levied in a program of progressive discipline.

133 In this situation, the grievor’s long service with the employer, in my view, cannot be viewed as a mitigating factor. Had the employer imposed a substantially longer suspension, long service might have come into play.

134 For the sake of the argument only, I also do not accept that the allegations made by the grievor against Mr. Weldon serve to mitigate the seriousness of what she did. On that point, it is important to emphasize that it is not my role in this decision to make a ruling of fact that Mr. Weldon did or did not subject the grievor to a continuing pattern of harassment as she alleged. Even if Mr. Weldon had harassed the grievor, this could not excuse her act of physical aggression against him. Some of the allegations made by the grievor in the course of her testimony suggested highly inappropriate statements and comportment by her supervisor, if not more. The second grievance at issue here, however, did not allege that Mr. Weldon did anything. It held instead that Mr. Amlani erred when he imposed the three-day suspension on October 2, 2000. For purposes of this decision, the grievor’s allegations about Mr. Weldon remain only allegations. Further and more compelling evidence would have been required to lend them support. I thus have no basis to accept the allegations against Mr. Weldon in exploring possible mitigating circumstances for the grievor’s actions. The possible exception was the email dated July 25, 2000 (Exhibit G-4), in which Mr. Weldon distributed a July 24, 2000, message to a group of employees, including the grievor, stating that management was considering an acting assignment for another person to the substantive position occupied by the grievor. The employer, in my view, was unable to offer a satisfactory explanation for the email. The grievor argued that the email constituted intimidation. I tend to sympathize with the grievor’s concern about the document. Nevertheless, there was no further evidence about the originator of the message, why he or she sent the message or why Mr. Weldon chose to pass it along. I am thus unable to draw any firm conclusions from Exhibit G-4 that might provide a basis for mitigation.

135 I have not found other significant mitigating factors in the circumstances of this case. For her part, the grievor suggested none.

136 I find, as a result, that I have no reason to modify the three-day suspension.

137 In summary, I find that the employer had cause to impose discipline and that the three-day suspension was reasonable and proportionate in the circumstances.

138 For all of the above reasons, I make the following order:

VI. Order

139 The grievances are dismissed.

January 25, 2008.

Dan Butler,
adjudicator