FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Orane Scott was employed at the Department of Human Resources and Skills Development (“the department”) as a service delivery representative in the Citizen and Community Services Branch of the Scarborough Service Canada Centre. When he filed his two grievances, he had completed over 17 years of service. Both grievances were referred to adjudication. The first, dated January 27, 2006, contested a 15-day disciplinary suspension, and the second, dated March 28, 2007, contested his termination.

2 The hearing for both grievances was initially scheduled for July 8 to 11, 2008. It was adjourned after two days, at the request of counsel for the deputy head (“the respondent”), to allow for a witness to be summoned. The hearing was rescheduled for January 20 and 21, 2009; however, the Registry was informed on January 16, 2009 that the parties had reached an agreement in principle. On May 15, 2009, Mr. Scott informed the Registry that the agreement had not been finalized and asked to reschedule the hearing. The hearing was rescheduled for July 7 to 10, 2009. However, it was postponed on July 3, 2009 at the request of counsel for Mr. Scott, who had only recently been retained. The hearing was rescheduled from November 17 to 20, 2009 and completed on November 18, 2009.

II. Summary of the evidence

3 Counsel for the respondent called Anthony C. Gouveia, Betty Woitzik, Stan Wojick and Guy Cyr to testify. Mr. Scott testified on his own behalf, and his counsel called Sandra Green and Millicent Patterson as witnesses.

A. For the respondent

1. Mr. Gouveia’s testimony

4 Mr. Gouveia is a service delivery manager in the Citizen and Community Services Branch of the Scarborough Service Canada Centre. He is responsible for three service delivery locations where between 35 and 40 employees work. He reported to Mr. Wojick, Director of the Citizen and Community Services Branch of the Scarborough Service Canada Centre. Mr. Scott reported to Edward Czerwinski, a service delivery coordinator.

5 Mr. Gouveia testified that is was his management practice to communicate daily with all supervisors reporting to him to determine staffing levels, identify gaps and allocate resources to address shortages. In addition, he would speak daily with supervisors about leave and training issues. Specifically, Mr. Gouveia testified that he would ask supervisors whether or not they had a full complement of staff. If there were absent employees, he would ask which ones had reported their absence and which ones had not. He would confirm whether or not employees had been granted leave of any type for that day or week. Mr. Gouveia indicated that it was imperative to provide service to the public during office hours. Mr. Gouveia also described the types of services available to the public.

6 Mr. Gouveia testified that he was informed in late June 2005 that Mr. Scott had not reported to work. Mr. Czerwinski told Mr. Gouveia that Mr. Scott had telephoned him on June 27 requesting the day off due to the birth of a child. Mr. Gouveia stated that Mr. Czerwinski had not heard from Mr. Scott since then and did not know Mr. Scott’s whereabouts.

7 Mr. Gouveia submitted emails (Exhibits E-1 and E-2) that he had exchanged with Mr. Czerwinski and Ms. Woitzik about attempts to communicate with Mr. Scott. On July 3, 2005, Mr. Gouveia received a copy of an email from Mr. Czerwinski to Ms. Woitzik stating that Mr. Czerwinski had not heard from Mr. Scott since Monday, June 27, 2005 and another email from Ms. Woitzik providing information about Mr. Scott’s leave status.

8 Mr. Gouveia testified that he wrote to Mr. Scott on July 14, 2005, requesting that Mr. Scott contact him on receipt of that letter (Exhibit E-5), as he considered Mr. Scott to have abandoned his position. The letter was couriered to Mr. Scott’s home and left by the door (Exhibit E-6), because Mr. Scott was not there.

9 Mr. Gouveia testified that he had received no phone calls from Mr. Scott and informed Mr. Wojick of that fact. Mr. Gouveia also testified that he communicated regularly with Staff Relations. In July 2005, he wrote a synopsis of the situation (Exhibit E-7) and, after briefing Mr. Wojick and Staff Relations, waited for the next step.

10 Mr. Gouveia testified that, in late December 2005, he met with Mr. Scott and his bargaining agent representative. The purpose of the meeting was to discuss Mr. Scott’s absence starting in June 2005. Mr. Gouveia recalled that Mr. Scott said that he considered himself on parental leave during that period and had requested parental leave from Mr. Czerwinski. Mr. Gouveia stated that he told Mr. Scott that he had not been informed by Mr. Czerwinski about that request, but he was aware of the request for leave for the birth of a child. He told Mr. Scott that Mr. Czerwinski would not have been authorized to grant parental leave had it been requested. Mr. Gouveia testified that he checked if anyone else had received a request for leave from Mr. Scott. No one had. Mr. Gouveia stated that he wrote his meeting notes shortly after the meeting (Exhibit E-8).

11 Mr. Gouveia testified that, at the meeting on December 28, 2005, he advised Mr. Scott that management had made a number of attempts to reach him through correspondence but had received no response. Mr. Scott acknowledged receiving the correspondence. When asked why he did not contact management, Mr. Scott replied that he had considered himself on parental leave. Mr. Gouveia stated that Mr. Scott needed to know that the respondent was about to terminate his employment for abandoning his position. Mr. Gouveia reminded Mr. Scott that he had been asked on numerous occasions to report his absences but Mr. Scott continued to disregard the instructions. Mr. Scott was informed that, to be allowed to return to work, he would have to enter into a last-chance agreement with specific terms and conditions. If the agreement was breached, Mr. Gouveia would not be able to reverse the decision. Mr. Gouveia asked Mr. Scott if he had any questions and if he understood. Mr. Scott had no questions and said that he understood. Mr. Gouveia told Mr. Scott that he would contact him either during the week of January 9 or January 16, 2006.

12 Mr. Gouveia testified that he sent his notes (Exhibit E-8) to Mr. Wojick and Staff Relations for guidance. He stated that a decision was made to suspend Mr. Scott and Mr. Scott was given a letter of suspension.

13 Mr. Gouveia submitted notes (Exhibit E-9) from another meeting with Mr. Scott that took place on January 19, 2006. The notes were written by Leslie McKenna, another service delivery manager at the Scarborough Service Canada Centre. Mr. Gouveia testified that, during the meeting, he told Mr. Scott that he had concerns about Mr. Scott not reporting absences and not responding to management’s attempts to contact him. Mr. Gouveia asked Mr. Scott if he had any health issues that would prevent him from returning to work, and Mr. Scott said that he had none. Mr. Gouveia asked Mr. Scott on several occasions if he understood the last-chance agreement (Exhibit E-10) that management was asking him to sign, and Mr. Scott replied that he did, and then he signed the agreement. Mr. Gouveia testified that the agreement had been prepared in consultation with colleagues from Staff Relations specifically for the meeting.

14 The last-chance agreement reads as follows:

…

Memorandum of Agreement between Orane Scott and Service Canada

Management of the Scarborough Service Canada Centre agrees that Mr. Scott may return to work in his substantive position, following his unauthorized absence between June 24, 2005 and date of signing of this document. Mr. Scott agrees to abide by the Employer’s instructions with respect to timely communication with management regarding absences from the work place as per the collective agreement, appropriate responses to letters of enquiry sent to his current address, and the provision of applications for leave and medical certificate as required. In addition, That Mr. Scott agree to an update of his Enhancement Reliability Check including a Credit Check.

Given Mr. Scott’s history with periods of unauthorized absence, he understand that any failure on his part to abide by the above-mentioned instructions will result in the immediate termination of his employment for cause.

… The conditions of this memorandum are made without prejudice and do not set a precedent.

…

[Sic throughout]

15 Mr. Gouveia testified that Mr. Scott was to abide by the following terms: he was to follow management’s instructions about absences from the workplace, respond to correspondence, provide medical certificates for absences and make leave requests in a timely fashion. Mr. Gouveia added that Mr. Scott was to contact his supervisors or Mr. Gouveia to report any absences from the workplace. Mr. Gouveia stated that the agreement was signed by himself, Mrs. McKenna, Mr. Scott and Mr. Scott’s bargaining agent representative.

16 Mr. Gouveia testified that Mr. Scott returned to work and performed his duties. He followed instructions for a few months. Management then scheduled Mr. Scott for a training session on service offerings. Mr. Scott was notified electronically of the type of training, location, date and time. Mr. Scott failed to attend. He did not contact Mr. Gouveia, the supervisor or anyone else to report his absence. Mr. Gouveia referred to a copy of the email confirming Mr. Scott’s enrolment in the training session (Exhibit E-11). The email indicated that, in the event of a last-minute cancellation, participants were to contact Franca Balduini, Program Services Consultant for the Ontario region of Service Canada, at a specific phone number.

17 Mr. Gouveia became aware of Mr. Scott’s absence when Ms. Balduini reported that Mr. Scott had not attended (Exhibit E-12). Mr. Gouveia referred the matter to Staff Relations (Exhibit E-13), and a meeting was set up with Mr. Scott (Exhibit E-14). The meeting was held on March 12, 2007. Mr. Scott indicated that he had been sick and  had made efforts to contact the commissionaire’s desk at the training location. Mr. Gouveia referred to the notes that he had taken at that meeting (Exhibits E-15 and E-16). Mr. Gouveia testified that Mr. Scott confirmed at the meeting that he did not call his supervisors or Mr. Gouveia, even though he knew that he was supposed to.

18 In cross-examination, Mr. Gouveia confirmed that the only email to which Mr. Czerwinski directly responded (Exhibit E-3) did not mention that Mr. Scott had requested only one day of leave. Mr. Gouveia did not know why Mr. Czerwinski indicated in the email that his instructions were to refrain from contacting Mr. Scott, because Mr. Gouveia had given Mr. Czerwinski instructions to contact Mr. Scott. Mr. Gouveia acknowledged that the content of Ms. Woitzik’s email (Exhibit E-4) was an example of Mr. Scott contacting his supervisor. Mr. Gouveia confirmed that the letter sent to Mr. Scott on July 14, 2005 (Exhibit E-5), did not specifically mention a request for one day of parental leave.

19 When asked how he received the information that Mr. Scott had requested only one day of leave, Mr. Gouveia responded that he obtained it from Mr. Czerwinski or Mr. Wojick. He then acknowledged that Mr. Scott had not communicated with Mr. Wojick and there was nothing in writing from Mr. Czerwinski that specified that Mr. Scott had requested only one day of leave. Mr. Gouveia also acknowledged that the letter he wrote on July 14, 2005 (Exhibit E-5), did not mention that Mr. Scott had requested only one day of leave. Mr. Gouveia indicated that he was not provided with information that the child’s birth was premature.

20 Referring to his notes dated December 28, 2005 (Exhibit E-8), and to a statement of Mr. Scott’s earnings (Exhibit S-3), Mr. Gouveia acknowledged that Mr. Scott’s absence began on June 27, 2005 and Mr. Scott may have been paid for that day. The compensation advisor handled pay.

21 When questioned on the last-chance agreement signed on January 19, 2006, Mr. Gouveia testified that Mr. Scott had confirmed that he understood it. Mr. Gouveia acknowledged that the agreement did not specify whom to contact in case of an absence. He indicated that Mr. Scott’s bargaining agent representative was present at the meeting as an observer and Mr. Scott could have consulted his bargaining agent representative during the meeting had he asked to do so. Mr. Scott was not provided with a copy of the agreement before the meeting, although he knew that he would be presented with a last-chance agreement. Mr. Gouveia confirmed that he did not advise Mr. Scott that management intended to impose a 15-day suspension, and there was no mention of a 15-day suspension in the last-chance agreement. He also confirmed that, during his meeting with Mr. Scott on December 28, 2005, he did not inform Mr. Scott of an impending 15-day suspension.

22 When questioned about Mr. Wojick’s letter of January 27, 2006 (Exhibit S-2), which imposed a 15-day suspension on Mr. Scott, Mr. Gouveia confirmed that it was related to the same period as the last-chance agreement.

23 When questioned about the meeting of December 28, 2005, Mr. Gouveia stated that he was in the process of writing a letter to Mr. Scott on that day, when Mr. Scott’s bargaining agent representative told him that Mr. Scott had walked into the office. Mr. Gouveia then had the opportunity to prepare for the meeting. Mr. Gouveia also stated that Mr. Czerwinski had authority to approve leave for the birth of a child, but did not have authority to approve parental leave. It was Mr. Gouveia’s understanding that Mr. Scott had only requested leave for the birth of a child. Mr. Gouveia maintained that the issue was that Mr. Scott had requested only one day of leave and had not requested further leave from either his supervisor or the compensation advisor; the issue was not the duration of the leave.

24 Mr. Gouveia confirmed that he had typed the notes of the meeting of March 12, 2007 (Exhibits E-15 and E-16). His role was to gather facts. Mr. Wojick made the decision to suspend Mr. Scott.

25 In re-examination, Mr. Gouveia testified that Mr. Czerwinski told him that Mr. Scott had not requested any other type of leave. He acknowledged that Mr. Scott had provided a birth certificate after his return to work.

26 Mr. Gouveia said that he believed that the instruction given to Mr. Scott during the discussion on January 19, 2006 was to contact Mr. Scott’s supervisor or the service delivery coordinator, and he believed that Mr. Scott had also been given Mr. Gouveia’s phone number.

2. Ms. Woitzik’s testimony

27 Ms. Woitzik testified that she had been a compensation and benefits advisor for over 30 years at the Scarborough Service Canada Centre. She was responsible for employees pay and benefits entitlements and had maintained Mr. Scott’s employee file since he began working there. Because she was responsible for administering employees benefits, one of her main concerns when an employee was off work was to obtain clarification: she had to determine whether or not pay should stopped, to prevent overpayments. She also ensured that the appropriate leave provision was used when employees were authorized to go on leave.

28 Ms. Woitzik became involved in Mr. Scott’s case when she was consulted by the manager of Corporate Services, Ruth Ann Meek, about a situation in which an employee had called in absent but had not specified the type of leave requested. Ms. Woitzik stated that, when Mr. Scott returned to work in April 2005 after a previous absence, an arrangement had been made with Mr. Gouveia for Mr. Scott to undergo a fitness-to-work assessment. She had prepared the required paperwork. When she checked with Health Canada to see if progress had been made on the fitness-to-work assessment, she was told that Mr. Scott’s physician had not replied to a request for medical information. She tried unsuccessfully to reach Mr. Scott on June 30, 2005, and informed Mr. Gouveia and Mr. Czerwinski (Exhibit E-1).

29 On July 7, 2005, Ms. Woitzik emailed Mr. Gouveia and Mr. Czerwinski to see if they had been in contact with Mr. Scott (Exhibit E-2). She was concerned about a possible overpayment of wages to Mr. Scott. Mr. Czerwinski replied that it was Mr. Gouveia’s responsibility to provide direction to Ms. Woitzik but that, in Mr. Czerwinski’s opinion, Mr. Scott’s pay should be stopped (Exhibit E-3). When asked if she had spoken with Mr. Czerwinski about Mr. Scott’s absence, Ms. Woitzik testified that she had been informed verbally by Mr. Czerwinski before the email (Exhibit E-3) stating that he had received a phone call from Mr. Scott requesting a day off for the birth of a child. In that conversation, Ms. Woitzik asked Mr. Czerwinski if Mr. Scott had had a baby, and Mr. Czerwinski replied that he assumed so, but did not really know if it was Mr. Scott’s child. On July 12, 2005, Ms. Woitzik emailed Mr. Gouveia to inform him about Mr. Scott’s leave status (Exhibit E-4).

30 Ms. Woitzik testified that she was involved in processing the letter that was sent to Mr. Scott on July 14, 2005 (Exhibit E-5). Such letters are sent by courier and regular mail. The courier told Ms. Woitzik that Mr. Scott’s mother had refused delivery because Mr. Scott had instructed her not to sign for any mail delivered for him. The letter was ultimately left at the side-door entrance to the basement, where Mr. Scott lived. Ms. Woitzik sent that information to Mr. Gouveia in an email (Exhibit E-6).

31 Ms. Woitzik testified that she emailed Mr. Gouveia and Mr. Wojick, confirming that Mr. Scott had acknowledged the receipt of Mr. Wojick’s final warning letter informing him that his employment would be terminated if he failed to contact Mr. Wojick to explain his absence (Exhibit E-17). She also sent a letter on September 23, 2005 to Mr. Scott about his pay and benefits (Exhibit E-18).

32 In cross-examination, Ms. Woitzik confirmed that Mr. Scott’s statement of earnings issued on April 19, 2006, showed that he had been paid for June 27, 2005 (Exhibit S-3). In her letter of September 23, 2005 (Exhibit E-18), she acknowledged that June 27, 2005, was considered a day on which Mr. Scott had been overpaid. Ms. Woitzik stated that, in September 2005, it had not yet been determined whether or not Mr. Scott was eligible for a day of leave for the birth of a child, and it was only after he provided a birth certificate that the day was reinstated.

33 When questioned about the email that she received from Mr. Czerwinski on July 8, 2005 (Exhibit E-3), Ms. Woitzik testified that her understanding was that, if Mr. Czerwinski had had the authority to stop the payment of wages, he would have. She acknowledged that she never received any communication from Mr. Czerwinski indicating whether or not Mr. Scott had asked for leave with or without pay.

3. Mr. Wojick’s testimony

34 Mr. Wojick worked at the Scarborough Service Canada Centre between 2001 and 2007. He was responsible for the general management of human resources, finance and operations for the area and directed 150 employees. Mr. Gouveia, as the service delivery manager, was one of the five employees directly reporting to Mr. Wojick.

35 Mr. Wojick testified that Mr. Gouveia informed him of an attendance problem that was developing with Mr. Scott. Mr. Wojick asked Mr. Gouveia to proceed in the normal fashion and keep him informed of the situation. Mr. Wojick stated that the letter he signed on August 23, 2005 (Exhibit E-17), resulted from a consultation with Mr. Gouveia and Tara Yelle, a staff relations advisor. Mr. Wojick stated that he believed that he did not receive a reply from Mr. Scott.

36 Mr. Wojick testified that he received an email containing Mr. Gouveia’s notes from the meeting on December 28, 2005, with Mr. Scott (Exhibit E-8). He read the notes carefully, and it appeared to him that Mr. Scott had not given valid reasons for his extended absence. He concluded that disciplinary action should be pursued. Mr. Wojick stated that, in his position, it is important to show all employees that there are rules and it was obvious to Mr. Scott’s co-workers that Mr. Scott had been absent from work. Having read the report, Mr. Wojick also thought that Mr. Scott, a long-time employee, should have known the proper procedures to follow to request leave. Mr. Scott needed to realize that his behaviour would not be tolerated. Mr. Wojick also received the notes taken by Ms. McKenna at the fact-finding interview on January 19, 2006, with Mr. Scott (Exhibit E-9). Mr. Wojick indicated that his role in meetings on December 28, 2005 and January 19, 2006, was to be kept informed by Mr. Gouveia of what had occurred.

37 Mr. Wojick testified that he told Ms. Yelle that termination was a likely choice from a disciplinary point of view. Ms. Yelle informed him that staff relations at the department’s national headquarters was of the view that an employee should be offered a last-chance agreement before termination and Mr. Scott, in particular, should received discipline for his six-month absence. If Mr. Scott were absent again, he would then be terminated. Mr. Wojick was later made aware that Mr. Scott had signed the last-chance agreement (Exhibit E-10).

38 Mr. Wojick testified that he signed the official letter (Exhibit S-2) notifying Mr. Scott of the 15-day disciplinary suspension and informing him that further misconduct would result in termination. The primary reason for the 15-day suspension was that the situation was serious. Mr. Wojick knew that discipline should be progressive. He considered the length of Mr. Scott’s absence and Mr. Scott’s failure to respond to management’s numerous attempts to communicate with him. As a long-time employee, Mr. Scott was aware of the rules and familiar with leave requests, yet he had ignored management’s instructions. Discipline was imposed to get Mr. Scott’s attention. Mr. Wojick was advised that a 5- to 20-day suspension would be appropriate. He chose 15 days and reminded Mr. Scott of the future consequences that would result if he continued his behaviour.

39 Mr. Wojick testified that the reference to the meeting on June 9, 2006, in the letter of discipline (Exhibit S-2) was a reference to the meeting on January 19, 2006. Although he did not attend the meeting on January 19, 2006, he did recall meeting with Mr. Scott, as it was standard practice whenever discipline was to be imposed.

40 Mr. Wojick testified that Mr. Gouveia told him that Mr. Scott had been scheduled to attend an off-site training course but had not shown up. Management did not know where Mr. Scott was. Mr. Wojick phoned the Director General, Mary Creszenzi, to tell her that he would likely terminate Mr. Scott’s employment, and then informed Mr. Gouveia (Exhibit E-13). Mr. Wojick indicated that he considered the situation extremely serious and was reluctant to proceed with termination because of its personal impact. Nevertheless, having spoken with Mr. Gouveia and Ms. Yelle, he was prepared to recommend Mr. Scott’s termination.

41 Mr. Wojick testified that, before imposing such discipline, he had to give the individual the benefit of the doubt, and a fact-finding interview was usually held to determine the facts. A representative could accompany the employee. Mr. Wojick indicated that he needed to confirm the facts of the situation before taking action because the last-chance agreement prescribed termination as the consequence. He added that the purpose of the meeting was to determine if there were extenuating circumstances that could alter the termination decision.

42 Mr. Wojick received Mr. Gouveia’s two reports (Exhibits E-15 and E-16) on the fact-finding interview on March 12, 2007. The decision was made to recommend to the assistant deputy minister (“the ADM”) that Mr. Scott be terminated, as that authority resides with the ADM. That recommendation was made to maintain the credibility of the disciplinary process in general. It was clear from Mr. Gouveia’s reports that Mr. Scott knew what was expected of him, had admitted to what he had done and knew the consequences of his actions. Mr. Wojick confirmed that he received a copy of the letter of termination (Exhibit E-19).

43 In cross-examination, Mr. Wojick confirmed that, when he became aware of the last-chance agreement on January 19, 2006, he did not consider the agreement to be a disciplinary action, but rather a formal notice of what would follow if further misconduct occurred. Staff Relations advised Mr. Wojick to have Mr. Scott sign a last-chance agreement and to impose disciplinary action. When asked what the last-chance agreement was for, Mr. Wojick replied that it was a compassionate arrangement. He acknowledged that the last-chance agreement was related the same absence as the suspension. He reiterated that there were two actions. The last-chance agreement was a warning and did not preclude the discipline that followed.

44 When questioned about other issues in the workplace, Mr. Wojick stated that there was an ongoing fraud investigation and charges had been laid against one employee, but the employee was not Mr. Scott.

45 Mr. Wojick indicated that his recommendation to terminate Mr. Scott was based on Mr. Scott’s failure to provide management with valid reasons for his absence from March 6 to 9, 2007. To Mr. Wojick’s knowledge, Mr. Scott was not on certified sick leave when he failed to report to work on March 6, 2007. Had it been noted that Mr. Scott was on sick leave, with a medical certificate, in the reports on the fact-finding interview on March 12, 2007 (Exhibits E-15 and E-16), Mr. Wojick’s opinion might have changed.

46 In re-examination, when asked how his opinion would have been affected had he known that Mr. Scott had a medical certificate for the absence from March 6 to 9, 2007, Mr. Wojick replied that he would have had to examine the circumstances further. He would have likely referred the matter back to Staff Relations. However, it was not until later that he became aware of the information regarding illness.

4. Mr. Cyr’s testimony

47 Mr. Cyr was employed as a corporate labour relations advisor with the department until 2008. Now, he is a human resources manager at Citizenship and Immigration Canada. His role with the department was to hear submissions for grievances at the final-level of the grievance process and provide advice and guidance on labour relations to his regional counterparts.

48 Mr. Cyr became involved with Mr. Scott’s case when the grievance against the 15-day suspension reached the final-level of the grievance process. He heard Mr. Scott’s representative’s presentation, made notes and forwarded a report and recommendations to the ADM, who at the time was Phil Jensen. Mr. Jensen was responsible for making the decision at the final-level of the grievance process.

49 Mr. Cyr recalled that Mr. Scott had been absent from the workplace without authorization and that a last-chance agreement and 15-day suspension had been imposed. Mr. Cyr provided the notes that he took during Mr. Scott’s representative’s presentation (Exhibit E-20). He noted that the bargaining agent representative requested that the suspension be replaced by to a letter of reprimand.  

50 In cross-examination, Mr. Cyr could not recall advising management about Mr. Scott’s situation, and he was not involved with the last-chance agreement. He recalled that, given the circumstances, his recommendation was to uphold the suspension.

B. For the grievor

1. Ms. Green’s testimony

51 Ms. Green testified that, in 2005, she was living in Brampton, Ontario, and Mr. Scott is the father of her daughter born on June 23, 2005, two months premature.

52 On June 27, 2005, Ms. Green was in the bedroom of her home in Brampton. Mr. Scott was there. Mr. Scott gave her the phone number of his workplace to dial and asked her to request Mr. Czerwinski. A woman answered, and the call was forwarded to Mr. Czerwinski. Mr. Scott spoke with Mr. Czerwinski and told him that the baby was premature and he wanted to request parental leave. Mr. Czerwinski gave Mr. Scott a phone number and told Mr. Scott to call anytime if he needed to speak to him. Mr. Czerwinski told Mr. Scott that he should take the time he needed, and then asked for the mother’s name. Mr. Scott gave him Ms. Green’s name.

53 Ms. Green testified that her blood pressure was high and that Mr. Scott helped with the baby. Mr. Scott lived with her in Brampton for a year.

2. Ms. Patterson’s testimony

54 Ms. Patterson testified that she is Mr. Scott’s mother. In 2005, she was living in Scarborough and working for a company in Markham, Ontario. She had no recollection of a courier coming to her home in July 2005 and said that she had not experienced any illness that kept her away from work during the month of July 2005. She did not recall having a conversation about her son and his work situation.

55 In cross-examination, Ms. Patterson stated that her regular hours of work were from 07:00 to 15:00. She reiterated that she did not have a conversation about her son’s work. She did not recall the conversation reported in the email dated June 30, 2005, from Ms. Woitzik (Exhibit E-1), and she did not recognize the phone number mentioned in it. Ms. Patterson confirmed that Mr. Scott had been living in the basement apartment of her home in Scarborough, but not during summer 2005.

56 Counsel for the respondent agreed that Ms. Patterson was at work on July 14, 2005. An email exchange regarding the whereabouts of Ms. Patterson was submitted on consent (Exhibit S-4). 

3. Mr. Scott’s testimony

57 Mr. Scott testified that he began working at the department in 1988. Before 2005, he had a long period of absences related to illness and a family situation. Management was notified and provided at the time with information confirming the family situation, as well as medical certificates. Mr. Scott submitted to a fitness-to-work examination in September 2005, when he was on parental leave. He applied for illness benefits under the Employment Insurance Program on two occasions prior to June 2005.

58 Mr. Scott testified that he fathered a child, who was born on June 23, 2005. He indicated that the mother, Ms. Green, saw her doctor for a routine check-up during the pregnancy and was told by her physician that she had high blood pressure that would endanger the baby. As a result, labour had to be induced, and she was sent to the hospital. Ms. Green called Mr. Scott at work on June 23, 2005, to advise him of the situation.

59 Mr. Scott stated that, at that time, he was living in Scarborough and Ms. Green was living in Brampton. Ms. Green was sent home after two days in the hospital. On June 27, 2005, Mr. Scott phoned Mr. Czerwinski to inform him that he had an emergency. Ms. Green dialed the number on a hands-free phone. The receptionist answered and transferred the call to Mr. Czerwinski. Mr. Scott explained the situation to Mr. Czerwinski. Mr. Czerwinski told him that he was entitled to pay for one day for the birth of a child and that, beginning the following day, he would be on parental leave. To be paid after the first day, Mr. Scott would have to apply for parental benefits under the Employment Insurance Program. Mr. Czerwinski had been his supervisor for six months. Mr. Scott did not apply for parental benefits under the Employment Insurance Program but said that he had told Mr. Czerwinski that he was applying for parental leave. Mr. Czerwinski said that he would take care of it and did not tell Mr. Scott that he needed to do anything more. Mr. Scott stated that he told Mr. Czerwinski that he was moving to Brampton. Mr. Scott stated that he did not have a car and was using buses for transportation. Mr. Czerwinski gave Mr. Scott a phone number in case he needed further assistance and asked Mr. Scott to let him know when he was prepared to return to work.

60 Mr. Scott testified that he would occasionally return to Scarborough. The phone at that location was disconnected. He did not receive any mail in Brampton. He recalled receiving one letter in Scarborough. In his haste to leave and return to Brampton, he misplaced that letter until his second visit to Scarborough in November 2005. After reading it, he called the Scarborough Service Canada Center. After being shown the respondent’s three letters (Exhibits E-5, E-17 and E-18), Mr. Scott testified that he did not receive the letter dated  July 14, 2005, from Mr. Gouveia (Exhibit E-5) and he did not remember receiving or reading the letter dated September 23, 2005, from Ms. Woitzik (Exhibit E-18). He did not read the letter dated August 23, 2005, from Mr. Wojick (Exhibit E-17) until November 2005.

61 Mr. Scott testified that, in early December 2005, he called the office and spoke to Mr. Gouveia. He was asked to come in once or twice in December and was asked why he was absent. Mr. Gouveia told Mr. Scott that Mr. Czerwinski had no authority to approve parental leave and that that type of leave required pre-approval. Mr. Scott replied that he was not aware of that and Mr. Czerwinski had not informed him of that fact. Mr. Scott explained to Mr. Gouveia that his situation was different, as it was an emergency, and he had not planned to take parental leave. Mr. Gouveia told Mr. Scott that he needed time to decide if Mr. Scott could return to work. Mr Scott’s bargaining agent representative was present during the conversation. Mr. Scott stated that one more meeting was held, during which Mr. Gouveia mentioned the last-chance agreement.

62 Mr. Scott testified that it was his intention to return to work. On January 6, 2006, Mr. Gouveia informed him that, because he could not prove that he had requested parental leave, management would consider his request to return to work if he agreed to sign a last-chance agreement. When Mr. Scott suggested that Mr. Czerwinski could confirm that he had asked for parental leave, he was told that Mr. Czerwinski was off work.

63 Mr. Scott confirmed that his signature and that of his bargaining agent representative are on the last-chance agreement (Exhibit E-10). His understanding was that he was to communicate his absences within a reasonable time. He did not understand what the phrase “without prejudice” meant in the agreement.

64 Mr. Scott testified that he was called to a second meeting with Mr. Gouveia at a later date. A bargaining agent representative accompanied him. He was informed of the 15-day suspension, which he grieved. He was not made aware of the impending suspension when he signed the last-chance agreement, which he thought was the end of the matter.

65 Mr. Scott testified that, on March 7, 2007, he was supposed to attend a training session at 4900 Yonge Street in Toronto. He became ill and indicated that, in accordance with his instructions (Exhibit E-11), he called the office where the training was to take place and told them that he was ill. He returned to work the following week and completed a leave form for the four days, which he sent to Mr. Gouveia. He was asked to go to Mr. Gouveia’s office with a bargaining agent representative. He could not find a bargaining agent representative but, nonetheless, agreed to go. He brought the medical certificate from his physician. Mr. Gouveia asked him why he had been away. Mr. Scott explained that he had been sick and gave Mr. Gouveia the leave form and the medical certificate (Exhibits S-5.1 and 5.2) for the period of March 6 to 12, 2007. He went back on sick leave and saw his physician again on March 19, 2007, who provided a medical certificate (Exhibit S-6). He later obtained a note from his physician (Exhibit S-7) providing explanations for the absence from March 6 to 11, 2007. He was on sick leave at home when he was informed of his termination effective March 16, 2007.

66 In cross-examination, Mr. Scott acknowledged that, in his job, he advised the public about employment insurance benefits, including parental benefits. He indicated that the general rule was to request that type of leave in advance, but added that there were always exceptions. He confirmed that forms had to be filled out.

67 Mr. Scott indicated that he was at work on Thursday, June 23, 2005, when his daughter was born, that he worked on Friday and that he was absent from work the following Monday. Initially, he did not intend to take leave but, because of the nature of the birth, he was forced to take leave from work, as he had to help Ms. Green to prepare the home for the arrival of the newborn. He had no intention of applying for parental benefits, since Ms. Green needed them more.

68 Mr. Scott indicated that, during their phone conversation of June 27, 2005, Mr. Czerwinski approved the parental leave and asked for the mother’s name and whether she would be collecting benefits. Mr. Czerwinski gave Mr. Scott a phone number where he could be reached when Mr. Scott was ready to return to work. Mr. Scott stated that he phoned that number and left a message when he returned to work. He also phoned some time in early July 2005 and left a message saying that he would be taking the full period of parental leave. He did not take additional steps as he was under the impression that Mr. Czerwinski would complete the forms.

69 Mr. Scott confirmed that, after the birth of his daughter, he moved to Brampton and that, during the period of leave, he returned to Scarborough twice. Of the three letters entered in evidence, he remembered receiving the letter dated August 23, 2005, from Mr. Wojick (Exhibit E-17). He was shocked by the contents of the letter and contacted Mr. Gouveia during the first week of December 2005. Mr. Gouveia asked him to come in for a meeting and he went right away. There were two separate meetings in December 2005. At the first meeting, Mr. Gouveia asked where Mr. Scott was and, at the second meeting, he mentioned the last-chance agreement.

70 Mr. Scott did not recall discussing the letters dated July 14 (Exhibit E-5), August 23 (Exhibit E-17) and September 23, 2005 (Exhibit E-18), during the meeting on January 19, 2006, with Mr. Gouveia and indicated that his alleged confirmation of having received the two other letters (Exhibits E-5 and E-18) were mistakes made by the person who took notes at the meeting. It was his recollection that he had received only one letter.

71 Mr. Scott confirmed that he had indicated at the meeting on January 19, 2006, that he understood the last-chance agreement and that, in the case of an absence from work, he was to contact Mr. Gouveia or his immediate supervisor. He did not believe that that applied when he was not expected at the workplace. He contacted the commissionaire’s desk at the training location. He did not attempt to call Ms. Balduini, the programs and services consultant in charge of the training. When questioned on the notes taken during the meeting of March 12, 2007 (Exhibits E-15 and E-16), Mr. Scott stated that he could not recall the conversation that occurred during the meeting.

72 Mr. Scott stated that he was not told that he would be suspended after signing the last-chance agreement. His impression was that the last-chance agreement was the disciplinary measure.

III. Summary of the arguments

A. For the respondent

73 With respect to the 15-day suspension, counsel for the respondent suggested that, where the versions the events presented at the hearing differed, management’s version, as presented by Mr. Gouveia, Ms. Woitzik and Mr. Wojick, should be preferred, because it was a clear and cogent story supported by documentary evidence. The notes taken during the meetings support Mr. Gouveia’s recollection. If a credibility issue were to arise, the respondent should be favoured.

74 Counsel for the respondent indicated that, shortly after those events, Mr. Czerwinski went on sick leave and has not been able to confirm or deny Mr. Scott’s evidence. The documentary evidence, which includes correspondence from Mr. Czerwinski, indicates that several attempts were made to locate Mr. Scott. At no time did Mr. Czerwinski indicate that he had had a conversation with Mr. Scott or that he had granted parental leave. Had the conversation been as Mr. Scott testified, Mr. Czerwinski would have said so. Without that confirmation, it is difficult to accept a scenario in which a supervisor without authority grants parental leave.

75 Counsel for the respondent noted that Mr. Scott’s story is not credible, because it is not supported by evidence. The only direct comment on the situation is found in the email from Mr. Czerwinski to Ms. Woitzik dated July 8, 2005 (Exhibit E-3). Mr. Czerwinski’s email suggests that Mr. Scott’s allegation that Mr. Czerwinski approved the leave is not believable.

76 Counsel for the respondent submitted that it would be reasonable to expect that a long-time employee like Mr. Scott would have tried to clarify the situation. Given the numerous failed attempts to contact Mr. Scott, it is obvious that he did not show the due diligence expected of an employee. Mr. Scott was responsible for checking messages, but did not.

77 Counsel for the respondent pointed out that Mr. Scott’s testimony at the hearing disagrees with the notes taken during the last-chance agreement meeting. In that meeting, Mr. Scott acknowledged receiving three letters. At the hearing, he claimed to have received only one. That was an attempt to reduce his responsibility. Furthermore, there is no supporting evidence of a conversation or meeting in early December 2005 about Mr. Scott’s return to work, as described in Mr. Scott’s version of the events. The first meeting about his return to work took place on December 28, 2005. The absence of any evidence supporting a meeting in early December supports the conclusion that Mr. Scott did not act with due diligence.

78 Counsel for the respondent requested that, for all the above reasons, the 15-day suspension be maintained.

79 Counsel for the respondent noted that a termination of employment also would have been reasonable discipline for a lengthy, unauthorized absence and a failure to show due diligence. However, management chose to give Mr. Scott another chance. Rather then terminate him, it set out terms and conditions that gave him another chance.

80 Counsel for the respondent submitted that the respondent’s failure to inform Mr. Scott of the discipline that would follow the last-chance agreement was not fatal to the disciplinary action. The only matter at issue is whether or not the 15-day suspension was reasonable in light of the misconduct. The last-chance agreement was not a disciplinary action resulting in a financial penalty. Its purpose was to establish the conditions under which Mr. Scott would return to work; it was not a disciplinary measure in any way. Mr. Gouveia and Mr. Wojick provided evidence that there was a clear distinction between the disciplinary measure and the last-chance agreement. Mr. Scott was never given any indication that the last-chance agreement was a disciplinary measure.

81 Counsel for the respondent, acknowledge that the last-chance agreement was not the most precise document, but submitted that it was not ambiguous and that its basic tenets were clear. Mr. Gouveia’s testimony was that Mr. Scott understood the expectations and that there was little debate over his obligation to contact management in the event of an absence. Counsel for the respondent also maintained that the testimony of all the witnesses was clear about the repercussions of failing to meet those expectations. The bottom line was that, if Mr. Scott violated the agreement, he would be terminated for cause. Two representatives of Mr. Scott’s bargaining agent were present when Mr. Scott signed the agreement. The decision to terminate was made 14 months after the agreement was signed, which was well within a reasonable period.

82 Counsel for the respondent submitted that Mr. Scott was absent for four days in March 2007 without contacting management and Mr. Scott did not explain why he could not or did not contact management. This case is not about whether he had a valid reason to be absent from work; it is about his failure to contact management. The issue is Mr. Scott’s obligation to notify management of his absence, a problem similar to the one that occurred previously.

83 Counsel for the respondent pointed out that there was no supporting evidence for Mr. Scott’s claim that he called the commissionaire’s desk at the training location and in any event, calling the security desk would not have reasonably met the conditions set out in the last-chance agreement. Not only did Mr. Scott not contact management, but he also did not follow the instructions contained in the training material which specified the person to contact in the event of an absence. Mr. Scott’s action was a clear violation of the last-chance agreement. Consequently the decision to terminate him was clearly reasonable.

84 Counsel for the respondent acknowledged that an adjudicator is not bound by the terms of a last-chance agreement. However, Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para 7:6122, discusses last-chance agreements. FurtherCasey v. Treasury Board (Public Works and Government Services Canada), 2005 PSLRB 46, states that deference must be shown to last-chance agreements because, otherwise, employers may give up the practice, which would result in employees and employers losing a valuable tool for resolving disciplinary matters.

85 Counsel for the respondent submitted that the statement in the last-chance agreement that “… the conditions of this memorandum are made without prejudice …” (Exhibit E-10), refers to the positions that the parties may take in similar circumstances. As a general rule, that statement should not be interpreted in a manner contrary to the purpose of the agreement. Counsel for the respondent referred to Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed.

B. For the grievor

86 Counsel for the grievor submitted that counsel for the respondent had in effect recognized the weaknesses of its case when it discussed the last-chance agreement and precipitating events. He also pointed out that counsel for the respondent had recognized that last-chance agreements are new under the Public Service Labour Relations Act and adjudicators are not bound by them. An adjudicator’s role is to determine what is reasonable and fair.

87 Counsel for Mr. Scott submitted that the last-chance agreement changed the game and changed Mr. Scott’s employment to one that was not equal to that of other employees; it changed a fundamental term of his employment.

88 Counsel for Mr. Scott indicated that last-chance agreements may be permissible when they create an opportunity for employers to be accommodating. While that concept may be fair, counsel for Mr. Scott submitted that, in this case, the last-chance agreement was a disciplinary measure. Mr. Scott was not to behave has he had in the past. It was a coercive document that demanded strict compliance. It was not an administrative document, and it gave management carte blanche. It killed all dialogue and was disciplinary in nature.

89 Counsel for Mr. Scott submitted that, given these circumstances, the 15-day suspension that followed the last-chance agreement constituted double jeopardy. The 15-day suspension was founded on the same alleged unauthorized absence from work.

90 Counsel for Mr. Scott further submitted that the last-chance agreement is unreasonable on its face, since it purports to coerce conduct for an indefinite period.

91 Counsel for Mr. Scott asked which of the measures should stand: the last-chance agreement or the 15-day suspension? He stated that he approached the last-chance agreement from the perspective of contractual principles that apply to agreements with adverse interests. The respondent’s interests conflict with Mr. Scott’s interests. Counsel for Mr. Scott submitted that it was necessary, when one of two parties to an agreement has more power than the other, to examine the agreement and determine if it is reasonable.

92 Counsel for Mr. Scott noted that, although the respondent argued that timing was not an issue because the decision to terminate was made after 14 months, the issue of the last-chance agreement’s reasonableness should not be based on an event that legitimizes it. The last-chance agreement (Exhibit E-10), does not have an end date. It does not provide the phone number or phone numbers that Mr. Scott must call in the event of an absence. It contains a “without prejudice” clause, and the date for Mr. Scott’s return to work is wrong. Although Mr. Scott agreed to abide by management’s instructions, no such instructions were attached to the agreement that was entered in evidence.

93 Counsel for Mr. Scott suggested that, on March 7, 2007, Mr. Scott was not absent from the workplace and, as a result, he may have misunderstood his obligations or misinterpreted the agreement. Counsel for Mr. Scott submitted that those facts demonstrate the ambiguity of the last-chance agreement. It is surely not the type of document that should lead to a termination of employment, as it is imprecise, vague and confusing. There are numerous problems in having Mr. Scott abide by its terms.

94 Counsel for Mr. Scott submitted that the facts are that Mr. Scott was ill on March 7, 2007, and he called the commissionaire’s desk at the training location session was held. He testified that the term “workplace” in the last-chance agreement referred to his usual place of work and the training centre was a different location. Therefore, he did not fail to comply with the last-chance agreement.

95 Counsel for Mr. Scott submitted that, to justify termination, the evidence should be clear and convincing for an employee with 19 years of employment. In this case, there is no evidence contradicting that of Ms. Green and Mr. Scott to the effect that Mr. Czerwinski approved the parental leave request. Neither Ms. Green nor Mr. Scott was cross-examined on that point or on the phone conversation between Mr. Scott and Mr. Czerwinski. The issue is not whether Mr. Czerwinski had the authority to grant the leave request, because it was not for Mr. Scott to know who had the authority. Mr. Scott relied on Mr. Czerwinski.

96 Counsel for Mr. Scott submitted that, although Mr. Czerwinski may be on sick leave, there is no evidence that management attempted to investigate Mr. Scott’s assertions. In these circumstances, the last-chance agreement appears unreasonable.

97 In response to the argument that Mr. Scott failed to show due diligence, counsel for Mr. Scott submitted that the letter dated July 14, 2005, from Mr. Gouveia (Exhibit E-5) never reached Mr. Scott. While documents indicate that a courier attempted to deliver the letter to Ms. Patterson, but was told by Ms. Patterson that she had been instructed not to accept such letters, the evidence was that Ms. Patterson was at work on that day. Ms. Patterson had no recollection of the delivery attempt, and she denied having said that she would not accept deliveries of documents for her son.

98 With respect to the second letter sent to Mr. Scott (Exhibit E-17), counsel for Mr. Scott maintained, that, although one can say that Mr. Scott could have done better, the oversight is understandable considering that Mr. Scott was in a rush and was helping the mother of his premature daughter. Counsel for Mr. Scott noted that Mr. Scott contacted his supervisor, Mr. Gouveia, and testified that he met with his supervisor in early December 2005.

99 Counsel for Mr. Scott submitted that there was no ground for the 15-day suspension because Mr. Scott had already been disciplined through the last-chance agreement. There was no precipitating event between January 6, 2006, and the suspension date that warranted further discipline.

100 On the question of the termination of employment, counsel for Mr. Scott submitted that the last-chance agreement should not have existed, since it was based on a misunderstanding regarding the telephone conversation between Mr. Czerwinski and Mr. Scott on June 27, 2005. The agreement itself is unreasonable, imprecise and vague, and lacks critical information.

101 Counsel for Mr. Scott requested that I remain seized of the matter, were I to rule in favour of Mr. Scott, to determine damages, should the parties fail to arrive at a satisfactory resolution.

C. Respondent’s rebuttal

102 Counsel for the respondent submitted that the testimony of Mr. Gouveia, Mr. Wojick and Ms. Woitzik contradicted Mr. Scott’s version of the events. As for the alleged vagueness of the last-chance agreement, counsel for the respondent referred to Mr. Gouveia’s testimony that there was a very clear understanding that Mr. Scott should contact him or his supervisor in case of an absence. Counsel for the respondent pointed out that there was never any indication that the last-chance agreement was invalid and that that argument did not surface until after the termination.

103 Counsel for the respondent submitted that length of service can be a double-edged sword. In this case, length of service worked against Mr. Scott, because he should have known better. Counsel for the respondent added that the standard of proof is not based on years of service.

104 Counsel for the respondent submitted that Mr. Scott had bargaining agent representation when he signed the last-chance agreement. Mr. Scott’s employment was statutory employment, and the last-chance agreement did not change any fundamental term of Mr. Scott’s employment.

105 Counsel for the respondent submitted that an employee is required to report to his or her workplace and to hold otherwise is absurd. If an employee is sent on a course, he or she is at work, and the workplace is the location of the training session on that day.

106 Counsel for the respondent concluded that the case should be decided on the credibility of the witnesses. To suggest that there is no evidence contradicting Mr. Scott’s version of the events is to ignore the documents submitted at the hearing. Counsel for the respondent added that, although Ms. Green had not been cross-examined, there was other evidence to consider.

IV. Reasons

A. 15-day suspension

107 In reviewing the circumstances that lead to the 15-day suspension, I find that the evidence shows that there was a telephone conversation on the morning of June 27, 2005, between Mr. Scott and Mr. Czerwinski about a leave request. However, the exact outcome of that conversation is uncertain since, although both Mr. Scott and Ms. Green testified, for all intents and purposes, that Mr. Czerwinski approved a parental leave request, I do not have the benefit of Mr. Czerwinski’s testimony. The only comment from Mr. Czerwinski on the matter (Exhibit E-3) confirms that he had not heard from Mr. Scott since that conversation: it does not specify if parental leave was approved. All the other documents and testimony consist of hearsay evidence alleging that, during the conversation between Mr. Scott and Mr. Czerwinski, Mr. Scott requested only one day of leave for the birth of a child. It is therefore difficult to conclude on a balance of probabilities that, as the deputy head alleges, Mr. Scott was in an unauthorized leave situation from the outset. 

108 However, Mr. Scott acknowledges receiving via courier on August 23, 2005, a letter from his employer (Exhibit E-17) that, in his haste to return to Ms. Green’s home in Brampton, he misplaced and did not open until sometime in late November 2005. I also note that his version of the events, with regard to receiving the other letters from management differs from the notes taken by management during the fact-finding meeting on January 19, 2006. During that meeting, according to management, he acknowledged receipt of all three letters while, in his testimony, he recalls receiving only the letter dated August 23, 2005. Even if I accept Mr. Scott’s version, there is little doubt that Mr. Scott was negligent in not reading the couriered letter dated August 23, 2005, then and misplacing it.

109 I am somewhat amazed that management, which wrote to Mr. Scott on July 14, 2005 (Exhibit E-5), to inform him that it considered that he had abandoned his position, and on August 23, 2005, to let him know that steps would be taken to terminate his employment if he did not contact Mr. Wojick by August 31, 2005, did not act on that the threat before Mr. Scott showed up at work in December 2005. I distinctly remember Mr. Gouveia’s testimony that he communicated daily with the supervisors under his responsibility to discuss human resources issues. How could Mr. Scott’s situation not have surfaced? No explanation has been given for the delay. In a way, the respondent condoned Mr. Scott’s lengthy absence by not acting until Mr. Scott showed up at work.

110 I am concerned with the approach taken by management to deal with the situation. On the basis of the same events, the employer first imposed on Mr. Scott a last-chance agreement and, eight days later, a 15-day suspension. The position taken that the last-chance agreement does not constitute discipline is problematic, since the last-chance agreement has all the characteristics of a disciplinary measure, that is, an administrative measure to correct Mr. Scott’s perceived deviant behaviour.

111 According to Brown and Beatty, last-chance agreements are most often used in dealing with employees with a disability and are recognized as a legitimate and appropriate part of an employer’s efforts to fulfill its duty to accommodate the needs of workers with a disability. That is not the case here. There is no evidence to show that Mr. Scott suffered from any disability during the period of his absence.

112 In Mr. Scott’s situation, the last-chance agreement was more likely an alternative to termination, which was Mr. Wojick’s first thought. Rather than terminate Mr. Scott, the respondent decided to instil in him a sense of brinkmanship. However, to impose a suspension eight days later is contrary to the double-jeopardy rule, which states that one should not be penalized twice for the same event.   

113 Consequently, I find that the last-chance agreement was a first disciplinary measure and the subsequent 15-day suspension was invalid.

B. Termination

114 As for the termination on the ground that Mr. Scott violated the last-chance agreement by failing to contact management during his absence from March 6 to 9, 2007, I note that the respondent recognizes that an adjudicator is not bound by the content of that agreement. In the circumstances of this case, the decision to terminate Mr. Scott must stand on its own, in light of his disciplinary record, as it is the most severe penalty that can be imposed in a disciplinary matter.

115 There is little doubt that Mr. Scott had a valid reason for missing the training course, as substantiated by two medical certificates: one issued on March 9, 2007 (Exhibits S-5.1 and S-5.2), before the termination, and a second on May 7, 2007 (Exhibit S-7), which provides more details on the nature of the illness. However, cross-examination shows that the legitimacy of the absence was not a factor in the decision by Mr. Wojick to recommend Mr. Scott’s termination, because Mr. Wojick testified that he did not become aware of the illness until after the fact. That is surprising, given that the accounts of the fact-finding meeting on March 12, 2007 (Exhibits E-15 and E-16), conducted by Mr. Gouveia, clearly note that the reason for the absence was illness and Mr. Scott had been examined by his physician, who then provided a medical certificate. That information was given to Mr. Wojick, who appears to have ignored it.

116  While Mr. Scott did not report his absence from the training course to his supervisor or Mr. Gouveia, he explains that he contacted the security desk at the training location, because he was not expected at the workplace. There is no evidence to show that the respondent investigated this explanation, which was provided at the fact-finding meeting on March 12, 2007. While it would have been more prudent for Mr. Scott to contact his supervisor or Mr. Gouveia, the last-chance agreement referred to “… the Employer’s instructions with respect to timely communication with management regarding absences from the workplace as per the collective agreement … . ”Was Mr. Scott’s communication of his absence so untimely as to be viewed as warranting termination taking into account his record? While I can understand the frustration of management with his past behaviour, the specific circumstances around the absences from March 6 to 12, 2007, seems to me of less significance.

117  Furthermore, there is no lengthy disciplinary record, which usually exists when an employee is offered a last-chance agreement. Although it was mentioned that there had been a recurring problem with reporting leave, it appears that the respondent had not carried out any disciplinary measures before the events that led to the last-chance agreement. The respondent should not be allowed to use last-chance agreements instead of progressive discipline in dealing with insubordination relating to procedural issues, especially when such agreements cannot usually be reviewed by an adjudicator.  

118 Nonetheless, Mr. Scott’s failure to contact his supervisor or Mr. Gouveia was a breach of the verbal direction he received and warrants progressive discipline. I have also taken into account the fact that, from the signature of the last-chance agreement to the events in March 2007, nearly 14 months went by without a problem. 

119 I therefore find that the termination should be rescinded and replaced with a 15-day suspension.

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

V. Order

121 The 15-day suspension imposed on Mr. Scott on January 27, 2006, is rescinded. I order the deputy head to reimburse Mr. Scott for all wages and reinstate all benefits associated with that suspension. I further order the deputy head to remove from Mr. Scott’s employee file all references to the suspension.

122 Mr. Scott’s termination is rescinded. I order the deputy head to reinstate Mr. Scott as of March 16, 2007, and reimburse him for all wages and reinstate all his benefits as of that date, except for a 15-day suspension commencing on that date. I further order the deputy head to remove from Mr. Scott’s employee file all references to the termination.

123 I shall remain seized of this matter for 90 days to resolve any issues about any amount payable to Mr. Scott as a result of this decision.

March 24, 2010.

Georges Nadeau,
adjudicator