FPSLREB Decisions

I. Matter before the Board

1 Stanley Bahniuk (“the grievor”) filed two grievances under paragraph 209(1)(b) of the Public Service Labour Relations Act (“the Act”) against his employer, the Canada Revenue Agency (“the employer” or “the CRA”). One grievance was filed on April 20, 2007, and the other was filed on May 8, 2007. Both grieved the same disciplinary action, namely, the quantum of discipline imposed by the employer (a one-day suspension) in an April 3, 2007 letter of discipline. The discipline was imposed for the grievor’s inappropriate workplace behaviour during a meeting with his manager on March 1, 2007. The grievor sought different corrective action in each grievance.

2 The grievor’s manager at the time the discipline was imposed died before the hearing. He will be referred to as “BM” in this decision. Each time his name appeared in a document quoted in this decision, I replaced it with those initials.

3 The applicable collective agreement is the one between the Canada Customs and Revenue Agency and the Public Service Alliance of Canada for the Program Delivery and Administration Services Group, which expired on October 31, 2007 (Exhibit 22).

II. Individual grievances referred to adjudication

4 The employer suspended the grievor, by the letter of discipline (Exhibit 12), for one day (7.5 hours) for his “objectionable and unacceptable” conduct and demeanour during a meeting with his manager on March 1, 2007. The letter of discipline, signed by BM, Manager, Revenue Collections, Calgary Tax Services, CRA reads as follows:

This is further to our meeting of 5 March 2007 regarding your inappropriate interaction and tone at a recent meeting with your manager.

On March 1, 2007 at a meeting to discuss Observe an [sic] Attest, your approach and manner was disrespectful and insubordinate. Your attitude was insistent and uncooperative.

In our meeting on March 5 to discuss this matter, you stated that you acted this way out of frustration.

I find that your conduct and demeanour during our meeting on March 1, 2007 was objectionable and unacceptable. That behaviour is contrary to that expected of a team leader and employee of Canada Revenue Agency. You are expected to approach all individuals, managers and employees alike, with respect and professionalism. I also note that you have recently been disciplined for similar inappropriate behaviour.

In accordance with the CRA Code of Ethics and Conduct and the Manager’s Charter, as an employee of the Agency in the MG Group you are accountable to your employer and are expected to carry out your assigned duties conscientiously and in accordance with our organization’s values of respect, professionalism, integrity and cooperation. Your behaviour demonstrates a lack of professionalism and a lack of respect for management. We expect you to adhere to the Code of Ethics and Conduct, the Canada Revenue Agency Values and the CRA policies that underlie it.

In determination of appropriate discipline, I have considered your years of service and work history and the written reprimand that you received on January 18, 2007 for a similar incident. To impress upon you the seriousness of your actions, it has been determined that a one-day (7.5 hours) suspension is the appropriate corrective action. Your suspension will be served from 7:15 am to 3:45 pm on Wednesday, April 4, 2007. During this period, you are not to be present in the workplace or make contact with your colleagues.

In accordance with Article 17.05 of the Program and Administration Services collective agreement, a copy of this document will be placed on your personnel file and will be destroyed after two years have elapsed since the date this disciplinary action was taken, provided that no further disciplinary action has been recorded during the two year period. Any further incidents may result in more severe discipline, up to and including termination.

You have the right to grieve this decision in accordance with section 208 of the Public Service Labour Relations Act, and may do so within twenty-five days from this date.

5 On August 17, 2007, the grievor referred his grievance dated May 8, 2007 (PSLRB File No. 566-34-1413) to adjudication (Exhibit 5). The date of the file at the Public Service Labour Relations Board (“the Board”) is August 24, 2007. The grievor stated the details of his grievance and requested corrective action as follows:

I grieve the quantum of discipline [sic] action by CRA as per the Letter of Discipline April 3, 2007. The events surrounding the generation of the Letter of discipline are not about cooperation, professionalism and respect but the managers [sic] own lack of competence, effort and integrity.

[Corrective action]

All harassment cease and a full independent investigation is undertaken on past events that are the basis for the latest action by [BM] and Senior management. Under the policy on “Indemnification of and Legal Assistance for CCRA Employees “I am requesting approval of private legal counsel, as I believe the current actions are vindictive, defamatory and malicious. I believe these actions are not designed for performance issues or disciplinary but rather disguised intimidation to respond to previous wilful negligence in dealing with past actions and past grievances.

6 On January 8, 2009, the grievor referred another grievance, dated April 20, 2007, (PSLRB File No. 566-34-2743) to adjudication. He had been unsuccessful at each of the four levels of the grievance process, including the final level. The grievance reads as follows:

I grieve the quantum of discipline action imposed by CRA as per the Letter of Discipline dated April 3, 2007.

[Corrective action]

I request that the Discipline action be rescinded, that I receive the reinstatement of the loss of my day’s pay with interest and that interest on the day’s pay be 7%, prorated from the date of the discipline action to the date of the reinstatement of pay. I further request that all records of Discipline be expunged from my personnel file.

7 Because the grievance dated May 8, 2007 was referred to the Board and the Board dealt with preliminary matters relating to it before the original grievance dated April 20, 2007 was referred to adjudication, the May 8, 2007 grievance will be referred to as “the first grievance,” and the grievance dated April 20, 2007 will be referred to as “the second grievance.” At the grievor’s request, the two grievances were heard together on June 16 and 17, 2009.

III. Events following the referral of the first grievance to adjudication

8 A teleconference was held on November 6, 2008 to discuss the proper scope of evidence for the first grievance and procedural issues arising from its wording and from the scope of the corrective action requested. During the teleconference, the grievor disclosed that he also had a similar grievance that was then at the third or fourth level of the grievance process on exactly the same disciplinary issue, that is, the quantum of discipline imposed by the letter of discipline, but that grievance requested different corrective action than the first grievance, and it was supported by his bargaining agent. According to the grievor, the bargaining agent had taken exception to his inclusion of a harassment element in the first grievance, an element for which he sought broad corrective action, and the bargaining agent had declined to represent him on that matter. The grievor then referred the first grievance, which included a harassment element, to adjudication. On hearing those details, counsel for the employer objected to the duplication of grievances concerning the same disciplinary action. The teleconference ended with me stating that I would hear arguments on two preliminary matters, namely, the duplication of grievances and my jurisdiction to award the broad corrective-action relief sought by the grievor, at the beginning of the hearing scheduled for December 2 to 5, 2008.

9 During the teleconference, I set out the jurisdictional framework of an adjudicator appointed by the Board under the Act. On the scope of the first grievance, I noted that the grievor grieves the quantum of discipline imposed in the letter of discipline. I explained that a grievance on the quantum of discipline imposed by an employer generally involved issues of whether a grievor had engaged in some form of work-related misconduct for which some discipline could have been imposed, and if so, whether the discipline was reasonable in the circumstances. I also reminded the parties that the evidence to be presented at the hearing must be relevant to a material issue in the case to be admissible.

10 On November 13, 2008, counsel for the employer informed the Board that the employer’s primary witness, BM, was terminally ill and was no longer able to testify or appear before the Board. As the employer’s replacement witness was unavailable during the scheduled dates, counsel requested a postponement of the hearing scheduled for December 2 to 5, 2008. Counsel for the employer further requested in the same letter dated November 13, 2008 that the parties proceed by written submissions on the two preliminary matters identified during the teleconference. The grievor strenuously objected. 

11 After considering written submissions from the parties on the employer’s request, I granted the request to proceed by way of written submissions on the issue that I lack jurisdiction to grant the relief the grievor is requesting as corrective action even were I to find for the grievor on the merits. I denied the employer’s request to deal with the issue of duplication of proceedings by way of written submissions, ruling that that issue would be dealt with at the outset of the hearing which was then scheduled for June 16 to 19, 2009. 

12 On February 6, 2009, the employer provided a detailed submission on my jurisdiction to award any of the broad corrective action sought by the grievor, and included an appendix of case authorities and documents.

13 At the end of the same submission, the employer applied for summary dismissal of the first grievance. In essence, the employer submitted that the Board did not have jurisdiction to grant any of the corrective relief that the grievor was seeking and that therefore, I must dismiss the grievance summarily.

14 The grievor replied in a brief letter dated March 9, 2009, stating as follows:

In review of the employer’s submission of February 6, I have chosen not to submit any representation on the matter relating to harassment. I believe the adjudication process cannot give me the remedy I am seeking nor does [sic] have the ability to address the vicarious liability of Canada Revenue Agency. Therefore with regards to the harassment and the remedy sought but only for that specific element, I have to concur with the employer that the Board does not have jurisdiction. I should be able to pursue that part of the complaint through a different judicial process.

[Emphasis added]

15 In Bahniuk v. Canada Revenue Agency, 2009 PSLRB 74, decided on June 11, 2009, I denied the employer’s application for the summary dismissal of the first grievance. Based on the written submissions received from the parties and on limited oral arguments during a teleconference on May 12, 2009, I ruled that I agreed with the employer’s argument that I did not have jurisdiction to grant any of the grievor’s requested corrective actions were I to find for the grievor on the merits of the case. I also noted that the grievor, in his written submission, agreed with the employer’s submission that the Board did not have jurisdiction over the harassment and the remedy sought, but “… only for that specific element…” and that the grievor was not prepared to voluntarily withdraw his first grievance. 

16 While I accepted the employer’s argument that I did not have jurisdiction to grant any of the broad corrective action that the grievor sought, I ruled that that did not necessarily mean that the first grievance was not properly before me and that it should be summarily dismissed. I noted that the grievor’s reference to adjudication was made under paragraph 209(1)(b) of the Act, which provides as follows:

Reference to adjudication

209.(1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

…

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

17 I noted that the grievor was grieving the one-day suspension disciplinary penalty. Therefore, the substance of the first grievance on its face falls within the parameters of paragraph 209(1)(b) of the Act. I ruled that my jurisdiction is determined by the substance of the first grievance and that its redress portion, while important, is secondary and does not affect my jurisdiction. I ruled that the grievor is entitled to a fair opportunity to prove his case on the merits and that, should he do so, there may be a remedy that is appropriate and within my jurisdiction to provide. I also noted that the context in which discipline is imposed by the employer might be relevant to the issue of the reasonableness of the quantum of discipline imposed.

18 I ordered the hearing on the merits of the grievance to proceed as scheduled on June 16 to 19, 2009.

19 By the time the matter reached adjudication, at the grievor’s request by letter dated January 8, 2009, the two grievances had been scheduled by the Board to be heard together, thus eliminating the need to begin the hearing with arguments on the issue of the duplication of proceedings.

IV. Summary of the evidence

20 At the beginning of the hearing, I emphasized that both grievances grieved the quantum of discipline that was imposed, namely, the one-day suspension. I reminded the parties of matters discussed during our teleconference of November 6, 2008 and in my decision in 2009 PSLRB 74 of June 11, 2009, namely, that the evidence to be presented at the hearing must be relevant to a material issue in the case to be admissible and that a grievance on the quantum of discipline imposed by an employer generally involved issues of whether a grievor had engaged in some form of work-related misconduct for which some discipline could have been imposed, and if so, whether the discipline was reasonable in the circumstances.

21 Both parties made brief opening remarks. Counsel for the employer called 1 witness and entered 15 exhibits. The grievor testified but called no other witnesses and entered 8 documents in evidence.

22 Before the hearing, by letter of November 13, 2008, counsel for the employer had informed the Board that the employer’s primary witness, BM, was terminally ill and that he was no longer able to testify or appear before the Board. At the hearing counsel for the employer informed the Board that BM had passed away and that the employer would call Rick Leigh, the supervisor to whom BM reported when the disciplinary action was imposed.

23 It should be noted that many of the communications between the various people involved in these grievances were conducted by email, and the evidence includes a number of those emails. Some are reproduced later in this decision as written, unless otherwise indicated.

24 At the time of the discipline, the grievor was a team leader in Revenue Collections, Calgary Tax Services, CRA located in Calgary, Alberta. He had been a team leader since 1990, and the size of his team had fluctuated over time from 8 to 15 people. At the time of the hearing, he was supervising approximately eight or nine people “at the front line” and was an MG-3 level manager.

25 Mr. Leigh has been the director of the CRA’s Calgary Tax Services office since June 2007. Before that, he was an assistant director in Revenue Collections. BM was one of the section managers who reported to Mr. Leigh, and the grievor was one of approximately 8 to 10 team leaders in Revenue Collections who reported to BM.

26 In 2005, the CRA adopted a new, standardized competency assessment method known as Observe and Attest (“O&A”) as part of its human resources management system. The O&A involves managers directly in assessing and attesting to their employees’ competency levels, and it forms part of a manager’s ongoing management responsibilities.

27 According to the O&A human resources literature (Exhibit 16), the O&A competency assessment system allows employees to be selected, evaluated, developed and promoted based on competencies. Managers are trained and authorized to observe and attest three employee competencies up to the threshold level identified in the completed job competency profile for the employee’s position. Managers observe employees’ on-the-job performance for a minimum of six months and identify examples of behaviours relating to the competencies. Managers discuss their observations with employees and, when the competencies are demonstrated, managers attest that the employees have met the threshold. The three relevant employee competencies are Client Service Orientation, Effective Communication, and Teamwork and Cooperation.

28 A cascading approach was to be used for implementing the O&A in CRA offices across the country. In phase 1, senior managers were to observe and attest to the competencies of other managers. In phase 2, managers were to observe and attest to the competencies of employees.

29 In phase 1, executive cadres were to be trained to observe and attest middle and first-line managers. The managers had to be attested as having reached the threshold levels of their own jobs for three management competencies, namely, Conflict Management, Team Leadership and Developing Others, before they were to observe and attest to the competencies of the employees reporting to them in phase 2.

30 Mr. Leigh had observed and attested to the required competencies of the section managers in Revenue Collections who reported to him. The next step in the O&A was for the section managers to observe and attest to the competencies of the team leaders reporting to them before those team leaders, in turn, could observe and attest to the competencies of the employees reporting to them.

31 BM, as a section manager, had been certified by Mr. Leigh on his three required competencies and BM, in turn, used the O&A on the team leaders reporting to him, including the grievor.

32 On December 11, 2006, BM emailed (Exhibit 6) each team leader reporting to him, asking for at least two examples of behaviours demonstrating the three specific management competencies required of them, namely, Conflict Management, Developing Others and Team Leadership, which he would then incorporate with his own observations. He asked for a reply by January 15, 2007. 

33 Sometime between December 11, 2006 and January 15, 2007, one of the team leaders who reported to BM discovered a template for recording competencies that had been used in the Red Deer division and that team leaders there had found easy to use to submit the required behaviour examples to their managers. BM then gave that template, which had definitions and levels for the three management competencies required as well as a fourth competency, Effective Interaction/Communication, to all his team leaders, asked them to use it, and reminded them that their replies were due by January 15, 2007. 

34 On January 5, 2007 at 11:47, the grievor sent an email to BM (part of Exhibit 6) stating the following:

This is the first I have heard that there is a specific date for this submission. As per my past performance reviews, Management has decided I have not done anything of value over the last, I believe, 5 periods. To date my performance has been comparable to those last 5 years. I’ll let you know when I have an example that would exceeded [sic] my performance over that period.

35 On January 5, 2007 at 13:18, BM sent an email (part of Exhibit 6) to the grievor stating as follows:

Stan, you recently received training on Observe and Attest and were advised that your manager would be trying to validate some of your competencies for your current position. I’ve explained to all the team leaders in my section that I wanted to attest to their threshold level on Conflict Management, Developing Others and Team Leadership. Also your acknowledgement that your performance is similar to what has been assessed by management in the last 5 periods obviously concerns me going into this years [sic] performance cycle. Perhaps when I ask for accomplishments next month in preparation for this years [sic] performance review, you will be able to recall at least one improvement over prior periods.

Finally, I am attaching a copy of an email dated December 11, 2006 addressed specifically to you. Each team leader in my section who did not have the three competencies had a similar memo sent to them that addressed the specific competencies that I wanted examples for and the  date, that being January 15, 2007.

36 On January 5, 2007 at 14:20, the grievor sent an email to BM (part of Exhibit 6) stating as follows:

As you know I sent several examples (over 100 emails) of my performance. You felt they were not worthy of even opening them up.
If you have some concerns then I suggest you have a duty to address them.

37 The grievor thought that it was BM’s responsibility under the O&A (Exhibit 16), as his manager, to observe the grievor and identify examples of behaviours demonstrating the required competencies. The grievor saw BM’s request as another example of BM not managing him, which was BM’s responsibility, according to the grievor.

38  On January 15, 2007 (the due date for the submission), at 17:21, the grievor sent BM an email entitled “O&A” (Exhibit 17). He attached a document entitled “O+A Stan compentencies [sic] doc.” with a covering note reading as follows: “I believe each of the two events presented represent competencies achieved in all four competency areas.” The attachment was the formatted competency document, but rather than providing examples under each of the four competencies listed separately, the grievor chose to provide a four-to four-and-a half-page description under the first competency, Conflict Management, describing two events and to leave it to BM to allocate the information to the four competency areas. The remainder of the document was blank. The document described a problem with calls, particularly Goods and Services Taxes compliance calls, being misdirected to the collection team lines and the steps the grievor, as team leader, had taken to try to correct the problem. The second event described a proposal that the grievor had made to deal with management’s decision to reduce the span of control to a nine-to-one reporting ratio and the subsequent reorganization events.

39 BM, after discussing the matter with his supervisor, Mr. Leigh, issued a written reprimand to the grievor, dated January 18, 2007 (Exhibit 7). It reads as follows:

This is further to our meeting of 12 January 2007 regarding your inappropriate interaction and tone in responding to your Manager, when a collaborative approach was being taken to try and finalize the Observe and Attest (O&A) process favourably. This meeting confirmed the following:

On January 5, 2007, you responded via e-mail to your manager’s request for information that would assist in supporting your required levels during his Observe and Attest assessment of your competencies.

In doing so you clearly demonstrated your intent to not cooperate with your manager as well as an unwillingness to work with him. Such demonstrated lack of cooperation and disrespect for your manager is not expected from an MG or from any employee in a leadership role, nor is it acceptable.

In accordance with the CRA Code of Ethics and Conduct and the Manager’s Charter, as an employee of the Agency in the MG Group you are accountable to your employer and are expected to carry out your assigned duties conscientiously and in accordance with our organization’s values of respect, professionalism, integrity and cooperation. Your unwillingness to cooperate demonstrates a lack of professionalism and a lack of respect for management. We expect you to adhere to the Code of Ethics and Conduct, Canada Revenue Agency Values and CRA policies which underlie it.

I have taken into consideration your years of service and work history and my continued efforts to guide you in your development. To impress upon you the seriousness of your actions, it has been determined that a written reprimand is the appropriate corrective action.

A copy of this document will be placed on your personnel file and will be destroyed after two years have elapsed since the date this disciplinary action was taken, provided that no further disciplinary action has been recorded during the two year period. Any further incidents may result in more severe discipline, up to and including termination.

You have the right to grieve this decision and may do so within twenty-five days from this date.

(Note: The second paragraph is indented in the original.)

40 Mr. Leigh testified that he read the grievor’s January 5 (14:20) email as saying that the grievor was not going to submit anything more that what he had already submitted for the 2005-2006 performance review. Mr. Leigh testified that performance reviews and the O&A are separate processes. For the latter, a manager or employee does not have to have shown exemplary performance, but he or she has to meet the basic competencies identified for his or her position. Mr. Leigh testified that it would not take a manager more than a “couple of hours” to come up with a couple of examples for each of the three competencies to be assessed.

41 Mr. Leigh testified that the O&A is a collaborative effort and that it is mandated that managers have to “O&A” team leaders like the grievor. He also testified that he was not aware of any other employee who reported to BM who had problems with the O&A competency-based system.

42 In cross-examination, Mr. Leigh testified that he recalled that the grievor did submit some O&A competency examples but that he was unsure of the timing of the submission. Also, he recalled reviewing them and concluding that they were not suitable or appropriate for attesting that the grievor met the threshold levels. He testified that team leaders were to provide examples for each particular competency under each heading, not one lengthy recital. The implication of the grievor’s submission was that the manager had “to sort things out.” Mr. Leigh testified that he does not know whether BM told the grievor that the examples were inappropriate.

43 The grievor was not happy with the letter of reprimand. He went to BM’s office later that day to meet with BM and expressed his displeasure with receiving it.

44 BM was apparently shocked by the grievor’s reaction and what he viewed as the grievor’s uncooperative and disrespectful approach to management. BM sent himself an email to file, dated January 18, 2007 at 15:00, and copied Pat Huston of Human Resources Staff Relations, CRA with the following subject line: “Notes to file: S. Bahniuk.” The email (Exhibit 8) reads as follows:

Stan came to my office at approximately 2:35 P.M. on January 18, 2007. This was approximately 35 minutes after I administered discipline to Stan in the form of a written reprimand.
He stated that since he had received a written reprimand, he knew that the next step would be a suspension and that he is prepared to be disciplined further as he wants all of this and years of events prior to this to be heard by an adjudicator.
I was quite thrown back by this comment, as normally after discipline which is intended to be corrective, you get a completely different attitude form [sic] a person.
I told Stan that I didn’t know if that could happen. He stated that if it didn’t then if it takes yelling at me in order to get further discipline so that he can get closer to adjudication then he’ll do that.

45 Mr. Leigh testified that BM discussed the meeting with him and that BM related the same description of events as are set out in BM’s email. Mr. Leigh testified that BM’s notes to file were made pursuant to his duties as a manager. No further disciplinary action was taken as a result of the grievor’s behaviour at the meeting.

46 On February 22, 2007, the grievor grieved the letter of reprimand (Exhibit 7). Mr. Leigh wrote the second-level grievance reply letter dated July 13, 2007 (Exhibit 9) and B. Reich, Regional Assistant Commissioner, Prairie Region, CRA wrote the third-level reply letter on November 6, 2007 (Exhibit 9). That grievance is not before me but it was raised both by counsel for the employer and by the grievor as forming part of the context of the grievances that are before me and as part of the progressive discipline imposed on the grievor by the letter of discipline in question.

47 The grievor, in addition to grieving the letter of reprimand (Exhibit 7), met with BM on March 1, 2007 and asked him for the O&A examples that he had observed about the grievor. After the meeting, in an email to himself, entitled “Note to file-S. Bahniuk,” dated March 1, 2007 at 08:55 and copied to Pat Huston, BM wrote (Exhibit 10) the following:

Stan entered my office this morning wanting to get more information on examples that I have for O&A about him. I indicated that I don’t have anything written down.
He said that I don’t manage him. I told him that I am not going to be around him 24 hours a day but I am aware of his general activities. He said I don’t know about what he had done with his staff in his new team. I advised him that I was aware about the training that was provided and initiated by him and that he supplied a buddy etc.

He continued to say I have no examples and refereed [sic] him to his training on O&A and that we were to work together to try and have him attested to at the threshold level for certain competencies and that he was aware of this in his training. He continued on to say that he wanted to go to adjudication and that I would not go there. I advised him that I checked with H.R. and that there were steps that he had to go through first to try and resolve this. He continued on in a fairly anxious manner at this time and stated that he wanted to be disciplined.

The fact that he was standing in my office agitated and insistent to me about being disciplined, I advised him that he was being insubordinate and disrespectful and that he would get his wish and that I would be applying further discipline. I asked him to leave my office.

(Note: There is no space between the first two paragraphs in the original.)

48 BM sent another email to file later on the same day, at 14:57 (Exhibit 11). Pat Huston was copied and it was entitled: “Notes to file-S. Bahniuk.” It reads as follows:

Further to my notes of this morning, it is important to note that I have asked Stan to review his O@A [sic] submission to provide me with an opportunity to attest to his threshold level. His demeanour this morning was one that was insistent in nature and uncooperative. The insistent [sic] by him to be disciplined shows that he will not cooperate and to insist that he wants to go to adjudication even after I told him that there were proper steps to take shows his lack of cooperation. Stan is mindful of his state of mind and is deliberately choosing to be uncooperative for the sole sake of raising his concerns to adjudication. This is not acceptable of anyone, in particular a manager.

[sic throughout]

49 Mr. Leigh testified that he also met with BM on March 1, 2007. BM recounted the events of his same-day meeting with the grievor, as described in his notes to file as set out earlier in this decision (Exhibits 10 and 11). He testified that BM’s record of the events in the notes to file are an accurate description of what BM mentioned as having happened and that the notes to file were made as part of BM’s duties as manager. Mr. Leigh testified that, after a discussion with BM, further discipline in the form of a one-day suspension was imposed on the grievor by the discipline letter. That discipline is the subject of the grievances before me.

50 As previously noted, the grievor filed two grievances, both grieving the quantum of discipline imposed by the CRA in the letter of discipline, namely, the one-day suspension. The difference between the grievances, as previously described, was in the corrective action sought. The second grievance was supported by the bargaining agent. It sought the rescinding of the discipline and the reinstatement of the day’s pay with interest, and it requested that all records of discipline be expunged from the grievor’s personnel file. The first grievance requested wide-ranging corrective action that the grievor subsequently agreed with the employer that the Board did not have jurisdiction to grant under the circumstances.

51 BM wrote the first-level grievance reply letter, dated June 18, 2007, to the second grievance. It reads in part (Exhibit 1) as follows:

…

In rendering my decision I have carefully considered the facts surrounding your grievance and the comments made by you and your representative during our meeting.

Your representative stated that you do understand the expectations regarding your conduct. She also stated that you have apologized for your behaviour. I do appreciate the apology, however, you have not demonstrated your understanding through your actions. I hope for the future that you will consider your responses, your actions and their potential impact prior to enacting them.

In view of the above, your grievance is denied and the corrective action you are seeking will not be forthcoming.

52 Mr. Leigh wrote the second-level grievance reply, dated July 13, 2007 (Exhibit 2), as he had assumed the position of Director in June 2007. It reads in part as follows:

…

I have carefully considered the information provided by you and your union representative at our meeting. In addition, I have discussed this issue with your manager, [BM].

My understanding of your grievance is that you do not feel you should be disciplined for your behaviour during your meeting with [BM] on March 1, 2007. Your union representative has questioned the appropriateness of [BM’s] behaviour and has offered that as a reason for rescinding this discipline. I have found no evidence to refute that your behaviour was inappropriate nor have I found evidence of inappropriate behaviour on the part of [BM].

…

53 The third-level grievance reply, dated November 6, 2007, was signed by Mr. Reich (Exhibit 3), who was Mr. Leigh’s manager, and Mr. Leigh testified that he was consulted about the reply as he had sent a briefing note to Mr. Reich.

54 The final-level reply was issued by Lysanne M. Gauvin, Assistant Commissioner, Human Resources Branch, CRA, on December 19, 2008 (Exhibit 4). Mr. Leigh has no reporting relationship to Ms. Gauvin, and he testified that she would have reported directly to the Human Resources Commission. Ms. Gauvin’s reply makes reference to her earlier final-level reply of September 21, 2007 (part of Exhibit 5) on the first grievance.

55 Mr. Leigh testified that he felt that a one-day suspension was an appropriate attempt to correct the grievor’s behaviour as a written reprimand had already been issued for similar behaviour and “…especially in light of the grievor wanting to be disciplined.”

56 Mr. Leigh testified that, as a team leader, the grievor was part of CRA management and that the Manager’s Charter (Exhibit 13) and the CRA’s Code of Ethics and Conduct (“the Code”) (Exhibit14) applied to him.

57 Mr. Leigh testified that the Manager’s Charter referred to in the letter of discipline (Exhibit 13) was created when the MG classification group for team leaders was formed and that it was prepared as a description of the behaviours expected of team leaders when they deal with employees, managerial colleagues and the public. All MGs, including section managers, were given a copy. The Manager’s Charter specifies that, among other things, CRA managers are to act according to the CRA corporate values of integrity, professionalism, respect and cooperation and that they are to encourage open, constructive communications and working relationships.

58 Mr. Leigh testified that the Code specifies the CRA’s mission and values, that it is made available to every CRA employee and that all CRA employees are required to sign a “Confirmation of Receipt Form” to certify that they agree to abide by the standards it sets out. The Code stipulates that all employees are to review their obligations under it annually (Exhibit 14, at page (i)). The Code includes a section specifying possible disciplinary action for misconduct (Exhibit 14, at page 18) and a section detailing the leadership role of managers (Exhibit 14, at page 19).

59 The CRA has a discipline policy (Exhibit 15) which was in place in April 2007 when the one-day suspension was imposed. The policy sets out the roles and responsibilities of employees, managers and labour relations advisors and explains the concept and process of progressive discipline. Mr. Leigh testified that he and BM were aware of the policy and particularly, that they consulted the chart in its Appendix C when determining the appropriate quantum of discipline to be applied to the grievor following the written reprimand.

60 The grievor grieved the written reprimand. In cross-examination, Mr. Leigh testified that he did not think that BM ever opened the 100 emails about the grievor’s performance that the grievor had sent him and to which the grievor referred in his January 5, 2007 email to BM (part of Exhibit 6). Mr. Leigh added that he had not reviewed the performance file that BM had on the grievor nor had he considered any prior action or interaction between the grievor and management before he made the decision with BM to impose a written reprimand on the grievor for his behaviour in January about the O&A.

61 During the cross-examination on Mr. Leigh’s second-level grievance reply, dated July 13, 2007 (Exhibit 9), he was asked to describe what he meant by “uncooperative and disrespectful” in his sentence reading “Discipline, in the form of a written reprimand, resulted when you sent an email to your manager that was considered by your manager to be uncooperative and disrespectful.” Mr. Leigh testified that he thought that the grievor was “uncooperative” in a number of ways as follows: in his attitude toward BM; in not providing BM, when asked, with suitable O&A examples; and in the grievor’s behaviour and demeanour in his meetings with BM. Mr. Leigh testified that only the one incident described by BM in Exhibits 10 and 11 led to the conclusion that the grievor was uncooperative at the meeting with BM on March 1, 2007.  

62 Mr. Leigh also responded that he thought that the grievor was being disrespectful about the O&A and in his unwillingness to work with his manager on it. He noted the grievor’s unwillingness to provide O&A examples and his disrespectful tone in communications with BM.

63 In cross-examination, Mr. Leigh was asked whether he thought that the sentence in BM’s email to the grievor of January 5, 2007 at 13:18 (part of Exhibit 6), which states as follows: “Perhaps when I ask for accomplishments next month in preparation for this years [sic] performance review, you will be able to recall at least one improvement over prior periods,” was disrespectful or inappropriate for a supervisor. Mr. Leigh testified that he did not find it inappropriate.

64 The Manager’s Corner Observe and Attest document (Exhibit 16) states that “[t]he manager will observe employees on the job for a minimum of six months and identify examples of behaviours relating to the competency.” In answer to a question about what BM contributed to the O&A of the grievor, and whether BM had any examples other than the ones the grievor had provided, Mr. Leigh testified that he did not know whether BM had any examples of competencies other than what the grievor had provided.

65 In cross-examination, Mr. Leigh testified that he did not know whether BM had done anything on the O&A between April 2006 (the grievor’s last performance appraisal at the time of the discipline letter) and March 2007.

66 In cross-examination, Mr. Leigh testified that he knew that the grievor had apologized to BM for his behaviour but, as BM stated in the first-level grievance reply (Exhibit 1), while he appreciated the apology, he did not think that the grievor demonstrated an understanding of the expectations for his conduct, and he would not rescind the one-day suspension. 

67 During his testimony, the grievor submitted that the context in which the O&A dispute and the discipline letter should be viewed was the past five years of his performance evaluations. He testified that, in his performance appraisals, he was ranked in the bottom 3 percent of team leaders in the Tax Services Office and that there were 140 team leaders. 

68 The grievor testified that he had filed over 50 grievances against his employer, that not one had been allowed and that he had never received any positive response.

69 The grievor testified that he used grievances as a record of what happened and that filing grievances against disciplinary action imposed on him was his only way to challenge management’s actions as he needs the consent of his bargaining agent to challenge those actions of management that are not considered discipline. He testified that he believed that adjudication was an avenue to get the actions of management reviewed but that he would never put himself in a position where he would violate the Code to do it. He was just frustrated because of BM’s actions and because he was subject to a constant bombardment of harassment by management.

70 The grievor introduced evidence that he took additional action on March 1, 2007 besides that adduced in evidence by the employer. The grievor filed a grievance, dated March 1, 2007 (Exhibit 18), which reads as follows:

On March 1, 2007 I came into [BM’s] office to ask if he had the information he said he would have to me early last week. This information consisted of his addition to my Observe and Attest file and further documentation on my own personal file. He previously indicated he had more information on each file. When I asked for the information on my Observe and Attest file he said he didn’t have anything. I calmly tried to have a discussion about how his position related to the previous disciplinary letter. He started to yell I was insubordinate and I would be subject to disciplinary action. He demanded that I leave and I left. This is a continuation of harassment by [BM].

[sic throughout]

71 The grievor also introduced evidence (Exhibit 19) that he had filed a grievance on January 12, 2007 about a meeting he had had with BM earlier that day about the grievor’s failure to meet performance expectations. (It was the grievor’s behaviour at a January 12, 2007 meeting that led to the written reprimand.) In that grievance, the grievor alleges that BM claims that the grievor is not cooperative, but the grievor states that he believes that the problem is that BM’s actions are discriminatory and that they constitute an abuse of authority, which is harassment.

72  The grievor introduced in evidence a copy of a grievance that he filed on August 15, 2006 (Exhibit 20) about a meeting he had had with BM and Pat Huston on July 20, 2006 in which BM alleged that the grievor was not meeting the performance expectations of professionalism and cooperation. The grievor’s grievance alleged that BM’s actions constituted a threat of disciplinary action and that they were part of BM’s harassment of the grievor. The grievor also introduced in evidence an email from BM to him dated August 1, 2006 and copied to Pat Huston, about the July 20, 2006 meeting. The email (part of Exhibit 20) reads in part as follows:

I held a meeting with you on July 20, 2006. In attendance was Pat Huston (H.R. staff relations). The purpose of this meeting was to explain to you my dissatisfaction with your overall demeanour as it relates to the core values of the organization.
I referenced an instance in April when I felt you were being uncooperative in so far that I asked you for specific details concerning your performance. I explained then that your response of providing over 100 emails to review was unacceptable. Your response at the time was that you felt it was my job to open them up, not yours. I found this to be uncooperative.

In a subsequent meeting concerning your “draft” performance review as we were discussing a particular matter you loudly said “Bull”. I found this to be disrespectful and unprofessional. I had to caution you to watch your tone. The next incident was when we were discussing your “final” performance assessment. Instead of concentrating on the results you started to call the Director a “liar” and management as a whole as being “malicious” and “incompetent”. You also stated that you would not “Cow Up” or “Suck Up” like your peers. I found this to be unprofessional, disrespectful and uncooperative.

Finally on July 19, 2006 when I advised you that I wanted to meet with you and that you could bring your union representative, at first you said O.K. However in a matter of moments you entered my office and loudly stated on two occasions that this was “Crap” or “I’m tired of this “Crap”. Your tone was unprofessional, disrespectful and uncooperative.

…

(Note: There is no space in the original document between the first two paragraphs).

73 The grievor testified that, contrary to BM’s statements in that email, while he says words like “bull” or “crap,” he has never sworn. The grievor admitted in cross-examination that he speaks “passionately all the time” and sometimes loudly but he testified that he would not say things like “cow up” or “suck up.”

74 The grievor also introduced in evidence a copy of a grievance that he filed on May 4, 2006 (Exhibit 21) about the draft performance review he had received from BM for the period ending March 31, 2006. It reads in part as follows:

The draft performance review for period ending March 31, 06 contains the phrase “Also his characterization of individual [sic] at times can be disrespectful”.  When asked what that meant, [BM] indicated that it was in reference to my using the phrase in grievances that various people were operating in “bad faith”. I asked both [BM] and the Assistant Director Mr. Rick Leigh whether that position was a way to seek to intimidate me and penalize me for filing grievances. [BM] believed that my using that phrase was disrespectful but deleted it from my performance review on the advice of staff relations. He then simply replaced that phrase and substituted a negative comment about my cooperation. It was obvious the motive to put the uncooperative phrase in was to ensure there was something negative in my performance review to negate any possibility of me qualifying for performance leave.

…

75 The grievor introduced in evidence copies of emails that he exchanged with Dave Mapplebeck, who had been his manager before BM, dated November 18, 2002 (Exhibit 22) in which the grievor sought clarification on comments that Mr. Mapplebeck had made on an attached performance expectations document that raised issues under the following three headings: elevation of issues and concerns in accordance with the “Chain of Command,” cooperation and respectful communication with peers and superiors, and support of management decisions. The attached document also contained the responses that the grievor had provided to Mr. Mapplebeck.

76 The grievor wished to submit other performance expectation, performance appraisal and leave grievances that he had filed before April 2006, in particular performance review documents from 2002 and 2004. In response to my request for particulars as to the relevance of those performance appraisals, work plan documents and performance grievances that occurred well over a year before the events giving rise to these grievances, the grievor could not explain except to say that they provided the overall context of the discipline as they showed the pattern of management’s harassing and disrespectful behaviour toward him for many years. I noted that these grievances were not performance appraisal grievances but that I was conscious of the grievor’s inability to cross-examine BM because of BM’s untimely death. I specifically asked the grievor if he could relate the 2002 and 2004 performance documents to BM’s concepts or definitions of professionalism, cooperation or disrespect that were at issue, and the grievor said that he could not. I then ruled on the scope of the evidence. I ruled that the performance documents and work plan from before April 2006 were not relevant and were inadmissible.

77 The grievor testified that BM never talked to him about competencies. BM just gave him a format and told the grievor to provide examples. He testified that, in January 2007, it was the early days of the implementation of the O&A and there was no one way to provide the competency examples.

78 In cross-examination, the grievor testified that he had received no performance pay for the past five years and that he believed that he was the only team leader who had not qualified for performance pay. He testified that his bargaining agent had gone through adjudication with him once on a performance leave grievance, that it now refuses to represent him on performance appraisal grievance issues and that he has no avenue to contest his performance reviews except through discipline grievances as he does not need the bargaining agent’s consent to file a discipline grievance. He testified that he becomes upset and frustrated with management when it treats him unfairly and with a lack of respect and when it harasses him.

79 In cross-examination, the grievor was asked, about his testimony that he had filed about 50 grievances and that he had lost all of them, whether it was possible that he had lost all of them because none had merit. The grievor testified that “… it was possible but not probable.”

V. Summary of the arguments

A. For the employer

80 The employer’s position is that the grievor was properly disciplined. He displayed misconduct that warranted discipline, and the employer properly applied the CRA’s progressive discipline policy.

81 Counsel for the employer submitted that BM’s emails and notes about the March 1, 2007 incident and about subsequent events were admissible in evidence under the exception to the hearsay rule, which permits receiving into evidence entries of deceased persons in limited circumstances.

82 In support of its argument, the employer referred me to the following decisions: Conley v. Conley et al., [1968] 2 O.R. 677 (Ont. C.A.), and A.U.P.E. v. Caritas Health Group, 2006 ABQB 550.

83 Counsel for the employer noted that BM had written his emails contemporaneously with the events and that Mr. Leigh had confirmed the accuracy of their contents. Mr. Leigh, BM’s immediate supervisor, testified that BM had conveyed the same information to him at their meetings in January and March, 2007. Furthermore, counsel for the employer asserted that the grievor did not dispute the accuracy of the series of events described in BM’s emails in his testimony and that it was not contradicted by any evidence that the grievor provided.

84 Counsel for the employer noted that the grievor’s testimony confirmed that the crux of the friction that has existed for many years between the grievor and his several managers at the CRA has been his performance appraisals. While the conflict between the grievor and BM about the O&A, which is the root of the discipline at issue, is a separate issue, the performance appraisals and the O&A raised similar situations in which the grievor was told by his manager what was expected of him in terms of workplace behaviour. The grievor consistently did not respond well to that type of feedback. Counsel for the employer stressed that this pattern is demonstrated by the January 5, 2007 email from the grievor to BM in Exhibit 6. The grievor’s manager had a responsibility to observe the grievor and to attest to his competencies. All team leaders were asked to provide their O&A examples, and the grievor essentially responded “no” in an inappropriate and disrespectful way. The grievor thought that it was his manager’s job to supply O&A examples or that his manager was incompetent, which justified the grievor’s style of responding.

85 The grievor received a written reprimand for an incident on January 12 (Exhibit 7). The grievor did not agree with the reprimand and went to his manager’s office. What transpired is set out in BM’s email of March 1, 2007 (Exhibit 10). The description of events in the email was confirmed by the employer’s witness, Mr. Leigh, who was BM’s manager at that time. The grievor did not dispute the description in his testimony. The grievor, instead of being contrite and providing BM with the requested O&A examples, was accusatory and desired discipline so that he would get his chance to put his full case about management’s unfair treatment of him before an adjudicator. BM was shocked by the grievor’s reaction.

86 Counsel for the employer argued that, contrary to the grievor’s opinion, if the employer had been “out to get him,” then it would have taken disciplinary action after the January 18, 2007 confrontation between the grievor and his manager. However, the employer did not take disciplinary action until after the grievor returned to BM’s office on March 1, 2007. The grievor does not understand that entering his manager’s office and asking to be disciplined is unprofessional and also inappropriate behaviour.

87 BM’s notes to file of March 1, 2007 (Exhibit 10) state that the grievor accused him of having no O&A examples, which is consistent with the grievor’s evidence. BM notes that he consulted with the Human Resources department, that he told the grievor that there were proper steps to follow to reach adjudication and that he asked the grievor to leave his office. The grievor reflected on the March 1 meeting and prepared a grievance (Exhibit 18) on the same day. The grievor’s version of events set out in Exhibit 18 did not challenge the employer’s version.

88 The discipline letter (Exhibit 12) is consistent with the events of March 1, 2007. It refers to a March 1, 2007 meeting, and the grievor indicated that he acted as he did out of frustration. The discipline letter indicates that BM was aware that the grievor had been previously disciplined for similar behaviour, and evidence presented at this hearing showed that the written reprimand was upheld when it was grieved.

89 Counsel for the employer submitted that the employer properly applied the CRA’s progressive discipline policy. He recalled Mr. Leigh’s testimony and the progressive discipline chart presented in evidence that clearly showed that, when a written reprimand had already been issued, a one-day suspension was clearly justified. Counsel argued that a one-day suspension was not only justified, in terms of the possible disciplinary options available, it was also the shortest possible suspension provided for under the policy. The employer’s purpose was to correct the grievor’s behaviour, which would not have been served by a second written reprimand.

90 Counsel for the employer also submitted that the grievor appeared to be only challenging the fact that some discipline had been applied, not its quantum.

91 Counsel for the employer argued that the grievor presented no evidence in support of his grievances. The employer argued that the grievor did not put his version of events in evidence. The grievor described his grievances in the grievance forms and submitted copies of grievances that he had filed, but he adduced no evidence about them, and they are only evidence that the grievor filed some grievances.

92 Counsel for the employer argued that the grievor did not challenge the employer’s version of events and that the grievor’s evidence did not establish anything contrary to the employer’s version of events, particularly Exhibits 10 and 11. Although the grievor introduced in evidence his grievance against the March 1, 2007 meeting with BM (Exhibit 18), he failed to adduce any evidence that his summary of the events of that meeting was accurate and that the employer’s summary (Exhibits 10 and 11) was inaccurate. In his direct evidence, the grievor never addressed Exhibits 10 and 11.

93 Counsel for the employer argued that the grievor just adduced Exhibit 19 into evidence and did not allege that any of its contents were inaccurate or wrong. The fact that the grievor filed a grievance is just evidence that he filed a grievance. The grievor has not adduced any evidence in this hearing on his version of events.

94 As for Exhibit 20, which the grievor adduced in evidence and that details problems that he was having with his bargaining agent, counsel for the employer asserted that he had not been aware of it before the hearing and that it did more harm than good to the grievor’s case.

95 Exhibit 20 contains an email dated August 1, 2006 from BM to the grievor and copied to Pat Huston. The grievor, in his direct evidence, did not take issue with it and in fact confirmed that the conversation as described took place. The grievor only took issue with two words contained in the email (“crap” and “bull”), which certainly leaves the impression that he takes no issue with the remainder of the email. The grievor relied on Exhibit 20 to show how unfairly he has been treated, but it clearly shows that the grievor used inappropriate terms with his manager and that he acted inappropriately and disrespectfully. BM referred to the Manager’s Charter and stated that the grievor was acting inappropriately and that, if he continued to act that way, he would be subject to discipline, and BM offered to assist the grievor. Exhibit 20 documents that management was trying to work things out with grievor. If management had been trying to “whack” the grievor, as he alleges, it would have disciplined him for that behaviour. Most people receiving such a letter from their manager would be upset and scared and would take immediate steps to correct their behaviour, but the grievor took no such steps. The grievor just viewed it as another example of management’s unfair treatment.

96 Counsel for the employer submitted that the grievor’s Exhibit 21 (a grievance filed by the grievor on May 4, 2006 challenging the grievor’s draft performance review for the period ending March 31, 2006 and alleging that BM and Mr. Leigh were acting in bad faith) has little relevance to the matters before me. Furthermore, counsel for the employer submitted that the grievor did not say whether the allegations in that exhibit were accurate. Therefore, Exhibit 21 is just evidence that the grievor filed a grievance, but it does not constitute evidence about either the truth of the grievor’s assertions on the reasons invoked by the employer to justify the disciple. The grievor has not provided his version of events about these matters, which is fatal to his case.

97 The grievor testified that he had filed around 50 grievances since 2002 and that he had not been successful in any of them. The grievor uses that as evidence that he has been wronged by management and the bargaining agent 50 times rather than as evidence that he acted inappropriately 50 times. The grievor sees the discipline (the written reprimand and the one-day suspension) as harassment or the continuation of inappropriate behaviour by management rather than as evidence of his inability to work with three different managers over the past seven years.

98 Counsel for the employer submitted that the focus must be on the grievances before me, which are about the grievor’s O&A reporting. BM asked the grievor to provide some O&A examples and, instead of taking a few hours to it, it became something to fight about with management and something not about the grievor but about management’s inappropriate behaviour or his unfair treatment. The grievor feels that management is harassing him. The grievor’s response was to write a couple of disrespectful emails and to go to his manager’s office and say that he wanted to go to adjudication.

99 Counsel for the employer submitted that, even if it is assumed that the grievor’s allegation that management was incompetent and was on a campaign to harass him is true, it makes no difference to the issue before me. The issue is the grievor’s behaviour on March 1, 2007 when he walked into his manager’s office and, in an accusatory tone, asked to be disciplined so that he could get to adjudication, and he was disciplined. Regardless of whether his manager was incompetent, as the grievor alleged, or had a responsibility to “O&A” the grievor’s competencies and failed to meet that responsibility, as the grievor also alleged, it does not justify him acting the way he did on March 1, 2007, especially given the written reprimand for similar inappropriate behaviour and the advice he had received from management not to behave that way.

100 With respect to the appropriateness of the quantum of discipline imposed, counsel for the employer argued that the grievor did not appear to challenge it. The grievor challenged only the fact that discipline had been imposed.

101 Assuming that, as the employer has argued, there was some misconduct deserving of discipline, the employer’s position is that imposing a one-day suspension was the appropriate response in light of the fact that it had given the grievor the written reprimand and that the CRA’s policy on progressive discipline provided for a written reprimand or a suspension of 1 to 2 days, 3 to 5 days or 6 to 10 days in the circumstances. Counsel submitted that a second written reprimand would have been insufficient for achieving the employer’s purpose, and a one-day suspension was the shortest suspension provided for by the policy.

B.  For the grievor

102 While the purpose of the right to call evidence is to establish the facts, with arguments to follow after the evidence has been adduced, the grievor’s argument was made partly during his testimony and partly after the evidence was submitted.

103 The grievor insisted that the grievances he filed and entered as exhibits in this hearing (Exhibits 18 to 21) are both his notes and his testimony. The grievor submitted that the words in those exhibits were his words at the time of the incidents in question and that they are his words now. He submitted that they should carry as much weight as BM’s notes to file as they were prepared in a timely manner. They are the grievor’s notes to file. They are just more formal notes than those of BM.

104 The grievor submitted that the context of the O&A dispute with BM is the grievor’s performance over time. He argued that the O&A document dispute should be viewed in the context of the systemic problems of the CRA with client services, which is one of the competencies identified, and that those systemic problems are the responsibilities of Mr. Leigh and the senior executive. 

105 The grievor submitted that the exhibits he entered (Exhibits 18 to 21) are relevant to the matter before me because this hearing is all about him “being targeted” for unprofessional and uncooperative behaviour.

106 The grievor submitted that his purpose in introducing Exhibit 18 was to provide his view of what happened on March 1, 2007 and to raise whether management is being objective. He submits that, when he asked for a performance file, BM “got his back up” because he had not fulfilled his end of the bargain in the O&A.

107 The grievor submitted that his purpose in introducing Exhibit 21 (the May 4, 2006 grievance) was to show that BM was looking for any reason to discipline the grievor, so he was “sensitive to anything” that the grievor did.

108 The grievor submitted that, if the employer wanted to resolve this situation, they “meaning his managers” would manage him and provide him with performance feedback.

109 The grievor submitted that, over the previous five years, he had received unsatisfactory or marginally satisfactory performance appraisals. He is striving to be a better team leader and does not understand why BM was not involved in trying to make the grievor a better supervisor.

110 The grievor asserted that, when he says that he sent 100 performance emails to his manager, what he wanted was feedback on his supervisory skills. He submitted that all the emails were about his interaction with managers, that none of the evidence was about his ability to manage his team and that his managers continue to ignore his performance accomplishments as identified in the numerous grievances he has filed. He asserted that none of the submissions contained in the 100 performance-related emails that he sent to BM has ever been included in his performance evaluations.

111 The grievor asserted that he continues “… to make his presence known,” that his managers do not review what he has accomplished, and that his response is to try to identify his accomplishments and to file grievances. Because he has a legal right to file grievances, he questions how his actions can be considered disrespectful or uncooperative. He queried whether instead management is seeking retribution from him for doing what he has a legal right to do, which is to file grievances when he questions its practices. 

112 The grievor submitted that he had sent his manager over 100 emails about his performance [referenced in his email of January 5, 2007 to BM (part of Exhibit 6)] and that they are important to him, but since none of the submissions were included in his performance evaluations, why should he have submitted more under the O&A? BM never opened any of the 100 that the grievor had already sent. He submitted that BM spoke of the grievor’s lack of professionalism, cooperation and respect, but the discipline he received was about targeting and harassing him.

113 The grievor submitted that the O&A specifies that managers have a responsibility to observe and that BM did not “O&A” the grievor. BM’s email to himself on March 1, 2007 (Exhibit 10) confirms that he told the grievor that he, BM, had nothing written down. The grievor’s position is that BM did not do his duty as a manager with respect to the O&A.

114 The grievor submitted that he provided BM with O&A examples and that BM was offended by what the grievor wrote in his email on January 5, 2007. The grievor noted that it was the only incident and that he apologized to BM not for the content of the email, which he claims “… was entirely accurate and true,” but for his tone.

115  The grievor asserted that BM never opened the 100 emails that he forwarded and that, after 20 years in public service, he felt that he deserved as much recognition as his peers.

116 The grievor submitted that the key statement in Exhibit 6 was the frustration that he felt because he had sent over 100 emails (which he claimed are concrete examples of his performance) and that BM had never bothered to even open them. The grievor also submitted that BM would not “manage him” in that the grievor received no feedback from him and no praise. He argued that the issue was BM’s concept of disrespect, which seemed to include things that were “legal and logical,” such as filing grievances when objecting to management’s actions.

117 The grievor questioned how asking calmly for a performance file, which he wanted because he had filed a performance grievance (Exhibit 18) on March 1, 2007, could be considered disrespectful or uncooperative. He submitted that he was given the suspension because he asked for the performance file and that BM had little information on the file and would not provide it to the grievor in a timely manner. He submitted that BM was looking for any reason to discipline the grievor, so “… he was sensitive to anything the grievor did.”

118 The grievor submitted that he has always accepted that management has the right to manage but that he believes that management also has a duty and a responsibility to manage and the question, as the grievor sees it, is whether BM fulfilled that management duty.

119 The grievor asserted that BM was angry and disrespectful when he yelled at the grievor to get out of his office on March 1, 2007, when BM had only asked for a performance file.

120 The grievor also submitted that Mr. Leigh’s evidence was hearsay and that some of it, without specifying, was “not even credible.”

C. Reply of the employer

121 In rebuttal, counsel for the employer submitted that the grievor never objected to Mr. Leigh’s evidence at the time of examination and cross-examination and that it is admissible under the hearsay exemption.

122  Counsel for the employer also noted the corrective action that the grievor was seeking, namely, that the discipline letter be destroyed, that he be paid for the one-day suspension with interest at 7 percent and that the interest be prorated from the date of the disciplinary action to the date of the reinstatement of pay. Counsel noted that the grievor’s request for a 7 percent interest rate was inappropriate. Counsel for the employer submitted that, if any interest were to be awarded, it should be based on the prime rate applicable during the time in question or the amount of interest in the statutes of Alberta about the interest rate for special damages each year, which would be around 3 percent.

D. Additional comments of the grievor and the employer

123 The grievor requested the reimbursement of costs and noted that, while the employer paid him for his time at the hearing, because the hearing was not held close to his workplace, he incurred parking and meal costs.

124 Counsel for the employer submitted that reimbursing costs was not appropriate given the nature of the hearing. He further noted that self-represented persons in Federal Court are not entitled to the reimbursement of costs.

125 The grievor submitted that costs were allowed under other statutes, such as in the Tax Court.

VI. Reasons

126 In both grievances, the grievor grieves the quantum of discipline imposed by the CRA in the letter of discipline, namely, the one-day suspension.

127 The grievor referred his grievances to adjudication under paragraph 209(1)(b) of the Act, which reads as follows:

   209.(1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

…

 (b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

128 The issue is whether the grievor was improperly disciplined. Did the employer have just cause to suspend the grievor for one-day for objectionable and inappropriate conduct and demeanour during the meeting with BM on March 1, 2007?

129 Two independent decisions must be made. First, I must determine whether the grievor engaged in some form of work-related misconduct on March 1, 2007. If the answer is yes, then I must decide whether the misconduct warranted the discipline that was imposed.

130 The burden is the employer’s to prove that there was just cause to discipline the grievor.

131 Paragraph 226(1)(d) of the Act provides that an adjudicator may, in relation to any matter referred to adjudication, “accept any evidence, whether admissible in a court of law or not.” There must be some evidence adduced to establish the facts in dispute before a decision can be made on the merits supported by the facts.

132 The grievor did not comment on the matter of the admissibility of BM’S notes-to-file. Also, the grievor never objected to the hearsay evidence of Mr. Leigh until final argument and he made no comments on the hearsay case law presented by the employer.

A. Did work-related misconduct occur on March 1, 2007 that warranted disciplinary action?

133 The evidence of the parties presents a sad tale of a difficult employment relationship that has endured for many years between the grievor and CRA senior management. The evidence presents a story of mounting frustration on the parts of both the grievor and management involving poor communication between them as well as major differences in perceptions of the grievor’s performance expectations and the management’s responsibility to manage the grievor properly.

134 However, the grievances before me are not about the correctness of the employer’s performance appraisals of the grievor over the past several years nor about the adequacy or inadequacy of the performance feedback provided to him over the years. Also, they do not grieve BM’s overall competency to manage the grievor nor the bargaining agent’s alleged failure to support him in directly challenging his performance appraisals, thus forcing him, in his view, to file many discipline grievances challenging management’s practices and its decisions to which he objects. Furthermore, the grievances before me are not harassment grievances.

135  The grievor’s behaviour at the meeting in BM’s office on March 1, 2007 led to the one-day suspension, which, in turn, gave rise to these grievances.

136 The letter of discipline asserts several grounds in concluding that the grievor’s behaviour during the March 1, 2007 meeting was “objectionable and unacceptable” and contrary to that expected of a team leader and CRA employee. The discipline letter refers to the grievor’s “inappropriate interaction and tone” at the meeting, to his “approach and manner” being “disrespectful and insubordinate,” and to his “attitude” being “insistent and uncooperative.” It states that the grievor’s “… behaviour is contrary to that expected of a team leader and employee of Canada Revenue Agency” and that the grievor’s “… behaviour demonstrates a lack of professionalism and a lack of respect for management.”

137 The grievor questions how calmly asking his manager for a file can be considered unprofessional or inappropriate conduct. He alleges that he is being disciplined for exercising his legal right to file grievances when he objects to management practices.

138 What evidence is there of the grievor’s workplace misconduct on March 1, 2007?

139 There is little disagreement between the parties in the evidence presented on the basic events of the meeting. The hearsay evidence of BM’s notes-to-file, particularly Exhibits 10 and 11, was supported by the testimony of BM’s manager, Mr. Leigh. The grievor did not comment in his testimony on many of the facts alleged by the employer about the issuing of the letter of discipline, but he introduced into evidence a copy of the grievance that he filed on March 1, 2007 (Exhibit 18) that, he argued, represented his version of what happened. The grievance implies that the grievor did not ask to be disciplined further and that it was BM who, at the end of the meeting, yelled at the grievor.

140 The grievor’s testimony does not dispute the sequence of events described by BM in his notes-to-file, particularly Exhibits 10 and 11. The grievor testified that he thought that BM had a responsibility and a duty “to manage him” and that BM was not doing so, or at least not doing so competently, and that he was frustrated at the lack of performance feedback that had been going on for many years. The grievor testified that, as for the O&A and the March 1, 2007 meeting, BM, as his manager, had a clear responsibility under the O&A to formulate his own observations about the grievor’s competencies, and he had failed to do so.

141 Reviewing the grievance reply letters of BM, Mr. Leigh, Mr. Reich and Ms. Gauvin (Exhibits 1 to 4) does not reveal any submissions by the grievor that suggest that he did not act at the meeting as described in BM’s notes-to-file (Exhibits 10 and 11), although it is noted in Mr. Leigh’s second-level reply (Exhibit 2) that the grievor argued that BM’s behaviour at the meeting was inappropriate. I take this to be a reference to what the grievor testified was BM getting his back up when asked for performance feedback through the O&A, which the grievor believed that BM was obligated as a manager to provide to the grievor in a timely manner, and to the grievor’s testimony that he had asked calmly for the performance file and that BM was angry and disrespectful when he asked the grievor to leave his office.

142 Based on all the evidence before me, I believe that the following chronology of events broadly recounts what occurred.

143 It was part of BM’s management responsibilities to observe and attest to the competencies required of his team leaders including the grievor.

144 The grievor firmly believed that it was BM’s stated responsibility under the O&A to observe the grievor’s performance and identify his own examples of behaviours that would allow BM to attest to the grievor’s competencies.

145 BM viewed the O&A as a collaborative process in which the team leaders would provide him with examples of their performance behaviour that, when added to BM’s own observations of their activities (Exhibit 6), would allow him to attest to their threshold levels.

146 Previously, in January 2007, the grievor had failed to provide BM with the O&A examples requested of him, in the manager’s requested format and within the timeframe for reply. The grievor testified that he was frustrated. He had already sent BM over 100 emails about his performance, and BM had done nothing with them, so why should he submit more performance examples? Instead, the grievor sent his manager several inappropriate and disrespectful emails for which the grievor was disciplined with the written reprimand on January 18, 2009.

147 The grievor met with his manager on January 18, 2009 and expressed the view that since he had received a written reprimand, he knew that the next step would be a suspension and that he was prepared to be disciplined further as he wanted “all of this and years of events prior to this” to be heard by an adjudicator (Exhibit 8).

148 The grievor met with BM on March 1, 2007 and demanded calmly (as the grievor claims) but with insistence (as the employer claims) that BM provide him either with O&A information or with a performance file that he thought should have contained BM’s written O&A examples. BM told the grievor that he did not have anything written down.

149 The grievor was upset and frustrated. He thought that it was BM’s clear obligation as a manager to provide him, in a timely manner, with examples of his performance competencies. BM was defensive. A heated exchange ensued about how BM’s failure to provide his own examples of the grievor’s performance competencies related to the previous disciplinary action that BM had taken against the grievor in January 2007. The grievor accused BM of not doing his job properly as a manager under the O&A.

150  The grievor informed BM that he wanted to go to adjudication. BM advised the grievor that he had checked with the Human Resources department and that there were steps that the grievor had to follow first to try to resolve the matter. The grievor was not interested in trying to resolve the matter with BM. The grievor told BM that he wanted to be disciplined further so that he could get to adjudication. BM informed the grievor that he was being insubordinate and disrespectful, that he would get his wish, and that BM would apply further discipline. BM then asked, or demanded, that the grievor leave his office and the grievor did so.

151 The grievor in his testimony did not challenge or dispute the employer’s evidence that he had told BM at their March 1, 2007 meeting that he wanted to be disciplined further so that he could get his case to adjudication. The grievor did testify that he wanted to get before an adjudicator the “whole story” of management’s unfair treatment of him and of management’s continual harassment of him, harassment that he saw as evidenced by the many grievances he had filed over the years. He testified that he was frustrated at his lack of success in getting senior management to see that he was being subjected to a pattern of lack of respect by management. He testified that he thought that, if he could get his “whole story” before an adjudicator, it would be clear that the problem was BM’s inability to manage people, not the grievor’s lack of respect. The grievor testified that he wanted “… all of this and years of events prior to this…” to be heard by an adjudicator.

152 The question is whether the grievor’s actions, including the discipline request, viewed in the overall O&A context constitute workplace misconduct deserving of some discipline or was BM just “overly sensitive” to anything the grievor did, as argued by the grievor. After reflecting on the evidence, I have concluded that the grievor’s actions at the meeting amount to more than just calmly asking his manager for a file. They were inappropriate and disrespectful and, while it might have been minor misconduct, some discipline was justified in the circumstances.

153 The grievor is not just a CRA employee who experienced a problem with his manager. He is a team leader and a member of the management team. As a team leader and manager, the grievor is subject to the Manager’s Charter (Exhibit 13) and to the Code (Exhibit 14). He is expected to work with his manager to try to resolve workplace issues like their different perceptions of the O&A requirements and he is expected to communicate and cooperate with his manager in a courteous and respectful manner even if he thinks that his manager is incompetent and not properly fulfilling his management responsibilities under the O&A.

154 While I can empathize with the grievor’s frustration and impatience at what he clearly views as BM’s incompetence in managing him and his frustration over the fact that BM never responded to, and quite possibly never even opened and read, the over 100 performance emails that the grievor testified that he sent to BM in an attempt to get feedback on his supervisory skills so that he could improve his performance, the grievor asked BM for further discipline so that he could get to adjudication, rather than continue trying to resolve the O&A issue. BM gave him his request, and he got to adjudication.

155  While I may empathize with the grievor’s clear frustration and impatience with his employer and his bargaining agent about his inability to challenge his performance appraisals to the extent that he would have liked and his perceived lack of adequate performance feedback, mentoring and managing, I am unable to assist the grievor. Adjudication is generally not the most satisfactory method of resolving conflict in the workplace. My jurisdiction is prescribed by the grievances, and my role is to determine whether the employer improperly disciplined the grievor.

B.  Was the discipline unreasonable?

156 Having found that the grievor’s misconduct warranted some form of discipline, the analysis now turns to whether a one-day suspension was the appropriate response. Therefore, I must determine whether there is evidence of any mitigating or aggravating factors.

157 The letter of discipline notes that the employer, in determining the appropriate discipline, considered the grievor’s years of service and work history and the written reprimand. The letter states that “[t]o impress upon you the seriousness of your actions, it has been determined that a one-day (7.5 hours) suspension is the appropriate corrective action.”

158 Mr. Leigh testified that he met with BM on March 1, 2007 and that BM recounted the events of the meeting with the grievor on that same day. He testified that the CRA had a policy of progressive discipline and that he and BM had discussed what further discipline should be imposed. They agreed that a one-day suspension would be appropriate. He testified that he and BM consulted the CRA’s discipline policy (Exhibit 15), including its Appendix C, which provides a chart entitled “Disciplinary Measures Considered Appropriate for Single Acts of Misconduct” (emphasis in the original) and concluded that, while a second written reprimand was an option under the policy, it would not be sufficient to encourage a change in the grievor’s behaviour as the grievor had already recently received a written reprimand for similarly inappropriate behaviour with his manager in January 2007. Mr. Leigh testified that, of the three suspension periods listed as possible corrective action in the discipline chart, a one-day suspension was the shortest suspension available.

159 Mr. Leigh’s second-level reply denying the second grievance (Exhibit 2) states the following on the issue:

…

With regard to the quantum, a disciplinary measure must take into consideration the severity of the misconduct and any mitigating or aggravating factors. In this case the fact that you received discipline in the form of a written reprimand in January 2007 for similar behaviour, and given the progressive nature of discipline, a one day suspension is appropriate.

…

160 Ms. Gauvin’s final-level letter for the first grievance of September 21, 2007 notes that management provided the grievor with the right to present submissions about his grievance in writing but that the grievor made none. The letter reads as follows (part of Exhibit 5):

I have reviewed the circumstances in which you grieve the employer’s decision to impose a one-day suspension in the Letter of Discipline dated April 3, 2007. I note that management has provided you with the right to present submissions with respect to your grievance in writing; however, to date, no submissions have been provided and, as such, my decision is based on the available information.

As an employee of the Canada Revenue Agency, you are expected to act with integrity, professionalism, respect and cooperation and you must also strive to encourage open and constructive communications and working relationships. Your conduct during your meeting with [BM] on March 1, 2007, was disrespectful and lacked professionalism. I am also aware that you received a written reprimand on January 18, 2007, for similar behaviour. Consequently, in accordance with the principles of progressive discipline, I am satisfied that management’s decision to impose a one-day suspension was appropriate.

…

161 Ms. Gauvin referenced that letter in her letter of December 19, 2008, denying corrective action in the second grievance (Exhibit 4).

162  The grievor did not address the quantum of discipline issue in his testimony or arguments. The grievor chose to focus his submissions at the hearing before me, in the greatest part, on the broader issue of his frustration with his poor performance evaluations and the lack of performance feedback and mentoring. He focused on arguing that there was no work place misconduct at all and therefore that no discipline was warranted.

163 Also, as noted above, the grievance reply letters filed as exhibits by the employer do not provide any evidence that the grievor presented any submissions on the quantum of discipline issue at the various steps of the grievance process with the exception of the first level reply of BM (Exhibit 1) where it is noted, without specifics, that the grievor had apologized for his behaviour. BM noted that, while he appreciated the apology, the grievor had not demonstrated his understanding of the expectations regarding his conduct through his actions and that the one-day suspension would not be rescinded. No evidence presented to me refutes the reasonableness of this conclusion.

164 In summary, the employer presented evidence that it imposed the written reprimand letter of January 18, 2007 for the grievor’s disrespectful and uncooperative conduct with his manager at a meeting on January 12, 2007. The employer also presented evidence as to why, using a progressive-discipline approach, it concluded that it was reasonable and just to impose a one-day suspension on the grievor for his similarly inappropriate conduct at a meeting with the same manager on March 1, 2007. The grievor presented no evidence and made no argument on the reasonableness of the one-day suspension, as opposed to some other form of discipline such as a second written reprimand, so I can conclude only that the employer has met its burden of establishing that the one-day suspension imposed on the grievor was reasonable.

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

VII. Order

166 The grievances are denied.

October 26, 2009. 

  

Margaret E. Hughes,
adjudicator