FPSLREB Decisions

I. Introduction

1 November 25, 2006 is a day that Terry MacArthur (“the grievor”) would like to forget. What occurred on that day and the events that followed have changed his life forever.

2 He has been employed by what is now referred to as the Canada Border Services Agency (“the respondent” or “the CBSA”) since May 1988. He performed the duties of a border services officer (BSO), previously referred to as a customs officer, at the present FB-03 classification level until April 2, 2008. As of that date, the employer demoted him permanently to a clerk position the CR-04 classification level. The grievor’s demotion was a result of his February 2008 convictions under the Criminal Code of Canada (CCC), for which he was sentenced on April 2008. All of these events are directly related to an incident that occurred on November 25, 2006.

3 After the disciplinary demotion was imposed, the grievor filed a grievance on April 2, 2008. He requested that the employer rescind the decision to demote him and that it reinstate him to a BSO position.

4 The respondent responded to the grievance at the final level of the grievance process on August 14, 2008, denied the grievance. The Notice of Reference to Adjudication filed by the grievor was received by the Public Service Labour Relations Board (PSLRB) on September 23, 2008.

II. Summary of the evidence

5 During the hearing, the employer called as witnesses Joanne Brown, Chief of Travelers Operations in Fort Erie, and Sean Scott, who is now a superintendent at the Queenston Bridge but who, at relevant times, was involved in various capacities in the training of BSOs. The employer also called as a witness Chuck Marshello, District Director at Fort Erie since June 2007. The grievor testified on his own behalf. Additionally, 23 documents were marked as exhibits with the consent of both parties.

6 Having heard the evidence and listened to the submissions of both parties, I have no hesitation in concluding that there are no disputed facts.

A. The CBSA and border services officers

7 Mr. Marshello explained that the CBSA was formed after the events often referred to as “9-11.” The then government recognized the need to enhance the security of our country and amalgamated the border and customs services previously provided through other departments under one umbrella. The CBSA is an agency and its president is, for the purposes of the relevant legislation, a deputy head, and has all of the equivalent powers of a deputy minister.

8 The CBSA provides security and border services at all points of entry into Canada, including airports, maritime ports and land crossings. By their very nature, land crossings are between Canada and the United States of America.

9 On forming the CBSA, the government created BSO positions which, under the CCC, attained the status of peace officers. BSO positions were granted what are referred to as “officer powers”. Officer powers contemplate that a BSO would or could be a “first responder” in case of four violations of the CCC; impaired driving, outstanding warrants, missing children, and stolen property.

10 Ms. Brown explained that the employer expected the BSOs to have good judgement in all matters, especially with respect to their officer powers. She also indicated that, in her experience, officer powers are invoked most often in case of impaired driving. The employer adduced statistics that confirmed the testimony of Ms. Brown.

11 Ms. Brown also testified that a BSO has the power to charge a driver under the CCC for impaired driving or, alternatively, to make a demand that the driver submit to a breath analysis test. She testified that all the BSOs are trained and qualified to administer the “approved screening device” (ASD), commonly referred to as the “roadside alert.”

12 Mr. Scott testified that after the formation of the CBSA and in anticipation of the elevation of the BSO to peace officer status, a 10-day training program was developed. The program included a significant component on impaired driving as well as the certification of all the BSOs in the use of the ASD.

13 Additionally, the CBSA created a five-day refresher course that is to be offered to the BSOs every three years. It is undisputed that the grievor successfully completed both the initial training program and at least one refresher course, the last one apparently in 2003.

B. For the grievor

14 The grievor is one of 10 children, and the only one to have graduated from high school. At the age of 25, he went back to school after he and his wife had two young children. He enrolled in a two-year program in Law and Security at Niagara College. He completed this program and was recruited as a student Customs Officer at the age of 27 by the predecessor to the CBSA.

15 While employed as a student Customs Officer, the grievor applied for a full-time permanent position at Pearson Airport in Toronto and was the successful candidate. Shortly after that, the grievor transferred to the Peace Bridge operations. Thus commenced his long career as a BSO.

16 The grievor was a good and respected employee from his commencement date and there was no evidence of any performance problems. He testified in general terms about some of the duties that he performed over the years, including his participation in a sting operation in coordination with the Royal Canadian Mounted Police. This sting operation resulted in the successful seizure of a large amount of cocaine.

17 During his career, the grievor was an active contributor to his community. As he stated in his evidence, “[m]y life was focused on children early on.” He is a certified hockey coach and gave his time generously. He has created his own power skating school and, through his many contacts, he assists less fortunate children in obtaining hockey gear.

18 The grievor is also active in his local church and he testified to the many times at Christmas when he and his church family have delivered turkeys, food and gifts to those in need. In addition, at work he was instrumental in the development of several programs for children including Tender Wishes, Child Find, and PUCKS.

19 In support of the level of community work that the grievor performed and how his character was perceived, he adduced, with the consent of the employer, a bundle of approximately 60 documents including letters from fellow coaches, church leaders, friends and acquaintances. Also, the bundle included copies of the many awards presented to the grievor and a large number of press clippings concerning the grievor’s good reputation in the community. It is not difficult for me to conclude that the grievor is a highly respected volunteer in his community and that he has been very generous with his time, talent and money over many years. Indeed, the evidence of Ms. Brown and Mr. Marshello, both of whom have known the grievor over the years, confirms this conclusion.

C. The incident of November 25, 2006

20 In the morning of November 25, 2006, before he was to go to work, the grievor was advised by his wife of 23 years that she wanted to terminate the marriage. The grievor was devastated and called in sick to work. Unfortunately, as he had done in the past in situations of stress, he unleashed his demon.

21 The grievor purchased a bottle of vodka and drove his vehicle while under the influence of alcohol. At some point, the grievor, “… reversed his vehicle and then drove forward and turned into the path of a motorcycle” (decision of the court in the matter of Her Majesty the Queen v. Terry MacArthur, Information No. 07-46130, rendered on March 31, 2008, marked as Exhibit 3). The accident caused serious injury to the driver of the motorcycle but fortunately did not injure the passenger.

22 What occurred next was even worse. The grievor fled the scene of the accident without stopping to assist the injured motorcycle driver. This accident was witnessed by an individual who proceeded to relay the grievor’s licence plate number to the police. The grievor then drove home and went into his basement where he drank more alcohol.

23 The police arrived at the scene of the accident; the victim was obviously transported to the hospital although there was no evidence of that happening. The police found the rear bumper of the grievor’s vehicle at the scene of the accident and noted the license plate number.

24 It wasn’t very long before the police arrived at the home of the grievor and arrested him. As noted in Exhibit 3, the police arrived at the grievor’s home and “… he was visibly impaired and his pants were wet in the genital area. He was bleeding at the mouth.”

25 The grievor was charged with four offences under the CCC.

26 The grievor testified that he sat in his jail cell and realized that he had a problem with alcohol. He prayed to God and, after his release from jail to the custody of a good friend, he immediately took steps to join Alcoholics Anonymous, an organization he has continued to attend on a regular basis.

27 During his testimony, the grievor was not hesitant in acknowledging his responsibility for the accident. The grievor was also remorseful and apologized for embarrassing himself, his co-workers and the employer.

28 The grievor indicated that he had very little recollection of that day and that his actions were not intentional. The grievor was emotional as he testified that he was terribly sorry for leaving a man to die in the middle of the road. In my years of practice, seldom, if ever, have I heard a more sincere individual. I conclude that the grievor was truly and sincerely remorseful. As will be seen by my findings, so did the employer.

29 Between the date of the accident and the eventual court appearance, to be discussed later in this decision, the grievor attempted to contact the victim to apologize and in fact wrote two letters of apology.

D. The initial action of the employer and how the grievor responded

30 As required, the grievor advised his employer of the situation. On December 7, 2006, a meeting took place between the grievor, his union representative, the friend who had taken custody of him after his release from jail, and several representatives of management, including Ms. Brown. The minutes of this meeting were adduced as an exhibit. The grievor is recorded as confirming that he had been arrested and charged with the following:

• having blood alcohol concentration over 80 milligrams per 100 millilitres of blood;
• impaired driving causing bodily harm;
• dangerous driving; and
• leaving the scene of an accident.

31 The purpose of the meeting was described as follows in the first paragraph of the minutes:

…

… not disciplinary in nature, although the Employer can discipline an employee for off duty conduct; the purpose of the meeting was to ascertain the facts surrounding the incident of Saturday November 25, 2006. In addition, there were concerns given the nature of the Border Services Officer’s duties, whereby during the course of duty there is a requirement to detain travellers who are incapacitated as a result of alcohol, the officer is required to administer the same law under the criminal code for which he is charged. It was explained that the Employer had concerns as to the potential impact alcoholism has on the workplace. However, at issue first and foremost, is the health and wellbeing of the officer, his co-workers (if he is not fit to provide support while on duty) and maintaining the integrity of the border services operation. Also a concern is the possibility of impact on the relationship with other law enforcement agencies within the community with whom BSOs work on joint operations.

…

[Sic throughout]

32 As I reviewed the minutes in their entirety, I was immediately impressed with the level of disclosure that the grievor provided to his employer. The grievor admitted to his addiction to alcohol, the steps he had taken to date, the fact that he was in the process of attending a treatment program, and the fact that he and his wife were in the process of separating. He also admitted to the details of the accident that occurred on November 25, 2006, to leaving the scene of the accident, to being charged with four counts under the CCC, to his embarrassment and, most importantly, to his remorse.

33 As a result of this meeting, the grievor was allowed to return to work as a BSO but limitations were put on his duties and he was required to be monitored by Ms. Brown. According to the evidence, after about a two-month period of restricted duties, the grievor was returned to full duties as a BSO on February 1, 2007.

34 One of the last paragraphs in the minutes of this meeting reads as follows:

It was conveyed to the officer that should there be any further alcohol related incidents or conviction of outstanding charges, further review will ensue, a conviction leading to incarceration of 2 years or more will lead to dismissal.

35 Both Ms. Brown and Mr. Marshello testified that, from February 1, 2007 to April 2, 2008, the grievor performed his job admirably, and there were no incidents that caused them concern.

36 In fact, evidence was adduced by all witnesses of an act of bravery by the grievor. On September 15, 2007, while the grievor was on duty, a truck that was crossing the border caught fire. The grievor broke through the windshield of the truck and, with some assistance from another BSO, was able to remove the driver from the burning vehicle. Once the driver had been removed, the grievor recognized further danger and assisted in moving the driver away from his truck, just in time before it exploded.

37 Although the driver did eventually pass away about a year later as a result of injuries sustained, the grievor was recognized in the press for his actions. Additionally, he received letters of commendation from the Honourable Stockwell Day, the Minister of Public Safety and the Clerk of the Privy Council at the time.

E. The action of the employer as a result of the guilty plea and sentencing

38 In late February 2008, the Crown withdrew two charges against the grievor and in return the grievor pleaded guilty to the remaining two counts. He stood convicted of impaired driving causing bodily harm under subsection 255(2) of the CCC, and leaving the scene of an accident knowing that bodily harm had been caused to another person under subsection 252(1.2) of the CCC. Both these convictions are indictable offences under the CCC and each is punishable by 10 years imprisonment.

39 After a sentencing hearing, the sentencing judgement was rendered on March 31, 2008, which is referred to in paragraphs 21 and 24 of this decision. After considering the impact on the victim, the mitigating factor of the grievor’s character, and the case law, the court imposed a total sentence of 21 months to be served in the community as a conditional sentence. The court imposed very strict limitations on the grievor, including requirements to report to a supervisor daily, not to leave the province of Ontario, to remain in his residence for 24 hours a day with permission to attend work, to attend Alcoholics Anonymous, to perform 100 hours of community service, and to not possess or consume alcohol or any non-prescription medication or drugs.

40 Assuming that the newspaper articles adduced as exhibits accurately reflect the statements of the victim of the crime, he was not pleased with what he thought was a sentence that did not reflect the severity of the crime. Mr. Marshello testified that after the sentencing the victim attempted to contact the grievor at work.

41 On March 19, 2008, the employer invited the grievor to a disciplinary meeting. The minutes of this meeting reflect that the purpose was to provide the grievor with the opportunity to make any submissions he felt were appropriate. The grievor, as he did before me, took full responsibility for his actions. He reiterated what he had done in the 16 months following the accident. He also provided the employer with the same package of documents that were adduced before me, indicating that he was of good character.

42 At the request of the grievor’s union representative, the employer advised the grievor that he was being disciplined for “off duty conduct,” that being a conviction under the CCC. The employer is further quoted as saying that the fact that the conviction “… impacts or is injurious to the general reputation of the CBSA” is of importance.

43 The employer’s “Code of Conduct” was introduced as an exhibit. Clause m of the “Expected Standards of Conduct” deals with “Off-duty Conduct.” It is helpful to reproduce this clause, as follows:

…

General

Your off-duty conduct is usually a private matter. However, it could become a work-related matter if it:

• harms the Agency’s reputation or program;
• renders you unable to perform a requirement of your duties;
• leads other employees to refuse, be reluctant or be unable to work with you;
• renders you guilty of a serious breach of the Criminal Code of Canada and thus renders your conduct injurious to the general reputation of the Agency and its employees. For example, the nature of the criminal charges may be incompatible with the functions of a peace officer;
• makes it difficult for the Agency to manage its operations efficiently and/or to direct its workforce.

Criteria found in Millhaven Fibres Ltd., Millhaven Works and Oil, Chemical and Atomic Workers Int’l Union, Local 9-670 (1967), 1 (A) Union-Management Arbitration Cases 328. These criteria were subsequently adopted by the PSSRB in several decisions.

You must report to your manager as soon as possible if you are arrested, detained or charged with a violation in Canada or outside Canada of laws, regulations, a federal statute or the Criminal Code of Canada related to your official duties. You must report a traffic violation or highway code ticket received during the use of a government-owned or leased vehicle.

…

44 After the meeting, the employer considered its options. The evidence of Ms. Brown and Mr. Marshello was that the employer considered that this was serious and that it affected the ability of the grievor to continue performing duties as a BSO.

45 Ms. Brown testified that, as Chief of Travelers Operations at the Peace Bridge, she and her superintendents must have confidence in all the BSOs and be able to trust that they will exercise their judgment properly. This is because a BSO works under no direct supervision. As she testified, trust in the BSO is absolutely crucial, and the judgment of the BSO must be exemplary.

46 Ms. Brown explained that a BSO must make a judgment about a traveler after a 45- to 90-second interview. In doing so, a BSO is called upon to judge the responses and reactions of persons to the questions asked.

47 Ms. Brown’s evidence was that she could no longer trust the grievor after he was convicted, although she admitted that from February 1, 2007 until the date of the conviction and indeed before November 25, 2006, she had no issues with respect to the grievor. She explained that after she had read the sentencing decision she concluded that the incident that had occurred on November 25, 2006 was so heinous that it called into question the grievor’s ability to make good judgments.

48 In cross examination, Ms. Brown indicated that there was nothing that the grievor could ever do to restore her trust in him. She testified that in her view the incident of November 25, 2006 was a breach of trust, and called into question his ability to make good judgments.

49 On questioning, Ms. Brown admitted that in December 2006 she was aware of most of the facts surrounding the November 25, 2006 incident. She testified that after reading the sentencing decision she learned that there was a witness to the accident; that the grievor had open alcohol in the vehicle; that the bumper was left at the scene of the accident; the state of inebriation that the grievor was in when the police arrived at the door; and the details of the injuries sustained by the victim.

50 Mr. Marshello commenced his stint as District Director in Fort Erie on June 1, 2007. He testified that when he assumed this position he was briefed about the grievor’s status, and that he decided not to interfere in the decision of his predecessor.

51 In February 2008, before the guilty plea was entered, Mr. Marshello had informal discussions with grievor. According to the undisputed evidence, the grievor voiced concerns that he might lose his job.

52 When or immediately before the grievor entered the guilty plea, Mr. Marshello was advised by Ms. Brown of what was happening. Mr. Marshello in turn advised his superiors at head office. The employer ensured that a communications officer from head office was kept in the loop to limit the chances of bad press, but no evidence was adduced about whether this person was required to perform any duties.

53 In any event, three press clippings were adduced in which the reporter discussed first the grievor’s guilty plea and second, the sentence which as earlier noted above was questioned by the victim. In each of these articles, there was reference to the CBSA in the opening paragraph (see Exhibits 8 to 10). Mr. Marshello testified that this was not good press for the employer, but he did not explain further why he reached this conclusion.

54 Mr. Marshello testified about how he felt public trust and confidence was affected by this incident. He testified that some members of the public questioned the employer, but his evidence did not provide any details about how many calls or comments were received by the employer from members of the public.

55 Mr. Marshello testified about the disciplinary meeting on March 19, 2008. He explained the minutes that were adduced as an exhibit, and stated that the purpose of the meeting was to allow the grievor to bring forward any information that might be considered by the employer in the decision as to the appropriate disciplinary sanction. Mr. Marshello testified that the mitigating factors described by the grievor were helpful.

56 Mr. Marshello then testified that the factors considered by the employer were as follows:

• the grievor was involved in the hit-and-run accident;
• the grievor had lost his wife and family;
• the grievor offered his apologies to the victim before the sentencing and in court and was very remorseful overall;
• the grievor had alcohol problems;
• the grievor addressed the alcohol problems by going to Alcoholics Anonymous and attending the 28-day rehabilitation program;
• the grievor did not have an attendance problem at work;
• the grievor performed his duties well;
• the grievor had willingly been monitored by Ms. Brown from December 2006 to the date of the plea and sentencing;
• the grievor was active in his community; and
• the grievor had performed a courageous act.

57 As a result of the disciplinary meeting, a report was drafted and circulated among senior management of the employer.

58 At the time, Mr. Marshello was the acting regional director general for the Fort Erie Region, and had the requisite authority to determine the disciplinary sanction. He testified that initially senior management at head office wanted to terminate the grievor’s employment. Although Mr. Marshello considered the grievor’s actions to be very serious, he recommended that the employer impose a permanent demotion instead. After obtaining approval, he signed the letter of demotion on April 2, 2008, in his capacity as acting regional director general.

59 The letter of demotion reads in part as follows:

…

During a meeting with management held on February 18, 2008, you were informed that you would be temporarily assigned to light duties pending the result of court proceedings in which you had pleaded guilty to charges of impaired driving causing bodily harm and failing to stop.

On March 19, 2008 management representatives met with you in the context of a disciplinary meeting to discuss your recent conviction and the issues surrounding this conviction. At this meeting, you were also given the opportunity to provide management with further information for their consideration prior to administering discipline at a subsequent meeting. You indicated for management’s consideration that you had advised management of the events at the time the situation occurred; that alcoholism is an illness; that you were seeking help and had gone to a rehabilitation centre and continued to be part of a program to help you deal with your illness; that you apologized for your actions; that you were involved in your community; that you were recognized for your bravery in saving lives while performing your duties; that you had received numerous letters of contribution and commendation for your actions and that you complied to management’s decision to temporarily reassign you to other duties.

Notwithstanding the above and other factors taken into consideration by management, the seriousness of the events and the charges for which you have been convicted have a direct impact and are incompatible with the duties you perform and the Acts and Regulations you have to enforce as a Border Services Officer. As such, Management seriously considered terminating your employment with the Canada Border Services Agency. However, management felt that a demotion to a lower level position and the maintenance of your employment in the Public Service served as an acceptable level of discipline in your case and supported you in your rehabilitation process. In fact, it is hoped that by doing so, you will be able to pursue all options provided to you to ensure that you do not face the same situation again. I would also like to remind you that should you deem it necessary, the services of the Employee Assistance Program (EAP) are available and can be reached by phone at 905-354-2716.

This demotion is applied in accordance with Section 12(1)(c) of the Financial Administration Act and the authority delegated to me by the President of the Canada Border Services Agency. Therefore effective Thursday, April 3, 2008, you will report to Brad Perzul, Chief Commercial Operations, Fort Erie in the position of Senior Clerk at the CR-04 occupational group and level.

…

[Sic throughout]

60 Mr. Marshello described the reasons behind his decision to demote the grievor permanently. He stated that this decision was not taken lightly and that his reasons were as follows:

• the charges were severe. The grievor plead guilty to two indictable offences;
• the actions of the grievor harmed the reputation of the employer;
• the verdict and sentencing might affect the grievor in the performance of his duties. No evidence was adduced to explain this conclusion; and
• the verdict created several camps within the Peace Bridge workforce. Apparently some wanted the grievor fired and others wanted him returned to work. Again, no evidence was adduced to support this statement.

61 Demotion is defined in the CBSA’s Discipline Policy which was also adduced as an exhibit before me. The Discipline Policy reads in part as follows:

Statement of Policy

Employees preserve the Canada Border Services Agency’s (CBSA) reputation for integrity, honesty and professionalism by conducting themselves in an ethical manner, as prescribed in the CBSA Code of Conduct and the Values and Ethics Code for the Public Service. It is the policy of the CBSA that all allegations or evidence of employee misconduct be investigated according to the principles of natural justice to ensure that the professional reputation of the staff and the integrity of the CBSA operations are protected and that appropriate measures are taken.

Objectives

The objective of the CBSA Discipline Policy is to promote the expected standard of behaviour by motivating employees to apply workplace values, rules and standards of conduct that are considered desirable or necessary in achieving the goals and objectives of the Agency and the overall Public Service of Canada. Discipline is meant to be corrective, not punitive; to encourage ethical behaviour and good conduct; to highlight that misconduct is unacceptable; to correct any unacceptable behaviour; and in very serious cases, to provide for demotion or termination of employment.

Definitions

…

Disciplinary measure

…

Demotion: an action taken by the delegated manager to appoint an employee to a position at a lower maximum rate of pay. Demotion is an alternative to a disciplinary termination and should be used when the manager is of the opinion that, despite the misconduct, the employee is still suitable for continued employment, though in a position at a lower maximum rate of pay. For example, this disciplinary measure could be used when a manager is found guilty of harassment and is moved to a position with no managerial responsibilities.

…

62 The grievor filed the grievance that is the subject of this adjudication on April 2, 2008.

III. Positions of the parties

A. For the employer

63 The employer’s position can be broken down into four separate issues, which counsel for the employer set out as follows:

• Can an employer within the federal public service impose its own standards for off-duty conduct on its employees? If so, what forms the basis of the standards?
• What, if any, are the parameters for disciplinary demotion?
• Given all the circumstances of this case, was the discipline imposed on the grievor appropriate?
• What significance is there to the fact that the grievor worked as a BSO from the time he was charged until the time he was demoted?

64 Counsel for the employer submitted that the case law supports the contention that an employer has the right to establish rules of conduct and, in turn to discipline employees who breach those rules. She further submitted that the proper approach for an adjudicator is to determine whether the promulgation of the rules of conduct and subsequent disciplinary policy is a proper exercise of the delegated authority. She relied on the relatively recent decision by the Federal Court of Appeal in Tobin v. Attorney General of Canada, 2009 FCA 254.

65 Counsel for the employer then reviewed the Code of Conduct that was adduced as an exhibit, specifically the relevant portion, which is set out in paragraph 43 of this decision. Her submission was the Code of Conduct, although it makes specific reference to Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670, [1967] O.L.A.A. No. 4 (QL) (“Millhaven”), is an enlargement upon the general principle enunciated in the much-quoted case.

66 Counsel for the employer submitted that the grievor’s own actions breached the Code of Conduct in that he was found guilty of a serious offence under the CCC and therefore brought discredit on the employer. She noted that a peace officer is, quite appropriately, held to a higher standard of trust than other employees.

67 With respect to the issue of a disciplinary demotion, counsel for the employer referred me to paragraph 12(1)(c) of the Financial Administration Act (FAA). That paragraph was amended in about 2003, as a result of the Public Service Modernization Act c. 22 s. 8 (PSMA) but was effective only April 1, 2005 and was in force at the times relevant to this case. It provides for the employer to demote an employee to a position at a lower maximum rate of pay.

68 Counsel for the employer noted that no cases have been decided by the PSLRB concerning disciplinary demotions since the enactment of the amendments to the FAA. However, she referred me to two cases involving the demotion of peace officers to support the employer’s contention that the grievor’s demotion in this case was appropriate (see British Columbia v. British Columbia Government and Service Employees’ Union (1999), 82 L.A.C. (4th) 382; and Lee v. Canada (Royal Canadian Mounted Police) (unreported, Federal Court File No. T-2181-99, 20000519).

69 Insofar as the third issue identified by the employer, whether the disciplinary sanction of permanent demotion was appropriate, counsel for the employer submitted that it was. She reviewed the testimony of both Mr. Marshello and Ms. Brown and noted that both these individuals were intimately familiar with the duties of a BSO. They both testified that, as a result of the grievor’s actions, the employer had lost trust in the grievor’s judgment; in fact, Ms. Brown testified that there was nothing that the grievor could do to re-establish this trust.

70 Counsel for the employer also noted that, in making the decision to demote, the employer clearly considered the circumstances to be serious, as is established by the fact that the employer initially considered termination. Mr. Marshello, who ultimately made the decision to demote rather than terminate, took into account all the circumstances including the mitigating factors.

71 In support of her submission on this point, counsel referred me to Simoneau v. Treasury Board (Solicitor General of Canada — Correctional Service), 2003 PSSRB 57.

72 Finally, with respect to the last issue identified by the employer, counsel submitted that the grievor’s reinstatement in a BSO position in December 2006 did not suggest that the employer in any way condoned the grievor’s actions. In support of this contention, counsel for the employer referred me to Dashney v. Treasury Board (Revenue Canada — Customs and Excise), PSSRB File No. 166-02-14177 (19830809).

73 In response to my questions, counsel for the employer agreed that there was no legislative impediment to my reducing or otherwise altering the employer’s disciplinary action, as this authority is vested in me under the Public Service Labour Relations Act (PSLRA). However, she urged me not to interfere with the decision by management because it was made in a thorough and thoughtful manner. Finally, she referred me to the case of Burton v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 74.

74 I asked that both parties respond to some cases that I had identified and that deal with the permanency of a disciplinary demotion. Specifically, I referred the parties to the following cases: Teamsters, Chauffeurs, Warehousemen and Helpers, Local 880 v. Tecumseh (Town), [2004] O.L.A.A. No. 505 (QL); Butcher Engineering Enterprises Ltd. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW - Canada), Local 195, [2009] O.L.A.A. No. 250 (QL); FortisOntario v. International Brotherhood of Electrical Workers, Local 636, [2005] O.L.A.A. No. 718 (QL); and University of British Columbia v. Canadian Union of Public Employees, Local 116, [2005] B.C.C.A.A.A. No. 264 (QL).

75 Counsel for the employer submitted that the four cases to which I referred deal with the private sector. She submitted that this point was important because in the present case there was a Code of Conduct and the grievor himself acknowledged the seriousness of his off-duty conduct. Furthermore, she pointed out that the grievor acknowledged that he had embarrassed the employer by his actions.

B. For the grievor

76 The grievor, on the other hand, takes the position that his actions were serious and did warrant discipline, even severe discipline. However, the grievor’s representative submitted that the sanction was too severe and amounted to termination. Specifically, the grievor submits that, although severe discipline was warranted, I should consider the mitigating factors.

77 The grievor’s representative submitted that I should treat this discipline as a termination because of the permanency of the demotion. Specifically, he submitted that the employer cannot suggest that the demotion was administrative in nature. In support of this submission he referred me to the cases of Raymond v. Treasury Board, 2010 PSLRB 23; Dufferin-Peel Roman Catholic Separate School Board v. Ontario English Catholic Teachers’ Assn., [1998] O.L.A.A. 887 (QL); and St. Clair Catholic District School Board v. Ontario English Catholic Teachers Assn., [1999] O.L.A.A. No. 1009 (QL).

78 The grievor’s representative submitted that the employer’s action is disciplinary in nature and is equivalent to termination. The grievor submitted that I have the authority to order reinstatement. In arguing this point, the grievor’s representative pointed out that the disciplinary action taken by the employer allows for no corrective function, which is a basis for the concept of progressive discipline. The grievor’s representative submitted that a demotion or reassignment of duties can serve as a disciplinary penalty, but must be consistent with the concept of progressive discipline. In support of this submission he referred to the case of Canadian Union of Public Employees v. Office of Professional Employees’ International Union, Local 491, [2004] O.L.A.A. No. 508 (QL).

79 The grievor’s representative stressed that there is a presumption that any disciplinary sanction is to serve a corrective purpose. He referred to the following cases in support of this general contention: Comox Valley Distribution Ltd. v. Industrial Wood and Allied Workers of Canada, Local 363, [2001] B.C.C.A.A.A. No. 354 (QL); and Air Canada v. Canadian Air Line Flight Attendants Association, (1979), 22 L.A.C. (2d) 371.

80 The grievor then referred to the Code of Conduct and suggested that, other than the newspaper articles, which were admitted to be negative, no evidence was adduced establishing the extent of public outcry or the impact on the employer. Furthermore, the grievor did not accept that there was any evidence that his actions were the cause of difficulties in the workforce.

81 The grievor submitted that “[i]f this is really about the issue of trust, then the employer would not have exercised their discretionary authority in December 2006 and return [sic] the grievor to his substantive position.” The grievor took the position that he fully disclosed all the factors surrounding the November 25, 2006 incident to the employer at their meeting on December 7, 2006. In support of this contention, the grievor noted that the evidence of Ms. Brown was supportive and that what she learned after reading the decision of the court was in reality quite minimal. Therefore, the grievor submitted that when one considers the incident in light of the mitigating factors the disciplinary sanction imposed was excessive.

82 In support of the submission that the disciplinary penalty was excessive, the grievor referred me to the following cases: Turner v. Treasury Board (Canada Border Services Agency), 2006 PSLRB 58; Rose v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 17; Burton; English v. Treasury Board (Solicitor General Canada — Correctional Service), 2003 PSSRB 72; and Spawn v. Parks Canada Agency, 2004 PSSRB 25.

83 The grievor asked that he be reinstated in his substantive BSO position. In making this request, the grievor acknowledged the seriousness of his actions and that a demotion for a lengthy period of time, perhaps equivalent to the 21-month criminal sentence, was appropriate. Counsel also waived any claim that the grievor might have for remuneration. As he stated in his closing remarks, “[t]his case is about second chances and the grievor wants to move forward.”

IV. Issues to be decided

84 This case is unique in many ways, as a result there are several issues that must be addressed.

85 First, does the employer have the requisite authority to develop a Code of Conduct that is binding on the grievor? If so, are the Code of Conduct and Discipline Policy concerned reasonable?

86 Second, did the employer establish that it had just cause to discipline the grievor? Specifically, were the points set out in Exhibit 12, page 10, item (m) violated (note the issue of the reputation of the CBSA)?

87 Finally, was the disciplinary action of permanently demoting the grievor appropriate? In considering this question, I am of the view that I must determine if there is a difference between a permanent demotion and a dismissal.

V. Reasons

A. Does the employer have the requisite authority to develop a Code of Conduct that is binding on the grievor?

88 At the outset, it is important to note that the portion of the Code of Conduct that is before me deals with the conduct of employees while not on duty. In 1967, the arbitration case of Millhaven was decided. That case sets out the most-often quoted test for determining when the off-duty conduct of an employee can result in disciplinary action. In the Code of Conduct, the employer made specific reference to the Millhaven test.

89 I am not required to decide whether there is a difference between the Code of Conduct and the Millhaven test. However, counsel for the employer submitted that subtle differences between them do exist. What I do have to determine is whether the employer had the requisite authority to develop the Code of Conduct, at least insofar as it relates to off-duty conduct.

90 In the past, it may have been that there was a question as to whether an employer could develop a Code of Conduct dealing with off-duty conduct that would have the effect of altering well-established arbitral jurisprudence. In my view, any such question that may have existed was answered by the Federal Court of Appeal in Tobin.

91 The adjudicator who heard the case at the outset of the litigation in Tobin was faced with an agreement between both the employer and the union that the applicable test for off-duty conduct was set out in Millhaven (see Tobin v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 26). At both the trial (Attorney General of Canada v. Tobin, 2008 FC 740) and at the appeal levels, the court analyzed the legislative framework and determined that the employer has the right to formulate a Code of Conduct, and subject to reasonableness, the code is not reviewable at adjudication.

92 What is reviewable is the exercise of the disciplinary power by the employer (Tobin v. Canada (Attorney General) 2009 FCA 254,paragraph 19). I accept this as an accurate statement of the law as it exists at present.

93 It is therefore my conclusion that the conduct of the grievor in this case must be reviewed as against the Code of Conduct established by the employer. The relevant portions of this Code of conduct are reproduced in paragraph 43 of this decision.

B. Is the Code of Conduct concerned, reasonable?

94 The grievor did not argue the reasonableness of the Code of Conduct.

95 That said, I reviewed the Code of Conduct on my own, and I am unable to determine that it is in any way unreasonable. In coming to this conclusion, I am comforted by the reference to the Millhaven test in the body of the Code of Conduct and the similarity to this often-quoted test. In concluding as I have done, I am aware that the employer submitted that there are differences between the Code of Conduct and the Millhaven test, albeit subtle in nature.

C. Did the employer establish that it had just cause to discipline the grievor?

96 Given my conclusion concerning the reasonableness of the Code of Conduct as it relates to off-duty conduct, I must measure the actions of the grievor against these standards.

97 The grievor acknowledged that his actions were such that he should have been disciplined. However, despite this acknowledgement, I am of the view that I am still obliged to review the grievor’s actions in light of the standards set out in the Code of Conduct.

98 I will analyze the grievor’s conduct as against the Code of Conduct, but not necessarily in the order that they appear in of the Code of Conduct.

99 There is no question in my mind that the grievor’s actions rendered him guilty of a serious breach of the Criminal Code. The charges that the grievor plead guilty to were both indictable offences subject to 10 years’ imprisonment (subsection 252(1.2) of the CCC, leaving the scene of an accident knowing that bodily harm had been caused; and subsection 255(2), impaired driving causing bodily harm).

100 In my view, the severity of the charges is demonstrated by the lengthy sentence imposed by the court.

101 I am further aware that the conduct of the grievor was injurious to the general reputation of the CBSA and its employees. This was admitted to by the grievor in his testimony when he apologized for the impact that his actions had on the employer. In his forthright testimony, the grievor acknowledged that his actions were harmful of the reputation of the employer.

102 Although three newspaper articles were introduced as evidence by the employer, presumably to establish that the reputation of the employer was tarnished by the grievor’s actions, not much emphasis was placed on these articles given the grievor’s admission that his conduct was injurious to the general reputation of the employer.

103 The evidence is less clear that the conduct of the grievor justified the conclusion of the employer that he was no longer capable of performing his duties. The only evidence I heard on this point was from Ms. Brown and Mr. Marshello. Their evidence was to the effect that, after the conviction and sentencing of the grievor, they lost trust in him. In fact, Ms. Brown testified that there was nothing that the grievor could do to regain her trust.

104 In my view, this evidence was not determinative. In saying this I am not suggesting that either of the witnesses was giving false testimony; in fact I am aware that they both fervently believed their testimony to be true. But, in the final analysis, no evidence was adduced that convinced me why the trust that Ms. Brown and indeed Mr. Marshello had with respect to the grievor, was so irrevocably destroyed.

105 This is an 18-year employee with a good work record and a history of making good decisions at work and being a community volunteer. He also worked as a BSO for the 14-month period immediately before his conviction and proved his ability to make good judgments, as most dramatically demonstrated when he rescued the driver of a burning truck.

106 At the time of his return to work as a BSO on non-limited duties in February 2007, the employer was aware of essentially all the facts surrounding the November 25, 2006 incident. None of the facts of which Ms. Brown became aware after the conviction and sentencing affected her level of trust in the grievor, counsel for the employer conceded (see paragraph 49 of this decision).

107 What was missing was an explanation of how the grievor’s conviction and his sentence could affect the trust of the employer. I can certainly understand the position that the employer was concerned about the image of having a person convicted of a serious crime working in the capacity of a peace officer, but this concern, in and of itself, would not affect the element of trust.

108 Although I will deal with the issue of the demotion later in the decision, I view that decision as confirmation that the employer did actually still trust the grievor in some respect because, if it did not, the grievor’s employment would have been terminated. As is indicated above, the decision not to terminate the grievor’s employment was made by Mr. Marshello, who had known the grievor for a lengthy period.

109 There was no direct evidence that would suggest that the grievor’s conduct would lead other employees to refuse, be reluctant or be unable to work with him. Mr. Marshello at one point in his testimony suggested that he may have received indications from fellow workers that they did not wish to work with the grievor. However, this evidence was hearsay at best and, without any corroboration, I am not willing to accept it as proof of this aspect of the Code of Conduct. In other words, I conclude that there was no proof that any employee refused, was reluctant or was unable to work with the grievor.

110 The employer did not submit that the grievor’s conduct made it difficult to manage its operations efficiently and/or to direct its workforce.

111 In conclusion, I find that the employer established that it had just cause to impose serious discipline on the grievor for his off-duty conduct. This point was not contested either in the grievor’s testimony or in the submissions of his counsel.

D. Was the disciplinary action of permanently demoting the grievor appropriate?

112 Demotion as a form of disciplinary sanction in the private sector has been used, albeit sparingly, for some time. However, at least until recently, in the federal public service employers have not readily used demotions for disciplinary purposes.

113 Counsel was able to refer me to only two cases where demotion was used in the federal public service for disciplinary purposes (see Spawn and Lee).

114 In a recent amendment to the FAA, the powers of deputy heads were broadened to include the authority to demote to a lower classification as a disciplinary action (see paragraph 12(1)(c)). While not much turns on this point, the fact is that both Spawn and Lee were decided before the amendments to the FAA were enacted.

115 There was no dispute among the parties that the president of the CBSA is considered a deputy head for the purposes of the FAA. Nor was there any dispute that, when Mr. Marshello signed the letter demoting the grievor, he was acting with authority delegated to him through the office of the president of the CBSA.

1. What authority do I have to address the disciplinary sanction if I think it is excessive?

116 Both parties agreed that the PSLRA authorizes me to reduce or otherwise alter the disciplinary sanction if I come to the conclusion that it is excessive.

2. So, was the decision to permanently demote the grievor excessive?

117 Neither party was able to direct me to, nor was I able to identify any case before the PSLRB dealing with a permanent demotion since the amendment to the FAA referred to earlier in this decision. That said, I do note that, in Spawn, the demotion imposed by the employer was permanent in nature and had to do with off-duty conduct.

118 Given the paucity of case law before the PSLRB and its predecessor, in my opinion it is helpful to seek guidance from the private sector, where there is a larger body of the case law dealing with disciplinary demotions.

119 In the four cases to which I referred the parties during their submissions, private-sector arbitrators have established a framework regarding disciplinary demotions (see Tecumseh Town, Butcher Engineering Enterprises Ltd., FortisOntario and University of British Columbia).

120 In Tecumseh Town, the arbitrator reviewed in detail a number of authorities and concluded that no arbitrator had upheld a permanent demotion. He stated the following:

… even where a disciplinary demotion has been found to be appropriate, arbitrators have held that it must [sic] tailored to the circumstances at hand, that it must be proportionate to the misconduct under review, and that it should be imposed with the principle of "corrective discipline" in mind (i.e. that one should withhold the most serious sanctions, until it is demonstrated that a more moderate disciplinary penalty will not "work" to change the employee's behaviour). In this respect, demotion is no different from any other disciplinary penalty.

121 In Butcher Engineering Enterprises Ltd., the arbitrator determined that a permanent demotion ought to be scrutinized as if it were a termination, while in FortisOntario and University of British Columbia, the respective arbitrators concluded that a demotion should be corrective in nature.

122 The leading case in the field of disciplinary demotions was referred to me by the grievor. In Air Canada, the learned arbitrator had this to say regarding demotions:

…

… If the demotion is to be used as a penalty, it must be administered with precise limitations and not have the effect of putting the grievor in the position of any other employee seeking a promotion to the grievor's former position. For the demotion penalty to be fair, the employee must know that the "pain" caused by the demotion is temporary and that with acceptable behaviour, she or he will be returned to the former position at a more or less specific point in time.

…

123 It is my conclusion that disciplinary demotions are a tool at the disposal of an employer. Although this part has been formalized with the amendment to the FAA, in order to serve their purpose, demotions ought to be temporary in nature, except in the most exceptional of circumstances. In my opinion, the reason for the temporary nature of demotions is consistent with the basic corrective premise surrounding the well-accepted principle of progressive discipline.

124 I also note that in Spawn the adjudicator altered the permanent demotion and reinstated the grievor to his substantive position.

125 In conclusion, I am of the belief that the permanent demotion imposed upon the grievor in this case was excessive when considered in light all of the circumstances.

126 The grievor’s off-duty conduct was serious and violated of the Code of Conduct, and therefore justified the employer in taking severe disciplinary action. As is noted above, in my view the permanent demotion imposed on the grievor is comparable to termination.

127 However, I was very much impressed with the grievor’s mature and remorseful response from the very start. While in jail after being arrested on November 25, 2006, the grievor took immediate and ultimately successful steps in formulating a plan to deal with his demon. He was forthright and fully responsive to the employer and disclosed all the details of the accident and his remedial steps. In addition, the grievor attempted to apologize to the victim.

128 And finally, the grievor pleaded guilty to the two serious charges under the CCC and has completed his period of incarceration, albeit in the form of home arrest.

129 There is no question in my mind that the grievor has learned a valuable lesson and, although alcoholism is a disease, I am confident that the grievor will never again succumb to its grip. As a consequence, although I understand the concerns of the employer, I think the grievor should be reinstated after a 30-month period of demotion. In other words, the grievor is to be reinstated to a substantive position as a BSO on October 2, 2010. Because of the complexities of operational requirements I will make no order as to the actual location of his reinstatement other than to say it is to be in the Fort Erie operational area.

130 This decision will find the employer an opportunity to provide the grievor with whatever training it deems to be appropriate and necessary to allow the grievor to return to work as a BSO on October 2, 2010.

131 In making this order, I am cognizant of the fact that the grievor will be returning to the position of a peace officer. That said, I am comforted by the fact that, in Lee, the Royal Canadian Mounted Police demoted the member from the rank of Corporal to Constable, but that he had no restrictions imposed on him as a peace officer.

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

VI. Order

133 The grievance is allowed in part. The grievor is to be reinstated in the position of BSO in the Fort Erie area on October 2, 2010.

August 20, 2010.

George Filliter,
adjudicator