FPSLREB Decisions

I. Individual grievances referred to adjudication

1  Throughout the relevant period, the grievor, Micheline Rioux, was an immigration officer (classified PM-01, in the Program and Administrative Services Group) in the Montréal office of the Department of Citizenship and Immigration (now the Canada Border Services Agency; “the employer”). She was a case tracking officer in the employer’s Investigations and Removals Division. She had been working for the employer since 1986.

2 The grievor filed grievances contesting three decisions by her employer to impose on her two-, five- and eight-day suspensions, respectively, without pay. The grievances were heard together.

3 On April 25, 2000, the employer imposed a two-day suspension without pay on the grievor because, on March 7, 2000, she was absent from her office without authorization. On April 28, 2000, the grievor filed a grievance contesting the suspension. The response at the final level by the Assistant Deputy Minister of Operations was dated May 9, 2003, and the grievance was referred to adjudication on June 18, 2003 (PSSRB File No. 166-02-32460).

4 On June 5, 2001, the employer imposed a five-day suspension without pay on the grievor because, on May 9, 2001, she was insubordinate, conducted herself in a disrespectful and intimidating manner, and was absent from her office without authorization. On July 5, 2001, the grievor filed a grievance contesting that discipline. The response at the final level was dated June 12, 2003, and the grievance was referred to adjudication on July 21, 2003 (PSSRB File No. 166-02-32567).

5 The eight-day suspension without pay was imposed by letter dated October 26, 2001, in which the grievor was accused of twice discussing topics at work that were not work related with other employees, without authorization. The grievor filed a grievance contesting it on November 28, 2001, and the response at the final level was dated June 23, 2003. The grievance was referred to adjudication on July 21, 2003 (PSSRB File No. 166-02-32568).

6 The grievor referred the three grievances to adjudication with the support of her union. She indicated that the applicable provision in each grievance was paragraph 92(1)(b) of the Public Service Labour Relations Act, R.S.C. 1985, c. P-35 (“the former Act”), which reads as follows:

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

…

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

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

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

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

8 The delays between the filings of the grievances and the responses at the final levels of the grievance process and between the referrals to adjudication and the hearing were in large part caused because the grievor filed complaints with the PSSRB under section 23 of the former Act.

9 The employer called the following seven witnesses: Lise Gignac, Director, Investigations and Removals Division; Carole Tester, Assistant Director, Investigations and Removals Division; Lucien Bélanger, Director, Executive Services; Michel Lafrenière, Investigator; Monica Lamontagne, Investigator; Miriam Ettinger, Assistant Director, Investigations and Removals Division; and Monique Leclair, Executive Director, Quebec Region. The grievor testified. At her request, I ordered the exclusion of the witnesses. Fifty documents were filed as evidence.

II. Summary of the evidence

A. The two-day suspension

10 The two-day suspension letter dated April 25, 2000 and signed by Ms. Gignac (Exhibit E-1-4) stated the following:

[Translation]

Last Tuesday, March 7, you left your work for a period of 1 hour and 45 minutes, from 13:45 to 15:30, to participate as a technical advisor in a hearing, at the request of a union representative.

Your supervisor told you on the morning of March 7 that you had to obtain authorization to be absent and to obtain either compensatory or vacation leave if you wanted to appear at the hearing as a technical adviser. I remind you that your presence as a technical adviser was required by the union and not by the employer.

Since December 1, 1997, you have received four disciplinary measures. Each disciplinary measure stressed that, if your conduct did not improve, other, more severe measures could be made against you.

Despite those informal disciplinary actions, you were absent from your office without advance authorization. Those breaches are considered very serious, especially since on a number of occasions you have had an opportunity to correct your conduct.

Under the circumstances, we have no alternative but to impose a two-day suspension without pay, on May 11 and 12. Moreover, your salary for the week of March 6 to 10 will be reduced by an amount equivalent to 1 hour and 45 minutes, which corresponds to the hours not worked.

…

11 At the relevant time, Ms. Tester was the grievor’s immediate supervisor. She testified that, when she arrived at work on March 7, 2000, she had a telephone message from Sylvain Gagné, the employer’s regional director of human resources, informing her that the grievor was to attend a hearing in Ms. Leclair’s office at 14:00 on that day. The message indicated that, because the grievor would be participating as a technical advisor and not as a union representative, she would need to have leave authorized before she could attend.

12 At approximately 09:00 on March 7, 2000, the grievor asked Ms. Tester for compensatory leave from 09:00 to 12:00 that day so that she could review her union files. Ms. Tester authorized it. At the same time, the grievor informed her that she was to attend a hearing that afternoon. At that point, Ms. Tester told the grievor that she would have to apply for leave because she would be participating as a technical advisor. The grievor responded that she would check with her union and that she would get back to Ms. Tester.

13 At approximately 10:00 on that day, Ms. Tester asked the grievor what she wished to do about her leave for the hearing. The grievor responded that she had not yet heard back from her union.

14 Ms. Tester received a call from Mr. Gagné at approximately 14:00 on March 7, 2000, asking whether the grievor had had her leave authorized, because she had not yet arrived at the hearing. Ms. Tester told Ms. Leclair, who was then with Mr. Gagné, about her discussions that morning with the grievor and told her that she had not authorized any leave. Ms. Leclair informed Ms. Tester that she would ask the grievor to submit a leave request when she arrived for the hearing.

15 At approximately 14:30, Ms. Tester received a call from Mr. Gagné, informing her that the hearing had not taken place and that the grievor should be at her workstation. Ms. Tester checked the grievor’s workstation three times between 14:30 and 15:20. Each time, the grievor was not there. She arrived at her workstation only at 15:30.

16 Ms. Tester asked the grievor to explain her absence from 14:30. The grievor responded that she had been with her union representative. According to the grievor, the employer owed her two breaks a day, and she had done office work during her compensatory leave that morning. Therefore, she asked Ms. Tester whether they were even for her one-hour absence. Ms. Tester admitted that she had seen the grievor working on a file that morning, but she did not know how many files the grievor had worked on. Ms. Tester testified that she did not answer the grievor right away. According to her, breaks had not been negotiated to be used that way. At approximately 16:00, Ms. Tester returned to the grievor’s workstation and told her that the situation was not clear and that they would have to discuss it further.

17 The grievor was on sick leave from March 8 to 17, 2000. On her return on March 20, 2000, Ms. Tester met with her to discuss the events of March 7. The grievor explained that she did not know that she was supposed to apply for leave before the hearing and that Robert Morissette, Regional Representative, Public Service Alliance of Canada (PSAC), had told her that she had been freed up for that purpose.

18 On March 21, 2000, at Ms. Gignac’s request, Ms. Tester prepared a written account of the events (Exhibit E-1-1).

19 In cross-examination, Ms. Tester stated that she could not remember whether the grievor had asked her for the required code for the leave request to attend the hearing. Ms. Tester admitted that leave requests were sometimes submitted after the fact, but that, in those cases, verbal authorization was always given ahead of time.

20 Ms. Tester confirmed that the only purpose of the meeting on March 20, 2000 with the grievor was to collect the facts and that it was not a disciplinary investigation.

21 According to Ms. Tester, only she authorized leave for the employees that she supervised.

22 Ms. Leclair testified by teleconference, with the consent of the parties. She indicated that, a few days before the date scheduled for the hearing, Mr. Morissette contacted her to let her know that he was representing the complainant, Simon Cloutier, and to ask whether he could count on the services of the grievor as a technical advisor. Ms. Leclair responded that she had no objection but that the grievor would have to obtain authorization from her supervisor.

23 On March 7, 2000, Mr. Gagné, Mr. Morissette, Mr. Cloutier and the grievor were in Ms. Leclair’s office. Mr. Morissette asked whether the employer was paying the grievor to attend the hearing. Ms. Leclair responded that, given that the grievor was there at the PSAC’s request, it would have to pay her. She asked the grievor whether she had applied for leave from her supervisor, to which she responded in the negative. Ms. Leclair insisted that the grievor obtain authorized leave to participate in the hearing. Ms. Leclair stated that the discussion, which lasted 15 to 20 minutes, was essentially about who would pay for the grievor’s absence from work. Following the discussion, Mr. Morissette, Mr. Cloutier and the grievor left Ms. Leclair’s office without proceeding with Mr. Cloutier’s hearing.

24 In cross-examination, Ms. Leclair stated that, under the collective agreement, when an employee attends a hearing, the employer pays leave to the employee only when he or she is a union representative or when it requests the employee’s presence.

25 When asked whether leave codes had been discussed, Ms. Leclair indicated in the affirmative and pointed out that, from her point of view, it was a technical matter. The important thing was to obtain authorization for the leave.

26 Ms. Gignac was Ms. Tester’s immediate supervisor at the relevant time. Referring to the discipline report (Exhibit E-1-3), she specified that the four disciplinary measures imposed earlier on the grievor mentioned in the suspension letter were the following: a written warning dated December 1, 1997, the one- and three-day suspensions without pay dated December 30, 1997 and February 2, 1998, respectively, for distributing material without authorization, and a written warning including a two-hour reduction in salary for her unauthorized absence on December 17, 1998. Ms. Gignac stated that she had not been with the employer when the earlier measures were imposed.

27 Ms. Gignac testified that, when she imposed the two-day suspension on the grievor, she considered the grievor’s file and that it was the second time the grievor had been absent from work without authorization.

28 In an email exchange (Exhibit E-1-2), Ms. Gignac informed the grievor that she wanted to arrange a meeting to impose discipline and asked her to bring her union representative. The grievor responded that a meeting was not necessary, given that Ms. Tester had her version of the facts and that Mr. Morissette was not available.

29 The grievor testified that she had been a union representative since 1997 but that she had stopped being one in 1999 after receiving several disciplinary measures in a short time. She had been with Local 10405 (“the local”) of the Canada Employment and Immigration Union, a PSAC component. The grievor stated that an adjudicator later rescinded two of the disciplinary measures mentioned in the suspension letter. In Rioux v. Treasury Board (Citizenship and Immigration Canada), 2002 PSSRB 68, the adjudicator allowed the grievor’s grievances against the one- and three-day suspensions without pay for distributing material without authorization.

30 With respect to the March 7, 2000 events, the grievor referred to a fax dated March 2, 2000 that Mr. Morissette sent to the regional office in which he asked that the grievor be excused from work so that she could serve as a technical advisor at Mr. Cloutier’s hearing on March 7, 2000.

31 I admitted the fax (Exhibit S-4) despite the employer’s objection that the grievor was not listed as an intended recipient. However, the discipline report introduced by Ms. Gignac (Exhibit E-1-3) confirmed Mr. Morissette’s request, and Ms. Leclair testified that he had made it. In addition, that fact was not contested. In my opinion, that evidence is reliable. Consequently, I dismissed the objection, and admitted the document as evidence.

32 The grievor confirmed that, in the morning of March 7, 2000, Ms. Tester granted her compensatory leave for that morning so she could work on her union files before the hearing. When she returned to her office, the grievor found files requiring urgent attention.

33 Ms. Tester noticed the grievor working on a file and asked her why she was doing so during her compensatory leave. The grievor explained that it was an urgent case and that she would make up the time.

34 The grievor confirmed that Ms. Tester asked her to fill out a leave request for the hearing. She stated that she asked Ms. Tester for the appropriate code for the union time spent at the hearing but that Ms. Tester did not know it and stated that she would check with the regional office. According to the grievor, Ms. Tester told her that the regional office said that the employer would not pay for the time. According to the grievor, her absence had been authorized, and it was just a matter of determining the appropriate leave code. In cross-examination, the grievor admitted that she knew that she had to obtain leave authorization from her immediate supervisor.

35 The grievor spoke with Mr. Morissette at 13:45 and asked him for the code. He responded that the matter would be discussed in Ms. Leclair’s office. According to the grievor, Mr. Morissette told her that he had asked to have her present as a witness and that, if the employer did not pay her, they would leave the premises without proceeding with the second-level hearing.

36 According to the grievor, the meeting in Ms. Leclair’s office lasted a half-hour. When she arrived at 14:00, she asked Ms. Leclair whether she was authorized on leave. Ms. Leclair apparently replied that no problem existed and that they would discuss the leave code. According to the grievor, Mr. Morissette told Ms. Leclair that the grievor was also present as a witness and that, therefore, the employer had to pay her. During the meeting, the grievor showed Ms. Leclair an article in the collective agreement supporting her claim that the employer had to pay for her absence. Section 53 of the collective agreement, signed on May 16, 2000 between the Treasury Board and the PSAC for the Program and Administrative Services Group (Exhibit S-5), provided for paid leave for reasons other than those covered in the collective agreement.

37 Ms. Leclair indicated that, because the grievor was there at Mr. Morissette’s request, the employer was not required to pay for that time.

38 The grievor left Ms. Leclair’s office with Mr. Morissette and Mr. Cloutier at 14:30. They decided to assess the meeting. The grievor indicated that she could make up for her absence by taking compensatory leave and by skipping her morning break. She testified that Mr. Morissette advised her not to fill out a leave request form for the time spent with Ms. Leclair but instead to wait until the employer deducted the equivalent amount from her pay and file a grievance.

39 When she returned to the office at 15:30, Ms. Tester asked the grievor to fill out a time sheet for the time she had spent in Ms. Leclair’s office. The grievor refused on the grounds that the hearing had not taken place and that Ms. Leclair had authorized her to enter her office. The grievor stated that the employer could deduct the time from her pay and that she would file a grievance. Ms. Tester responded that they would talk about it the following day, March 8, 2000.

40 The grievor was on sick leave from March 8 to 17 due to asthenia (Exhibit S-7). She met with Ms. Tester when she returned to work on March 20, 2000. Ms. Tester wanted to discuss the events of March 7, 2000, but the grievor told her that she had already explained everything and that she had nothing to add. According to her, the issue was about the leave code. The grievor stated that Ms. Tester asked her several questions and that she was not comfortable discussing the matter with her because she was unionized. Ms. Tester advised her that she could be disciplined.

41 On April 10, 2000, the grievor received an email from Ms. Gignac (Exhibit E-1-2), informing her that discipline would be imposed on her for her March 7, 2000 absence and proposing a number of dates for a related meeting. The email reads as follows:

[Translation]

As discussed, I would like to schedule a meeting with you concerning your unauthorized absence of March 7 because I intend to impose discipline on your for that absence. You may be accompanied by your union representative.

Here is my availability for the next few days.

April 11, AM

April 13, AM

April 14, 1:00

I would like you to confirm as soon as possible the time that would suit you. Thank you in advance.

42 The grievor testified that the words “[a]s discussed” in the email referred to a discussion that she had with Ms. Gignac early on April 10, 2000. According to the grievor, Ms. Gignac had come to her office and they had talked about the trusteeship of the local.

43 The grievor’s response, dated April 12, 2000 and contained in the same exhibit (Exhibit E-1-2), reads as follows:

[Translation]

Given that Mr. Morissette, the Alliance representative involved in this affair, is out of town for the entire week and that Mr. Cloutier is not authorized to represent me without losing salary, it is impossible for the moment for me to confirm my availability date.

However, since, on March 20, 2000, Ms. Tester obtained my testimony about my unauthorized absence (which in my opinion could take the place of the administrative investigation), I am of the view that you have in your hands all the information you need to make a decision, i.e., to impose your disciplinary measure on me. Furthermore, at that meeting, Ms. Tester informed me that I might be subject to a disciplinary measure; therefore, I was definitely expecting one.

You understand that it would not be prudent for me to testify a second time for the same case, again without full and complete union representation. I would much rather that you imposed the measure on me in an envelope by internal mail. I will avail myself of the appropriate remedies after that.

I would have preferred to reply to you earlier, but I regret that I am swamped with work.

…

44 The grievor was on sick leave for generalized anxiety from April 17 to 20, 2000 (Exhibit S-8).

45 According to the grievor, near the end of the day on April 25, 2000, Ms. Gignac came to her workstation and told the grievor that she wanted to see her in her office. The grievor asked whether she needed a union representative, and Ms. Gignac replied in the negative. When she arrived at the entrance to Ms. Gignac’s office, the grievor received the two-day suspension letter, and Ms. Gignac had her sign it to confirm receipt. Ms. Gignac then gave her a copy of it.

46 The grievor testified that, on the morning of April 25, 2000, she filed a grievance with Ms. Gignac (Exhibit S-10) contesting the fact that Mr. Cloutier would suffer a loss of salary if he accompanied the grievor to the meeting about her two-day suspension. Given that I am not responsible for that grievance, I refer to it only as background information.

47 On April 28, 2000, the grievor filed a grievance contesting the two-day suspension (Exhibit S-1). In it, she alleges, among others, the following:

[Translation]

… [T]his measure includes false statements. In my opinion, the misunderstanding stems from the explanations provided by Mr. Morissette that Ms. Leclair does not appear to have properly understood. I should not be involved in this ridiculous saga.

48 The grievor was outraged by the disciplinary measure, which she believed was linked to the grievance that she had filed that same morning. She called Johanne Hurens of the PSAC for advice. Ms. Hurens recommended that she file a complaint with the Public Service Staff Relations Board (PSSRB) for abuse of authority. The grievor filed a request for an investigation with the Public Service Commission and a complaint under section 23 of the former Act. That complaint was addressed in Rioux v. Leclair, 2006 PSLRB 12. It should be noted that, in that decision, the Public Service Labour Relations Board concluded among other things that the employer had not breached the grievor’s rights by imposing the disciplinary measure on her without a union representative present.

B. The five-day suspension

49 On June 5, 2001, the grievor received a five-day suspension for incidents on May 9, 2001. The disciplinary letter (Exhibit E-1-6), signed by Ms. Gignac, reads as follows:

[Translation]

On Wednesday, May 9, 2001, you showed up at the office of Monique Leclair, Director General, and tried to meet with her. Ms. Leclair was not available, so you met with Mr. Lucien Bélanger to demand the destruction of a withdrawal letter signed by one of your former colleagues. During the brief meeting with Mr. Bélanger, he informed you that he would handle your request. He asked you to return to work and to not meet with the investigators, Ms. Lamontagne and Mr. Lafrenière, who were involved with the withdrawal letter.

You were insubordinate by not following Mr. Bélanger’s instructions because you chose to go to the interview room where the two investigators were located with the intention of demanding the destruction of your former colleague’s withdrawal letter. At that meeting, you displayed disrespectful and intimidating behaviour toward those present, contravening the Department’s Code of Conduct.

On May 9, 2001, your lunch hour was from 12:00 to 12:45. You did not return to your office until 13:45. You did not request and did not obtain permission from your manager to be absent from your desk on May 9 from 12:45 to 13:45. Therefore, you did not adhere to your work schedule, which contravened the Department’s Code of Conduct.

In view of those facts and the information in your file that shows that you have received five disciplinary measures since December 1, 1997, the last measure being a two-day suspension on April 25, 2000, I have no choice but to impose more severe discipline on you.

…

50 At the relevant time, Mr. Bélanger was Director of Executive Services, and he reported to Ms. Leclair. He testified that, on May 9, 2001, at approximately 13:00, he met with the following four people in his office, at their request: the grievor, Mr. Cloutier, Diane L’Heureux and Antonieta Sepulveda. The grievor wanted to discuss a withdrawal letter that Ms. Sepulveda had signed that morning about a harassment complaint that she had filed.

51 The grievor told him that Ms. Sepulveda met with them at lunch and that she told them that she had just left the investigators’ office after a meeting about a complaint that she had filed and that she had signed a withdrawal letter.

52 The grievor stated that the letter referred not only to the harassment complaint but also that it contained a clause forfeiting all other recourse. The grievor called the document illegal and an abuse of authority. She indicated to Mr. Bélanger that she and her colleagues wanted to meet with the investigators to have the withdrawal letter, as drafted, nullified.

53 Mr. Bélanger testified that he told them that he would look after Ms. Sepulveda’s case, that he asked Ms. Sepulveda to go home and that he told her that he would contact her later. He asked the employees to return to work. The group then left his office.

54 A short time later, Mr. Bélanger called the investigators’ office on the second floor. Ms. Lamontagne answered, and Mr. Bélanger heard voices. He realized that she could not talk because people were in the office, the four who had been in his office. He asked to speak with one of them. He spoke with the grievor. He told her that the group did not have permission to meet with the investigators and that they must leave immediately. A few minutes later, Mr. Bélanger called the investigators again to check whether the employees had left. They confirmed that they had. Mr. Bélanger sent a report to the employees’ managers, Ms. Gignac and Carole Lamarre.

55 In cross-examination, Mr. Bélanger confirmed that he was the employer’s regional representative for harassment complaints. He specified that he had communicated with the grievor several times and that she had never been aggressive or disrespectful with him.

56 Mr. Lafrenière testified that he was a lawyer, that he had been involved in several investigations and that he had often worked with Ms. Lamontagne. He asked questions, and she took notes. They had been asked to investigate Ms. Sepulveda’s harassment complaint. On May 9, 2001, they were into the fourth day of their investigation when, in the morning, Ms. Sepulveda asked them to stop the process.

57 Mr. Lafrenière and Ms. Lamontagne explained to Ms. Sepulveda the consequences of withdrawing her complaint and asked her to take some time to think about it. Mr. Lafrenière indicated that, after a few minutes, Ms. Sepulveda clearly told them that she wanted to withdraw her complaint. She then signed the withdrawal letter.

58 Mr. Lafrenière and Ms. Lamontagne left their workroom for lunch, returning later to wrap up the file.

59 Mr. Lafrenière testified that, at approximately 13:30, he heard a knock on the workroom door. The grievor and three other employees walked in and slammed the door. The grievor, who is tall, approached Mr. Lafrenière, who was seated, and told him that Ms. Sepulveda had been forced to sign the withdrawal letter and that it was intimidation and an abuse of authority. The grievor requested that the withdrawal letter signed by Ms. Sepulveda be handed over to her on the spot so that it could be destroyed. According to Mr. Lafrenière, the grievor had been visibly angry, had raised her voice, had pounded the desk and had pointed at Mr. Lafrenière. According to him, the grievor had clearly been the group’s leader.

60 Mr. Lafrenière then asked the grievor to identify herself and to indicate the capacity in which she was present. She identified herself and responded that they were Ms. Sepulveda’s work colleagues. Mr. Lafrenière explained that for reasons of confidentiality he would not discuss the case with them.

61 Mr. Cloutier also raised his voice and essentially repeated the grievor’s demands. At Mr. Lafrenière’s request, he identified himself and indicated that he had union responsibilities.

62 The telephone rang, and Ms. Lamontagne answered. She told the grievor that Mr. Bélanger wanted to speak with her. The conversation was very brief, and the grievor told the other employees that they had to leave the investigators’ office, which they did. Mr. Lafrenière and Ms. Lamontagne could hear them continuing their discussion in the same aggressive language in the hallway, accusing the investigators of acting illegally.

63 Mr. Lafrenière then stepped out of the office and exchanged some words with Mr. Cloutier. He advised Mr. Cloutier that he was a lawyer and cautioned him that he was smearing his reputation and that he had to stop talking.

64 Then Mr. Lafrenière and Ms. Lamontagne met with some managers, including Mr. Bélanger, to tell them what had transpired. They were asked whether they wanted to file a complaint against the employees, but they declined.

65 In cross-examination, Mr. Lafrenière pointed out that Ms. Sepulveda had had difficulty providing clear facts to support her complaint and that she had wished to withdraw it.

66 Mr. Lafrenière said that the grievor had been very aggressive, but he admitted that he had not been afraid for his life.

67 Monica Lamontagne corroborated the key points of Mr. Lafrenière’s testimony. She was not cross-examined.

68 The grievor testified that, on May 9, 2001, she was eating lunch in a park with Ms. L’Heureux and Mr. Cloutier when Ms. Sepulveda joined them. The grievor did not know Ms. Sepulveda, who knew Ms. L’Heureux and Mr. Cloutier.

69 Ms. Sepulveda told them that the investigation was over and that she had signed a withdrawal letter. At the grievor’s request, Ms. Sepulveda showed them the document. The grievor told Ms. Sepulveda that they would visit the investigators and have it destroyed.

70 The grievor confirmed that, on that day, her lunch hour was from 12:00 to 12:45. In cross-examination, she admitted that she did not notify her immediate supervisor Ms. Ettinger that she would not be back at her workstation at 12:45. She said that she believed that Ms. Ettinger would not be in her office at that time.

71 The grievor confirmed that the group met with Mr. Bélanger at approximately 13:00. According to her, the discussion with Mr. Bélanger lasted 15 to 20 minutes. She also confirmed that Mr. Bélanger told them to go back to work.

72 To return to their workstations, the group had to walk by the investigators’ office, and they saw that the investigators were there. The grievor testified that she knocked politely on the door and that Mr. Cloutier requested permission to enter. She described the office as a small conference room. The four employees entered and closed the door.

73 The grievor spoke, stating that the withdrawal was illegal and that it was an abuse of authority. Mr. Lafrenière asked her to identify herself and to state on what authority she was there. Mr. Lafrenière apparently told her that he was a lawyer and that he knew what he was doing. According to the grievor, Mr. Lafrenière’s tone was harsh, and she described it as that of a “Far West” character.

74 The grievor confirmed that, when the phone rang, Ms. Lamontagne answered and said that Mr. Bélanger wanted to speak with one of the employees. The grievor took the phone. Mr. Bélanger told her that they had to leave the investigators’ office immediately. She passed on the instruction to the others, and they left the room. She then overheard a discussion between Mr. Cloutier and Mr. Lafrenière, in which Mr. Lafrenière threatened to sue Mr. Cloutier. The grievor said that she was back in her office at 13:30.

75  The grievor admitted that Mr. Bélanger told her that he would look after the case and that he would call Ms. Sepulveda at home that evening. She confirmed that it was clear to her that Mr. Bélanger had instructed her to return to work and that she was not authorized to be in the investigators’ office.

76 Ms. Gignac testified that, when she imposed the five-day suspension without pay on the grievor, she considered the grievor’s disciplinary file, that the grievor did not obey Mr. Bélanger’s clear order to return to work and that the grievor displayed a lack of respect to the investigators. Ms. Gignac pointed out that it was the third time that the grievor had been absent from her work without authorization.

C. The eight-day suspension

77 On October 26, 2001, the grievor was suspended for eight days for incidents that occurred on September 10 and 27, 2001. The disciplinary letter, signed by Ms. Gignac, stated the following (Exhibit E-1-13):

[Translation]

On Monday, September 10, 2001, Ms. Diane L’Heureux and Mr. Simon Cloutier went to your workstation without authorization while you were at work to discuss a subject unrelated to your work as a case monitoring officer. You agreed to participate in the private discussion, which lasted about 20 minutes, without asking your supervisor for authorization. After twice being questioned about the discussion, you finally admitted the facts.

From 16:30 to 16:40 on Thursday, September 27, 2001, during your work hours, Mr. Simon Cloutier again visited your workstation without authorization to discuss a subject unrelated to your work as a case monitoring officer. Once again, you agreed to participate in the private discussion without requesting authorization from your supervisor.

Although your employer generally tolerates the occasional use of its time and premises by the majority of employees for personal business, I find that your behaviour constitutes a specific case that your employer can no longer tolerate. Indeed, I have noted that you systematically refuse to accept the limits and standards of behaviour that your employer has the right to impose on its employees and that you believe that you have the right to do what you wish with whomever you wish during your work hours.

78 That was the seventh time that discipline was imposed on the grievor.

79 On September 10, 2001, at approximately 16:10, when Ms. Ettinger, the grievor’s supervisor, went to the grievor’s office to discuss an administrative matter, she noticed that Ms. L’Heureux and Mr. Cloutier were there. They worked in different divisions than the grievor.

80 Ms. Ettinger asked the grievor to come to her office to discuss the matter. When the discussion ended, she asked the grievor why the other two employees had been in her office. The grievor responded that it had been for a work-related matter.

81 Ms. Ettinger followed the grievor to her office to clarify the nature of the discussion among the employees and to offer assistance if needed. Mr. Cloutier told her that it was a work-related “office file.”

82 Ms. L’Heureux and Mr. Cloutier left the grievor’s office at approximately 16:26. Ms. Ettinger wrote some notes about the incident (Exhibit E-1-7), which she gave to Ms. Gignac.

83 On September 12, 2001, the grievor responded to Ms. Ettinger’s email request for an explanation about the September 10, 2001 meeting (Exhibit E-1-8). She stated that Ms. L’Heureux had responded to a departmental staffing survey and that an investigator had asked her for names of colleagues potentially interested in taking part in a related meeting. The grievor confirmed that her meeting with Ms. L’Heureux and Mr. Cloutier lasted 20 minutes.

84 In cross-examination, the grievor said that Ms. L’Heureux came to her office to discuss the staffing survey. The grievor confirmed that she phoned Mr. Cloutier to ask him to join them in her office. She admitted that their discussion was not work related and that she could have told Ms. L’Heureux that they would discuss it at another time. She also admitted that she did not ask Ms. Ettinger for authorization for the meeting.

85 Ms. Gignac summarized the incident of September 27, 2001 as follows in her incident report dated that same day (Exhibit E-1-9):

[Translation]

At approximately 16:30, I was walking towards Mr. Rainville’s office when I noticed Mr. Cloutier talking to Ms. Rioux in her office. They saw me pass and continued their discussion. I continued toward the office where I had some business. When I came out, I noticed Mr. Cloutier’s supervisor, Ms. Louise Martin, heading toward our offices. I approached her to ask whether Mr. Cloutier might be consulting with Ms. Rioux about a work-related matter, and she confirmed that, considering their respective responsibilities, it was practically impossible that they would have any work-related issues to discuss. I then walked over to Ms. Rioux’s office, along with Ms. Martin.

I asked Ms. Rioux and Mr. Cloutier whether they were on break. Both confirmed that they were not. I asked them whether they were working on a work-related file, and they said that they were not. Mr. Cloutier said, “What do you expect, with your disciplinary measure interviews.” I then asked him to immediately return to his workstation. I had to repeat my request before he complied. Ms. Martin also asked Mr. Cloutier to leave Ms. Rioux’s office. Then I too left Ms. Rioux’s office.

…

86 According to Ms. Gignac, the meeting between the grievor and Mr. Cloutier lasted 10 minutes.

87 The grievor testified that, on September 27, 2001, she received an email from Ms. Gignac convening her to a disciplinary interview on October 1, 2001 about the events of September 10, 2001 (Exhibit S-31). She called Mr. Cloutier and asked him to come to her office so that she could show him the email in person. In cross-examination, the grievor admitted that she could have read the email to Mr. Cloutier over the phone, given that it contained only three sentences. She also admitted that there had been no urgent need to show it to Mr. Cloutier. The grievor confirmed that she did not request her supervisor’s authorization to meet with Mr. Cloutier and that she was not on break during the meeting.

88 When she imposed the eight-day suspension, Ms. Gignac considered the grievor’s disciplinary record and the principle of progressive discipline.

III. Summary of the arguments

A. The two-day suspension

89 The employer argued that the evidence showed that the grievor did not obey a clear and simple order from management, which constitutes insubordination. The employer pointed out that, before the meeting with Ms. Leclair, Ms. Tester had twice informed the grievor that she had to request compensatory leave to attend the hearing as a technical advisor. The employer also stated that, when the grievor returned to her office at 15:30, Ms. Tester asked her to fill out a leave request for the duration of the meeting with Ms. Leclair, which had been from 14:00 to 14:30. Even though Ms. Tester allowed the grievor to request that leave after the meeting, she refused. According to the employer, it amounted to three refusals by the grievor, who was aware of the consequences. The grievor decided to follow Mr. Morissette’s advice not to request leave for her absence.

90 As for the grievor’s absence from her office between 14:30 and 15:30, the employer submitted that, according to the evidence, Ms. Tester had visited the grievor’s office three times during that hour, each time finding that the grievor was not there. The employer argued that the grievor’s explanation that she could change her breaks to make up for her absence was unacceptable. It is not up to the grievor to decide her break times; it is up to her manager. The employer also pointed out that the grievor was aware that it was a basic rule given that she had been a union representative.

91 The employer submitted that, according to the evidence, the discipline was justified. In addition, the grievor’s discipline file (which by then included five measures, the second for an unauthorized absence), the discipline was not excessive under the circumstances. The employer referred me to Rioux v. Leclair and to extracts from Canadian Labour Arbitration by Brown and Beatty about insubordination.

92 The grievor maintained that she had obtained Ms. Tester’s authorization to be away from her work but that she had not filled out the leave request form. According to the grievor, it was only a matter of finding the appropriate code, because Ms. Tester knew that she would be at the meeting with Ms. Leclair. The grievor noted that, when Mr. Morissette fetched her for the meeting, he did not know the appropriate code and told her that the issue would be resolved after the meeting.

93 With respect to the grievor’s absence from 14:00 to 14:30, she argued that it had been agreed with Mr. Morissette that, if Ms. Leclair decided that the employer would not cover the cost of the grievor’s presence, they would not proceed with the hearing and that they would leave. The grievor pointed out that, given that the meeting with Ms. Leclair was limited to a discussion of that issue, she should not be penalized for her absence.

94 With respect to the grievor’s absence from 14:30 to 15:30, she submitted that the two 30-minute breaks to which she was entitled would compensate for her absence. In support of that argument, she indicated that, during the compensatory leave that she had been granted in the morning of March 7, 2000, she had worked on urgent files.

95 The grievor submitted that, when Ms. Tester met with her when she returned to her office at 15:30, she asked whether they were even for her absence and breaks and that Ms. Tester did not say that she would decide later.

96 The grievor referred me to the following decisions. On the definition of insubordination, Noel v. Treasury Board (Human Resources Development Canada), 2002 PSSRB 26; on the criteria for insubordination, Mohan v. Canada Customs and Revenue Agency, 2005 PSLRB 172; Doucette v. Treasury Board (Department of National Defence), 2003 PSSRB 66; and Nowoselsky v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-02-14291 (19840724).

97 The grievor submitted that the employer did not discharge its burden of proof and that I should allow the grievance.

98 In response, the employer pointed out that the evidence indicated that, when the grievor asked Ms. Tester whether they were even, she did not respond.

B. The five-day suspension

99 The employer submitted that the discipline was imposed for the following violations: insubordination, disrespectful conduct and an unauthorized absence from work.

100 With respect to insubordination, the employer referred me to Focker v. Canada Revenue Agency, 2008 PSLRB 7, at para 75, in which the adjudicator paraphrased the following four criteria for insubordination originally detailed in Nowoselsky:

…

 … [T]he employer must prove that an order was given, that this order was clearly communicated to the employee, that the person giving the order had the proper authority and that the employee refused to comply.

…

101 The employer submitted that the evidence indicated that the four criteria had been met in this case. The grievor acknowledged that, at the end of the meeting with Mr. Bélanger, he asked her to return to her workstation; she did not disobey that order. Her reaction to Mr. Bélanger’s call demanding that she immediately leave the investigators’ office showed that he had the required authority.

102 The employer pointed out that the grievor had no idea of the context in which Ms. Sepulveda had signed the letter withdrawing her complaint and that the grievor unilaterally decided that the letter was an abuse of authority and illegal, of which she accused the investigators.

103 As for the allegation of disrespectful conduct towards the investigators, the employer submitted that I should give more credence to the testimonies of the two investigators than to that of the grievor because her testimony was not corroborated. The employer also submitted that the investigators had no personal interest in this case because they did not know the grievor. They were not managers, and they were not involved in labour relations.

104 The employer pointed out that the grievor’s actions contravened its Code of Conduct (“the Code”) and that the discipline imposed was justified, given her disciplinary file.

105 The grievor submitted that she acted out of solidarity with Ms. Sepulveda when she realized that, not only had she withdrawn her complaint, she had also forfeited any available recourse.

106 The grievor submitted that she made a spontaneous decision to go to the investigators’ office as she was heading back to her workstation after the meeting with Mr. Bélanger. The grievor believed that the withdrawal document signed by Ms. Sepulveda was illegal.

107 The grievor pointed out that, contrary to the investigators’ claims, she was not angry when she was in their office because she was calm while on the phone with Mr. Bélanger. On that point, she referred to Mr. Bélanger’s testimony that she was not aggressive when they spoke on the phone.

108 According to the grievor, the investigators’ testimony was not credible and Mr. Lafrenière was the aggressor in the incident. She submitted that I should allow the grievance because the employer did not discharge its burden of proof.

C. The eight-day suspension

109 As for the September 10, 2001 incident, the employer pointed out that, in cross-examination, the grievor had admitted to what she was accused of and that there had been no urgency to discuss the survey with her colleagues.

110 The employer referred me to Rioux v. Treasury Board (Department of Citizenship and Immigration), 2005 PSSRB 24. That decision dismissed her complaint, filed under section 23 of the former Act. In her complaint, she alleged that she had suffered reprisals and discrimination as a result of her union activities, in violation of sections 8 to 10. Paragraphs 44 and 45 of that decision read as follows:

[44] I understand that the topic of the discussion was a staffing survey, but there was no need to act quickly on September 10, 2001. After making a simple telephone call to her co-worker Mr. Cloutier and to Ms. L’Heureux, Ms. Rioux could have contacted the union to have it establish a framework for employee participation with the employer.

[45] Although it is desirable for employees to participate in surveys, this should take place within a specific framework and no one has the right to stop working for close to 20 minutes without prior authorization.

111 For the September 27, 2001 incident, the employer pointed out that the grievor had taken the initiative of asking Mr. Cloutier to come immediately to her office. The employer submitted that there had been no urgent need to show the email to Mr. Cloutier since the grievor’s disciplinary hearing was scheduled only for October 1, 2001. Moreover, he was not a union representative.

112 The employer indicated as an aggravating factor the fact that the grievor had told Ms. Ettinger that her discussion with Mr. Cloutier had been work related. The employer submitted that, in view of the grievor’s disciplinary file and the principle of progressive discipline, the discipline imposed on the grievor was not excessive.

113 For the September 10, 2001 incident, the grievor submitted that I must consider the context, noting that it was the day before a walkout by public servants across Canada and noting that there was a lot of tension in the offices.

114 The grievor indicated that she called Mr. Cloutier because he was better acquainted with Ms. L’Heureux. She submitted that, when she returned to her office with Ms. Ettinger after speaking with her, she was surprised to see the other two employees still there.

115 According to the grievor, Ms. Ettinger could have ordered Ms. L’Heureux and Mr. Cloutier to return to their workstations. She submitted that she had not been the only employee involved and that no disciplinary action was imposed on the other employees.

116  With respect to the September 27, 2001 incident, the grievor submitted that she called on Mr. Cloutier as a friend. She no longer knew what to do because she was receiving emails from the employer restricting her movements, and she felt targeted. On that point, the grievor referred to the medical certificate for her time off work from September 13 to 17, 2001 inclusive, for generalized anxiety (Exhibit S-30).

117 In support of her arguments, the grievor referred me to the following decisions, in addition to those noted earlier in this decision: Hébert v. Treasury Board (External Affairs and International Trade),PSSRB File No. 166-02-20449 (19910625); Clavel v. Treasury Board (Correctional Service of Canada), 2004 PSSRB 82; Gagné and St-Pierre v. Treasury Board (Solicitor General of Canada), PSSRB File Nos. 166-02-16697 and 16817 (19880412); Heck and Litster v. Treasury Board (Department of the Solicitor General), PSSRB File Nos. 166-02-18040 and 18042 (19890530); Fortin v. Canada (Attorney General), 2003 FCT 51; and Hogarth v. Treasury Board (Supply and Services), PSSRB File No. 166-02-15583 (19870331).

118 In response, the employer submitted that, for the September 10, 2001 incident, it is not relevant that it occurred the day before the walkout because the grievor admitted that the discussion concerned staffing, not the walkout.

119 The employer pointed out that there was no evidence that other employees had behaved in the same manner as the grievor without incurring discipline or that the grievor was the only one to have incurred discipline. In addition, in cross-examination, Ms. Ettinger never stated that other employees had not been working.

120 For the September 27, 2011 incident, the employer argued that, although the grievor testified that she had felt targeted, she did not prove her claim.

IV. Reasons

121 For the following reasons, and on the whole of the evidence, I agree that the employer discharged its burden of proof and that it was justified imposing discipline on the grievor for the incidents that are the subjects of the three grievances.

122 Given that I must also decide whether the discipline imposed on the grievor was appropriate in view of the actions of which she was accused, it is appropriate at this stage to review the disciplinary progression.

123 The text of each disciplinary measure imposed on the grievor refers, wherever appropriate, to her earlier discipline. For instance, the two-day suspension letter dated April 25, 2000 mentioned earlier in this decision contains the following sentence: “[Translation] Since December 1, 1997, you have received four disciplinary measures.” Similar sentences also appear in the five- and eight-day suspension letters. Discipline reports, about the discipline for the incidents of which the grievor was accused, tabled as evidence by the employer (Exhibits E-1-3, E-1-5 and E-1-12) also refer to her earlier discipline. Ms. Gignac testified that she considered the grievor’s discipline file and the principle of progressive discipline when she imposed each measure.

124 Under normal circumstances, given that I agree that the employer was justified imposing discipline on the grievor, I would have to decide whether the discipline was appropriate given the evidence and the grievor’s discipline file as it read when the employer imposed each measure.

125 However, in this case I am not dealing with normal circumstances. A number of years have elapsed between the events in question and the hearing. The grievor’s discipline file that existed when the employer imposed the two-day suspension on April 25, 2000 contained the following: a written warning on December 1, 1997, one- and three-day suspensions without pay on December 30, 1997 and February 2, 1998, respectively, for the unauthorized distribution of material, and a written warning with a two-hour salary reduction for an unauthorized absence on December 17, 1998.

126 As indicated, in 2002, an adjudicator allowed the grievor’s grievances against the one- and three-day suspensions without pay (Rioux, 2002 PSSRB 68).

127 Under the circumstances, two possibilities exist. The first is that the employer acted in good faith when it relied on the discipline file as it read when the discipline was imposed. In that case, if the grievor is found to have been at fault, then the discipline must be upheld, unless it was excessive.

128 The second possibility is that the discipline file is unreasonable, as the adjudicator found in 2002 PSSRB 68. If so, then the employer cannot rely on it for future discipline.

129 In my opinion, there are problems with the second possibility. In this case, the employer was aware that the grievor had filed grievances against the one- and three-day suspensions that were in her discipline file before it imposed the discipline before me. However, the employer certainly could not have predicted the outcomes of the grievances. I believe that, in the circumstances of this case, it would have been unreasonable to demand that the employer await the results of those grievances before imposing more discipline.

130 On one hand, I believe that the employer acted in good faith and that it was beyond reproach when it relied on the grievor’s discipline file as it read when imposing discipline. On the other hand, I am of the opinion that failing to consider 2002 PSSRB 68 would penalize the grievor since the adjudicator determined that a significant portion of the discipline file on which the employer relied was not justified.

131 Consequently, in my analysis of the appropriate remedy, which is concerned with whether the discipline imposed on the grievor was appropriate in light of the actions of which she was accused, I shall take into account that the one- and three-day suspensions, which were in the grievor’s discipline file on which the employer relied, were rescinded by 2002 PSSRB 68.

132 As for the March 7, 2000 incident, the evidence demonstrated that Ms. Tester asked the grievor twice before Mr. Cloutier’s hearing to fill out a leave request so that she could attend. Ms. Tester indicated to the grievor that, given that she was attending as a technical advisor at Mr. Morissette’s request, her leave had to be authorized because the employer would not pay for the time away from work.

133 The grievor discussed it with Mr. Morissette, who told her that the matter of payment for the time off would be raised with Ms. Leclair. Thus, Mr. Morissette was well aware of the employer’s position. According to Ms. Leclair’s uncontradicted testimony, when he contacted her a few days before March 7, 2000 to find out whether the grievor could join him as a technical advisor, Ms. Leclair informed him that she had no objection but that the grievor would have to obtain authorization from her supervisor. In addition, at the beginning of the hearing, Ms. Leclair asked the grievor whether she had obtained her supervisor’s authorization, to which she replied that she had not.

134 Given that Ms. Leclair upheld the employer’s position not to pay for the grievor’s leave, as they had agreed to beforehand, the three employees left her office without proceeding with Mr. Cloutier’s hearing. The grievor then decided on her own that she would meet with Mr. Morissette for an hour to discuss the meeting, without advising Ms. Tester.

135 I do not accept the grievor’s argument that the leave was authorized and that it was just a matter of determining the appropriate code. It is clear from the evidence that she had been told that she had to have authorized leave ahead of time. In cross-examination, Ms. Leclair stated that the important issue was the leave authorization and that the leave code was just a technicality. Moreover, when she returned to her workstation at 15:30, the grievor refused to fill out a leave request for the time she had spent in Ms. Leclair’s office, instead choosing to follow Mr. Morissette’s advice to have her employer to reduce her salary, after which she would file a grievance.

136  The grievor testified that she asked Ms. Tester whether she could make up her one-hour absence from 14:30 to 15:30 with breaks and with the time she spent working on office files during her compensatory leave in the morning of March 7, 2000. According to the evidence, Ms. Tester never agreed. Again, according to the evidence, it was not up to the grievor to change her work hours. That was up to her supervisor. Ms. Tester testified that breaks were not negotiated to be used that way.

137 Therefore, I believe that the employer had just cause to discipline the grievor.

138 Was the imposed discipline, a two-day suspension without pay, appropriate under the circumstances? As I explained earlier in this decision, the employer did not rely on the grievor’s earlier discipline record before me on April 25, 2000, which is the date of the suspension letter. According to the employer, the grievor had received a fifth disciplinary measure. The discipline file before me contains two written notices. The first is dated December 1, 1997 and is for the unauthorized distribution of material, and the second is dated December 17, 1998 and is for an unauthorized absence. The second written warning came with a two-hour salary reduction. Under the circumstances, I believe that that discipline should be changed to a one-day suspension.

139 With respect to the May 9, 2001 incident, the grievor admitted that she did not return to her workstation after her lunch break and that she had neither notified Ms. Ettinger nor obtained her authorization. The proof was not conclusive as to whether the grievor had been able to reach Ms. Ettinger before she went to the investigators’ office. Paragraph F of Section 3 (“Employee Responsibilities”) of the Code in force at that time (Exhibit E-2) contains the following about hours of work:

[Translation]

…

You must obtain your supervisor’s agreement as soon as possible ahead of time when you change your regular work schedule, for example by leaving early or by changing your meal or break times.

You must also notify your supervisor at the earliest possible opportunity if you expect to be absent from work so that you can obtain the necessary authorization ahead of time.

…

[Emphasis in the original]

The grievor, who acknowledged that she was familiar with the Code, failed to comply with it.

140 Mr. Bélanger confirmed that he had authorized the meeting with the grievor and her colleagues. When it ended, Mr. Bélanger clearly indicated to the grievor that he would look after Ms. Sepulveda’s case and instructed her to return to her workstation. As the employer’s regional representative on its harassment policy, he had the authority to issue such an instruction, particularly since he had met with the employees at the request of the regional director, Ms. Leclair. The grievor acknowledged that Mr. Bélanger had instructed her to return to her office. Instead of complying, she went to the investigators’ office. Thus, I believe that the four insubordination criteria listed in Focker have been met.

141 With respect to the discussion with the investigators, the evidence is contradictory. The grievor testified that she had been calm and polite at all times and that Mr. Lafrenière had been the aggressor. He and Ms. Lamontagne stated that, after the grievor, whom they did not know, walked into the office, she spoke in a raised voice, approached them, pounded the table and pointed at Mr. Lafrenière, demanding the withdrawal document signed by Ms. Sepulveda.

142 Most of the discussion was between the grievor and Mr. Lafrenière. Ms. Lamontagne was merely an observer. She corroborated Mr. Lafrenière’s testimony in detail and indicated that at a certain moment Mr. Lafrenière raised his voice. I believe that she is a credible witness. Thus, I find that, during the discussion with Mr. Lafrenière, the grievor was not calm and polite.

143 Paragraph B (Professional Conduct) of Section 3 (“Employee Responsibilities”) of the Code contains the following: “[Translation] Politeness and courtesy are also called for in exchanges with colleagues to ensure that the CIC remains a workplace characterized by respect.”

144 The evidence demonstrated that the grievor absented herself from her work without authorization to deal with Ms. Sepulveda’s case. She had no right under the collective agreement. The grievor refused to obey Mr. Bélanger’s instruction to return to her workstation and did not behave respectfully with the investigators. Thus, the employer was justified disciplining her.

145 Nonetheless, I believe that the employer should have considered the fact that, when the grievor met with Mr. Bélanger to discuss Ms. Sepulveda’s case, she had his authorization. Consequently, I note that, for the duration of the meeting with Mr. Bélanger, which was 20 minutes according to the evidence, the grievor’s time away from work was authorized. Thus, the employer must reimburse her salary for that time.

146 In view of the grievor’s discipline file before me and that Mr. Bélanger authorized part of her absence, I believe that the discipline should be modified. Under the circumstances, I believe that a three-day suspension without pay is consistent with the principle of progressive discipline.

147 The employer imposed the eight-day suspension without pay on the grievor for the September 10 and 27, 2001 incidents. With respect to the September 10, 2001 incident, the grievor admitted that she engaged in a discussion with Mr. Cloutier and Ms. L’Heureux for 20 minutes, which was not work related, without her supervisor’s authorization. She took the initiative to ask Mr. Cloutier to come to her office for the staffing discussion. In addition, she attempted to make Ms. Ettinger believe that the discussion between the three employees was work related.

148 I do not accept the grievor’s argument that I should consider as a mitigating factor the walkout that was to take place the following day. I believe that the topic of the discussion, a departmental staffing survey, was not related to the anticipated walkout.

149 As stated at paragraph 45 of Rioux, 2005 PSLRB 24, “… no one has the right to stop working for close to 20 minutes without prior authorization.”

150 With respect to the September 27, 2001 incident, the grievor admitted in cross-examination that she took the initiative to call Mr. Cloutier, who was not a union representative, and that she asked him to come to her office so that he could read the email summoning her to a disciplinary interview on October 1, 2001. The grievor also admitted that it had not been urgent for Mr. Cloutier to come to her office immediately and that she had not thought to read him the email over the phone because she had been in a state of shock. She also admitted that she had not been on a break during their discussion and that she had not asked for authorization for a personal discussion with Mr. Cloutier.

151 Those incidents demonstrate that increasingly severe discipline for unauthorized absences from work had little impact on the grievor’s conduct. She continued to claim the right to interrupt her work without authorization. I conclude that the employer was justified disciplining the grievor for the incidents of September 10 and 27, 2001.

152 In view of the evidence and the fact that the grievor persisted in not complying with the employer’s directives on unauthorized absences, I believe that a severe disciplinary measure was justified. Under the circumstances, I believe that the disciplinary measure imposed by the employer, the eight-day suspension, was appropriate.

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

V. Order

154 The grievance in PSSRB File No. 166-02-32460 is allowed in part. The discipline imposed by the employer is modified. I reduce it to a one-day suspension without pay. The employer must repay the grievor the equivalent of one day of pay and the appropriate benefits.

155 The grievance in PSSRB File No. 166-02-32567 is allowed in part. The discipline imposed by the employer is modified. I reduce it to a three-day suspension without pay. The employer must repay the grievor the equivalent of 2 days and 20 minutes of pay and the appropriate benefits.

156 The grievance in PSSRB File No. 166-02-32568 is dismissed.

March 9, 2011.

PSLRB Translation

Steven B. Katkin,
adjudicator