FPSLREB Decisions

 I. Grievance referred to adjudication

1 On February 10, 2009, Brian Eden (“the grievor”) filed a grievance against a 10-day suspension imposed because he failed to properly secure his duty firearm, ammunition and OC spray in his firearm locker, as required by the Canada Border Services Agency (CBSA or “the employer”) Policy on the Possession, Transportation and Storage of Agency Firearms, Ammunition and Controlled Items. The grievance was referred to adjudication under paragraph 209(1)(b) of the Public Service Labour Relations Act on February 10, 2010.

2 The grievor’s grievance challenges the quantum of the discipline on the grounds that the 10-day suspension was too heavy and that he suffered other losses. In particular, he alleges that because he was reassigned to administrative duties during the disciplinary investigation, his hours of work were changed, and he was not able to work the required hours originally set out in his variable shift schedule arrangement (VSSA), which left him with a deficit. Furthermore, he lost weekend and shift premiums, and his statutory holiday pay was affected. It also meant that he did not work sufficient hours in the month of his suspension to earn either vacation or sick leave credits. The grievance further alleges that the grievor lost the opportunity to continue working as the supervisor of the Integrated Compliance Enforcement Team (ICE), since the team was disbanded as a direct result of the disciplinary infraction.

3 As corrective action, the grievor requests reimbursement for all financial losses incurred from the work reassignment, including but not limited to the loss of holiday and shift premiums and the loss of leave credits, along with the working hours lost due to the change in his scheduled hours of work. He asks that the disciplinary suspension be reduced to five days. He also requests renewal of his assignment to the ICE team, an opportunity to meet with the employer to discuss career options in another work location and copies of the jurisprudence relied on by the employer to justify the original disciplinary penalty. The last three requests were not actively pursued at adjudication.

II. Summary of the evidence

4 At the beginning of the hearing, the parties provided me with an agreed statement of facts and a book of exhibits.  The employer called four witnesses, and the grievor testified on his own behalf. I have not summarized those portions of the witnesses’ evidence that repeat the contents of the agreed statement of facts, unless it expanded on a point that I found relevant to my decision.

5 The agreed statement of facts provides the following:

…

A. THE PARTIES

1.       The grievor is a federal Border Services Officer, FB-05 and was at all relevant times working as a Supervisor, Port of Entry at the Rainbow Bridge, Niagara Falls.

2.       The Canada Border Services Agency (“CBSA”) is the federal agency responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants that meet all requirements under the program legislation. It employs approximately 4800 officers across the country.

B. BACKGROUND

3.       On August 31, 2006, the Prime Minister announced the Arming Initiative to improve Canada’s border security (Press Release attached). It has been the policy of the CBSA since April 2007 to permit its officers to carry firearms and controlled items and to use these items in the performance of their duties after undergoing rigorous training. The arming initiative was widely publicized and was the subject of intense debate both within and outside the CBSA. Attached are some of the Frequently Asked Questions developed to educate employees about the initiative (attached FAQs).

4.       Since the Arming Initiative was implemented, the CBSA has put in place several policy and procedures documents relating to training, possession, transportation, storage and handling of firearms. It is the policy of the CBSA to ensure that all employees of the Agency who are required to handle firearms do so in a safe and secure manner; that employees are properly trained in the safe handling of firearms; and that, employees are provided with the proper facilities and equipment to safely handle firearms.

5.       On November 6 to 8, 2007, Mr. Eden attended the Arming Initiative Awareness Session for Managers. He took the CBSA’s mandatory Duty Firearms Course on January 28 to February 11, 2008. During this training, officers are taught the basics of firearms handling and storage, among other topics. Attached is a copy of the Duty Firearms Course syllabus. He had further practice sessions on June 17 and October 25, 2008.

6.       At all relevant times, Mr. Eden’s work location was at the Rainbow Bridge, Niagara Falls. At this work location, the employer has provided a secure, restricted access Arming Room where all armed officers are required to safely unload and securely store their duty firearms and other restricted service weapons. Each armed officer is assigned an approved individual storage container labelled with the officer’s name (“DASCO”).

7.       The Superintendent’s Office at the Rainbow Bridge is a general office with open access to CBSA and other employees. In this office, there are locked cabinets or drawers for use by the superintendents to store their personal items such as manuals and other non-regulated work items. Approximately eleven superintendents use this office on a 24/7/7/7 [sic] basis.

8.       In accordance with the Policy on Possession, Transportation and Storage of Agency Firearms, Ammunition and Controlled Items, Policy on Handling of Agency and Protected Firearms and CBSA Procedures for Storing Duty Firearms, when off duty, officers are required to store their duty firearms on site at the CBSA office or Port of Entry. When not in use, duty firearms must be unloaded and stored in accordance with the Public Agents Firearms Regulations (see attached Policies and CBSA Procedures).

C. DISCIPLINARY EVENT

9.       The events leading to the imposition of discipline occurred on the 1200 X 2400 shift at the Rainbow Bridge on December 22, 2008.

10.     The grievor commenced his shift at approximately 12 noon on that day. During his shift, he felt ill and decided to book the rest of his shift off on sick leave. He left the workplace at 20:15 hours on December 22, 2008.

11 .    Prior to leaving the workplace, the grievor failed to store his duty firearm and regulated protective tools in accordance with proper procedures. He left his loaded duty firearm and his protective equipment in an unsecured filing cabinet drawer in the Superintendent’s office.

12.     In accordance with the Policy on the Possession, Transportation and Storage of Agency Firearms, Ammunitions and Controlled Items, he should have unloaded and stored his duty firearm in his DASCO.

13.     The grievor did not report for duty on December 23, 2008 as he was ill and thereafter, he was not scheduled to return for duty until December 27, 2008.

14.     The grievor’s duty firearm and regulated protective tools were found by another Superintendent in an unsecured, unlocked file cabinet drawer in the Superintendent’s office on December 24, 2008.

15.     The grievor promptly attended the Rainbow Bridge and took steps to secure and properly store his duty firearm. In an incident report prepared by the grievor on December 24, 2008, he acknowledged that he:

…failed to properly secure [his] pistol into [his] designated storage locker and left [his] firearm in [his] holster. . . made a very large mistake and lapse in personal judgement by failing to store [his] pistol properly.

D. DISCIPLINE

16.     Following an investigation and a disciplinary hearing where the grievor was given the opportunity to explain his actions, management concluded that he had violated the CBSA Policy on the Possession, Transportation and Storage of Agency Firearms, Ammunitions and Controlled Items. Management concluded that as a Superintendent, he was responsible for ensuring that Border Services Officers complied with this policy and its procedures therefore his violation of the policy was considered serious. Management concluded that his actions constituted misconduct that required the imposition of discipline.

17.     Management imposed a disciplinary measure of suspension for a period of 75 hours to be served from January 9, 2009 to January 22, 2009, a total of 10 shifts at 7.5 hours/shift. The grievor was also required to attend and successfully complete the CBSA Recertification Program which had been previously scheduled.

18.     Prior to the events giving rise to the disciplinary action which forms the subject of this grievance the grievor had no prior discipline on his record.

…

6 Alper Yusufyan testified on behalf of the employer. He is a superintendent at the Rainbow Bridge, Niagara Falls, Ontario, and was on duty at the time of the incident in question. As the bulk of his testimony simply confirms the facts set out in the agreed statement of facts, I do not believe it necessary to summarize it.

7 There was some question as to whether Mr. Yusufyan knew that the grievor had left his sidearm holstered in the duty belt when he put the duty belt in the unsecured drawer in the superintendents’ office. Mr. Yusufyan denied noticing that the grievor’s gun was still in the holster.

8 Dave Berardi is the district director for the CBSA’s Niagara Falls - Fort Erie District, which includes the port of entry operations for the Rainbow, Whirlpool and Queenston Lewiston bridges, the passenger clearance at the Via Rail station in Niagara Falls and the Niagara District Airport, and the small vessel clearance at the Lower Niagara River. He is responsible for both staff and program delivery. He explained that all those operations report to him through three chiefs, each of whom have a number of reporting superintendents. Border services officers (BSO) and clerical staff report to the superintendents. 

9 Mr. Berardi provided some background information about the arming initiative that was undertaken at the CBSA following the announcement in 2006 that the BSOs would be armed. He explained that the decision to arm the BSOs was highly political. It followed a period of intense labour unrest in which the union pressured the employer to arm the BSOs for health and safety reasons. As a result, there was a high degree of scrutiny into the initiative. The implementation of the initiative began in 2007. The CBSA’s Niagara Falls–Fort Erie District was among the top national priorities for arming. He explained that the employer took a conservative approach to arming in that armed officers are required to store their duty weapons in the storage facilities provided at the workplace, unlike at other agencies, where officers may keep their weapons with them while off-duty. 

10 Mr. Berardi testified that the grievor’s failure to store his firearm properly caused a flurry of consultations and discussions concerning the appropriate disciplinary response. It was the first such incident for the CBSA and no one was certain what to do. Senior management in the region and in Ottawa, including the Regional Director General, the Director General in charge of arming, the Director of Human Resources and other senior managers, all became involved in the discussions.  

11 Two issues were of concern, Mr. Berardi explained. First, a decision had to be made about who would investigate the incident, as a difference of opinion existed. Mr. Berardi testified that he favoured an internal investigation, while others wanted it referred to an outside agency, such as a local police force. In the end, an internal investigation was chosen.

12 Mr. Berardi explained that the quantum of discipline was the other question that had to be resolved because there was no precedent or jurisprudence within the CBSA for such an incident. He testified that the staff relations advisors in Human Resources would have contacted the Royal Canadian Mounted Police for advice and that he contacted the Director of the CBSA’s Enforcement Branch for advice, who in turn contacted the Niagara Regional Police Service (NRPS) (Exhibit E-2).

13 Mr. Berardi testified that, while it initially contemplated a 15- to 20-day suspension, the employer ultimately decided that a 10-day suspension would be appropriate. He explained that the employer took a number of factors into account, including the seriousness of the breach of the policy, the fact that the grievor was a supervisor involved in the arming initiative who instructed staff on the safe storage of firearms, the potential for compromising relations with other enforcement agencies, and the potential for public scrutiny. Those factors were weighed against the facts that the grievor had a clear record, was considered a good employee and was remorseful. Mr. Berardi noted that the grievor was initially afraid that his employment would be terminated, but he reassured the grievor that although discipline would be imposed, he would not be discharged.

14 Mr. Berardi testified that discussions also took place about what to do with the grievor while the investigation was under way. He explained that a decision was made that the grievor’s sidearm would be removed from him during the investigation and that the grievor would be temporarily reassigned.  There were concerns about how to return the grievor’s firearm to him so that he could return to full active duty. Mr. Berardi explained that the grievor suggested using the annual recertification process as the method to reissue him the firearm.

15 Mark Strasser was the Chief of Operations at the Rainbow Bridge at the time of the disciplinary incident. The superintendents at the Rainbow Bridge, including the grievor, reported to him.  He testified that although he was on leave at the time of the incident, he was called about it and reported to the bridge to investigate. He testified that he prepared the Notice of Disciplinary Action (Exhibit E-1, tab B) and that he held the fact-finding meeting with the grievor, Mr. Berardi and others (Exhibit E-1, tab I).

16 Mr. Strasser testified that he was aware of senior management’s consultations about the disciplinary penalty. He stated that, initially, termination of the grievor’s employment was considered but that he felt that a 10-day suspension was more appropriate. He explained that he had the final decision on the penalty and that he considered a number of factors, including the facts that the grievor was ill on the day in question and that he had gone home sick, that he had a clear disciplinary record and was a good employee, and that he was remorseful. He set against those positive factors the seriousness of the breach and the fact that the grievor was in a position of trust because he supervised other armed officers.

17 Mr. Strasser testified that the grievor had positive performance appraisals, which were also taken into account when the disciplinary penalty was assessed. He said that the grievor was an aspiring manager, with no prior discipline.

18 Mr. Strasser testified that he was aware that the grievor had a medical problem. He knew that the grievor had surgery scheduled, and he had no reason to doubt that the grievor was ill on the day in question.

19 Mr. Strasser explained that, although the grievor had been scheduled to work December 27 and 28, 2008, which would have been deemed statutory holidays and therefore would have been subject to premium pay, he was told not to report to work until December 29. Mr. Strasser explained that, because the grievor was an armed or “tooled” employee, being armed became part of his requirement for duty. It was not possible for him to work in an operational capacity without his firearm. Because the grievor’s firearm had been confiscated, he could not work operationally, and there was no alternate work immediately available.

20 When the grievor returned to work on December 29, he was assigned administrative duties. Mr. Strasser explained that although operational officers work 12- hour shifts, non-operational employees work 7.5 hours per day, Monday to Friday.  Consequently, the grievor might have lost some time in the transition from working 12- hour shifts as an operational employee to working 7.5 hours per day.

21 Mr. Strasser testified that he made the decision to disband the ICE team. Both Mr. Berardi and Mr. Strasser explained that the ICE team had been set up as a pilot project to facilitate the integration of officers in the customs and immigration streams, and to bolster enforcement at the Rainbow Bridge. The initiative had been proposed by the grievor. Mr. Strasser explained that, with the grievor’s absence for the month of January because of his reassignment and suspension, the team would have been unsupervised, and none of the other superintendents was willing to take on that responsibility. He also testified that it was a slow period for travellers at the Rainbow Bridge.

22 Jared Ross is a use of force firearms instructor for the CBSA.  He testified about the use of force training that the grievor would have received, and he explained the CBSA policies on the safe handling and safe storage of firearms. Copies of the training syllabus and the policies were included in the documents agreed to by the parties (Exhibit E-1, tabs L and F). It is clear from the agreed statement of facts that there is no dispute that the grievor received the appropriate training. Thus, it is not necessary to summarize Mr. Ross’ testimony on that point.

23 The grievor testified that he has been employed with the CBSA since 1998, that he became a superintendent in 2006 and that in 2010 he joined the criminal investigation team, where he currently works as an investigator. 

24 At the time of the incident, the grievor was working as a superintendent, directly responsible for the 5 members of the ICE team. He worked 12-hour shifts, either from 08:00 to 20:00 or 00:00 to 12:00, 3 days on and 3 days off. At that time, he accrued 9.37 hours of sick leave and 12.75 hours of vacation leave for every month in which he worked a minimum of 75 hours.

25 The grievor testified that he was scheduled to work December 27 and 28, 2008, which would have been deemed statutory holidays for him, so he would have been paid at triple time. But, because of the incident, he was told not to report for duty until December 29, when he was reassigned to the Alternate Inspections Unit, away from the port of entry, pending the outcome of the investigation. The hours of work for that assignment were 08:00 to 16:00, Monday to Friday. No premiums are attached to that day shift. Because he usually worked a variable shift schedule, he was normally eligible for shift premiums, which he lost while working on days. He also lost the weekend premiums that he was normally entitled to receive.

26 The grievor testified that, had it not been for the reassignment and the suspension, he would have worked about 114 hours in the course of his variable shift schedule, working 12- hour shifts. Because of the reassignment, he worked fewer hours in the month of January 2009 than those scheduled on the variable shift schedule. That meant that he did not work the 114 hours originally scheduled and he had to make up the difference, having been left with a negative balance. Furthermore, he did not work 75 hours that month and so did not accrue his sick and vacation leave for the month.

27  When the grievor returned to work after the suspension, the ICE team had been disbanded, and he was not returned to the 12- hour shift schedule, but to a 10.75-hour, 4- day on, 4- day off schedule. 

28 The grievor stated that he believed that he could have performed a number of his superintendent duties without being armed. He suggested that he could have cleaned up files or done administrative work, such as audits, reviews or performance management.

29 The grievor testified that he knew what was expected of him with respect to the safe storage of his firearm. He said that, following the incident, he proposed firearm recertification because he was trying to indicate that he was willing to undergo any corrective action. 

30 The grievor acknowledged that his original statement to the employer did not mention his illness. He also agreed that, when he told the employer that no personal problems led to the incident, he could have mentioned his medical condition. He stated that he wanted to accept responsibility but also admitted that, at that point, he would have said almost anything.

31 The witnesses agreed that the arming room where the duty weapons are stored is accessible only by swipe card. The superintendents’ office, where the grievor actually left his sidearm, is in a secure area behind the publicly accessible area. That area contains not only the superintendents’ office but also interview rooms and a waiting area. There was general agreement that members of the public would not normally be unattended in that area but that the superintendents’ office would be accessible to the BSOs, administrative staff and cleaners.

III. Summary of the arguments

A. For the employer

32 The employer argued that the facts of this case are undisputed. The grievor unsafely stored his duty firearm and defensive equipment. That was essentially a safety violation, and the employer’s actions should be examined in that context. The grievor was a trained officer and there was no question that he was aware of the safety requirements and that he knew what was expected of armed officers.

33 The employer stated that the grievor offered no real explanation as to how the incident could have happened. He offered no evidence to suggest that there was a medical impairment, and so the fact that there might have been a medical problem must be discounted. The employer also suggested that the grievor attempted to shift responsibility for his actions and that he showed no real remorse.

34 The employer submitted that the issue in this case is reasonableness of the disciplinary penalty imposed for what was a serious safety infraction. It is clear from the evidence that the employer carefully considered the penalty. Extensive consultations took place both internally and externally. This incident, the first since the arming initiative began, took place in a highly politicized environment, and the employer wanted to ensure that the response was appropriate.

35 It was reasonable for the employer to treat the incident as a serious safety infraction. Leaving a loaded firearm in an insecure place presented a serious risk, even if there was little risk of public access. There were a number of aggravating factors, including the fact that the grievor was a supervisor responsible for ensuring compliance on that very issue. Set against the aggravating factors, the employer also took into account mitigating factors, such as the grievor’s length of service, his clean disciplinary record and the isolated nature of the offence.

36 The employer urged me to follow the approach taken in Green v. Treasury Board (Transport Canada), PSSRB File No. 166-02-26720, April 6, 1998 (19980906) and June 14, 1996 (19960614); and Pike v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 1, which set out the factors to take into account when mitigating a disciplinary penalty. The employer argued that it considered those factors when it assessed the discipline imposed on the grievor.

37 The employer also argued that it must be able to rely on its armed officers to be knowledgeable about the requirement to safely store their firearms and to be diligent in observing that requirement. Officers perform that requirement unsupervised. Thus, deterrence is important. The employer cited the following cases in support of its position that deterrence is an important consideration when assessing an appropriate penalty: City of Regina v. Canadian Union of Public Employees, Local 21 (2008), 176 L.A.C. (4th) 359; Goodyear Canada Inc. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied, Industrial and Service Workers Industrial Union, Local 189L (2008), 168 L.A.C. (4th) 129; Chemtura Canada Co. v. United Steelworkers (Douglas) (2006), 156 L.A.C. (4th) 438; Securicor Canada Ltd. v. General Teamsters Union, Local 362, [2005] C.L.A.D. No. 165 (QL); P.W. Transportation Ltd. v. P.W. Transportation Drivers’ Association (2003), 114 L.A.C. (4th) 289; and Harry v. Universal ATM Services Inc., [1997] C.L.A.D. No. 94 (QL).

38 The employer argued that the Securicor Canada Ltd. decision is particularly applicable to this case. In that case, the grievor, an armed security guard, left his sidearm in a public washroom. The weapon was not recovered. The grievor’s employment was terminated on the grounds that maintaining the control and care of his weapon was a fundamental requirement of the job and that his carelessness was too serious an infraction to be tolerated. Furthermore, the employer in that case argued that a severe penalty was required to act as a deterrent to other employees. The arbitrator acknowledged the seriousness of the offence, and recognized the importance of general deterrence, but reduced the penalty from a discharge to a one-month suspension.

39 The employer submitted that, in this case, 36 hours passed in which the grievor had no idea where he had left his sidearm and that it was only by chance that it was discovered in his unlocked drawer. As noted in the Securicor Canada Ltd. case, it is important to recognize the grievor’s responsibility to maintain control of his weapon.

40 The employer submitted that adjudicators should not tinker with disciplinary penalties. Citing Rolland Inc. v. Canadian Paperworkers Union, Local 310, (1983) 12 L.A.C. (3d) 391, I was urged to accord deference to the employer’s disciplinary decision, especially since this case will set the standard for how the employer handles an armed workforce. The employer referred me to Ferrusi and Giornofelice v. Treasury Board (Canada Border Services Agency) 2007 PSLRB 1, for background on the CBSA’s arming initiative.

B. For the grievor

41 The grievor argued that a 10-day suspension for a first offence by someone with an exemplary record is excessive. It was neither progressive nor proportionate. The grievor argued that the discipline was too severe both objectively and in light of the mitigating factors.

42 The grievor noted that the employer was candid that the penalty reflected its desire to have it act as a deterrent and to set the tone for the CBSA for the future. The important principle of the appropriateness of the response to the offence has been ignored in an attempt to set the standard. The cases that reference deterrence cited by the employer largely involve wilful misconduct, not inadvertence. Those cases that involve negligent behaviour are not analogous to this case and are not helpful.

43 The grievor argued that it is important to fairly characterize the facts of this case. The employer suggested that he was not remorseful, but that contradicts the agreed statement of facts, which quote the grievor’s acknowledgement that he made a large mistake (Exhibit E-1, tab 1, paragraph 15). Issues of credibility, to the extent that they arise, do not need to be resolved, because they are not relevant to the issue of the reasonableness of the discipline. The facts are straightforward. On the day in question, the grievor had a single, momentary lapse of judgment, and failed to secure his firearm properly. It was inadvertence, not wilful misconduct. The explanation which the employer argued was not given was, in fact, illness or fatigue. However, the grievor did not use this as an excuse to vitiate the discipline.

44 The grievor argued that the employer’s identification of the issues has changed, as the discussion did not always involve the risk of danger and public involvement. The thrust of the employer’s case, as presented at the hearing, focused on the incident as a safety violation, but originally the employer characterized the offence as a violation of the safe storage protocol and policy. 

45 The grievor argued that, in trying to deal with its first firearms offence, the employer’s emphasis on deterrence belied the fact that its policy on discipline states that discipline is meant to be corrective, not punitive. Too little weight was given to the mitigating facts that the grievor was a conscientious, committed employee, that it was an isolated event, and that he was immediately remorseful. The grievor learned from his mistake and is not likely to repeat it. He argued that the purpose of any disciplinary regime is correction. In this case, that purpose is well served by a more modest penalty than was imposed.

46 The grievor argued that it is possible to reduce the disciplinary penalty and to address the administrative consequences of the suspension with no risk to the CBSA. Sufficient time has passed, and the political unrest around the arming initiative has calmed. He submitted that it is not legitimate to say that the CBSA is unique, and  that it has legacy concerns that mean it can deviate from the general practice of progressive discipline. 

47 The grievor noted that very few cases in the jurisprudence are directly on point with this case. The most directly analogous cases involve the RCMP. Although the RCMP is covered by different legislation and complex rules, it does have a grievance process. Even taking into account the differences in the facts of the RCMP cases, it is appropriate to examine how the RCMP handles arming issues, especially given its involvement in the CBSA arming initiative. The grievor cited the following four unreported and depersonalized RCMP cases in which the penalty for unsafe storage of a duty weapon was a two- or three-day forfeiture of pay and a reprimand: The Appropriate Officer “C” Division v. (redacted), March 25, 2003; The Appropriate Officer “A” Division v. (redacted), July 5, 2002; The Appropriate Officer “O” Division v. (redacted), April 14, 2003; and The Appropriate Officer “A” Division v. (redacted), April 18, 2000.

48 The grievor also cited Duquette v. Treasury Board (Solicitor - General Canada) PSSRB File No. 166-02-15202 (19870713), which dealt with a 5-day suspension imposed for the careless discharge of a firearm in the context of a prison escape attempt; Haydon v. Treasury Board (Health Canada), 2002 PSLRB 10, which concerned a 10-day suspension that was reduced to a 5-day suspension for public criticism of the employer that caused great embarrassment; and Babineau v. Treasury Board (Correctional Service of Canada), 2004 PSSRB 145, which concerned a reprimand and the loss of 1 day’s pay that the adjudicator held to be double jeopardy. 

49 The grievor argued that the disciplinary penalty imposed in this case was draconian. Not only was he given a 10-day suspension, but, as a consequence of the resulting reassignment he actually lost 16 days of pay through the loss of premiums, holiday pay and lost working hours. That is well beyond a reasonable penalty. In the event that I determine that the penalty was excessive, the grievor asked that I leave it to the parties to determine what other consequences should flow.

C. Employer’s rebuttal

50 The employer contended that the grievor’s expression of remorse was not genuine and that he admitted that he would have said almost anything. His statements must be considered with that in mind.

51 The employer argued that the driving force behind the discipline was not just to send a message but also to address and correct behaviour.

52 The employer also argued that the administrative consequences of the suspension resulted from the investigation. There was no double jeopardy. The reassignment was purely administrative and was a consequence of the removal of the grievor’s firearm.

53 As for the case law cited by the grievor, the employer observed that the RCMP cases took place in a different environment, not comparable to that of the CBSA. Most of the sanctions resulted from joint submissions, and in some of the RCMP cases, criminal charges were involved that may have affected the quantum of discipline. That is not so in this case.

IV. Reasons

54 The facts of this case are not in dispute. The grievor acknowledges that, on December 22, 2008, he left the workplace without properly securing his firearm and protective tools. He received a 10-day (75-hour) suspension for the infraction. In addition, the employer removed his right to carry a firearm and reassigned him, effective December 24, 2008, to an administrative or non-operational position, pending an investigation. As a consequence, the grievor’s work schedule changed to non-operational, 7.5 hours per day, Monday to Friday. That change meant that he lost a number of holiday and shift premiums. He was also required to complete the CBSA Recertification Program so that he could again carry a sidearm.

55 The grievor did not dispute that a disciplinary penalty is in order, but he feels that the penalty imposed was too severe. He argued that the employer did not give enough weight to the facts that he was a conscientious employee, that it was an isolated incident in an otherwise unblemished career or that he was immediately remorseful. He believes that the employer, in trying to establish a standard for future similar cases, went well beyond a reasonable penalty. The remedy sought in his grievance requests among other things that the suspension be reduced to five days, which leads me to believe that the grievor thinks that a five-day suspension would be reasonable.

56 In justifying the penalty imposed, the employer argued that the grievor’s remorse must be questioned. I do not agree. The grievor made an immediate admission of responsibility, which is partly included in the agreed statement of facts (Exhibit E-1, tab 1, paragraph 15). Two of the employer’s own witnesses, Mr. Berardi and Mr. Strasser, testified that the grievor was remorseful and that they took that into account when determining the quantum of discipline. I do not think that, in light of that evidence, it was appropriate for the employer to question the grievor’s remorse at the hearing.

57 In the same vein, I accept that the grievor was genuinely ill on the day in question. It was accepted at the time of the incident that he had left work early because he was ill. The agreed statement of facts references it (Exhibit E-1, tab 1, paragraph 10), and both Mr. Berardi and Mr. Strasser accepted it in their testimony. Mr. Strasser testified that he took the grievor’s illness into account when weighing the disciplinary penalty. It should be noted that the grievor did not offer his illness as an excuse or as an explanation for his offence. Given that fact, I find the employer’s argument that the grievor offered no explanation or evidence of medical impairment somewhat surprising and unnecessary.

58 In considering the appropriate penalty in this case, the evidence is clear that the employer took into account the grievor’s previously clear disciplinary record and good performance appraisals, his length of service, his remorse and the fact that he had gone home ill on the day in question. Set against those factors was the seriousness of the offence and the grievor’s role as a supervisor in a position of trust who supervised other armed officers. Also of concern were the potential of compromised relations with other enforcement agencies and of public scrutiny. In its argument, the employer emphasized that the offence was a serious safety infraction that demanded a severe penalty, and it underlined the need for deterrence.

59 This was the first such offence for the employer, and there was no precedent against which to assess the penalty. I believe that the employer really tried to get it right. Mr. Berardi testified that the employer consulted both the RCMP and the NRPS. Based on an email tendered in evidence (Exhibit E-2) from Neil Mooney, a CBSA firearms safety officer, a suspension of 12 to 20 hours pay is normal for an NRPS officer, while a supervisor or sergeant could expect something in the range of a loss of rank for 1 year and the forfeiture of performance pay of between 3 and 9%. The employer offered no evidence as to what the usual penalty for such an infraction would be at the RCMP, but unreported and unidentifiable cases tendered by the grievor suggest that RCMP members charged with similar offences received between two and three days’ loss of pay and a reprimand. 

60 Direct comparisons between the CBSA and the NRPS or the RCMP are impossible. Ranks and supervisory roles are not necessarily the same, and there was little context to the information provided to me. The one thing that does seem consistent is that the base penalty for an officer for failing to store a duty firearm safely is equivalent to about a two- to three-day suspension.

61 I believe that the 10-day suspension imposed by the employer was too heavy. The grievor’s error was a single act of carelessness, not wilful misconduct, in an otherwise unblemished career. I accept, as the employer accepted, that the grievor was remorseful. I believe the fact that the grievor was ill, while not excusing what occurred, serves to offer some context. I believe that discipline should be corrective and progressive, and I do not believe that a 10-day suspension under the circumstances is either corrective or progressive. Even taking into account the grievor’s role as a supervisor, which I believe is a legitimate consideration, I find the penalty too heavy. 

62 I believe that the grievor got it right when he proposed a five-day suspension for failing to properly store his duty weapon. A five-day suspension is a significant penalty for a first offence, but it recognizes the seriousness of the offence and takes into account the grievor’s supervisory role. I believe that it is a significant enough penalty to satisfy the employer’s need for deterrence. Accordingly, I reduce the penalty to a five-day suspension.

63 However, that does not resolve the other issues raised by the grievor. He complained that, as a result of his reassignment to administrative duties, he was financially penalized because he lost holiday and shift premiums, holiday pay, and sick and annual leave credits. He complained that, as a result of the disbanding of the ICE team, his hours of work changed. He asks that all those consequences of the reassignment be reversed.

64 Both Mr. Berardi and Mr. Strasser testified that the grievor’s duty weapon was confiscated immediately following the discovery that he had failed to store it properly. They testified that, as a result of the loss of his weapon, the grievor could not work in an operational capacity. Given that fact, he was reassigned to administrative duties in a non-operational position. Non-operational positions work 7.5 hours per day, Monday to Friday. The holiday shifts that the grievor expected to work were on Saturday and Sunday. No shift premiums or holiday premiums were payable because he did not work shifts while reassigned. 

65 I find that all the consequences identified by the grievor in his grievance resulted from his temporary transfer into a non-operational position because he was no longer qualified to work in an operational capacity. That was not a disciplinary sanction but administrative, and it was the inevitable consequence of the reassignment. Given that fact, the grievor’s request to have shift premiums, holiday premiums and lost hours restored must be denied. 

66 The grievor also complained that, as a result of the suspension, he did not accumulate sufficient hours in the month of January 2009 to earn vacation or sick leave. As a result of the reduction to the disciplinary suspension, his hours of work for that month should be recalculated to determine whether he worked sufficient hours to earn vacation and sick leave credits.

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

V. Order

68 The grievance is allowed in part. The 10-day suspension is reduced to 5 days, and the grievor is to be reimbursed for 5 days of lost wages. The grievor’s hours of work for the month of January 2009 are to be recalculated based on the reduction in the suspension to determine if he would have worked sufficient hours to earn vacation and sick leave credits for that month.

69 All other aspects of the grievance are denied.

March 24, 2011.

Kate Rogers,
adjudicator