FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Throughout the relevant period, Stanley Bahniuk (the “grievor”) was a team leader, classified MG-03, in Revenue Collections, Calgary Tax Services Office (TSO), of the Canada Revenue Agency (the “employer” or CRA).

2 The grievor referred five grievances to adjudication, all of them under paragraph 209(1)(b) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“PSLRA”).

3 On June 2, 2008, the employer imposed a three-day suspension without pay on the grievor for unprofessional and disrespectful conduct. The grievor filed a grievance contesting the suspension on June 26, 2008 and the grievance was referred to adjudication on June 24, 2010 (Public Service Labour Relations Board (the “Board”) File No. 566-34-3958).

4 On November 19, 2009, the grievor filed a grievance alleging harassment and intimidation by a particular manager as well as by senior management. This grievance was referred to adjudication on June 24, 2010 (Board File No. 566-34-3959).

5 On November 24, 2009, the employer placed the grievor on indefinite administrative suspension without pay pending investigation of his conduct. That day, the grievor filed a grievance contesting this suspension. The grievance was referred to adjudication on June 24, 2010 (Board File No. 566-34-3957).

6 On December 10, 2009, the employer imposed a 10-day suspension without pay on the grievor for insubordinate behaviour and a 20-day suspension without pay for inappropriate use of the CRA’s harassment policy, both suspensions to be served consecutively. The employer made these suspensions effective retroactive to November 24, 2009, the first day of grievor’s indefinite suspension. The grievor filed a grievance against these suspensions on December 18, 2009, which was referred to adjudication on June 24, 2010 (Board File No. 566-34-3956).

7 Lastly, on January 22, 2010, the employer terminated the grievor’s employment. He filed a grievance contesting the termination the same day. This grievance was referred to adjudication on June 24, 2010 (Board File No. 566-34-3955).

8 The five grievances were consolidated by the Board for the purposes of the hearing.

9 The applicable collective agreement is that between the CRA and the Public Service Alliance of Canada (the “union”) for the Program Delivery and Administrative Services Group, which expired on October 31, 2010 (the “collective agreement”).

II.Summary of the evidence

10 At the outset of the hearing, the grievor withdrew his grievance alleging harassment by a particular manager and by senior management (Board File No. 566-34-3959).

11 Eleven witnesses testified during the hearings and 67 exhibits were entered. Although present throughout the proceedings, the grievor did not testify.

A. For the employer

1. Testimony of Brenda Bauer

12 The three-day suspension letter dated June 2, 2008 and signed by Brenda Bauer, Assistant Director, Taxpayer Services and Debt Management (Exhibit E-7), reads as follows:

…

This is further to our fact-finding meeting of May 15, 2008 regarding your inappropriate behaviour with me at a meeting on May 2, 2008.

On May 2, 2008, you requested a meeting with me to discuss competencies. At this meeting you said that you were “down-trodden”. You stated that your manager had not observed and attested to your competencies. You accused me several times of not holding the managers accountable. You were shouting and visibly angry. I told you to stop shouting and that I found it disrespectful. You said that I shouldn’t mistake your passion for disrespect. You also said that you promised that you would be back in my office to discuss the past. Your irrational behaviour was uncalled for and unprofessional. Your disrespectful demeanour was a barrier to any discussion or resolution to your concerns. You stated that your intent was to take matters before a judge.

At the fact-finding meeting on May 15, 2008, you stated that you acted this way out of frustration. Your frustration does not justify your unprofessional behaviour. I believe that it is necessary to impress upon you that the employer will not tolerate such behaviour.

I find that your conduct at the meeting on May 2, 2008 was unprofessional and disrespectful. That behaviour is contrary to that expected of a team leader and employee of Canada Revenue Agency. You are expected to approach all individuals, managers and employees alike, with respect and professionalism. I also note that you have been disciplined for similar inappropriate behaviour.

In accordance with the CRA Code of Ethics and Conduct and the Manager’s Charter, as an employee of the Agency in the MG Group, you are accountable to your employer and are expected to carry out your assigned duties conscientiously and in accordance with our organization’s values of respect, professionalism, integrity and cooperation. Your behaviour demonstrated a lack of professionalism and a lack of respect for management. We expect you to adhere to the Code of Ethics and Conduct, the Canada Revenue Agency Values and the CRA policies that underlie it. The following is from the Code of Ethics and Conduct: “It is your responsibility to become familiar with the contents of this booklet, to abide by the Code, and to conduct yourself in a manner that reflects the overall spirit of the Code and of the CRA values.” The Policy also states: “Every employee must be treated with respect and dignity. Harassment of another employee or lack of action by a responsible authority constitutes a disciplinary infraction (see section 4.) Details may be found in the CRA’s Preventing and Resolving Harassment Policy. Repeated behaviour such as this could be seen as harassment.

In determination of the appropriate discipline, I considered your years of service and work history. I also considered your previous disciplinary action including the written reprimand you received on January 18, 2007 and the one-day suspension served on April 4, 2007 for similar incidents. I considered your apology on May 15, 2008 as a mitigating factor. To impress upon you the seriousness of your actions, it has been determined that a three day (22.5 hours) suspension is the appropriate corrective action.

…

In accordance with Article 17.05 of the Program Delivery and Administration Services collective agreement, a copy of this document will be placed on your personnel file and will be destroyed after two years have elapsed since the date this disciplinary action was taken, provided that no further disciplinary action has been recorded during the two year period. As this is the third disciplinary action taken, all discipline letters to date will remain on file. Should a similar situation occur in future, more severe disciplinary action will be considered up to and including termination for misconduct.

…

[sic throughout]

13 The one-day suspension for insubordination imposed on the grievor referred to in the above letter of discipline was upheld by an adjudicator in Bahniuk v. Canada Revenue Agency, 2009 PSLRB 141.

14 Ms. Bauer testified that she had been employed by the CRA for 33 years, having retired in April 2009. As Assistant Director in the Revenue Collections Division of the Calgary TSO, she was responsible for the direction of 300-330 staff members involved in the collection of outstanding tax accounts of individuals and corporate accounts. Five section managers reported directly to her, each of whom supervised 8 to 10 team leaders. Each team leader in turn supervised 8 to 10 employees.

15 Ms. Bauer stated that on May 2, 2008, she had a telephone message from the grievor from the previous day taken by her assistant (Exhibit E-1), requesting a meeting concerning competencies. She met with the grievor that same day. He began the meeting by questioning the fact that he had been asked to provide a reference for one of his subordinates who had been successful in a promotional competition. Ms. Bauer stated that the grievor objected to providing a reference, saying that he was being asked to assess a candidate, and that this was an example of management’s lack of accountability. Ms. Bauer said that a reference check is required as part of the placement process and that in her experience, it is appropriate and routine for a supervisor to provide such a reference for a subordinate. The grievor had not been asked for an assessment.

16 Ms. Bauer stated that the grievor then asked where she stood on “Observe and Attest”, a new CRA human resources management system. The grievor then told her that she didn’t hold managers accountable. When she asked for an explanation, Ms. Bauer said that the grievor “exploded” into an uncontrolled rage, his eyes bulging, face red and spittle coming from his mouth. He pointed his finger at her and told her again that she didn’t hold managers responsible. Ms. Bauer told the grievor to stop, but he continued shouting and yelling accusatory remarks, telling Ms. Bauer she wasn’t doing her job. The grievor told Ms. Bauer he had been treated unfairly in the past and felt one of his managers was a bully. He referenced a previous conversation he had had with Ms. Bauer and said he couldn’t let go of the past, but had to pursue injustices that had been done to him. When Ms. Bauer asked when it would end, the grievor replied, “When it goes to court.”

17 Ms. Bauer stated that the grievor was so angry that dialogue was impossible. She told the grievor that the next time he met with her, he should be respectful. The grievor replied that she shouldn’t mistake passion for anger. Ms. Bauer did not accept that, as to her, the grievor was clearly angry.

18 Ms. Bauer said that the meeting had lasted 45 minutes to 1 hour and that after the grievor left her office, she was shaken. She testified that in her entire experience, she had never had that kind of a meeting with colleagues, subordinates or supervisors. It took her some time to settle down, after which she made some handwritten notes about the meeting (Exhibit E-2). Ms. Bauer said that the same day, she commented to a staff relations advisor that if the grievor had had a gun, he would have used it.

19 As to the matter of competencies referred to in the telephone message from the grievor, Ms. Bauer stated that the grievor had been waiting for an “Observe and Attest” for one and a half years and felt the delay was unfair. She said that she found it ironic that two of the competencies to be observed and attested to were effective interactive communication and conflict resolution. Ms. Bauer said that during the meeting, she hoped the grievor would see his own behaviour and told him that he was not behaving in a way that would demonstrate competencies. Ms. Bauer said that the “Observe and Attest” process was accurately summarized at paragraphs 26 to 29 of Bahniuk, 2009 PSLRB 141, except that by May 6, 2007, employees had to attest to six competencies. The relevant paragraphs of the decision read as follows:

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

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

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

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

20 Ms. Bauer explained that the grievor had different ways of attaining competencies. First, he could have applied for a voluntary process, a method chosen by many employees in the Calgary TSO. In that process, specially-trained competency consultants would assess examples provided by an employee. Alternatively, an employee could provide three examples of competencies he or she wished to be assessed on. Ms. Bauer testified that she felt that the grievor had the right to speak with his manager about O&A, and, as stated in her notes of the meeting (Exhibit E-2), she had advised the grievor that she would arrange to speak with the appropriate managers about the grievor’s O&A.

21 On May 15, 2008, Ms. Bauer held a fact-finding meeting concerning the incident of May 2, 2008. In addition to Ms. Bauer and the grievor, the meeting was attended by Grant Clozza, a labour relations advisor, and Lori Hall, a union representative, who attended via telephone.

22 Ms. Bauer said the grievor continued his accusatory tone. He was frustrated at the delay in being observed and attested and asked Ms. Bauer to review his past history, since that would justify his behaviour. Ms. Bauer stated that she wanted the grievor to let go of his pent-up frustration and rethink his methods of dealing with management, which required a change in his behaviour. When she asked him during the meeting whether once he had been observed and attested he would drop the matter, the grievor replied “No”. He said that he had a “moral obligation to pursue injustice.” Ms. Bauer said that it was well known the grievor “wanted to go before a judge” fuelled by his perception of management’s dishonesty and corruptness.

23 Following the meeting, the grievor left the room, leaving Ms. Bauer and Mr. Clozza. The grievor then reappeared, wishing to speak with Ms. Bauer. Mr. Clozza cautioned him about speaking to her without a union representative, but the grievor waived his right to union representation. The grievor then informed Ms. Bauer that he wished to apologize for his behaviour, an apology that Ms. Bauer accepted.

24 In considering a disciplinary penalty, Ms. Bauer consulted the Director and other managers and reviewed the CRA Code of Ethics and Conduct (Exhibit E-8) (the “Code”) and the Manager’s Charter (Exhibit E-9). She also consulted the grievor’s personnel file, as he had requested that she do. Ms. Bauer determined that misconduct had occurred and convened a disciplinary hearing, which took place on June 2, 2008. In attendance were the grievor, his union representative, Dianne Mongeon, Ms. Bauer and Mr. Clozza, who recorded notes of the meeting (Exhibit E-6). Ms. Bauer read the disciplinary letter (reproduced earlier in this decision) and asked the grievor whether he had any questions or new information he thought it important to share with her, to which he replied in the negative.

25 When asked why she had imposed discipline on the grievor when he had apologized, Ms. Bauer replied that while she considered his apology a mitigating factor, her belief was that managers serve as models to employees. She wanted to send a clear message to the grievor that he had to change his behaviour and assume responsibility. She stated that he never acknowledged that his behaviour needed to change, although she said that she had had meetings with the grievor that had gone well.

26 Ms. Bauer confirmed that the reference to previous discipline in the letter of discipline consisted of a written reprimand and a one-day suspension, the texts of both of which are found in Bahniuk, 2009 PSLRB 141. When asked which provisions of the Code she had relied on, she referred first to an extract from the introductory “Message from the Commissioner” which reads: “The Code reinforces our commitment to serve the public according to our corporate values ­­- integrity, professionalism, respect and cooperation – and to support a work environment in which people are respected.” She next referred to page 1 of the Code titled “Your Accountability as an Employee”, more particularly to the following extract:

It is your responsibility to become familiar with the contents of this booklet, to abide by the Code, and to conduct yourself in a manner that reflects the overall spirit of the Code and of the CRA values.

27 Ms. Bauer explained that new employees of the CRA review the Code with a team leader and then are sent an annual email reminder to review it. She said that the key factor in the grievor’s case was respect, in that he should have been respectful even if he experienced frustration. Concerning the value of professionalism, Ms. Bauer stated that it was expected that the grievor’s behaviour would align with the CRA’s organizational values. These elements had been brought to the grievor’s attention in the previous disciplinary actions.

28 Ms. Bauer next referred to section 4 of the Code, in which employees are advised that contravention of the Code may result in disciplinary action up to and including termination of employment.

29 Ms. Bauer stated that section 5 of the Code, titled “Leadership Role of Managers” was of particular significance, since managers must serve as role models for employees. That section reads in part as follows:

The personal example of all CRA managers, including team leaders, speaks louder than any written code.

As a manager, you are expected to demonstrate leadership in respecting the Code of Ethics and Conduct and its underlying policies and, in particular, to:

• provide effective, responsible and fair service;
• exemplify our corporate values of integrity, professionalism, respect, and co-operation;
• keep open, positive communications and working relationships;
• respect equity and diversity in all their dimensions; and
• recognize excellence, and encourage personal and professional development in a learning environment.

As a manager, you are a visible role model for the employees you supervise.

…

30 Ms. Bauer stated that in the letter of discipline she referred to the Manager’s Charter primarily because of the second bullet of that document, which provides as follows:

…

• Act according to our corporate values of integrity, professionalism, respect and cooperation;
  
  (demonstrate through words and actions the core values of the organization, and continually strive for congruence between individual behaviours at work and organizational values)

…

31 Ms. Bauer stated that her meeting with the grievor on May 2, 2008 was neither respectful nor professional. Rather, in her view, it was destructive and prevented her from discussing concerns with the grievor.

32 In assessing the disciplinary penalty to be imposed on the grievor, Ms. Bauer said she consulted the CRA’s Discipline Policy (Exhibit E-10), which sets out guidelines for determining whether misconduct has occurred and if so, the appropriate discipline to be imposed. Ms. Bauer stated that in the case of the grievor, the aggravating factor was his previous discipline for use of abusive language. In the CRA Discipline Policy, Table 1 of Appendix C is titled “Examples of Acts of Misconduct.” Section 4 of Table 1 is titled “Personal Misconduct,” a category of which is “Use of abusive language or profanity.” The disciplinary penalty for use of abusive language where there has been previous discipline is a suspension ranging from three to five days. Ms. Bauer stated that progressive discipline was important to her and she wanted to send a message to the grievor that his behaviour had to change. She said that because she felt that the grievor’s apology was genuine, she applied the minimum of the disciplinary range, i.e. a three-day suspension. She believed that up to that time, it was the only occasion on which the grievor had apologized to a manager.

33 Ms. Bauer outlined the occasions on which she had had dealings with the grievor before the meeting of May 2, 2008. In the early 1990’s, she was one of the facilitators at a team-building workshop attended by the grievor and his team and during which she assisted the grievor. In January 2008, at a meeting the Assistant Commissioner of the CRA held with team leaders of Revenue Collections and Call Centre, the grievor brought up an issue about a new computer system concerning the goods and services tax (GST). Ms. Bauer told the grievor she thought it was a good question and offered to assist him and his team in that regard. A few days later, the grievor asked Ms. Bauer to meet with his team, which she did, and found the team to be well prepared. She arranged a meeting for them with the appropriate officials.

34 In February 2008, the grievor approached Ms. Bauer and informed her he was being asked to assess a candidate in a selection process and was concerned that his words would be turned back on him. In his view, that meant that managers were incompetent. He also told Ms. Bauer that since, in his opinion, some of the individuals who had been successful in the selection process couldn’t do the job, then the managers involved in the process were incompetent. Ms. Bauer said that they discussed the grievor’s concerns openly.

35 In the same month of February 2008, the grievor asked Ms. Bauer if she was aware that he had approximately 50 grievances outstanding. When Ms. Bauer replied affirmatively, the grievor told her that the past was important to him. Ms. Bauer said that this was her first opportunity to discuss the past with the grievor and she asked him to rethink his communications with management. She told him that as he was still frustrated after filing 50 grievances, perhaps it was not the best method and suggested that an interest-based approach might be better. The grievor replied that filing grievances was his way. Ms. Bauer stated that the grievor was very familiar with the rights-based approach and she did not suggest another method to discourage him from filing grievances.

36 Ms. Bauer then asked the grievor whether he was satisfied with the resolution of the GST matter. While he replied in the affirmative, he said that management should have resolved the matter sooner. Ms. Bauer thought he was referring to his then section manager. Ms. Bauer felt that the grievor hadn’t learned. She said she couldn’t speak to whether managers should have done so, as she wasn’t in that division at the time. However, she was on the committee dealing with the matter and said there were attempts across the tax services offices to minimize problems.

37 In September 2008, Ms. Bauer had to quickly fill an acting section manager position. She informed team leaders of her plan and requested feedback. The grievor stated that he disagreed with Ms. Bauer’s business reasons and said they were arbitrary. She asked him if he was interested in the position, and told him she wouldn’t consider him for a section manager position until he ceased demonstrating contempt and disdain for managers. The grievor then said that an assistant director cannot impose personal values on employees. Ms. Bauer told the grievor she agreed, but that while at work, he must conform to organizational values.

38 Ms. Bauer then addressed her participation in the investigation into the harassment complaints filed by the grievor against her.

39 She stated that in September 2009, she received a telephone call from Randy Mattern informing her that the grievor had filed a harassment complaint against her and that he had been requested to conduct an investigation by Arlene White, the Assistant Commissioner, Regional Operations, Prairie Region. Although she had been retired since April 2009, Ms. Bauer agreed to participate in the investigation. Mr. Mattern conducted the interview with Ms. Bauer by telephone and recorded notes of the interview, which she read, approved and signed (Exhibit E-11). She testified that the notes accurately capture her discussion with Mr. Mattern.

40 Mr. Mattern informed Ms. Bauer of the first allegation against her set out in Exhibit E-11, which reads as follows:

…

Allegation #11

The quantum of discipline in the Letter of Discipline dated June 2, 2008 issued by Respondent Brenda Bauer, has caused a financial penalty, but also demonstrates actions against the Complainant that were vindictive, defamatory and malicious (Grievance #7004 4933).

…

41 Asked about her reaction, Ms. Bauer stated that she was torn between being dumbfounded and insulted. She expressed disappointment because she had hoped that the discipline she had imposed and her open discussion with the grievor would have resulted in his assuming responsibility for his own conduct.

42 Mr. Mattern then informed Ms. Bauer of the grievor’s second allegation against her, set out in Exhibit E-11, and which reads as follows:

…

Allegation #13

The Respondents … and Brenda Bauer have delayed delegating the Complainant the ability to Observe and Attest his employees and in doing so inhibited the Complainant from meeting performance expectations.

…

43 Ms. Bauer denied the allegation and stated that the grievor had himself acknowledged that she had resolved that matter. Ms. Bauer stated that never in her lengthy career had anyone accused her of harassment and that she had always conducted herself fairly and respectfully. In his investigation report to the Assistant Commissioner (Exhibit E-12), Mr. Mattern determined that the allegations made by the grievor against Ms. Bauer were unfounded. This was confirmed in a letter dated January 11, 2010 from the Assistant Commissioner to the grievor informing him of the results of the investigation into his harassment complaint (Exhibit E-19).

44 In cross-examination, Ms. Bauer acknowledged that during her meeting with the grievor on May 2, 2008, he did not make comments directed at the Canadian public or CRA customers. Rather, they were directed at other CRA employees and his then section manager. She further acknowledged that the grievor did not slam his hand on her desk, but pointed at her in a vigorous manner. Ms. Bauer also said that while the grievor didn’t utter threats, his demeanor was threatening. She stated that the grievor did not use profanity and that her tone was at all times respectful. She told the grievor to stop his behaviour because he was being disrespectful.

45 Asked whether she felt that having been involved in the incident, conducting the fact-finding and imposing discipline on the grievor put her in a situation of conflict of interest, Ms. Bauer replied that she had discussed the matter with the director of staff relations, who advised her that the Discipline Policy permitted her to conduct the fact-finding. She added that in the circumstances, it was appropriate for her to conduct the fact-finding.

46 Ms. Bauer was referred to section 2c on page 7 of the Discipline Policy titled “Employee Rights and Obligations”, the first sentence of which reads: “The employee being investigated is presumed innocent until misconduct has been established.” It was put to Ms. Bauer that she was shaken and upset after her meeting with the grievor and that she had told a manager in staff relations that if the grievor had had a gun, he would have used it. Ms. Bauer replied that she had told the other manager that if the grievor had had a gun, she wasn’t sure he wouldn’t have used it. She said that while the grievor did not mention a gun, it was her perception based on her observation of the grievor’s behaviour that he was a very angry person: his face was red, his eyes bulging, spit coming from his mouth and pointing his finger at her angrily while seated. She acknowledged that she didn’t notify police. Asked if the grievor was presumed innocent following her meeting with him, Ms. Bauer replied in the affirmative, stating that she had not established misconduct at that point.

47 Ms. Bauer was next referred to a sentence on page 1 of the Discipline Policy under the heading “Policy Statement”, which reads as follows: “The disciplinary measure must be objective, fair and timely, and take into consideration the severity of the misconduct, and any ‘mitigating’ and/or ‘aggravating circumstances’”. Asked whether she had a vested interest in the outcome of the incident, Ms. Bauer stated that her interest and her responsibility were to ensure a respectful workplace. Asked how she could remain objective, as she was involved in the incident, Ms. Bauer replied that in conducting the fact-finding, she asked the grievor for an explanation of his conduct; he did not deny his behaviour, and apologized for it. In imposing a disciplinary measure, she mitigated the quantum because of his apology.

48 Referring to the imposition of discipline on the grievor for use of abusive language, Ms. Bauer was asked where that phrase appeared in the letter of discipline. She replied that it was contained in the sentence, “I find that your conduct at the meeting on May 2, 2008 was unprofessional and disrespectful.” She said that that was the most appropriate category under Table 1 of Appendix C of the CRA Discipline Policy, as the grievor was yelling, pointing his finger at her, and accusing her of not holding managers accountable. She also considered his demeanour and the accusatory nature of his comments.

49 With respect to the harassment investigation, Ms. Bauer was referred to the CRA’s Code of Ethics and Conduct (Exhibit E-8), more particularly to section 3k) on page 13, titled “Harassment and Discrimination,” which reads in part as follows:

…

Every employee must be treated with respect and dignity. Harassment of another employee or lack of action by a responsible authority constitutes a disciplinary infraction…

…

50 Ms. Bauer acknowledged that an employee who feels harassed has a right to file a complaint. She further acknowledged that if a complaint of harassment is unfounded, it is not normal to discipline an employee for filing an unfounded complaint.

51 In re-examination, Ms. Bauer stated that she believed that she was able to conduct the fact-finding in this case because it was consistent with past practice and that it was not a particularly sensitive situation such as a complaint of harassment. She distinguished between fact-finding and investigation under the Discipline Policy, in that the former is conducted by a manager, while the latter is undertaken by the local director at the direction of the internal affairs unit.

52 With respect to the use of the abusive language category, Ms. Bauer stated that not every wrongdoing was captured in Table 1 of Appendix C of the Discipline Policy.

2. Testimony of Randy Mattern

53 The employer’s next witness was Mr. Mattern, who conducted the investigation into the grievor’s harassment complaint. Mr. Mattern stated that he was a retired public servant who had been employed in the human resources section of the CRA from 1986 to 2005, but had never worked in the Calgary TSO. Since his retirement, he had conducted more than 100 investigations into complaints of harassment. He was appointed by Ms. White to investigate a complaint filed by the grievor. His final investigation report dated December 29, 2009 (Exhibit E-12) includes his letter of appointment dated July 30, 2009 (Exhibit E-12, Attachment 2) which sets out a statement of the grievor’s 13 allegations arising out of grievance issues he had concerning 7 CRA managers. In his final report to Ms. White dated December 29, 2009, Mr. Mattern determined that none of the grievor’s allegations of harassment was founded. For the purposes of this decision, it is not necessary to set out the details of the methodology of Mr. Mattern’s investigation. Suffice it to say that the evidence disclosed it was conducted in a fair and impartial manner, with the grievor and each of the respondents given ample opportunity to submit documentary evidence and comments to Mr. Mattern before the issuance of his final report.

54 Mr. Mattern stated that the grievor never provided him with documentary evidence and also refused to review and sign the statement he gave to Mr. Mattern. Asked how unusual it was for a complainant to refuse to review an interview statement, Mr. Mattern replied that in his experience, it had occurred on only one other occasion.

3. Testimony of Arlene White

55 Arlene White was Assistant Commissioner, Regional Operations for the CRA Prairie Region, which includes Manitoba, Saskatchewan, Alberta and the Northwest Territories. Her office was located in Winnipeg and she occupied that position from April 2008 to August 2010.

56 Ms. White indicated that the grievor had filed a harassment complaint on February 14, 2007 (Exhibit E-12, Attachment 1), prior to her arrival in the position of Assistant Commissioner, Prairie Region. As she had noted that in his complaint, the grievor referred to other allegations, she requested that the human resources department consolidate all of the allegations in order to arrive at a resolution. She explained that while the grievance process is provided for in the collective agreement, at the CRA, there is only one resolution process for issues of harassment if both a harassment complaint and a grievance are filed concerning the same matter.

57 Ms. White stated that the grievor’s initial complaint was lacking in detail and that in order to accept a complaint for investigation, the complaint must be complete. After retaining the services of the investigator, she was informed that the grievor was eager to move forward even though he had some 55 issues outstanding. Ms. White stated that the 13 grievances outstanding at various levels formed part of the complaint because they were the most significant issues.

58 When asked why she retained an external investigator, Ms. White stated that while the internal investigators were well-trained, in this instance, because complaints were filed against managers and directors, she felt it important to involve an external investigator. When questioned as to why she retained Mr. Mattern, Ms. White replied that her office maintained a roster of external investigators who were generally retained on a rotational basis. She said that she had known Mr. Mattern when he was a Canada Customs employee, that he was a human resources specialist and a trained professional. She stated that Mr. Mattern’s services had often been used for CRA investigations and he had demonstrated fairness and impartiality and was good at his job. When asked about the level of consultation with a complainant concerning the selection of an investigator, Ms. White stated that she had the authority to conduct the investigation as she deemed appropriate, which did not include consultation with a complainant for that purpose.

59 Ms. White stated that she thoroughly reviewed both the draft and final investigation reports submitted by Mr. Mattern and that there was nothing in the report to found the grievor’s 13 allegations.

60 Ms. White expressed disappointment in the grievor’s lack of cooperation with the investigator and so advised him as follows in a letter to the grievor dated January 11, 2010 informing him of the results of the investigation (Exhibit E-19):

…

This investigation was your opportunity to provide information and evidence to an external investigator to support your allegations. During this investigation you have declined to review, validate or sign your interview statement; thereby limiting your cooperation to participating in the interview. Additionally, when presented with the information that the Investigator did not have a copy of your interview statement, you refused to provide a copy. Consequently, the investigation and subsequent determinations were completed based on the information from the witnesses and the respondents as well as information from the grievances. Your lack of full cooperation in the completion of this investigation is disappointing to me.

…

61 Ms. White acknowledged that an employee would not be disciplined for filing an unfounded harassment complaint. She referred to the employer’s Preventing and Resolving Harassment policy (Exhibit E-20), of which Appendix B of the Guidelines is titled “Rights, Obligations and Responsibilities.” Section 2 of Appendix B dealing with employees’ rights provides, among other things, the following: “To come forward in good faith to express a harassment concern without fear of reprisals.” Ms. White stated that the employee must not feel intimidated in filing a harassment complaint and that the phrase “… come forward in good faith …” was to ensure that complaints of harassment are serious and not to be initiated frivolously.

62 Ms. White referred to section 3 of Appendix B titled “Complainants’, Respondents’ And Witnesses’ Rights and Obligations”, more particularly to the section dealing with the complainants’ obligations, which provides as follows:

…

• To substantiate the written complaint with details supporting the allegation, e.g. nature of incident(s), dates, times and witnesses
• To cooperate in the complaint resolution process, e.g. provide information within prescribed timeframes

…

63 Ms. White stated that she felt that the employer had entered into a good faith agreement with the grievor to investigate his allegations, which the grievor did not uphold. She had expected him, as a manager, to cooperate with the investigation. She referred to the Preventing and Resolving Harassment policy, which stipulates that managers must lead by example. Section 4 of Appendix B titled “Manager’s Responsibilities” provides:

Managers are expected to create and sustain a respectful work environment by:

• Exemplifying CCRA Values, the CCRA Code of Ethics and Conduct and the managerial competencies of “Conflict Management” …

64 Section 2 of Appendix C of the Guidelines, titled “Management Leadership” provides:

Managers are expected to lead by example and exhibit respectful behaviour, to support CCRA Values, to create a respectful work environment and to prevent conflicts and harassment through their own personal conduct by:

…

65 Ms. White was shown a fax sent by the grievor to Mr. Mattern on October 23, 2009 (Exhibit E-18) which contained the following:

…

The complainant won’t sign the document because the allegations were restricted and controlled by the Assistant Commissioner and is not representative of the scope of the harassment. Furthermore the Assistant Commissioner also selected the investigator without any input from the complainant and the complainant, through discussion with the investigator, has concluded that the investigator has had close working relationships with many of the parties mentioned in the complaints. In the eyes of the complainant this represents a conflict of interest. The complainant suspects the investigation is an attempt by the Assistant Commissioner to appear to meet the due diligence of the position. Therefore the complainant will not validate the legitimacy of this process.

…

66 Ms. White reacted with evident shock and surprise, saying it was the first time this document had been brought to her attention. She stated that she had no obligation to consult the grievor on the selection of an investigator and she found most disturbing the allegation that the investigation was nothing more than an attempt by her to show due diligence, as it called her integrity into question.

67 Asked for her reaction if the grievor were reinstated, Ms. White replied that having reviewed his file, it was evident that the grievor didn’t want to work in the CRA, that he alleged that the Agency and its senior managers were corrupt. She added that the grievor didn’t exhibit the values of the CRA and that she would never hire him.

68 In cross-examination, Ms. White stated that she didn’t recall having met the grievor previously, except during a grievance hearing conducted by telephone conference.

69 Asked about the process for resolution of a harassment complaint where a grievance has been filed, Ms. White reiterated that there cannot be two processes. In this regard, she referred to page 2 of the Preventing and Resolving Harassment policy under the heading “Fair, Timely Redress Process”, which provides as follows:

…

If both a harassment complaint and a grievance are filed on substantially the same matter, and both meet the acceptance criteria, the delegated manager will ensure that one review or one investigation only is undertaken, as described in this policy and guidelines, as the basis for deciding whether harassment has occurred.

Similarly, if only a grievance is filed, the complaint and investigation procedures provided for in this policy should be followed. (Note: The grievance procedures provided for in the collective agreement must be respected.)

[Emphasis in original]

70 Ms. White stated that it is CRA policy not to discipline a complainant even if the complaint is unfounded.

4. Testimony of Terry Harder

71 Terry Harder was Assistant Director, Revenue Collections and Client Services in the Calgary TSO since March 30, 2009. As such, he was responsible for approximately 300 employees. He had previously held assistant director positions since 2002 in the enforcement and collections divisions of CRA. His previous experience included acting as an investigator involved in complex criminal investigations of income tax, excise tax and Criminal Code of Canada matters. He was a trainer of CRA investigators and designed large portions of the training course. He stated that complete and accurate note-taking was an essential skill for investigators, as they are often used by prosecutors, defence counsel or as the basis for affidavits. Before April 2009, he had had limited contact with the grievor and had not been involved in issues concerning grievances filed by the grievor.

72 Mr. Harder reviewed certain aspects of the work description for the Team Leader, Revenue Collections (Exhibit E-24), the position held by the grievor. Mr. Harder stated that team leaders play an important role in allowing the assistant director to achieve his or her goals. As front-line managers, they are the conduit through which Mr. Harder hears about employee concerns and are involved in planning at the section level and, to a lesser extent, at the assistant director level. Mr. Harder said that he relied on team leaders to provide advice on files that required his approval.

73 Mr. Harder pointed to certain aspects of the team leader’s work description. In the section dealing with key activities, it is stated that the incumbent provides advice to senior managers and “communicates and promotes CRA mandate, vision and corporate values to internal stakeholders and taxpayers.” Mr. Harder stated that the phrase “internal stakeholders” included his office and that of the director, among others. The section of the work description titled “Work Characteristics” under the heading of “Responsibility” contains several references to the requirement for team leaders to prepare and provide information to senior management. In the section titled “Contextual Knowledge”, the incumbent is required, among other things, to have knowledge of the CRA values, mission and mandate and to promote CRA values in the work environment.

74 Mr. Harder stated that his first exchange of significance with the grievor occurred at a meeting on October 2, 2009, concerning which Mr. Harder recorded notes (Exhibit E-25). He invited the grievor to his office to deal with a complex human resources issue which involved a member of the grievor’s team and to provide information to assist Mr. Harder in determining what had occurred. A staff relations advisor was also in attendance. About three-quarters of the way through the meeting, Mr. Harder discussed the importance of maintaining a respectful workplace and his expectation that all team leaders would take a role in preventing inappropriate behaviour. He directed the grievor not to allow unprofessional conduct to occur and to put a stop to any such activity, should he observe it.

75 Mr. Harder said that this caused the grievor distress, as he felt it wasn’t his job to “police the organization.” Mr. Harder directed the grievor to the CRA harassment policy and asked him to read the managers’ responsibilities in that regard. Mr. Harder stated that the grievor’s behaviour caused him concern, as what should have been a simple request turned into an order. The grievor was unwilling to comply with the request and questioned whether the division adhered to the harassment policy. Mr. Harder said the grievor referred to his own harassment issues, but was told by Mr. Harder that he was not prepared to deal with his past harassment complaints. Mr. Harder told the grievor he would deal with any of the grievor’s concerns about his actions after the meeting, to which the grievor replied that he had none. Mr. Harder said that he was aware that an investigation was being conducted into the grievor’s harassment complaints, but not of any of the details. His concern was dealing with inappropriate behaviour in the division, and he needed the grievor to move forward to the present situation. The grievor told Mr. Harder that the harassment investigation “was nothing”, meaning that he didn’t believe it was proper that it was conducted by an external consultant retained by CRA.

76 Mr. Harder stated that between October 2 and November 19, 2009, the grievor never approached him to express concerns about him.

77 Mr. Harder’s next exchange with the grievor was on November 19, 2009. He had received a file update from an employee and her team leader, Lynn Nelson, and was returning to his office with Ms. Nelson when the grievor approached him and wished to discuss a file which had recently been transferred to his team from that of Ms. Nelson. The matter involved a letter, which had previously been signed by Mr. Harder authorizing the seizure and sale of certain assets. Mr. Harder invited the grievor and Ms. Nelson into his office to discuss the matter. Mr. Harder pointed out that Ms. Nelson reported to section manager Rosemary Moore, but on that day was acting in Ms. Moore’s position.

78 At the meeting of November 19, 2009, which began at 11:00 a.m. and for which Mr. Harder recorded notes (Exhibit E-26), he requested a synopsis of the file, which was provided by Ms. Nelson, as Mr. Harder testified he had great difficulty in obtaining the information from the grievor. Mr. Harder directed the grievor, Ms. Nelson and Ms. Moore to meet the next day to determine a correct course of action in the matter and to provide Mr. Harder with their recommendations. The grievor then told Mr. Harder that since he had signed the letter, it was his responsibility to provide direction on how to proceed in the matter. Mr. Harder responded that both the grievor and Ms. Nelson each had more than 20 years’ experience in collections and added that as he had assumed his position only six months earlier, he couldn’t go through all of the details when he had capable people before him who could do so. Mr. Harder informed the grievor that he was delegating upwards. Mr. Harder repeated his directive and the grievor said that as Ms. Nelson was acting for Ms. Moore, they did not have to await the latter’s return the next day, and he and Ms. Nelson could meet that day to review the file. When Mr. Harder agreed, the grievor indicated that this was not acceptable to him, despite the fact that he himself had just suggested it. Mr. Harder then reiterated his initial directive that the grievor should meet with Ms. Nelson and Ms. Moore the next day.

79 At that point in the discussion, the grievor wanted to raise the issue of problems related to the transfer of files from one team to another. Mr. Harder replied that he would deal with that issue later, but first wanted to ensure that the grievor was clear on the action to be taken. Mr. Harder testified that it was evident to him that the grievor did not want to comply with his request, as he kept asking Mr. Harder to provide the next steps to be taken. Mr. Harder then made his direction to the grievor a direct order, using the following words: “I am giving you a direct order to meet with Lynn and Rosemary to review this case and to determine the correct course of action and to provide me with a recommendation.” Mr. Harder stated that the grievor’s behaviour during the meeting was agitated, citing his tone of voice and his fidgeting with papers. Mr. Harder said that in his experience, he had never had to order a team leader to meet with their immediate supervisor.

80 Mr. Harder then invited the grievor to a meeting together with Ms. Moore to discuss his concerns with file transfers. The grievor replied that he would not meet with Mr. Harder. When asked why, he told Mr. Harder that it was personal. Mr. Harder was surprised and did not understand the grievor’s comment, as his only previous interaction with the grievor was at the meeting of October 2, 2009. At that meeting, when Mr. Harder had asked the grievor if he had any concerns, he had replied in the negative. Mr. Harder then stopped the meeting of November 19, 2009 and informed the grievor that he wanted to have a witness in attendance before proceeding. The grievor then requested a witness and Mr. Harder agreed. As Mr. Harder did not wish to put Ms. Nelson, a peer of the grievor, in the position of a witness, he excused her. Ms. Nelson recorded notes of the portion of the meeting that she attended, which she provided to Mr. Harder the same day (Exhibit E-28), as well an additional memorandum to Mr. Harder dated November 23, 2009 concerning the grievor’s actions during the meeting (Exhibit E-29).

81 Asked about the impact of the grievor’s refusal to meet with him about his duties as team leader, Mr. Harder said that it would inhibit communications, prevent him from receiving advice on files and ultimately leave the grievor’s team alienated.

82 Mr. Harder requested that Margaret Belot, a section manager, act as a witness. The grievor’s witness was Michael Ell, a union representative. Mr. Harder’s reason for requiring a witness was to ensure there was a record of what was occurring. He also recorded his own notes of the meeting (Exhibit E-27). Mr. Harder began the meeting at approximately 11:30 a.m. by summarizing what had transpired thus far and his direct order to the grievor. At that point the grievor interrupted, but Mr. Harder requested that he stop, telling him he wished to have a respectful meeting. When the grievor repeatedly objected to the use by Mr. Harder of the word “correct” in the context of his order to determine a “correct course of action”, Mr. Harder changed the phrase to “recommended course of action.”

83 Mr. Harder then summarized his invitation to the grievor to meet with him and Rosemary Moore to discuss the concerns raised by the grievor about file allocation. He stated that the grievor had refused to meet with him for personal reasons and asked the grievor to confirm this, which he did. Mr. Harder then reiterated his request that the grievor meet with him and Ms. Moore concerning file allocation, and the grievor again refused. Mr. Harder told the grievor he was part of the management team and that required that he meet with his assistant director to discuss his concerns and suggestions. Mr. Harder stated that he thought this was an opportunity to engage with the grievor and never imagined it would become a refusal to meet with him. When the grievor was asked by Mr. Harder what he had done to cause the grievor to refuse to meet with him, the grievor replied that Mr. Harder had given him a previous direct order. Mr. Harder stated that the grievor was referring to the meeting of October 2, 2009, during which Mr. Harder had directed the grievor to put a stop to any unprofessional conduct he might observe in the workplace.

84 The grievor then informed Mr. Harder that he would attend the meeting as directed, but would not participate. Mr. Harder said he was surprised by this and told the grievor that was unacceptable, as he needed the team leaders to engage with him and this could not be accomplished by attending a meeting and refusing to participate in the discussion. When the grievor did not accept this, Mr. Harder terminated the meeting and told the grievor their next meeting would be for fact-finding.

85  Mr. Harder stated that he had no choice but to move to a fact-finding phase, as the grievor refused to follow a direct order. Mr. Harder said that his initial request had simply been an invitation to the grievor to attend a meeting to express his concerns. He found the grievor to be combative and angry in his interaction, and he could not persuade the grievor to move from his position. Mr. Harder stated that refusals by team leaders to meet with their assistant director would render the division ineffective.

86 When Mr. Harder learned that the grievor had filed a harassment grievance against him for alleged inappropriate behaviour the same day (Exhibit E-54), he was shocked and hurt. It is this grievance which was withdrawn from adjudication, as mentioned earlier in paragraph 10. He said that since his appointment, he had worked diligently to build a respectful workplace. He advised his supervisor, Rick Leigh, of the allegation, as well as the workplace relations group in the regional office located in Winnipeg.

87 Mr. Harder stated that the fact-finding meeting, the purpose of which is to assess whether discipline is warranted, was held on November 20, 2009. In addition to the grievor and Mr. Harder, Wally Fandrich, the grievor’s union representative, and Cheryl Robrick, a representative from human resources, were also in attendance. Mr. Harder recorded notes of the meeting (Exhibit E-31).

88 Mr. Harder said that during the meeting he attempted to understand why the grievor did not comply with the orders he was given. Mr. Harder testified that, ultimately, the grievor did meet with Ms. Moore and Ms. Nelson on November 20, 2009, although he had never provided an explanation for his initial refusal to do so. Further, he never complied with the order to meet with Ms. Moore and Mr. Harder concerning the allocation of files. Mr. Harder said that neither during the fact-finding nor at any other time did the grievor provide an explanation as to why he would not attend this meeting, other than that Mr. Harder had given him an order on October 2, 2009. He added that the grievor never apologized for his behaviour nor gave any indication that his behaviour was inappropriate.

89 Mr. Harder stated that during the meeting, the grievor returned to the issue of a “correct” versus a “recommended” course of action. The grievor also said that his attendance at a meeting to discuss file allocation would serve little purpose, since Mr. Harder would not give the matter the credence it deserved. Mr. Harder stated that if that were the case, he would not have invited the grievor, or for that matter, any team leader, to the meeting.

90 Mr. Harder said that as he had heard nothing during the fact-finding meeting that would preclude a disciplinary action, he scheduled a disciplinary hearing for the grievor. Mr. Harder stated that the grievor could have avoided the imposition of discipline had he said that his issues with Mr. Harder were the result of a misunderstanding or had he shown any recognition that they could move forward in their relationship.

91 The disciplinary hearing took place on November 24, 2009 attended by the grievor, his union representative, Mr. Fandrich, Mr. Harder and Ms. Moore. Mr. Harder recorded notes of the meeting (Exhibit E-32). Mr. Harder stated that during the meeting the grievor was confrontational and hostile, at times exhibiting signs of agitation. Mr. Harder’s notes recorded the grievor’s statement that he had not felt it in his best interests to meet with him and Ms. Moore concerning file allocation. Mr. Harder stated that since the grievor had not made him aware of any mitigating circumstances in relation to his conduct, the grievor was placed on indefinite administrative suspension without pay pending investigation and during this time was not to appear on CRA premises (Exhibit E-33).

92 Mr. Harder stated that management would investigate both the grievor’s insubordination and his allegation of harassment against him. He said that the determination in respect of the harassment allegation would be made by Ms. White or her delegate, whom he believed was Rick Leigh. Mr. Harder said the investigation involved several telephone discussions between him, workplace relations and Mr. Leigh, as there hadn’t been a determination as to an appropriate disciplinary penalty in respect of the workplace harassment complaint. By letter dated November 30, 2009, signed by Mr. Leigh (Exhibit E-34), the grievor was convened to a meeting on December 2, 2009 concerning the incident of November 19, 2009. In attendance were the grievor, his union representative, Danial Curotte, Mr. Leigh, Mr. Harder, and Jon Lavkulich, a workplace relations officer in the Calgary TSO. Mr. Harder recorded notes of the meeting (Exhibit E-35).

93 Mr. Harder stated that the meeting lasted two hours and both the grievor and his representative were given the opportunity to provide mitigating circumstances for the grievor’s behaviour on November 19, 2009, but failed to do so. He said that the grievor never apologized for accusing him of harassment.

94  The grievor was then convened to a disciplinary hearing on December 10, 2009. In attendance were the same individuals as at the previous meeting, except that the grievor’s union representative was Greg Randall. At this meeting, the grievor was handed a disciplinary letter bearing the same date and signed by Mr. Leigh, imposing a 10-day suspension for insubordination and a 20-day suspension for inappropriate use of the employer’s Preventing and Resolving Harassment policy (Exhibit G-2). The letter reads as follows:

…

This letter is further to the disciplinary meeting held with you and your union representative on November 24, 2009, with the Assistant Director, Revenue Collections, to discuss your misconduct of failure to acknowledge a direct order, refusal to follow a direct order, insubordinate behaviour and unprofessional conduct on November 19, 2009. Also, this letter is further to the disciplinary meeting held with you and your union representative on December 2, 2009 with me to discuss your further misconduct of making a malicious complaint in bad faith against the Assistant Director, Revenue Collections.

On November 19, 2009, you raised two issues of concern with the Assistant Director, Revenue Collections, and in your discussion it became evident that you were not going to assist in the review and identification of corrective measures. As a result, the Assistant Director ordered you, several times, to obey his request. The Assistant Director then closed discussion on this matter by clearly instructing you to meet with your Manager and colleague team leader to resolve outstanding issues on the file. While I do acknowledge that you did meet with your Manager and colleague the following day, on November 20, 2009, you did not give any indication to the Assistant Director that you were prepared to do so. Your repeated refusal to acknowledge these requests is a demonstration of a lack of respect, professionalism and cooperation and in contravention of the Agency’s core values.

During this same meeting, the Assistant Director then invited you to meet with him and your Manager on the second issue of concern. You refused to meet with him for personal reasons. The Assistant Director informed you that he would like to get a witness before continuing the conversation and you also requested to have a witness present. The meeting was reconvened with the two witnesses present, one of which was your UTE representative, and the Assistant Director ordered you more than once to meet with him and the Manager on this second issue. You initially refused to meet, citing personal reasons. However you eventually agreed to meet but refused to participate. The Assistant Director then ordered you to meet and participate as part of your obligation as a member of the management team of the Division and you again refused to meet.

I have determined that the orders were clear and that you understood the requests and chose to disobey. Consequently, I find that your repeated refusals to participate in activities directly linked to your role in Revenue Collections, as a member of the management team, to be blatant acts of insubordination, demonstrating lack of respect, professionalism and cooperation.

Also November 19, 2009, in response to his directions for you to participate meaningfully in the review, you filed a grievance alleging harassing behaviour by him. A fact-finding, completed on behalf of the Assistant Commissioner, was conducted into this matter. The fact-finding has confirmed that the Assistant Director, Revenue Collections was professional at all times. Accordingly, your grievance alleging harassment by the Assistant Director, Revenue Collections is without merit and inappropriate. The CRA’s Preventing and Resolving Harassment Policy stipulates that complaints must be made in good faith and that an employee who makes a malicious complaint may be subject to disciplinary measures.

The Canada Revenue Agency (CRA) has clear, defined organizational values: integrity, professionalism, respect and cooperation, which are described in the CRA’s Code of Ethics and Conduct. In your position as a Team Leader, you have been made aware of these organizational values and of your responsibility to demonstrate leadership through actions that reflect adherence to these values. This is communicated in both the CRA’s Code of Ethics and Conduct and in the Manager’s Charter, obligating managers to exemplify our corporate values of integrity, professionalism, respect and cooperation and to keep open, positive communications and working relationships. As such, I have concluded that you have utilized the Agency’s Policy inappropriately in an attempt to prevent management from providing you with further direction and addressing your lack of respect, professionalism, cooperation and integrity.

In determining the appropriate discipline, I have considered the information you have provided as well as your years of service; your position as a Team Leader; and your knowledge of the CRA Code of Ethics and Conduct and the underlying policies. I have also considered the previous disciplinary actions that have been imposed upon you as a result of behaviour determined to be uncooperative, disrespectful, unprofessional and lacking of integrity. Accordingly, I find that you were fully aware that your actions were in violation of the Code and of the CRA’s Preventing and Resolving Harassment Policy.

To impress upon you the seriousness of your actions, and in keeping with the principles on progressive discipline, by the authority granted to me under Section 51.1(f) [sic] of the Canada Revenue Agency Act, it is my decision to issue a (10) ten-day suspension for your insubordinate behaviour of November 19, 2009, and a (20) twenty-day suspension for your inappropriate use of the CRA’s Preventing and Resolving Harassment Policy. These suspensions will be served consecutively and are to be in effect from November 24, 2009 and conclude at the end of the work day, January 4, 2010. During this period you are not to appear on Agency premises …

In the future, you must ensure that you adhere to the CRA Code of Ethics and Conduct and its underlying policies. Additional incidents of misconduct will result in increasingly severe disciplinary action, up to and including termination of your employment.

…

95 By letter dated January 11, 2010, Mr. Leigh convened the grievor to a meeting on January 18, 2010 with him and Mr. Harder for the purpose of discussing his ongoing working relationships (Exhibit E-38).

96 Attending the meeting of January 18, 2010 were Messrs. Leigh, Harder, Lavkulich, the grievor and Mr. Curotte, his union representative. Mr. Harder recorded notes of the meeting (Exhibit E-37), which ran from 9:00 a.m. to 3:40 p.m., including approximately 2.5 hours of breaks taken at various times.

97 Mr. Harder stated that Mr. Leigh explained that the purpose of the meeting was to explore the grievor’s willingness to build a working relationship with senior management, including his assistant director, and modify his pattern of behaviour concerning allegations against others. Mr. Harder said that the grievor did not provide clear answers on how he would improve his working relationships.

98 Mr. Harder stated that the grievor acknowledged that the working relationship was broken and said he was open to change, but within the restrictions of his own values. When the possibility of mediation was raised by Mr. Leigh, the grievor stated he was open to the idea, but that some of his grievances would have to be excluded from that process and subject to review by his legal counsel. Mr. Harder said that the grievor’s position in this regard was not an issue for him and Mr. Leigh, as they were concerned with whether the working relationship could be improved.

99 The grievor also stated that in future meetings with Mr. Harder, he would require the presence of a union representative until such time as he felt that trust had been built between him and Mr. Harder. The grievor added that he saw no need to interact on a regular basis with the assistant director. Mr. Harder stated that the grievor’s position would make his management of the division extremely difficult, as every discussion would be formal and time-consuming. He added that as assistant director, he regularly interacts with team leaders to discuss various files.

100 Mr. Harder stated that the grievor disagreed that he had been disrespectful to Ms. Bauer and to him and believed he had been respectful to senior management. At one point during the meeting, the grievor accused Mr. Harder of misrepresenting the earlier interactions between them, and stated that the notes recorded by Mr. Harder on those occasions concerning statements made by the grievor were inaccurate. Mr. Harder asked the grievor if he was accusing him of lying, to which the grievor did not respond. Both Mr. Lavkulich and Mr. Curotte confirmed that Mr. Harder’s notes of their prior meetings were accurate.

101 Later that afternoon, the meeting reconvened. Mr. Leigh stated that he required more time to make a final decision concerning the future of the relationship and placed the grievor on paid leave until the meeting would reconvene on January 22, 2010.

102 Mr. Harder stated that at this point the grievor became very angry and verbally attacked him, accusing him of wrongdoing and alleging that he had unfairly treated the grievor. Although he was not yelling, his tone was harsh. Mr. Harder said that he was shaken by this and that it was for this reason that his notes regarding the rest of the meeting were somewhat incomplete.

103 The meeting on January 22, 2010 was attended by the grievor, two union representatives, Wally Fandrich and Greg Randall, and Messrs. Leigh, Harder and Lavkulich. Mr. Harder took notes of the meeting (Exhibit E-39). The grievor was handed a letter of termination of employment signed by Rick Leigh (Exhibit G-3), which reads as follows:

…

I have carefully reviewed the circumstances that have led to the deteriorated working relationship between yourself and senior management; the steps taken to foster a productive and positive relationship, the progressive disciplinary measures imposed to correct your behaviour and our meeting of January 18, 2010.

In determining the viability of achieving a productive and positive working relationship with senior management, I have considered that the Canada Revenue Agency (CRA) has clear, defined organizational values which are described in the CRA’s Code of Ethics and Conduct – integrity, professionalism, respect and co-operation. In your position as a Team Leader, you have been made aware of these organizational values and of your responsibility to demonstrate leadership through actions that reflect adherence to these values. This is communicated in both the CRA’s Code of Ethics and Conduct and in the Manager’s Charter, requiring managers to exemplify the corporate values of integrity, professionalism, respect and cooperation and to keep open, positive communications and working relationships.

Since 2002, you have communicated your lack of trust in management and challenged management’s decisions in a manner that is disrespectful and unprofessional. Management’s attempts to address this behaviour resulted in unsubstantiated allegations of harassment and discrimination against senior managers.

Although management continued their attempts to build a productive relationship, the number of issues you presented continued to escalate and the nature and tone of statements indicated increasing resentment towards senior management since 2004. As a management representative, this situation was untenable; therefore, I once again met with you and your manager in the interests of engaging you in the process of laying a foundation on which we could rebuild the relationship in 2006. We again attempted to clarify what was preventing a constructive and productive working relationship between you and senior management. In response, you stated that it was your belief that you had been above board in establishing working relations throughout your career and that you would continue to work accordingly for the CRA. Your response demonstrated a lack of understanding and acknowledgement that your confrontational approach when disagreeing with management decisions was unacceptable, particularly for a management representative, and was responsible for the deteriorating relationship.

Discipline was imposed in an attempt to correct your inappropriate behaviour. In this regard, you received a one-day suspension in April 2006 for inappropriate behaviour; a written reprimand in January 2007 for insubordination and inappropriate behaviour; a one-day suspension in April 2007 for insubordination; a three-day suspension in June 2008 for disrespectful and unprofessional behaviour directed at management and suspensions of 10 and 20 days in November 2009 for insubordination and your inappropriate use of the CRA’s Preventing and Resolving Harassment Policy.

In July 2009, the Assistant Commissioner, Prairie Region, recognized the need for a review of your continuing allegations of harassment and discrimination against management by an independent third party. An external investigator was appointed to examine your continuing allegations. The investigator’s report was provided to the Assistant Commissioner on December 29, 2009. Based upon the external investigator’s report, the Assistant Commissioner determined that all allegations were unfounded. She also noted, based on the comments in the investigator’s report, that you had failed to participate meaningfully in the investigation process, as you declined to provide evidence or substantive comment despite ample opportunity to do so.

It is evident that management has made every effort to work with you through the appropriate available avenues. Management has clearly articulated to you the need to adhere to the Agency values in all workplace interactions. We have attempted to build trust in the relationship through informal conflict resolution processes, but you have declined to acknowledge your role and responsibility in addressing and resolving the issues. We have also endeavoured to correct your behaviour through disciplinary measures in keeping with the principles of progressive discipline. However, you continue to believe it is your prerogative to challenge management in a manner that has been identified as disrespectful, unprofessional, uncooperative and which amounts to gross insubordination. This is further aggravated by allegations of harassment that are unsupported by any corroborating evidence. Your behaviour and actions have critically damaged your relationship with senior management and demonstrate that you do not possess the level of integrity, professionalism, respect and co-operation that is inherent with the duties and responsibilities of a management representative. This ongoing lack of integrity, professionalism, respect and cooperation that is inherent with the duties of a management representative goes directly to the core of the employment relationship, and has rendered it unviable, without change.

On January 18, 2010, the Assistant Director and I met with you to once again explore whether we could rebuild this relationship and reach a common understanding of respectful workplace behaviour in keeping with the Agency’s values. Several hours of dialogue failed to produce any constructive results. You are unwilling to acknowledge that your behaviour demonstrates a lack of adherence to the CRA’s values, and in fact stated that our values may be different from those of management. You also gave no indication that there was a need to change your behaviour. It continues to be your belief that management does not deal with you in good faith. Through your statements, actions and complaints, it is evident that you have no interest in pursuing a respectful, cooperative and professional relationship with management representatives, preventing any opportunity of improving this relationship in the foreseeable future.

Accordingly, it is necessary to consider whether to continue with the employment relationship in the current situation or whether there are alternatives which will be effective in changing the behaviours which we have clearly identified to you are unacceptable. In this regard, it is my judgment that based upon the deterioration and total absence of trust in the relationship further disciplinary or other measures would be counterproductive and only serve to intensify your perception that management deals with you in bad faith, further frustrating the employment relationship.

Therefore, I have concluded that the relationship and trust between yourself and the CRA has been irreparably damaged. In making my decision, I have considered your years of service and the significant negative impact this damaged relationship has had on the well-being of the management team in the workplace. Failure to conclusively resolve this situation would only result in continued conflict and discord, further deteriorating the health and safety of the workplace.

In view of the foregoing and by the authority granted to me under Subsection 51.1(f) of the Canada Revenue Agency Act, it is my decision to terminate your employment with the Canada Revenue Agency effective the end of the work day, January 22, 2010.

…

[sic throughout]

104 Asked for his reaction if the grievor were to be reinstated to his employment, Mr. Harder replied that based on past experience, it would be just a matter of time until another incident would occur. Mr. Harder stated that, although he had only very limited interaction with the grievor, the latter refused to meet with him. He said that the grievor gave no indication in subsequent meetings that anything would change or that he was open to change.

105 In cross-examination, Mr. Harder was first referred to a performance assessment of the grievor for the period April 1, 2007 to March 31, 2008 by his then supervisor, David Mapplebeck (Exhibit E-12, Attachment 13), which states that the grievor worked respectfully and cooperatively with his manager, and that where he held a different opinion from his manager, he did so respectfully. Mr. Harder replied that he couldn’t comment on the assessment and that his experience with the grievor on two occasions was different than what was outlined in the assessment.

106 Asked about his note-taking, Mr. Harder said he considered his notes accurate and complete. He was then pointed to Exhibit E-28 written by Ms. Nelson, in which she records Mr. Harder’s order to the grievor to meet with her and Ms. Moore as follows: “You will meet with Lynn and Rosemary on this account in the morning. Do you understand? Stan responded yes.” Mr. Harder was then referred to Exhibit E-26, his notes of the meeting, where it is stated that the grievor did not acknowledge his order. When it was put to Mr. Harder that his notes contradicted those of Ms. Nelson on that point, he acknowledged that while his notes didn’t indicate that the grievor had said “Yes”, there was never any indication by the grievor that such a meeting would occur, even though he had made several requests in that regard. Mr. Harder stated that that was reflected in the second paragraph of the letter of discipline imposing 10 and 20-day suspensions on the grievor (Exhibit G-2), where it is stated:

While I do acknowledge that you did meet with your Manager and colleague the following day, on November 20, 2009, you did not give any indication to the Assistant Director that you were prepared to do so.

107 Asked why the indefinite administrative suspension was imposed on the grievor without pay, Mr. Harder replied that such was the practice with administrative suspensions. He replied similarly to the question as to why the grievor was not to appear on the employer’s premises during the suspension. Mr. Harder added that the purpose of the administrative suspension was to provide time to determine the appropriate disciplinary measure, and that the discipline imposed on the grievor was made effective retroactively to the first day of the administrative suspension.

108 Mr. Harder was then referred to his notes of the January 18, 2010 meeting (Exhibit E-37) and his testimony that the final section was incomplete to some extent because he had felt shaken by the grievor’s verbal attack on him. Mr. Harder stated that despite having been caught off guard by the grievor’s comments, the notes that he had made were accurate.

5. Testimony of Margaret Belot

109 The employer’s next witness was Margaret Belot, a section manager in the Revenue Collections and Client Services Division of the CRA in the Calgary TSO, reporting to the Assistant Director, Terry Harder. She has been employed by CRA for 35 years and a section manager for 25 years.

110 On November 19, 2009 at 11:30 a.m., Mr. Harder requested that Ms. Belot attend a meeting as a witness. In attendance were Mr. Harder, the grievor and Michael Ell, a union representative. Ms. Belot’s role was to record notes of the meeting. She stated that she took handwritten notes which she typed immediately following the meeting and submitted to Mr. Harder (Exhibit E-21).

111 Ms. Belot’s testimony essentially corroborated that of Mr. Harder in respect of the portion of the meeting which she witnessed. She stated that Mr. Harder did not harass the grievor during the meeting, and that she found the grievor to be obstructive. Asked about her reaction to a potential reinstatement of the grievor, Ms. Belot said that she would find it stressful, as she had worked with the grievor previously. She found his behaviour to be unpredictable and unlike that of other employees she has supervised during her career. She stated that she would have to reconsider how long she would continue in her employment with CRA.

112 In cross-examination, Ms. Belot stated that Mr. Harder had never previously asked her to be a witness to a meeting and had not provided her with any information about his earlier meeting with the grievor before the meeting she witnessed.

113 Ms. Belot said she had been the grievor’s section manager for two years prior to a leave of absence she had taken and for one and a half to two years following her leave. She acknowledged that she had never taken time off work because of a stressful relationship with the grievor.

6. Testimony of David Mapplebeck

114 David Mapplebeck was, at the relevant time, a section manager in the CRA’s Revenue Collections and Client Services Division. The grievor reported to him during two different periods – April 2002 to February 2006 and September 2007 to April 2008.

115 Mr. Mapplebeck referred to a letter dated February 5, 2003, which he had addressed to the grievor following a fitness to work evaluation by a health care professional (Exhibit E-40). The employer had sought, among other things, advice from the health care professional as to how to assist the grievor in managing his behaviour in the workplace. That letter reads in part as follows:

…

[The health care professional] advised us that he had counseled you as to how others perceive your comments and other interactions with them; and as to how you should conduct yourself to foster more productive, professional relationships in the workplace. He has further indicated that you “personalize” your anger and, therefore focus on the individual at hand rather than the issue. Such behaviour is not acceptable to the Agency. Attached, therefore, are expectations that have been developed to assist you in addressing this behaviour.

…

I look forward to again working with you and to developing a better working relationship. However, I must emphasize that these expectations have been created to correct behaviour that is unacceptable to the employer and that it is paramount that you adhere to them. Regrettably, failure to modify your behaviour upon your return to work will lead to further disciplinary action, up to, and including discharge.

…

116 Mr. Mapplebeck stated that the health care professional was of the opinion that the grievor’s behaviour was within his control. He said that the attachment to the letter consisted of an action plan for improving the grievor’s performance for a review period from February 18, 2003 to March 31, 2004 (Exhibit E-41). Five main areas of improvement and their corresponding measurement criteria were set out in the action plan. These included cooperation with peers and superiors, respectful communication with peers and superiors, and support of management decisions.

117 In regard to cooperation with peers, Mr. Mapplebeck said that the grievor’s behaviour did not adhere to CRA policies, and that he belittled or humiliated others during discussions. Concerning respectful communication, Mr. Mapplebeck said the grievor’s tone was often angry. As for supporting management decisions, Mr. Mapplebeck said that when management had taken a decision following full discussion, the grievor often continued to challenge the decision by pursuing the debate.

118 On March 5, 2003, a meeting was held to discuss the grievor’s progress on the action plan. In attendance were the grievor, Mr. Mapplebeck and the assistant director of human resources, Michele Luit. In a memorandum to the grievor dated March 12, 2003 (Exhibit E-42), Mr. Mapplebeck identified that during the meeting, the grievor’s demeanor was somewhat aggressive, that he had stressed the culpability of others in several of the matters discussed, and that he tended to address issues that had occurred some time ago, rather than focussing on issues salient to the action plan.

119 In a memorandum to the grievor dated June 24, 2003, Mr. Mapplebeck provided feedback for an earlier meeting held to discuss his action plan (Exhibit E-43). Mr. Mapplebeck stated that they had discussed the concept of embarrassment and that the grievor should avoid embarrassing another manager if he disagreed with that manager’s opinion. The grievor was told that he should be sensitive to how the recipient accepts information. As stated in the memorandum, “You suggested that your colleagues and managers in general should be ‘thick-skinned’ enough not to be hurt and that you felt strongly that there is a need to be honest and direct in dealing with issues.” Mr. Mapplebeck said that the grievor felt that other managers should tolerate honest discussion without feeling embarrassed.

120 Mr. Mapplebeck was then referred to his notes of an action plan meeting with the grievor, which had taken place on August 26, 2003 (Exhibit E-44). The meeting was attended by the grievor, Mr. Ell, his union representative, Mr. Mapplebeck and Ms. Luit. Mr. Mapplebeck discussed specific events where the grievor had not met the action plan requirements concerning respectful communication, sensitivity, tone, style and not belittling others. Mr. Mapplebeck referred to two emails the grievor sent him using an accusatory tone. His purpose was to use the examples as a coaching tool to help the grievor understand how context is provided and how it is received. The grievor told Mr. Mapplebeck that he was being too sensitive. Several additional examples were discussed with the grievor, including the language used by him in a grievance he had filed against Mr. Mapplebeck. Mr. Mapplebeck testified that the grievor’s position was that if he felt he was correct on an issue, he did not have to consider the sensitivities of others.

121 Mr. Mapplebeck stated that during the meeting, the grievor questioned the need for the action plan, as he felt his actions had been appropriate all along. The grievor felt that Mr. Mapplebeck’s answers to his questions were for the purpose of protecting management and that Mr. Mapplebeck was not doing his job. This is referred to in Mr. Mapplebeck’s notes on page 3 of Exhibit E-44 as follows:

…

I stated that you need to make a choice on how you want to deal with others and noted that I believe that you question the validity of your Action Plan. You replied that I have a responsibility to answer all the questions you ask, that you question my motives towards you, that you are not sure what that motive is but that your perception is that it is to protect Management. You stated that you do not believe that I am doing my job.

…

122 Mr. Mapplebeck said that by the fall of 2004 there was a sense of impasse in moving the working relationship with the grievor forward. The grievor had been alleging that management in the Calgary TSO was working against him. In September 2004, the employer arranged to have a former manager from the Edmonton TSO, Bill Blahun, have discussions with Mr. Mapplebeck, some other managers and the grievor to attempt to build a relationship (Exhibit E-45). The grievor had agreed to meet with Mr. Blahun. However, the meetings produced no positive result.

123 Mr. Mapplebeck pointed to an incident which occurred in November 2005 where he had convened the grievor to a meeting with him and a labour relations advisor. The grievor came to his office in an agitated manner, alleging that the meeting was not on his calendar because someone was “playing tricks” on him. Mr. Mapplebeck offered to reschedule the meeting, but provided him with documentation indicating that the grievor had accepted to attend the meeting at the initial time (Exhibit E-46). To Mr. Mapplebeck, the grievor was indicating that there was an element of conspiracy against him and that someone was being malicious.

124 Mr. Mapplebeck testified that he had been the object of two of the thirteen complaints of alleged harassment filed by the grievor, which had been investigated by Mr. Mattern. One of these complaints alleged that Mr. Mapplebeck had harassed the grievor by denying him management performance leave in his performance assessment for the period April 1, 2007 to March 31, 2008. Extracts from Mr. Mattern’s investigation report pertaining to Mr. Mapplebeck were entered as Exhibit E-47.

125 Mr. Mapplebeck stated that he had prepared performance reviews of employees since 1999 and those of managers since his appointment as a section manager in 2002. Mr. Mapplebeck stated that for purposes of a performance review, only the employee’s performance for the year being reviewed is considered and not that of a prior year. He said that typically, work on performance assessments begins in April, and they are expected to be available for review by mid-May. He noted that events that occur after March 31 are not considered for purposes of the assessment.

126 Mr. Mapplebeck stated that during the period he supervised the grievor from September 2007 to April 2008, the grievor demonstrated improvement in his behaviour. However, he was unable to sustain the improvements noted in the performance assessment for that period. In this regard, Mr. Mapplebeck said that while the grievor’s working relationship with him was relatively good, he continued to have difficulty in his relations with other managers and senior management. This continued when he no longer reported to Mr. Mapplebeck.

127 In respect of the previous training received by the grievor, Mr. Mapplebeck referred to an extract from the employer’s records of the grievor’s training history from March 1, 1999 to November 9, 2009 (Exhibit E-48).

128 When asked for his reaction should the grievor be reinstated to his employment, Mr. Mapplebeck replied from both personal and professional viewpoints. His personal view was that he would not be happy with his reinstatement as his experience in supervising the grievor had been extremely stressful and taxing. He said that there is a point at which such stress and exhaustion have an effect on one’s own performance as a manager and on personal relationships. Mr. Mapplebeck said he would not be capable of supervising the grievor and would seek a transfer to another area.

129 From the professional point of view, Mr. Mapplebeck said that the grievor’s presence and behaviour impacted negatively on the role of managers. He said that the time and energy spent by management to improve the grievor’s working relationships meant that that time and energy were not being devoted to programs to serve the public. As an example, Mr. Mapplebeck referred to the grievor refusing Mr. Mapplebeck’s request to complete an initial draft of his performance assessment review for 2004-2005 (Exhibit E-49). The grievor indicated to Mr. Mapplebeck that he felt it wasn’t his job to do so, despite the fact that the exhibit clearly indicates, in a response email sent by the grievor, that he had understood the request was an order. Mr. Mapplebeck stated that it was common practice to seek the input of the employee being assessed and that in his experience, the grievor was the only team leader under his supervision who had declined the opportunity to submit a first draft of a performance review. Mr. Mapplebeck testified that he did not believe he had ordered to the grievor to prepare a draft.

130 In cross-examination, when referred to Exhibit E-40 (mentioned earlier in paragraph 115), which contained references to advice provided to the grievor by a health professional, Mr. Mapplebeck stated that the memorandum contained a combination of the grievor’s behaviour and the perception of his behaviour by others.

131 Asked whether he would want to work with an individual who had filed a harassment complaint against him, Mr. Mapplebeck replied that his desire not to work with the grievor again was not the result of his having filed a harassment complaint against him. He said that the emotional debt to be paid in supervising the grievor is severe and that at this stage of his life he was incapable of doing so.

7. Testimony of Rick Leigh

132 During the relevant period, Rick Leigh was Director of the Calgary TSO and was also responsible for CRA activities in Red Deer and Lethbridge. Eight assistant directors, including Mr. Harder, reported to him, as did 1400 employees directly or indirectly. Before assuming the position of director in June 2007, Mr. Leigh had been Assistant Director, Revenue Collections, the position occupied by Mr. Harder. Mr. Leigh has been employed with CRA for more than 29 years.

133 Mr. Leigh testified that in his experience, assistant directors interact with team leaders, as well as section managers. While team leaders would have daily interaction with the section managers to whom they directly report, team leaders will deal directly with assistant directors on certain matters. An assistant director will deal with a team leader daily, but not with all team leaders in a single day. In the Calgary TSO, revenue collections employees are all located on the same floor. Team leaders are located in proximity to their teams and the four or five section managers are placed in various locations on the floor. The assistant director, whose office is on the same floor, must travel the floor to interact with the section managers.

134 Mr. Leigh elaborated on the behaviour expected of a team leader. As a front line supervisor, the team leader is expected to uphold CRA values, to support CRA policies and to adhere to the Manager’s Charter. The team leader is expected to lead by example by exhibiting such behaviour on a daily basis.

135 Mr. Leigh stated that by 2004, the relationship between the grievor and senior management was severely damaged and a constructive and productive relationship could not be established. At the initiative of the Assistant Commissioner, Prairie Region, the services of a third party were retained to explore approaches and solutions to foster a relationship based on CRA values. The third party was Bill Blahun, a former employee of CRA in Edmonton who had never worked in Calgary. At the time, Mr. Leigh was Assistant Director, Revenue Collections. He was interviewed by Mr. Blahun as part of the process and received a copy of his report dated October 26, 2004 and an appendix to the report dated December 23, 2004 (Exhibit E-50).

136  Mr. Leigh said that Mr. Blahun’s report confirmed that the relationship between the grievor and management was worse than he had thought. He referred to certain findings in the report under the heading “Summary of my discussions with Mr. Bahniuk”, which I reproduce here:

…

6. He feels obligated to challenge management when the opportunity arises and keep them on track. They have to be accountable for their decisions and not just hide behind their authority to do what they like.

7. Mr. Bahniuk’s belief is that he has an obligation to challenge management on any action that he disagrees with and to stem the corruption that exists in the management ranks. He feels that he has this obligation as a citizen of Canada and as a protector of the resources of the people of Canada.

8. Mr. Bahniuk doesn’t think that moving elsewhere (outside of CRA) would result in anything different since managers on the outside are corrupt as well. He indicated that the situation would be the same if he were working for a private company as the managers there cover and protect each other as well.

9. He indicated that he is happy at his job and he is happy coming to work. These situations are just obstacles that he has to deal with, and he has no problem continuing in this particular fashion until the end, that is until he retires.

…

11. I inquired about how he felt about respecting the organizational hierarchy. I indicated that there would be chaos if people didn’t follow rules and policy and procedures, and if managers weren’t allowed to overrule decisions made by others. I gave him an example of imagining what downtown Calgary would be like if there were no traffic laws, stop signs or traffic lights. His response was again that he had to hold people accountable for their actions.

137 In his report, Mr. Blahun stated that the grievor seemed to enjoy the confrontations inherent in challenging management and was unwilling to accept that there was a management hierarchy. He concluded that he was unable to identify any approaches which would lead to a positive relationship with the grievor. Mr. Leigh said that the employer has on many occasions attempted to build a better relationship with the grievor, but he wants no part of it. Over the years, Mr. Leigh tried to continue working with the grievor on his relationships with management. Mr. Leigh pointed to the final paragraph of the appendix to Mr. Blahun’s report, which reads as follows:

Management is requesting that Mr. Bahniuk provide them with alternatives regarding his future with the CRA, such as providing his preferences as to the type of work he would like to do and in which section he would prefer to work in. Management have stated that they will try to accommodate his requests in return for a commitment from Mr. Bahniuk that he is willing to move forward towards creating a relationship which is based on trust, cooperation, mutual respect and professionalism.

138 In this regard, Mr. Leigh referred to an email he sent the grievor on May 5, 2006 which summarized a meeting held on May 3, 2006 attended by Mr. Leigh, the grievor, and the grievor’s then section manager (Exhibit E-51). During the meeting, the grievor stated that he had not been given the same opportunities as other team leaders in the division and felt he was being overlooked. Mr. Leigh told the grievor that he had asked him several times during the previous months whether he was interested in working in another area and added that he would be given preferential consideration. The grievor did not take Mr. Leigh up on those offers, stating that one of his reasons was that he didn’t want to displace anyone from their job. Mr. Leigh indicated that team leaders are rotated to various positions as part of their development. Mr. Leigh added that more recently, all team leaders had been requested to provide three preferred areas of interest. The grievor provided only one option – the insolvency team. When asked by his manager if he was genuinely interested, the grievor replied he might be. As another team leader demonstrated real interest, he was placed in that position.

139 In addressing the incident of November 19, 2009, Mr. Leigh stated that it was brought to his attention by Mr. Harder, who provided him with copies of the relevant documents, including the notes taken by Mr. Harder, Ms. Nelson, Ms. Belot and Ms. Moore (Exhibits E-53 and E-55). Mr. Leigh said that his reaction on reading the material was one of great surprise that a simple, routine issue raised by the grievor had turned into a significant conflict. Mr. Leigh asserted that the grievor’s behaviour in refusing to participate in the resolution of a problem that he had brought to the assistant director’s attention was unprofessional and disrespectful and not in conformity with CRA values or the Manager’s Charter. Mr. Leigh’s expectation is that when a team leader raises an issue, potential solutions or options should also be provided. Commenting on the grievor’s issue concerning the “correct” or “recommended” course of action, Mr. Leigh stated that the semantics were immaterial to the discussion, as it was evident that Mr. Harder was simply seeking available options.

140 As for Mr. Harder having to order the grievor several times to attend a meeting, Mr. Leigh stated that in his entire career at CRA, he had never been aware of an assistant director having to order a team leader to attend a meeting. It was his understanding that although the grievor eventually met with Ms. Moore and Ms. Nelson, he hadn’t informed Mr. Harder that he would do so. Asked about his reliance on the notes of Ms. Nelson and Ms. Belot, Mr. Leigh replied that in the case of Ms. Nelson, he had worked with her for 3.5 years, and that she was trustworthy and a great example for employees. He had no reservations about the reliability of her notes. In the case of Ms. Belot, Mr. Leigh said that she was the senior section manager in the division, a highly competent manager and leader, and that he had the utmost confidence in her and her notes.

141 Concerning the matter of file allocation, Mr. Leigh said that it was part of daily business and interaction between collections teams, and that the duties of a team leader included involvement in file allocation on occasion. Mr. Leigh did not understand why the grievor would refuse to attend a meeting to discuss file allocation when he had raised the issue. He said that there was no rationale for the grievor to refuse the meeting and that no personal issues were involved. Asked whether he had spoken to Mr. Ell about the matter, Mr. Leigh said he did not. As Mr. Ell was representing the grievor, he did not wish to place him in an awkward position and further, he had complete confidence in the accuracy of the information provided by Ms. Nelson and Ms. Belot. Asked whether he had concerns that the fact-finding that took place on November 20, 2009 was conducted by Mr. Harder, Mr. Leigh replied that Mr. Harder was a trained investigator with an excellent reputation.

142 Asked why he had placed the grievor on indefinite administrative suspension, Mr. Leigh stated that he considered the events of the previous days to be a very serious situation. He required time to further investigate and review the events and seek advice from others. When queried as to why he didn’t permit the grievor to remain at work, Mr. Leigh said that, as in the past, the grievor had spoken about his issues with senior management in front of employees; he believed it best that he not be in the workplace. If the situation deteriorated, it might have a negative impact on staff. When asked why the grievor’s indefinite suspension was unpaid, Mr. Leigh replied that any discipline to be imposed would be a suspension of some kind. If the discipline imposed were for a period less than the period of suspension, the grievor would be paid for any difference.

143 Mr. Leigh next addressed the harassment grievance the grievor filed against Mr. Harder on November 19, 2009 (Exhibit E-54). The section of the grievance form titled “Details of grievance”, reads as follows:

I grieve Terry Harder’s disrespectful, unprofessional, dictatorial behaviour towards me. On November 19, 2009 he demanded at least 4 times that I give him the “correct” course of action on a file that he is accountable and has the authority for making the decision on. Then he demanded that I discuss with him and the manager, about the problems associated with the allocation of accounts. I said I would attend but had nothing to say because of personal reasons. I find his behaviour as a bully and not in line with the code of conduct.

[Sic throughout]

144 The corrective action requested by the grievor is the following:

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

[Sic throughout]

145 Mr. Leigh said that he was delegated by the Assistant Commissioner, Prairie Region to investigate the allegations of harassment set out in the grievance. Mr. Leigh referred to the CRA’s Preventing and Resolving Harassment policy, both the version effective April 8, 2002 (Exhibit E-20) and that which became effective September 22, 2009 (Exhibit E-58). Mr. Leigh stated that a harassment matter is treated the same way under the policy, whether it is raised in a grievance or in a complaint. In the 2009 version, he referred to the following excerpt from section 6, headed “Policy requirements”:

…

Complaints must be made in good faith. An employee who makes a malicious complaint, a complaint in bad faith, or retaliates against another employee for filing a complaint, may be subject to disciplinary measures up to, and including, termination of employment.

…

146 Mr. Leigh then explained how he determined the disciplinary penalties to be imposed on the grievor. He said that having reviewed the witness statements concerning the behaviour of both the grievor and Mr. Harder, he felt it was clear that Mr. Harder had been calm and professional, while the behaviour of the grievor had been agitated and accusatory. It appeared evident to Mr. Leigh that following the meeting of November 19, 2009, the grievor filed the grievance the same day in order to use the harassment policy as a means of attacking Mr. Harder.

147 Mr. Leigh stated that during the disciplinary hearing of December 2, 2009, the grievor provided no evidence to support that Mr. Harder’s behaviour was as he had alleged in the grievance. In this regard, he referred to several sections of the notes of the meeting (Exhibit E-35). He pointed out that the fact that an assistant director directs a team leader to perform his duties does not constitute harassment. Mr. Leigh added that contrary to the grievor’s assertion, nothing that the grievor was directed to do by Mr. Harder was detrimental to his career. Asked what the grievor could have said at the disciplinary hearing to cause him to take a different decision, Mr. Leigh said that he looked for some indication that the grievor was taking responsibility for his conduct.

148 Asked how he arrived at suspensions of 10 and 20 days, Mr. Leigh replied that it conformed to the principle of progressive discipline. He stated that the grievor’s disciplinary record consisted of a written reprimand and 1 and 3-day suspensions. In November, 2009, there were two incidents: insubordination and filing a vexatious harassment grievance against Mr. Harder. Mr. Leigh referred to Appendix C of the CRA’s Discipline Policy, which, as mentioned earlier in this decision, sets out examples of misconduct and suggested disciplinary measures. He stated that while the examples in the policy are not exhaustive, in Table 1, section 4, titled “Personal Misconduct”, some of the grievor’s conduct fell into the category of “Negligent or careless disregard for proper performance of duties”, a Group 1 category, and “Insubordination, including failure to carry out an instruction or to perform work”, a Group 2 category. The policy contains five groups of infractions, with Group 5 being the most serious. Mr. Leigh stated that since these were repeated infractions contained in Groups 1 and 2, then according to the policy, they were placed in Group 3 for the purpose of suggested disciplinary measures. Group 3 measures are suspensions from 1 to 30 days in duration.

149 With respect to the grievor’ insubordination, Mr. Leigh was of the view that a 10-day suspension was appropriate in view of the grievor’s disciplinary record and the lack of effect of previous discipline on the grievor’s behaviour. As for the 20-day suspension, Mr. Leigh stated that the purpose of the employer’s policy is to protect employees from being harassed. Use of the policy in a frivolous or vexatious manner is taken very seriously by the employer. He said that since that type of infraction is not specifically provided for in Appendix C of the Discipline Policy, he used his judgment in taking into account the seriousness and consequences of the grievor’s actions. As the Group 3 range was from 1 to 30 days and a 10-day suspension had been imposed, Mr. Leigh stated that a 20-day suspension was an appropriate measure. He said that the disciplinary measures were backdated to November 24, 2009, to credit the grievor for the time he had been on indefinite unpaid administrative suspension. Asked why the suspension letter had not been issued earlier, Mr. Leigh replied that in addition to the time required for a review of the events, an earlier meeting was prevented due to inclement weather, as the grievor lived away from the city.

150 As for the investigation by Mr. Mattern of the grievor’s 13 allegations of harassment, Mr. Leigh said that the allegations were compiled from various grievances filed over the years by the grievor alleging that management was harassing him, singling him out and discriminating against him. He said that it was the grievor’s opportunity to participate in the investigation to resolve his complaints, but he refused to do so. Mr. Leigh said that sometime in December 2009, Ms. White raised the issue of conflict in the workplace with him, which was referred to in the second paragraph of her letter to the grievor concerning her determination following the report by Mr. Mattern (Exhibit E-19) (“Mattern report”).

151 Mr. Leigh next addressed the meeting of January 18, 2010, which he termed a “very, very, very important meeting,” the purpose of which was to determine whether the employer-employee relationship could be mended or was irreparably broken. Mr. Leigh said that the notes of the meeting (Exhibit E-37) correspond to his recollection of the day.

152 Mr. Leigh said that at the outset of the meeting, the grievor said that he was respectful toward management. He found this surprising, given the grievor’s behaviour over the years and in view of Ms. Bauer’s notes (Exhibit E-3) of her meeting with the grievor. Mr. Leigh’s reaction was that once again, the grievor would not take responsibility for his conduct. Referring to the grievor’s statement that the employment relationship was broken, Mr. Leigh at first thought that this indicated recognition by the grievor that the relationship needed to be mended. However, when the grievor said that he was open to change within the restrictions of his own values, Mr. Leigh said this was a typical statement from the grievor.

153 Concerning the grievor’s statement that he would have little need to interact with Mr. Harder, Mr. Leigh said that every team leader interacts with their assistant director as part of their duties, but not as frequently as with their section manager. Regarding the grievor’s statement that he would only meet with Mr. Harder in the presence of a union representative, Mr. Leigh asserted that he had never heard of such a request from a team leader and that it was not workable in an operational situation.

154 When asked to summarize his view of the meeting, Mr. Leigh said that after six hours of effort, they were back to the starting point. Mr. Leigh had explored how to fix the relationship that the grievor had said was broken, but to no avail. The grievor was distrusting, evasive, made conditional statements and became angry and argumentative with Mr. Harder. Mr. Leigh stated that it was highly unusual for a TSO director to spend an entire day with an employee to attempt to mend an employment relationship. He was very disappointed with the grievor’s uncooperative and obstructionist response and his failure to take responsibility for the circumstances. Mr. Leigh said that they tried to extend an olive branch to the grievor, but received no indication from the grievor that was meaningful or unconditional that the relationship could move forward. He stated that it would have taken very little on the grievor’s part to generate a different result.

155  Mr. Leigh was referred to the letter of termination where it is stated that in terminating the grievor’s employment, he acted under the authority of paragraph 51(1)(f) of the Canada Revenue Agency Act, which refers to termination for disciplinary reasons. He was then referred to the notes of the January 22, 2009 meeting (Exhibit E-39), where in response to a statement by union representative Greg Randall that the termination was further discipline, Mr. Leigh said that it was not discipline, as the grievor’s employment was being terminated because the employment relationship was irreparably broken. Asked for an explanation, Mr. Leigh stated that in his view, the termination of the grievor’s employment did not constitute discipline, as the employer was no longer trying to correct the grievor’s behaviour. He added that the purpose of progressive discipline is to correct the behaviour of an employee who continues in employment, which was not the case here.

156 Mr. Leigh was asked why he had not waited to observe the effect of the 10 and 20-day suspensions on the grievor, as he had not returned to work following the imposition of those measures. He replied that the purpose of the January 18, 2010 meeting was to address the employment relationship on a going-forward basis. When the meeting reconvened at 3:30 p.m. following a break, the grievor became angry and accusatory toward Mr. Harder. Mr. Leigh stated, “Call that misconduct or whatever you like, it showed me that nothing would change.” Mr. Leigh said that he believed there was conduct by the grievor in that meeting that was unacceptable in any circumstance, but thought it was made worse because the employer was making every effort to mend the relationship with the grievor. Mr. Leigh said that this occurred after the grievor had served the two suspensions and demonstrated to him that the grievor’s behaviour would never change.

157 When asked for his reaction if the grievor were to be reinstated to his employment, Mr. Leigh replied by entreating me not to return the grievor to the workplace, stating that he had never said that before about any employee in his entire career. He said that since his arrival in Calgary in 2004, although he and the management team made extraordinary efforts to work with the grievor in a productive and constructive manner and provided him with numerous opportunities to engage with management, all of their attempts had failed. He referred to the report by Mr. Blahun, who could not find an approach to a constructive relationship and to the Mattern report. In Mr. Leigh’s opinion, those reports confirmed that management was not the problem. Mr. Leigh said that the toll taken on managers in the Calgary office over the years was difficult to quantify. He again referred to the January 18, 2010 meeting as an attempt to salvage the relationship, but the grievor gave no hint of assuming any responsibility. Mr. Leigh stated that after six hours of the employer trying to find a way to have the grievor keep his job, the grievor had an angry outburst. Mr. Leigh said that it would be too destructive to too many employees to have the grievor back in the workplace. Furthermore, there would be an impact on operations, as so much time, energy and resources would be spent on issues raised by the grievor.

158 In cross-examination, Mr. Leigh was first referred to the report by Mr. Blahun (Exhibit E-50) where it was stated that the grievor was unwilling to change. He was then referred to the grievor’s performance appraisal for April 1, 2007 to March 31, 2008 (Exhibit E-12, Attachment 13), specifically to Objective 1.4, where the manager’s assessment states that the grievor worked respectfully and cooperatively with his manager during the review period. Mr. Leigh agreed that this appeared positive and indicated to him that the grievor was capable of such conduct if he wanted to, and did so for the short period of time covered by the appraisal. He was then referred to Objective 3 concerning open, multi-directional communication and exchange of knowledge, in which the manager’s assessment contained positive comments. Mr. Leigh stated that those comments did not contradict his testimony and that they were valid only for the appraisal period.

159 Mr. Leigh was then referred to the grievor’s performance appraisal for April 1, 2008 to March 31, 2009 (Exhibit G-5), specifically to Objective 2.1 titled “Work cooperatively with all levels of management”. Mr. Leigh agreed that there were some positive comments in the manager’s assessment and said that he would expect those comments to be written about any team leader.

160 Asked about the preferential treatment for job opportunities for the grievor referred to in his memo to the grievor on May 5, 2006 (Exhibit E-51), Mr. Leigh said when the grievor asked for other job opportunities, he inquired as to the type of job the grievor was interested in. The grievor then told Mr. Leigh not to bother looking for another job.

161 The grievor’s representative next turned to the issue of the grievor’s alleged failure to follow orders on November 19, 2009. Mr. Leigh stated he was made aware of the incident through the memos of Ms. Belot (Exhibit E-21) and of Ms. Nelson (Exhibit E-28), which had been forwarded to him by Mr. Harder. Mr. Leigh stated that it was his understanding that the grievor had failed to follow an order to meet with his manager. The grievor’s representative referred to the first sentence of the suspension letter (Exhibit G-2) which reads in part, “… misconduct of failure to acknowledge a direct order, refusal to follow a direct order…” He then referred to the next paragraph of the same letter where Mr. Leigh acknowledged that the grievor met with Ms. Nelson and Ms. Moore the following day. The grievor’s representative pointed to Ms. Nelson’s notes, which recorded that in response to the fourth time Mr. Harder directed the grievor to meet with her and Ms. Moore, he said “Yes.” Mr. Leigh replied that this appeared to be an acknowledgment of the order. Mr. Leigh stated that the order acknowledged by the grievor was that concerning the subject to be discussed with Ms. Nelson and Ms. Moore, and that he believed the order was followed unbeknownst to Mr. Harder. When asked why he had disciplined the grievor if the meeting took place, Mr. Leigh said that the grievor was directed three times to attend the meeting before it had to become an order, which he then acknowledged. In his view, that constituted disrespectful behaviour.

162 The grievor’s representative then addressed the second order, i.e. in response to the grievor’s initial refusal to meet with Mr. Harder for personal reasons. He referred to Ms. Belot’s notes, which indicated that the grievor subsequently said he would attend but not participate and to Mr. Ell’s notes of the meeting (Exhibit G-4), which indicated that the grievor said he would meet Mr. Harder and participate. When it was put to Mr. Leigh that Mr. Ell was disturbed by Mr. Harder’s behaviour at the meeting, yet he did not interview him, Mr. Leigh replied that as Mr. Ell was the grievor’s representative, it would have put him in an awkward position and furthermore, he had sufficient evidence from other witnesses. He added that the grievor had been given the opportunity to comment on those events at the disciplinary hearing of November 24, 2009.

163 Asked whether he considered the grievor’s unpaid indefinite administrative suspension away from the employer’s premises to be punitive, Mr. Leigh replied in the negative and said it was part of administrative suspensions. In view of the grievor’s past behaviour of discussing his issues with management with the staff, the employer mitigated the risk by denying him access to the premises while an appropriate disciplinary measure was being contemplated.

164 Mr. Leigh was referred to the notes of the disciplinary hearing held on December 2, 2009, and it was pointed out to him that the notes referred to a “harassment grievance” and not a “harassment complaint.” Mr. Leigh stated that whether in the form of a grievance or a complaint, both were treated seriously by the employer. When referred to the employer’s harassment policy (Exhibit E-58), Mr. Leigh stated that as the grievor had filed a harassment complaint through the vehicle of a grievance, it came within the ambit of the harassment policy while following the collective agreement for the grievance procedure.

165 When asked how he had learned of the incident of May 2, 2008 involving the grievor and Ms. Bauer, Mr. Leigh said he had read her notes and had a discussion with her. He recalled that the incident involved the grievor yelling and being agitated to the point of spit coming from his mouth. He did not recall that Ms. Bauer mentioned a gun. Mr. Leigh was then referred to the grievor’s performance appraisal for the period April 1, 2008 to March 31, 2009 (Exhibit G-5) which mentioned that incident, as well as another. He agreed that in the performance appraisal there was no mention of the grievor being in a rage or spitting. When referred to several positive references in the grievor’s performance appraisals, Mr. Leigh said that although the grievor alleges that management is out to get him, when he does satisfactory work, it is mentioned in the performance appraisal.

166 Mr. Leigh was asked why, if he had spent six hours with the grievor trying to salvage the employment relationship on what became the grievor’s last day of work, he now expressed the view that the grievor shouldn’t return to the workplace. Mr. Leigh replied that he was convinced that despite the efforts made by management and the opportunities offered to the grievor, the relationship could not be mended.

167 Mr. Leigh was referred to the notes of the meeting of January 22, 2010 (Exhibit E-39) and was asked what he meant when in reply to Mr. Randall’s question “What is this further discipline for?” he said, “This is not further discipline. It is with regard to the damaged relationship…” Mr. Leigh stated that in his view, the purpose of discipline is to change behaviour. As the grievor’s employment was being terminated, he did not consider it to be discipline in the hope that the grievor’s behaviour would change. Mr. Leigh agreed that the termination of the grievor’s employment fell under article 17 of the collective agreement governing discipline.

168 Asked about the inclusion of the previous disciplinary incidents in the letter of termination, Mr. Leigh replied that it was part of the package of a broken working relationship.

169 When asked why he would not want the grievor reinstated after having spent six hours trying to salvage the relationship, Mr. Leigh replied that that the grievor’s behaviour on January 18, 2010 “pushed me over the edge.” Mr. Leigh said that the grievor’s anger continued to rise throughout the day, even though he was offered many opportunities to mend the relationship. Mr. Leigh believed that no matter how hard management tried or what they did, nothing would fix the broken relationship.

170 Mr. Leigh stated that he did not discipline the grievor for his behaviour in relation to the episode at the end of the January 18, 2010 meeting where he became angry and accusatory against Mr. Harder.

171 In re-examination, Mr. Leigh was referred to the following excerpt from Ms. Nelson’s notes of the November 19, 2009 meeting (Exhibit E-28):

…

Terry then clearly stated in a direct, firm voice “This is now the fourth time I am saying this and now it’s an order. You will meet with Lynn and Rosemary on this account in the morning. Do you understand?” Stan responded yes.

…

Asked whether he viewed the grievor’s affirmative response to the question “Do you understand?” as an acknowledgement that he would attend the meeting, Mr. Leigh replied that he did not.

172 Mr. Leigh was referred to his answer in cross-examination where he agreed that while the incident involving the grievor and Ms. Bauer was mentioned in the performance appraisal Exhibit G-5, there was no reference to the grievor being in a rage and spitting. He stated that based on his experience at the CRA, it is not normal policy to specify details about a disciplinary measure in a performance appraisal.

173 With regard to the issue of the application of the employer’s harassment policy to the grievance filed by the grievor, Mr. Leigh referred to an email exchange between the grievor and Ms. Nelson dated November 20, 2009 (Exhibit E-60), where the grievor wrote, “Lynn I will be filing a harassment complaint and you will be a witness, and will be required to give a review of our meeting on November 19 with Terry Harder.”

8. Testimony of John Lavkulich

174 John Lavkulich has been employed as a labour relations advisor with CRA since October 1, 2008. In the course of his duties, he provides advice concerning issues of harassment at CRA and is very familiar with the employer’s harassment policy.

175 Mr. Lavkulich testified that if an allegation of harassment is put into a grievance form, then the CRA’s harassment policy would apply. He stated that the process and the delegated authority from the Regional Assistant Commissioner in issues of harassment would be the same whether formulated in a grievance or a complaint.

176 In cross-examination, when referred to the employer’s harassment policy (Exhibit E-58), Mr. Lavkulich stated that if an employee chooses to use the grievance process for a matter of harassment, the manager must use the guidelines set out in the policy. If the grievance is related to one of the prohibited grounds of discrimination under the Canadian Human Rights Act, the manager would have to follow that particular process.

B. For the grievor

1. Testimony of Michael Ell

177 Michael Ell has been employed as a Collections Officer (SP-5) with CRA since July 1997. In 1998, he was elected Secretary of the Union of Taxation Employees, a component of the Public Service Alliance of Canada, a position which he continued to hold at the time of the hearings.

178 Mr. Ell was referred to Ms. Belot’s notes of the meeting of November 19, 2009 (Exhibit E-21), which he had attended at the grievor’s request as his union representative. Concerning the issue of whether the grievor had agreed to attend a meeting as directed, Mr. Ell said that although he did not recall the entire discussion, he did remember the grievor saying he would attend the meeting. Mr. Ell said that he made notes of the meeting (Exhibit G-4) in which he recorded that the grievor said that he would meet with Mr. Harder and would participate. He was then referred to Ms. Belot’s notes which indicate that the grievor told Mr. Harder that he wasn’t sure he would have anything to say at the meeting. Mr. Ell replied that based on the discussion, he felt that the grievor had agreed to attend the meeting.

179 Mr. Ell stated that he was so upset about the manner that Mr. Harder had questioned the grievor that following the meeting he had to go for a walk. If the grievor did not answer a question, it was put to him another way and a response was requested. He did not recall that Mr. Harder raised his voice, although he thought it may have been louder than normal conversation. He felt that Mr. Harder was aggressive. Asked if Mr. Harder exhibited anger, Mr. Ell said he did not know, but that he expected answers to his questions.

180 Mr. Ell stated that the grievor tried to answer the questions and on some occasions was not given the opportunity to answer before another question was asked. He didn’t think the grievor was out of line at any time. Asked whether in his opinion Mr. Harder was polite and professional, Mr. Ell replied that he didn’t totally agree that he was polite, since when a question is asked, the individual should be given the opportunity to reply. He said that in some cases Mr. Harder was professional, and not in others. He agreed that Mr. Harder’s language was professional, and that he did not raise his voice to an unacceptable level. Asked about Mr. Harder’s tone, Mr. Ell did not recall.

181 In cross-examination, Mr. Ell said that as the grievor had requested his presence on an urgent basis, he had no time to get his bearings and was unaware of the full context of the events. He said that he made handwritten notes as best he could during the meeting and typed them on November 23, 2009.

182 Mr. Ell said that he knew Ms. Belot, had dealt with her in the past and believed her to be truthful and honest. When asked about the reference in his notes to Lynn Ingram and asked whether he disagreed with the suggestion that in fact it was Lynn Nelson, Mr. Ell stated he had no reason to disagree, as he didn’t have direct knowledge of the previous meeting. Mr. Ell had previously dealt with Ms. Nelson, who had been his team leader, and believed her to be honest.

183 Mr. Ell acknowledged that the grievance procedure is an important process which he took seriously and which should be used for legitimate grievances. He stated that the grievance procedure was not intended to be used by an employee who doesn’t like the directions they were given.

184 Mr. Ell agreed that an assistant director at a tax services office is entitled to make requests of and issue directions to employees as part of their managerial responsibilities. He further agreed that if a manger makes a legitimate work-related request, it does not constitute harassment.

185 Asked whether he had ever told his assistant director that he would not meet him for personal reasons, Mr. Ell said that on occasion he has told his assistant director that he wasn’t in the best frame of mind for a meeting because of union business. However, as a collections officer, if his assistant director or immediate supervisor asked to meet, he always agreed. Mr. Ell stated that in his experience, it was unusual for the grievor to have told Mr. Harder that he wouldn’t meet him for personal reasons.

2. Testimony of Greg Randall

186 Greg Randall is a tax auditor in the Calgary TSO and has been employed with the CRA for approximately 22 years. He was a union shop steward since January 2009.

187 Mr. Randall said that before the meeting of January 22, 2010, he had attended a disciplinary hearing in December 2009 concerning the grievor’s actions in November 2009. He was aware that the grievor was to return to work on January 4, 2010 after serving his suspensions. He assumed that other events must have occurred for the January 22, 2010 meeting to be convened. Before this meeting, Mr. Randall reviewed his notes and other shop steward notes.

188 Referring to the notes of the January 22, 2010 meeting (Exhibit E-39), Mr. Randall said he attempted to learn the reason for the discipline from Mr. Leigh, who answered that all of the information was in the letter of termination. He told Mr. Leigh that he viewed the termination as being a disciplinary measure, and Mr. Leigh said that discipline was not being imposed because of previous incidents, but because the relationship was severed and could not be mended.

189 In cross-examination, Mr. Randall said the meeting of January 22, 2010 was short, approximately 25 minutes in length. He said he took some brief notes at the meeting. The documents he reviewed before the meeting were some of his notes, the CRA Discipline Policy, the CRA Preventing and Resolving Harassment policy, details on training in the Prairie Region and mechanisms for resolving harassment and conflicts. Mr. Randall did not review documents dated after January 4, 2010. He did not review the letter dated January 11, 2010 from Ms. White to the grievor (Exhibit E-19) informing him as to the conclusion of the investigation of his harassment complaints and said that the grievor did not bring it to his attention before the meeting of January 22, 2010.

190  Mr. Randall stated that he had seen the letter dated January 20, 2010 from Mr. Leigh to the grievor convening him to a disciplinary meeting on January 22, 2010 (Exhibit E-62). He conceded that the letter specified that the meeting would be for disciplinary purposes.

191 Mr. Randall said that he had only a very brief review of the letter of termination and agreed that Mr. Leigh said that all the reasons for termination of the grievor’s employment were contained in the letter. Mr. Randall acknowledged that he did not contact Mr. Leigh after the meeting with any follow-up questions. He said he was aware of the grievor’s situation and the circumstances concerning his being convened to the disciplinary meeting. Mr. Randall thought that there was not a great deal of trust between the grievor and management.

192 Mr. Randall agreed that it had been almost the first time he had reviewed the Discipline Policy and agreed that discipline had to be corrective.

193 In re-examination, Mr. Randall said that he considered the grievor’s termination to be a form of discipline.

3. Testimony of Wally Fandrich

194 Wally Fandrich is a senior programs officer in the Policy and Technical Services Section at CRA headquarters in Ottawa. He has been in the employ of CRA for more than 20 years, approximately 15 of which were in Calgary. He was the union local president when he attended the November 20, 2009 fact-finding meeting as the grievor’s representative.

195 Mr. Fandrich understood that the fact-finding concerned an episode of the previous day involving the grievor in a heated discussion with Mr. Harder. Mr. Fandrich was notified of the meeting by Mr. Ell, who had attended the first meeting. He stated that he had not been provided with any documentation by the employer concerning the purpose of the meeting, although he did have a discussion with the grievor. Mr. Fandrich recalled the grievor explaining that he never had the intention not to meet with Ms. Nelson and Ms. Moore, as indicated in Mr. Harder’s notes of the meeting (Exhibit E-31).

196 Regarding the disciplinary hearing of November 24, 2009, Mr. Fandrich said that the grievor’s demeanor was subdued and well-controlled, as it had been at the fact-finding meeting. He said he was not present at the exchange between Mr. Harder and the grievor on November 19, 2009.

197 At the termination meeting of January 22, 2010, Mr. Fandrich recalled Mr. Leigh’s comment that he was severing the employment relationship because it was broken, and he did not think it fixable. Asked whether he considered the termination to be disciplinary, Mr. Fandrich shrugged and said, “As much as you’re without a job and salary, I guess it’s discipline.” He stated that the termination seemed to be a culmination of all that had occurred in three to four weeks.

198 In cross-examination, Mr. Fandrich said that he became part of the union executive in February 2006 and had been the local’s vice-president for 2.5 years prior to becoming president.

199 Mr. Fandrich agreed that the grievance against the grievor’s termination of employment was prepared before the meeting and filed during that meeting. He said that he had had dealings with Ms. Belot and had no reason to doubt her honesty.

200 Mr. Fandrich acknowledged that an allegation of harassment is a serious matter and that harassment goes against CRA values. He agreed that if the employer became aware of an allegation of harassment, it should pay serious attention. Mr. Fandrich further agreed that it would be wrong for an employee to deliberately make a false accusation against another.

201 Mr. Fandrich said that at the fact-finding meeting of November 20, 2009, Mr. Harder reread his opening remarks to give the grievor the opportunity to record notes. He did likewise at the meeting of November 24, 2009. Referred to Mr. Harder’s notes of the November 24, 2009 meeting (Exhibit E-32), Mr. Fandrich recalled that the grievor briefly spoke of his harassment complaint, as indicated in Mr. Harder’s notes of the meeting.

202 Mr. Fandrich said that at the fact-finding meeting, he was left with the impression that there had been a heated exchange between Mr. Harder and the grievor. He did not recall whether the grievor took any responsibility for that exchange, but said that no apology was offered by the grievor.

203 Mr. Fandrich stated that he had not seen the Mattern report, nor the letter from Ms. White to the grievor dated January 11, 2010 (Exhibit E-19), as the grievor had not shared it with him. Mr. Fandrich stated that he was unaware that at the meeting of January 18, 2010, the grievor had said that the employment relationship was broken, but was not surprised to learn that the grievor had said so.

204 Mr. Fandrich asserted that in his role with the union, he would certainly not support employees in filing harassment complaints that were frivolous and vexatious and agreed that there is an obligation for a complainant to cooperate during a harassment investigation. Mr. Fandrich agreed that not every difference of opinion in the workplace constitutes harassment and that the proper exercise of managerial authority is not harassment.

205 In re-examination, Mr. Fandrich reiterated that he recalled Mr. Harder re-reading the allegations so that the grievor could record notes.

III. Summary of the arguments

A. For the employer

1. Background

206  The employer began by setting out the context provided by Mr. Mapplebeck, who testified that the grievor was repeatedly warned that if he continued to demonstrate lack of respect and poor interpersonal relationships toward managers and others, he would face disciplinary action up to and including termination of employment.

207 The employer stated that it had made numerous efforts to assist the grievor. In November 2002, the employer sent the grievor for a fitness to work evaluation. The health care professional counselled him that he must foster a more productive and professional relationship in the workplace (Exhibit E-40). The employer established an action plan for the grievor for the period February 18, 2003 to March 31, 2004 and undertook regular coaching discussions with him. In 2004, the services of an outside facilitator, Mr. Blahun, were retained by the Assistant Commissioner to explore approaches that would improve the relationship between the grievor and management, but to no avail. In his report (Exhibit E-50), Mr. Blahun expressed the view that management was sincere in its desire to work with the grievor. The employer summarized Mr. Blahun’s conclusions about the grievor as having a closed mind. In 2006, Mr. Leigh offered the grievor preferential treatment to choose of other team leader positions, to no avail. The employer submitted that all of the above demonstrates that the employer was not out to “get” the grievor.

2. The 3-day suspension

208 The employer next addressed the incident of May 2, 2008 between the grievor and Ms. Bauer, which resulted in the imposition of a three-day disciplinary suspension on the grievor on June 2, 2008.

209 In support of its argument that misconduct had occurred, the employer referred to the testimony of Ms. Bauer, which it described as forthright, thoughtful and balanced. The employer pointed to her statements that in her entire experience, she had never had that kind of meeting, which had left her shaken. The employer also referred to Ms. Bauer’s description of the grievor as having “exploded”, and that he was yelling, red-faced and spitting. The employer submitted that Ms. Bauer was an experienced manager who had had hundreds of interactions with employees and emphasized the fact that her evidence was uncontradicted. The employer submitted that the grievor’s subsequent apology to Ms. Bauer demonstrates his recognition that he had engaged in improper behaviour. In the employer’s submission, that proves that misconduct did occur.

210 With respect to whether the quantum of discipline imposed on the grievor was appropriate, the employer stated that Ms. Bauer considered the grievor’s behaviour in light of the obligations of a team leader under the Manager’s Charter and the Code of Ethics and Conduct. In Ms. Bauer’s assessment, the grievor had violated both policies, of which he was aware, as indicated in his various performance reviews. The employer pointed out that the employer’s guidelines for discipline contained in its Discipline Policy permitted Ms. Bauer to assess a penalty ranging from 3 to 5 days’ suspension for the grievor. The employer pointed to Ms. Bauer’s testimony that she would have imposed a 5-day suspension, but reduced it to 3 days in view of the grievor’s apology, which she believed to be genuine. The employer submitted that the 3-day suspension was appropriate and requested that the grievance be dismissed. The employer cited the following authorities in respect of the assessment of quantum: Hogarth v. Treasury Board (Supply and Services), PSSRB File No. 166-02-15583 (19870331); Johnston v. Treasury Board (Human Resources Development Canada), PSSRB File No. 166-02-26460 (19960702); Noel v. Treasury Board (Human Resources Development Canada), 2002 PSSRB 26; Naidu v. Canada Customs and Revenue Agency, PSSRB File No. 166-34-30505 (20011210); Way v. Canada Revenue Agency, 2008 PSLRB 39.

211 The employer pointed out that between June 2008 and the incident of November 19, 2009, Ms. Bauer had an encounter with the grievor in September 2008 concerning a feedback session regarding a staffing action she had undertaken. At the time, Ms. Bauer had to urgently replace a section manager on an acting basis and informed the grievor that she could not consider him for the position until he stopped demonstrating contempt and disdain for managers and started acting in conformity with CRA values. In the employer’s submission, this constituted another warning to the grievor about his behaviour.

3. The 10-day suspension

212 The employer first dealt with the issue whether, on November 19, 2009, the grievor failed to acknowledge an order to attend a meeting the next day with Ms. Nelson and Ms. Moore. The employer stated that according to Mr. Harder’s testimony, he never received an affirmative response from the grievor. The fact that the grievor did attend the meeting on November 20, 2009 was unbeknownst to Mr. Harder. Pointing to Ms. Nelson’s notes of the meeting of November 19, 2009, the employer submitted that the grievor acknowledged that he understood Mr. Harder’s order, which is not the same as agreeing to attend the meeting. The employer pointed out that the grievor subsequently stated that he had never said that he would not attend the meeting. In the employer’s view the grievor’s statement did not make sense, since Mr. Harder had to ask him several times to attend the meeting in question.

213 The employer next addressed the request by Mr. Harder that the grievor attend a meeting with him and Ms. Moore concerning file allocation. Referring to the testimonies and notes of Ms. Belot and Mr. Harder, the employer stated that the evidence showed that the grievor initially refused to attend the meeting, but eventually said he would attend, but would not participate. The employer referred to the evidence of Messrs. Leigh and Harder that such an attitude and conduct were inappropriate for a team leader and that participating in such a meeting was within the grievor’s duties and responsibilities.

214 The employer submitted that there was a contradiction as to what had occurred between Mr. Ell’s notes of the meeting (Exhibit G-4) and the grievor’s written account on the grievance form. Mr. Ell’s notes state that, “SB said he could not understand why he had to participate. But he will meet with him and will participate.” In his grievance filed the same day (Exhibit E-54), the grievor wrote, “I said I would attend but had nothing to say because of personal reasons.” The employer submitted that the grievor’s statement in his grievance was consistent with the evidence of Mr. Harder and Ms. Belot.

215 The employer pointed out that at the disciplinary hearing of December 2, 2009, the grievor said that he obeyed Mr. Harder in everything he could do that was not detrimental to his career and position. The employer stated that this should be considered an aggravating factor, as Mr. Leigh had testified that nothing that Mr. Harder said or did was detrimental to the grievor’s career or position. The employer characterized the grievor’s statements during the all-day meeting of January 18, 2010 as misleading spin and minimization of his behaviour.

216 The employer submitted that the evidence showed on a balance of probabilities that the grievor had been difficult and insubordinate with Mr. Harder during their interaction and that the grievor had no reason not to obey directions from senior managers. The employer submitted that in both instances, misconduct had occurred.

217 The employer then turned to the matter of the appropriateness of the quantum of the disciplinary measure. The employer referred to Mr. Leigh’s testimony regarding how he had arrived at the amount of discipline in reference to the CRA’s grid for disciplinary measures and the fact that the grievor had a record of three disciplinary infractions prior to the imposition of the 10-day suspension. The employer submitted that there was an absence of mitigating factors, there was no indication of remorse by the grievor and no acknowledgement of responsibility for the events of November 19, 2009. In requesting that the grievance be dismissed, the employer cited the following authorities: Brown and Beatty, Canadian Labour Arbitration, 4th ed., para. 7:3660; Chopra et al. v. Treasury Board (Department of Health), 2011 PSLRB 99, at para. 795; Byfield v. Canada Revenue Agency, 2006 PSLRB 119.

4. The 20-day suspension

218 This disciplinary measure was imposed for the grievor’s alleged abuse of the CRA’s harassment policy in filing the grievance against Mr. Harder (Exhibit E-54). The employer first dealt with whether the filing of the grievance engaged the employer’s harassment policy. The employer referred to Mr. Leigh’s testimony that he had discussed the matter with the delegated authority, namely the Assistant Commissioner. The employer pointed to the testimony of Mr. Lavkulich, who confirmed that the harassment policy was engaged by the grievance. The employer stated that the grievor had in the past filed numerous grievances alleging harassment which were investigated and had never said that they were excluded from the employer’s harassment policy. It was accordingly the employer’s position that the grievance filed by the grievor (Exhibit E-54) engaged the CRA’s harassment policy.

219 Regarding the application of the harassment policy, the employer submitted that common sense dictated that untrue allegations of harassment should not be made in the workplace and that the union’s witnesses agreed with this. The employer referred to the fact that the harassment policy provides that filing malicious harassment complaints may lead to termination of employment. As to whether the allegations contained in the grievance were untrue, the employer said that Mr. Leigh had determined that the allegations were malicious and vexatious. The employer submitted that his determination made sense, as there was no reference to the grievor’s allegations in the notes of Ms. Belot and Ms. Nelson, both of whom the union witnesses agreed were honest. In addition, Mr. Harder denied behaving as alleged in the grievance. The employer further submitted that Mr. Ell did not give evidence of such behaviour by Mr. Harder. His testimony criticized the pace of Mr. Harder’s questions at the meeting of November 19, 2009, which in the employer’s submission, falls well short of the language of the grievance. The employer added that the weight of Mr. Ell’s testimony should be considered, as his recollection left much to be desired.

220 The employer referred to the fact-finding meeting, where in response to Mr. Leigh’s request that the grievor provide evidence of his allegations, the grievor replied that Mr. Harder had given him an order. The employer pointed out that the union’s witnesses agreed that lawful directives issued by management do not constitute harassment. The employer submitted that the evidence proved the grievor’s misconduct in having engaged in inappropriate use of its harassment policy.

221 As to quantum, the employer said that the misconduct didn’t fit in the disciplinary grid set out in the Discipline Policy. Mr. Leigh was of the view that a disciplinary measure for such misconduct could range up to 30 days, but decided upon a 20-day suspension. In requesting that this grievance be dismissed, the employer pointed out that the grievor never offered an apology to Mr. Harder, did not show remorse and that no mitigating factors were present. The employer stated that while it did not find authorities exactly on point, the following contained applicable elements: Sotirakos v. Canada Customs and Revenue Agency, 2002 PSSRB 38; Hendrickson Spring (Stratford Operations) v. United Steelworkers, Local 8773 (Czapor) (2008), 175 L.A.C. (4^th) 376; Salvail v. Canadian Security Intelligence Service, PSSRB File No. 166-20-28486 (19990816).

5. The indefinite suspension

222 The employer stated that Mr. Leigh suspended the grievor as the events were very serious and required a thorough review of the situation. He felt it necessary that the grievor be removed from the workplace since he had a habit of loudly discussing his issues with management in front of staff. Mr. Leigh determined this would be detrimental to the workplace. Mr. Leigh also stated that if the grievor’s unpaid suspension proved to be longer than any eventual discipline imposed, then the employer would reimburse the grievor for the difference. The employer pointed out that it had tried to move more quickly on issuing the letter of suspension at an earlier date, but was hampered by inclement weather, as the grievor lived away from the city.

223 The employer then addressed the issue of whether the indefinite suspension was administrative or disciplinary. The employer submitted that such an analysis was unnecessary in view of the fact that the disciplinary penalties were backdated to the first day of the indefinite suspension, thereby rendering it moot. The employer further submitted that if an analysis had to be made, I should determine that the indefinite suspension was administrative in nature. The employer argued that the mere fact that the employer was contemplating the application of discipline is not sufficient to convert the suspension to one that is disciplinary in nature. In this regard, the employer referred to Mr. Leigh’s testimony that the employer had not made up its mind, as the investigation was ongoing. The employer points out that at the meeting of December 2, 2009, the grievor was provided with the opportunity to present his side of the story. The employer takes the position that there is insufficient evidence to render the indefinite suspension disciplinary, but that if I so determine, then it is moot because of the retroactive application of the disciplinary measures to the first day of the indefinite suspension. In support of this argument, the employer cited the following cases: Canada (Attorney General) v. Basra, 2010 FCA 24; Canada (Attorney General) v. Frazee, 2007 FC 1176; Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62.

6. The termination of employment

224 The employer asserted that there had been a culminating incident. It stated that while the grievor was out of the workplace in December 2009, Ms. White determined that he had been uncooperative with Mr. Mattern’s investigation and so informed Mr. Leigh in December 2009. This lack of cooperation was also referred to in her letter to the grievor on January 11, 2011. The employer submitted that failure to cooperate with a harassment investigation was a serious matter which contravened the harassment policy, and this was confirmed by the union’s witnesses.

225 The employer maintained that a second culminating event occurred during the all-day meeting of January 18, 2010, the objective of which was to plan a way to improve the grievor’s working relationship with management. The employer pointed to the grievor’s statement shortly into the meeting when he asserted that he had not been disrespectful to management as confirming its view that the grievor would never see his responsibility for the poor relationship and accept that his actions were disrespectful. The employer also referred to the grievor’s evasiveness in responding to questions as well as his hostile tone and accusatory attack on Mr. Harder.

226  Referring to the letter of termination, the employer indicated that it recited the grievor’s disciplinary history as well as the two new facts referred to above, and the grievor’s behaviour at the meeting of January 18, 2010. In reference to Mr. Leigh’s assertion that the termination of the grievor’s employment was not a disciplinary measure, the employer pointed out that in his view, the purpose of discipline was corrective. As the grievor’s employment was now being terminated, the measure was no longer one with a corrective purpose. The employer submitted that the fact that Mr. Leigh and the union differed in their understanding of discipline on January 22, 2010 is not determinative.

227 The employer submitted that while the grievor had not returned to work before the meeting of January 18, 2010, his behaviour at that meeting clearly indicated that his conduct would not change, as did the grievor’s statements to that effect. As an example, the employer pointed to the grievor’s statement that he would not meet with Mr. Harder unless a union representative was present. The employer submitted that this clearly demonstrated that the progressive discipline previously imposed on the grievor had not achieved its goal of correction. In addition, the grievor continued to deny any wrongdoing. The employer referred to Mr. Leigh’s testimony that he sought only the faintest glimmer from the grievor that he would work to improve his working relationships, but that this did not occur during the all-day meeting. The employer requests that the grievance be dismissed.

228 In support of its arguments, the employer cited various authorities. In relation to culminating incidents and insubordination generally, the employer referred to Canadian Labour Arbitration, paragraph 7:3660 and Way. The employer argued that because he was a manager, the grievor was in a position of trust. In relation to the termination of employment due to the severing of the bond of trust by an employee in a position of trust, the employer cited: King v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 125; application for judicial review dismissed in: 2012 FC 488. Concerning termination of employment for insubordination: British Columbia Hydro and Power Authority v. I.B.E.W., Loc. 258 (Crerar) (2002), 113 L.A.C. (4th) 337; Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 50. The case on termination for negative attitude toward the employer was: Desrochers v. Treasury Board (Solicitor General of Canada), PSSRB File No. 166 02-26340 (19980116). As for the cases on the employee’s failure to comply with a clear expectation of management in absence of an express order constitutes insubordination, the employer cited: Shuniah Forest Products Ltd. v. I.W.A. - Canada, Local 2693, [2000] O.L.A.A. No. 811. On the issue of the employment relationship no longer being viable: Sun-Rype Products Ltd. v. Teamsters Local Union 213, (2010) 191 L.A.C. (4th) 129. Termination for continuous disregard for managerial direction is addressed in: Anten v. Treasury Board (National Defence), PSSRB Files Nos. 166-02-27491 and 166-02-27499 (19971107). Finally, on the issue of the irrelevance of the minor nature of a culminating incident: Culinar Foods Inc. v. American Federation of Grain Millers, (1995) 48 L.A.C. (4th) 99; Northwest Territories Power Corp. v. Union of Northern Workers, (2004) 132 L.A.C. (4th) 275.

229 The employer submitted, in the alternative, that if the grievance against the grievor’s termination is allowed, then compensation in lieu of reinstatement is the appropriate remedy. The employer argued that it would be contrary to the interests of both management and the grievor to continue the working relationship in view of the fact that both the grievor and the union acknowledged that the relationship was broken. The employer further argued that it would be severely harmed if the grievor were introduced back into the workplace. In support of its argument for compensation in lieu of reinstatement, the employer cited the following cases: Doucette v. Treasury Board (Department of National Defence), 2003 PSSRB 66; Gannon v. Canada (Attorney General), 2004 FCA 417; Lâm v. Canada (Attorney General), 2009 FC 913; appeal allowed, 2010 FCA 222. The employer submitted that the remedy of reinstatement is not an absolute right and that subsection 228(2) of the PSLRA grants adjudicators the authority to order compensation in lieu of reinstatement. The employer referred to the factors to be considered in deciding whether to award compensation in lieu of reinstatement as set out in DeHavilland Inc. v. CAW-Canada, Local 112 (1999), 83 L.A.C. (4th) 157 and submitted that many of those factors are also present in this case.

230 In respect of the grievor’s performance appraisal for the period April 1, 2007 to March 31, 2008, the employer pointed out that the grievor received a written reprimand on January 18, 2007 and a one-day suspension on April 3, 2007 for inappropriate workplace behaviour during a meeting with his manager on March 1, 2007. The employer further pointed out that the incident with Ms. Bauer occurred in May 2008, just after the review period. The employer argued that while the grievor was capable of good behaviour for this period, he could not sustain it. The employer stated that while there appeared to have been some positive comments in the grievor’s appraisal for April 1, 2008 to March 31, 2009, the grievor grieved his rating for that period: Bahniuk, 2011 PSLRB 75.

B. For the grievor

231 The grievor submitted that while the letter of termination states that the trust between him and the employer was irreparably damaged, his performance appraisals demonstrate that he has rehabilitative potential. The grievor first addressed his performance appraisal for April 1, 2007 to March 31, 2008 (Exhibit E-12, Attachment 13). He pointed out the numerous references to the grievor’s working relationship with managers, in the following areas: Objective 1.1, “Contribute to the achievement of national, regional and/or local program objectives”; the assessment for Objective 1.2, “Ensure that actions taken to collect accounts are in accordance with the law and with Revenue Collections policies and procedures”; the assessment for Objective 1.3, “Assisting the Manager in utilizing the resources allocated to your Section effectively and efficiently”; Objective 1.4, “Support the Revenue Collections Management Team”; the assessment for Objective 2.1 “Security”; the “Supervising Manager’s Summary of Performance”. In the second document in the same exhibit, the grievor pointed to the following references: the assessment of Objective 1 “Effective Performance Management”; the assessment of Objective 3, “Foster open, multi-directional communication and exchange of knowledge (multi-directional)”; and the assessment of Objective 4, “Decisions and behaviours are based on CRA values, ethics and principles”. The grievor submitted that a total of 16 positive comments are found in this performance appraisal.

232 The grievor also referred to various comments in his performance appraisal for April 1, 2008 to March 31, 2009 (Exhibit G-5) in the following areas: the assessment for Objective 1.2; the assessment for Objective 1.4; the assessment for Objective 2.1, “Work cooperatively with all levels of management”. The grievor submitted that there were 11 positive comments in this appraisal, for a total of 27 positive comments in two consecutive appraisals covering a two-year period. The grievor pointed out that Exhibit G-5 referred negatively to two interactions with senior management, one of which forms part of the present case.

1. The 3-day suspension

233 The grievor submitted that Ms. Bauer’s perception of the incident should be considered against the backdrop of the 27 positive comments in his performance appraisals. The grievor suggested that Ms. Bauer’s perception was extreme and that there had been no mention of the grievor being out of control during the incident. The grievor submitted that should I conclude that discipline was warranted, in assessing the appropriateness of the quantum, I should consider the grievor’s performance appraisals and the fact that he apologized to Ms. Bauer.

2. The 10-day suspension

234 The grievor referred to Doucette at paragraph 86, where the adjudicator set out the requirements for a finding of insubordination. The grievor argued that to be characterized as insubordination, an order must be disobeyed in a clear manner. Concerning the grievor’s alleged failure to acknowledge Mr. Harder’s order to meet with Ms. Moore and Ms. Nelson, the grievor referred to Ms. Belot’s notes of the November 19, 2009 meeting (Exhibit E-21) where it is recorded that, “Stan replied that he didn’t say that he wouldn’t come,” and “Stan replied that he had agreed to meet.” The grievor then referred to the following extract from Ms. Nelson’s notes of the same meeting (Exhibit E-28):

…

Terry then clearly stated in a direct, firm voice “This is now the fourth time I am saying this and now it’s an order. You will meet with Lynn and Rosemary on this account in the morning. Do you understand?” Stan responded yes.

…

235 The grievor submitted that the above positively indicates that he intended to attend the meeting with Ms. Moore and Ms. Nelson. The grievor pointed out that when referred to the above extract in cross-examination, Mr. Leigh said that it appeared to be an acknowledgement of the order. The grievor then referred to Mr. Harder’s notes of the fact-finding meeting of November 20, 2009 (Exhibit E-31), where it is stated:

…

There was never any intention on my (Stan) part not to meet with Rosemary or Lynn and I (Stan) do not know how you (Terry) could have come to that conclusion.

…

236 The grievor submitted that Mr. Harder misunderstood his intention to attend the meeting. The grievor then referred to the following excerpt from the letter of suspension (Exhibit G-2):

…

The Assistant Director then closed discussion on this matter by clearly instructing you to meet with your Manager and colleague team leader to resolve the outstanding issues on the file. While I do acknowledge that you did meet with your Manager and colleague the following day, on November 20, 2009, you did not give any indication to the Assistant Director that you were prepared to do so. Your repeated refusal to acknowledge these requests is a demonstration of a lack of respect, professionalism and cooperation and in contravention of the Agency’s core values.

…

237 The grievor submitted that the above clearly indicates that the grievor obeyed the order to meet with Ms. Moore and Ms. Nelson, and that the employer’s evidence contradicts several of its own exhibits.

238 The grievor then addressed his alleged refusal to meet with Mr. Harder and Ms. Moore and his later agreement to attend, but not to participate in the meeting. He argued that Mr. Ell’s notes of the November 19,2009 meeting (Exhibit G-4) indicate that he had agreed to participate. The grievor requested that the grievance against the 10-day suspension be allowed.

3. The 20-day suspension

239 The grievor submitted that the employer’s investigation of the harassment grievance was incomplete because Mr. Leigh did not interview Mr. Ell in that regard. The grievor argued that by failing to interview Mr. Ell, the employer could not conclude that the filing of the harassment grievance was malicious and that it was therefore improper to impose discipline. In support of this argument, the grievor cited Pilon v. Canada Revenue Agency, 2010 PSLRB 97, where I determined that the employer’s investigation of a complaint against the grievor in that case was incomplete because the employer had not contacted the initiator of the complaint. The grievor therefore requested that the grievance challenging the 20-day suspension be allowed.

240 The grievor submitted, in the alternative, that the grievance is a harassment grievance which falls under the collective agreement. The grievor argued that his position is confirmed by the very fact that he withdrew the grievance at the outset of the hearing on the basis that it was not related to one of the prohibited grounds of discrimination under the Canadian Human Rights Act. The grievor submitted that as an employee cannot be subject to discipline for filing a harassment grievance, then the grievance should be allowed.

4. The indefinite suspension

241 The grievor argued that the indefinite administrative suspension (Exhibit E-33) contained punitive elements and was therefore disciplinary in nature, in that the grievor was unpaid, was not to appear on the employer’s premises or have contact with anyone in the workplace. As such, it was imposed in contravention of Article 17 of the collective agreement and therefore void ab initio. The grievor pointed out that in cross-examination, Mr. Leigh had stated that the employer was contemplating discipline at the time of the administrative suspension.

242 The grievor next addressed the employer’s argument that the indefinite suspension was moot, since the discipline imposed was made retroactive to the first day of the administrative suspension. The grievor submitted that the administrative suspension was not moot, because the employer did not comply with clause 17.01 of the collective agreement, which requires that written reasons be provided for a suspension imposed for disciplinary reasons. The grievor did not take the position that he was unaware of the reasons for the indefinite suspension. Rather, he argued that the indefinite suspension was disciplinary, and thus the employer should have provided written reasons in accordance with the collective agreement. In support of his argument, the grievor cited Shneidman v. Canada (Attorney General), 2007 FCA 192.

5. The termination of employment

243 The grievor formulated the following arguments in respect of the termination. The first was that the termination of the grievor’s employment constitutes double jeopardy. In this regard, the grievor states that the letter of termination is merely a review of previous discipline imposed on him and further, does not refer to a culminating incident. The grievor submitted that, should I find that there was no double jeopardy, then it remains that there is no culminating incident. In either case, the grievor’s termination would be void ab initio. In a related argument, the grievor raised the issue of timeliness, alleging that the employer did not terminate the grievor’s employment in a timely manner.

244 The grievor argued that a culminating incident had not occurred because the employer narrowed the discharge to the incident that occurred during the meeting of January 18, 2010. The grievor pointed to Mr. Leigh’s testimony in cross-examination that he had not disciplined the grievor for the episode during that meeting, as well as to the exchange on January 22, 2010 between Mr. Randall and Mr. Leigh, where the latter stated that in terminating the grievor’s employment, he was not imposing discipline. The grievor submitted that as no culminating incident had occurred, there was no just cause for termination. In support of this argument, the grievor cited Doucette, at paragraphs 93 and 94 concerning the requirements for a culminating incident.

245 The grievor then submitted that the inclusion of the grievor’s previous disciplinary history in the letter of termination constituted double jeopardy, because it was being used as a basis for the termination. The grievor pointed to Mr. Leigh’s testimony that the letter of termination included the complete package of incidents indicative of a broken relationship. The grievor submits that it was improper for the employer to include those incidents as grounds for termination, as he had previously been disciplined for them. In support of his argument, the grievor cited the following authorities: Canadian Labour Arbitration, paragraph 7:4240, on multiple penalties; Scott v. Deputy Head (Department of Human Resources and Skills Development), 2010 PSLRB 42; Babineau v. Treasury Board (Correctional Service of Canada), 2004 PSSRB 145 (application for judicial review dismissed, 2005 FC 1288); Mains Ouvertes – Open Hands Inc. v. Ontario Public Service Employees Union, [2004] 79 C.L.A.S. 459; Maan v. Treasury Board (Transport Canada), 2003 PSSRB 100.

246 In a related argument, the grievor submitted that the letter of termination was untimely, in that it referred to issues dating as far back as 2002, 2004 and 2006. In support of this argument, the grievor referred to Canadian Labour Arbitration, paragraph 7:2120.

247 The grievor submitted that the grievance against his termination should be allowed. In respect of awarding compensation in lieu of reinstatement, the grievor stated that Gannon must be applied.

C. Employer’s submissions in reply

248 The employer submitted that the bulk of the grievor’s case is based on two performance appraisals, in respect of which the grievor stressed two points: first, the appraisals paint a positive picture of the grievor; second, the employer’s numerous complaints about the grievor’s conduct were not reflected in the appraisals.

249 In respect of the positive comments, the employer stated that the majority of the references apply to the grievor’s technical expertise or his interactions with his team, which were not in issue. Mr. Mapplebeck stated that while the grievor demonstrated some improvement in his behaviour, he was unable to sustain it.

250  The employer pointed out that in the public service, there are two separate streams in relation to personnel matters – one being the labour relations and disciplinary stream, and the other that of performance appraisals. If a public service employer had to document details of disciplinary action in an employee’s performance appraisal, there would be an issue of double jeopardy. The employer stressed that disciplinary measures are not referred to in performance appraisals unless the employee’s work performance is affected. The employer referred to Mr. Leigh’s testimony that it is not normal that details of disciplinary action be included in a performance appraisal. The employer stated that an employee could be competent in a job yet guilty of misconduct.

251 The employer next dealt with the meeting of January 18, 2010. The employer argued that the grievor’s angry and argumentative behaviour toward the end of the meeting constituted misconduct. The employer submitted that this was a significant factor in the decision to terminate his employment, as it demonstrated the grievor’s behaviour would not change, even after having served two suspensions totalling 30 days, and at the end of a meeting lasting several hours convened for the sole purpose of attempting to improve the working relationship.

252 In respect of the grievor’s argument of double jeopardy, in that Mr. Leigh had testified that the termination letter contained the complete package of the grievor’s history, the employer stated that it had no intention of re-disciplining the grievor for the specific events referred to, but that they were included in the letter in view of the significance of the decision to terminate the grievor’s employment. The employer submitted that the authorities cited by the grievor in this regard involved different penalties for the same events, whereas in this case, the employer was reviewing the employment relationship.

253 Concerning the grievor’s argument of timeliness, the employer responded that the event of January 18, 2010 had only occurred on that day. As for the discipline imposed on December 10, 2009, at that date, Mr. Leigh was unaware of the Mattern report and the determination by Ms. White.

254 In respect of the indefinite administrative suspension, the employer submitted that the collective agreement provisions concerning discipline were not engaged, as the employer had not yet made a determination as to discipline. The employer pointed out that at the fact-finding meeting of November 20, 2009, Mr. Harder read out the allegations twice, and at that point they were merely allegations.

255 The employer next addressed the grievor’s argument that the employer’s investigation was flawed because Mr. Ell was not interviewed. The employer submitted that the grievor’s situation was not analogous to Pilon, because in that case, the employer failed to interview the employee who had initiated the complaint. By contrast, Mr. Ell witnessed only the second portion of the meeting. While he said that Mr. Harder did not provide adequate time for the grievor to respond to his questions, he also said that Mr. Harder did not raise his voice and was professional. The employer submitted that on the whole, the evidence was that Mr. Harder was professional. While Mr. Ell said that he was upset by the meeting, he did not say why. The employer submitted that Mr. Harder was a credible witness who had no previous history with the grievor, as he had arrived in the unit in 2009. There was no reason for Mr. Harder to have wanted his interaction with the grievor to go poorly, while the grievor had a well-documented history of accusatory behaviour at meetings with senior management.

256 Concerning the 10-day suspension imposed as a result of the first portion of the meeting of November 19, 2009, the employer pointed out that in the cross-examination of Mr. Leigh, the grievor’s representative referred him only to Ms. Nelson’s notes, and not to Mr. Harder’s notes or to his testimony. The employer’s position was that the grievor never said that he would meet with Ms. Moore and Ms. Nelson. The employer characterized the grievor’s statement recorded in Mr. Harder’s notes (Exhibit E-31) that it was never his intention not to meet with them as disingenuous and pointed out that if that were so, why would Mr. Harder have to ask him four times to attend the meeting? Further, the employer referred to Mr. Harder’s testimony that he had never had to issue an order to an employee.

257 In dealing with the second portion of the November 19, 2009 meeting concerning file allocation and Mr. Harder’s direction that the grievor meet with him and Ms. Moore, the employer submitted that the grievor’s representative blurred the two events of that meeting. The employer argued that the veracity of Mr. Harder’s testimony on the event was not tested and submitted that in order to warrant discipline, only something sufficiently contemptuous of management was required, which was the case here.

258 Turning to the issue of compensation in lieu of reinstatement, the employer argued that Gannon predated the PSLRA, subsection 228(2) of which provides adjudicators with the discretion to order such a remedy. The employer submitted that while the grievor argued that Doucette requires a culminating incident for an order of pay in lieu of reinstatement, the employer’s authorities state that culpable behaviour is not required for such a remedy. The employer submitted that in the exceptional circumstances of this case, where the employment relationship is clearly unworkable and there is no hope of the grievor’s rehabilitation, compensation in lieu of reinstatement is the appropriate remedy.

IV. Reasons

A. The 3-day suspension (Board File No. 566-34-3958)

259 As stated in the letter of discipline (Exhibit E-7), the 3-day suspension was imposed on the grievor for unprofessional and disrespectful conduct at the meeting with Ms. Bauer on May 2, 2008, in contravention of the employer’s Code of Ethics and Conduct (Exhibit E-8)and Manager’s Charter (Exhibit E-9).

260 In determining whether misconduct occurred, and since the grievor did not testify, the evidence consists of Ms. Bauer’s uncontradicted testimony, supported by her notes of the May 2, 2008 meeting (Exhibits E-2 and E-3), as well as the notes of the disciplinary hearing of June 2, 2008 (Exhibit E-6). Ms. Bauer’s testimony graphically depicted an unprovoked outburst by the grievor at a meeting with her that he had himself requested. According to the evidence, the grievor went on a tirade against Ms. Bauer, accusing her of not holding managers accountable. Although Ms. Bauer attempted to calm him, the grievor continued his angry and accusatory behaviour. Ms. Bauer testified that she was shaken by the grievor’s behaviour, which she had never experienced in her 33 years with the CRA. Furthermore, Ms. Bauer testified that at the fact-finding meeting held on May 15, 2008, the grievor did not deny his conduct when asked for an explanation, blaming his frustration for his behaviour. Following the conclusion of the meeting, he returned and apologized for his behaviour. I found Ms. Bauer to be a highly credible witness, who was calm and thoughtful throughout her testimony.

261 The employer’s Code of Ethics and Conduct clearly stipulates that all CRA employees must adhere to the core values of respect and professionalism, and that managers are expected to exemplify those values. The grievor’s training history (Exhibit E-48) indicates that he was aware of the Code of Ethics and Conduct. The Manager’s Charter requires that managers demonstrate the core values of CRA through words and actions.

262  Based on the evidence, I find that the grievor engaged in unprofessional and disrespectful conduct toward Ms. Bauer on May 2, 2008, in contravention of the employer’s policies. He admitted as much by apologizing to Ms. Bauer for his behaviour. The grievor’s uncontrolled behaviour as described by Ms. Bauer was reprehensible and has no place in a work environment, all the more so when engaged in by a manager.

263 With respect to the appropriateness of the discipline imposed, the grievor’s disciplinary record at that point consisted of a written reprimand and a 1-day suspension for similar incidents. Ms. Bauer referred to the employer’s grid for examples of misconduct and the suggested disciplinary measures at Appendix C of the Discipline Policy.She selected “use of abusive language,” a Group 1 misconduct, as the appropriate category for the grievor’s misconduct. The introductory page to that appendix clearly indicates that the information is not exhaustive, but is presented as a guideline. In view of the fact that the grievor had a disciplinary record, the discipline suggested by the policy was a suspension ranging from 3 to 5 days. Ms. Bauer testified that she would have imposed the maximum suspension of 5 days, but in view of the grievor’s apology, which she considered a mitigating circumstance, she opted for the minimum suspension of 3 days. Ms. Bauer stated in cross-examination that discipline was necessary in spite of the grievor’s apology, as she felt that managers must serve as role models for employees and that it was important that this be impressed on the grievor.

264 The grievor submitted that in the event I concluded that discipline was warranted, I should consider his apology and his performance appraisals in assessing the appropriateness of the quantum.

265 With respect to the grievor’s apology, based on Ms. Bauer’s testimony, I find that the employer appropriately factored the apology into its decision in imposing a 3-day suspension.

266  As for the grievor’s performance appraisals, in my view they should not be considered in my assessment of the quantum of this suspension. This is not a case dealing with the grievor’s work performance. Mr. Leigh testified that in his experience with the CRA, it is not normal policy to specify details about a disciplinary measure in a performance appraisal. Given the same circumstances, why would an employee with a high performance rating deserve a lesser disciplinary penalty than an employee with a mediocre rating? I therefore reject the grievor’s argument in this regard.

267 The grievor questioned Ms. Bauer’s objectivity in the disciplinary process, suggesting that by conducting the fact-finding into an incident in which she was involved, she had placed herself in a conflict of interest. Ms. Bauer testified in cross-examination that before conducting the fact-finding, she had consulted the director of staff relations, who had advised her that she had the authority under the Discipline Policy to do so. In re-examination, she distinguished between fact-finding and investigation under the Discipline Policy, in that the former is conducted by a manager, while the latter is undertaken by the local director at the direction of the internal affairs unit. In any event, the hearing before the adjudicator is de novo, and so cures any defect in the process.

268 The grievor argued that Ms. Bauer’s perception of the incident was an extreme one in view of her comment to a staff relations manager that if the grievor had had a gun, she wasn’t sure he wouldn’t have used it. While that comment may not have been the most felicitous, it should be placed in context. According to the evidence, the comment was made to another manager the same day the meeting took place, at a time when Ms. Bauer indicated that she was shaken. Ms. Bauer testified that the comment was based on her perception of the grievor’s demeanour. She stated in cross-examination that she had not established the grievor’s misconduct at that point. In that regard, the fact-finding meeting with the grievor was held on May 15, 2008, almost two weeks following the incident, with the discipline having been imposed some two weeks later. In my view, this timeline and Ms. Bauer’s testimony concerning her consultations with staff relations and other managers about the appropriate discipline demonstrate that her comment did not influence her objectivity in imposing discipline on the grievor.

269  Based on the evidence, I conclude that the 3-day suspension imposed on the grievor was appropriate in all the circumstances. Accordingly, I dismiss the grievance.

B. The indefinite suspension (Board File No. 566-34-3957)

270 The grievance against the indefinite suspension without pay was filed under paragraph 209(1)(b) of the PSLRA, which provides that an employee may refer to adjudication a grievance related to “a disciplinary action resulting in termination, demotion, suspension or financial penalty.” The employer argued that the indefinite suspension was administrative in nature, while the grievor submitted that it contained punitive elements which rendered it disciplinary.

271 The analysis whether the indefinite suspension is administrative or disciplinary in nature must be based on the intention of the employer when it imposed the suspension: Basra.

272 The employer argued that such an analysis would be superfluous in this case, as the grievance against the indefinite suspension was rendered moot by the fact that the 10 and 20-day suspensions were imposed retroactively to the first date of the indefinite suspension without pay. In Brazeau, the adjudicator determined as follows at paragraph 154:

… I agree with the respondent’s submission that the grievance regarding the suspension is moot since the termination was imposed retroactively to the original date of the suspension without pay.

273 Faced with a similar issue, the adjudicator in Shaver v. Deputy Head (Department of Human Resources and Skills Development), 2011 PSLRB 43 found as follows:

79 In my view, the letter of suspension of September 29, 2008 should be interpreted as it was written. I find that there was a disciplinary component to the suspension because that is what the letter says by means of the reference to section 12(1)c) of the FAA. …

80 However, I also find that this issue is moot because the termination of the grievor's employment was made retroactive to the first day of the suspension (Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62, at para 154).…

274 In this matter, as the employer applied the discipline retroactively to the first date of the indefinite suspension, the grievance is moot. Accordingly, the grievance is dismissed.

C. The 10 and 20-day suspensions (Board File No. 566-34-3956)

275 The letter of discipline dated December 10, 2009 (Exhibit G-2) imposed two suspensions on the grievor, to be served consecutively. He filed a single grievance against both measures, which states the following: “I grieve the disciplinary action taken by the employer against myself on or about Dec. 10, 2009.” The corrective action requested by the grievor reads in part as follows: “That all resulting loss of salaries and benefits be reinstated retroactively to on or about Nov. 24, 2009.” Given that they were imposed for separate events, I propose to analyze each of them in turn.

1. The 10-day suspension

276 The letter of discipline states that the employer imposed the 10-day suspension on the grievor for two alleged acts of insubordination. The first was the grievor’s repeated refusal to acknowledge Mr. Harder’s direct order that he meet with Ms. Moore and Ms. Nelson on November 20, 2009. The second was for initially refusing to meet with Mr. Harder and Ms. Moore, and later agreeing to meet with them but refusing to participate. I must first determine whether the alleged misconduct occurred.

(i) Refusal to acknowledge a direct order

277 With respect to the grievor’s alleged refusal to acknowledge Mr. Harder’s order to meet with Ms. Moore and Ms. Nelson, the evidence clearly shows that Mr. Harder requested the grievor to do so three times. Mr. Harder then issued a direct order to the grievor. This is based on Mr. Harder’s testimony of the events of November 19, 2009, as well as his notes of the fact-finding meeting held on November 20, 2009 (Exhibit E-31) and of the disciplinary hearing held on November 24, 2009 (Exhibit E-32), as well as the notes of Ms. Nelson (Exhibit E-28). In Exhibit E-32, Mr. Harder recorded the grievor’s acknowledgement of this as follows: “He ordered me at least three times.” As the grievor did not testify, this evidence is unchallenged.

278 However, the fact that Mr. Harder issued the order does not end the matter. The misconduct alleged by the employer is not that the grievor disobeyed the order, but rather that he refused to acknowledge the requests to attend the meeting.

279 In the letter of discipline, the employer acknowledged that the grievor did in fact attend the meeting in the following terms:

While I do acknowledge that you did meet with your Manager and colleague the following day, on November 20, 2009, you did not give any indication to the Assistant Director that you were prepared to do so.

280 Mr. Leigh testified that his knowledge of the incidents of November 19, 2009 was based on various documents brought to his attention by Mr. Harder, including the notes taken by Mr. Harder, Ms. Nelson, Ms. Belot and Ms. Moore. Ms. Nelson’s notes recorded Mr. Harder’s order to the grievor to meet with her and Ms. Moore as follows: “You will meet with Lynn and Rosemary on this account in the morning. Do you understand? Stan responded yes.” When referred to this exchange in cross-examination, Mr. Leigh stated that it appeared to be an acknowledgement of the order. Furthermore, Mr. Harder’s notes of the fact-finding meeting recorded the grievor as stating that he never intended not to meet with Ms. Moore and Ms. Nelson, and questioned how Mr. Harder could have arrived at such a conclusion. When asked in cross-examination why he had disciplined the grievor when he had attended the meeting, Mr. Leigh replied that the fact that Mr. Harder had to direct the grievor’s attendance three times before making it an order constituted disrespectful behaviour.

281 While I agree that the grievor’s attitude in this exchange with Mr. Harder was disrespectful, the misconduct alleged by the employer is that of his failure to acknowledge a direct order. In my view, the grievor’s acquiescence to Mr. Harder’s order as reflected in Ms. Nelson’s notes constituted an acknowledgement of that order. Furthermore, Mr. Leigh, who testified to the reliability of Ms. Nelson’s notes, stated in cross-examination that this appeared to be an acknowledgment of the order. Although the letter of discipline states that the grievor did not indicate to Mr. Harder that he would attend the meeting, in my opinion that is not relevant to the issue of whether the grievor refused to acknowledge his order. Based on the evidence, I am of the view that the employer failed to prove on a balance of probabilities that the grievor engaged in the alleged misconduct of refusing to acknowledge Mr. Harder’s direct order.

(ii) Refusal to meet

282 The grievor’s second act of insubordination alleged by the employer was his initial refusal to meet with Mr. Harder and Ms. Moore concerning file allocation, and his subsequent agreement to meet but refusal to participate.

283 The evidence demonstrated that the issue of file allocation was raised by the grievor with Mr. Harder. When Mr. Harder then invited the grievor to meet with him and Ms. Moore to discuss the issue, the grievor stated that he refused to meet with him for alleged personal reasons. The personal reasons cited by the grievor were that during their only previous interaction on October 2, 2009 to deal with an issue involving an employee on the grievor’s team, Mr. Harder directed the grievor to prevent any unprofessional conduct that he might observe. That is a matter which is clearly work-related. When pressed, the grievor then said he would attend the meeting, but would not participate.

284  These events were described in the testimonies of Mr. Harder and Ms. Belot, as well as in Mr. Harder’s notes of the November 19, 2009 meeting (Exhibits E-26 and E-27), the fact-finding meeting (Exhibit E-31), the disciplinary hearing of November 24, 2009 (Exhibit (E-32), the disciplinary hearing of December 2, 2009 (Exhibit E-35) and Ms. Belot’s notes (Exhibit E-21). The grievor argued that Mr. Ell’s notes of the November 19, 2009 meeting (Exhibit G-4) indicate that the grievor had agreed to both meet and participate in the meeting.

285 A careful reading of the notes clearly shows that, regardless of which version I accept, the grievor initially refused to attend the meeting with Mr. Harder and Ms. Moore because he did not want to meet with Mr. Harder for what he termed personal reasons.

286 The next issue is whether once he had agreed to attend the meeting concerning file allocation, the grievor stated he would not participate in the discussion. The only evidence to the effect that the grievor said he would participate is found in Mr. Ell’s notes. However, the weight of the evidence is to the contrary. The testimony of Mr. Harder and Ms. Belot, as well as Ms. Belot’s notes, clearly indicate that the grievor stated that he would not participate in the discussion. In the grievance he filed the same day, November 19, 2009 (Exhibit E-54), the grievor wrote the following in section B of the grievance form labelled “Details of grievance:”

…

Then he demanded I discuss with him and the manager, about the problems associated with the allocation of accounts. I said I would attend but had nothing to say because of personal reasons.

…

287 Furthermore, Mr. Harder testified that he was surprised by the grievor’s statement that he would attend the meeting but not participate, told him that this was unacceptable and that team leaders are expected to contribute to such discussions. In view of the grievor’s refusal to participate, Mr. Harder terminated the meeting and said that he would convene a fact-finding. His testimony was corroborated by Ms. Belot and reflected in her notes. It seems evident to me that if the grievor had indeed agreed to participate in the meeting, then there would have been no need for Mr. Harder to tell him that team leaders must contribute to discussions. In Chopra, the adjudicator stated the following at paragraph 795:

…

In an employment relationship, the employee must follow legitimate instructions. The workplace is not a democracy in which supervisors must convince employees of the merits of following a particular order.

…

288 I therefore find that the employer proved that the grievor’s refusal to comply with Mr. Harder’s clear directive was an act of insubordination.

289 In my assessment whether the 10-day suspension imposed by the employer was appropriate in the circumstances, I shall first deal with the incident concerning which I have found that the grievor was guilty of insubordination. The grievor initially refused to meet with Mr. Harder and Ms. Moore concerning file allocation. It was only following repeated requests from Mr. Harder that he agreed to attend, but refused to participate in the discussions.

290 The evidence disclosed that it was the grievor who first raised the issue of file allocation with Mr. Harder, who then invited the grievor to a meeting with his section manager, Ms. Moore, and him to discuss the matter. The grievor’s ensuing behaviour was disdainful of Mr. Harder as well as insubordinate. The fact that in their only previous interaction, Mr. Harder had issued a legitimate directive to the grievor was no reason to refuse to meet with him for alleged personal reasons. Mr. Ell testified that as a collections officer, he always met with his immediate supervisor or assistant director at their request, and that in his experience it was unusual for the grievor to have told Mr. Harder he refused to meet with him for personal reasons. The grievor’s behaviour was yet another example of his insubordinate, defiant and disrespectful attitude toward senior management at the CRA.

291 There was no evidence of mitigating factors to explain or excuse the grievor’s behaviour. Mr. Harder testified that at the disciplinary hearing of November 24, 2009, the grievor and his representative were given the opportunity to present mitigating circumstances, but did not. There was no acceptance of responsibility by the grievor for his behaviour. Mr. Harder also testified that the grievor did not apologize, which was corroborated by Mr. Fandrich.

292 When imposing the 10-day suspension, the employer took into account the grievor’s disciplinary record, which consisted of a written reprimand for insubordination, a 1-day suspension for similar behaviour and a 3-day suspension for abusive language. The grid at Appendix C of the employer’s Discipline Policy provides that repeated infractions contained in Groups 1 (use of abusive language or profanity) and 2 (insubordination) constitute a Group 3 disciplinary measure, which specifies a suspension range of 1 to 30 days. As I have upheld the 3-day suspension, his disciplinary record is that which was relied upon by the employer when it imposed the 10-day suspension.

293 However, I have found that the employer failed to prove one of the two incidents on which it relied in imposing the 10-day suspension. In his testimony, Mr. Leigh did not refer to any consideration of proportionality in selecting a 10-day suspension for the two incidents, nor did the employer make any representations in that regard. It is therefore left to me to determine whether the penalty decided by the employer was reasonable in the circumstances.

294 The Discipline Policy provides that a single act of insubordination attracts a Group 2 disciplinary penalty, which ranges from a written reprimand to a 10-day suspension. It is therefore open to me to consider that, the employer having proved one of the two alleged incidents, I need not intervene, as the suspension imposed by the employer falls within the disciplinary range for a single act of insubordination. All the more so when the act is similar to those for which he was previously disciplined. However, I do not believe this approach to be appropriate here.

295  Both of the incidents underpinning the 10-day suspension were of the same nature, i.e. alleged acts of improper behaviour for similar reasons. I believe it reasonable to assume that had the employer turned its mind to the proportionality of the penalty, it would have concluded that the incidents were of equal weight. In any event, that is the conclusion that I draw. Furthermore, I do not believe it proper that the grievor not benefit from a reduction in the penalty when I have determined that the employer has failed to prove one of the two incidents upon which it was based. In my view, the appropriate penalty in the circumstances is that the 10-day suspension be reduced to one of 5 days. The grievance will accordingly be allowed to that extent.

2. The 20-day suspension

296 I shall deal first with the grievor’s submission that Mr. Leigh’s investigation of the harassment grievance was incomplete because he did not interview Mr. Ell and that the employer’s decision on the matter was therefore based on an incomplete view of the facts. The grievor cited Pilon in support of this argument.

297 Mr. Leigh testified that for the purposes of his investigation, he relied on the notes of Ms. Nelson and Ms. Belot concerning the behaviour of both the grievor and Mr. Harder at the November 19, 2009 meeting and stated that he had complete confidence in their accuracy. There is no dispute as to the reliability of their notes. Mr. Leigh testified that he did not interview Mr. Ell concerning the matter because being the grievor’s union representative, he did not wish to put him in an awkward position.

298 While it may certainly be good labour relations practice, I am not aware of any legal requirement that a party interview specific individuals in the course of carrying out an investigation, however central their role may or may not be. The applicable collective agreement does not stipulate such a requirement and the grievor did not cite any authorities in support of such a principle. The employer will live with the investigation it has carried out and its case will stand or fall based on the evidence submitted.

299 The grievor’s argument is that the employer was under the mistaken impression that the grievor had agreed to attend but not participate in the meeting with Ms. Moore. As this argument goes, had Mr. Ell been interviewed, he would have told Mr. Leigh that the grievor had in fact agreed to do both.

300 However, Mr. Ell did not attend the entire meeting. All of the evidence, save that of Mr. Ell, indicates that the employer did nothing wrong in the meeting. In the first part of the meeting, the grievor had been agitated and his tone accusatory. This caused Mr. Harder to adopt a firm way of dealing with the grievor. Although Mr. Ell was absent for the first part of the exchange, he took exception to the tone that the meeting had adopted without the benefit of background as to its origin.

301 Moreover, the fact that Mr. Ell was not interviewed is not equivalent to the situation in Pilon. The grievor in that case was alleged to have sent an email which was unprofessional and disrespectful in tone. Although the manager investigating the matter had testified that the characterization of the tone of the email depended on the perception of the recipient who had initiated the complaint, he made no attempt to contact him. In contrast to the complainant in Pilon, in this matter, Mr. Ell’s role was not central to the issue. I therefore reject the grievor’s argument that Mr. Leigh’s investigation was incomplete.

302 The grievor’s alternative argument was that the grievance is a harassment grievance which comes within the ambit of the collective agreement. The grievor argued that this is confirmed by the fact that at the outset of the hearing, he withdrew the grievance on the basis that it was not related to one of the prohibited grounds of discrimination under the Canadian Human Rights Act. The grievor submitted that the grievance should be allowed on the basis that an employee cannot be disciplined for filing a harassment grievance.

303 In cross-examination of Ms. White, Mr. Leigh and Mr. Lavkulich, the grievor attempted to elicit from those witnesses a distinction between an allegation of harassment filed via the vehicle of a grievance and one filed as a complaint for the purposes of the application of the CRA’s harassment policy. Each of those witnesses testified that the harassment policy was engaged once an allegation of harassment was made, whether as a grievance or a complaint, since there could be only one method of resolution.

304 Moreover, the grievor himself indicated that his grievance alleging harassment by Mr. Harder would be dealt with according to the harassment policy. In an email to Ms. Nelson dated November 20, 2009 (Exhibit E-60), the grievor stated: “Lynn I will be filing a harassment complaint and you will be a witness, and will be required to give a review of our meeting on November 19 with Terry Harder.” Furthermore, Mr. Harder’s notes of the disciplinary hearing of November 24, 2009 (Exhibit E-32) record the grievor’s reference to his harassment complaint and the investigation to be undertaken by the employer.

305 In any event, in my view the employer has the ability to impose discipline for malicious use of either process, whether a grievance or a complaint of harassment. As Mr. Ell stated in cross-examination, the grievance procedure is for legitimate grievances and was not intended to be used maliciously or for vindictive reasons by an employee who doesn’t like the directions they were given.

306 The letter of suspension specifies that the grievor was disciplined for inappropriate use of the Preventing and Resolving Harassment policyand states the following: “The CRA’s Preventing and Resolving Harassment Policy (Exhibit E-58) stipulates that complaints must be made in good faith and that an employee who makes a malicious complaint may be subject to disciplinary measures.” This reflects the policy itself, where at section 6, titled “Policy requirements,” it is stated:

Complaints must be made in good faith. An employee who makes a malicious complaint, a complaint in bad faith, or retaliates against another employee for filing a complaint, may be subject to disciplinary measures up to, and including, termination of employment.

307 I must first determine whether the grievance filed by the grievor against Mr. Harder was “malicious” or in “bad faith.” As those terms are not defined in the harassment policy, I will look first to their ordinary meaning. In Webster’s Third New International Dictionary of the English Language Unabridged (1981), “malice” is defined as: “intention or desire to harm another usu. through doing something unlawful or otherwise unjustified.” The definition in the New Shorter Oxford English Dictionary (1993) includes, “the desire to injure another person; active ill will or hatred; harmful action or effect.”

308 In Jeffrey v. Dofasco Inc., [2004] HRTO 17, the Ontario Human Rights Tribunal endorsed the following definition:

A complaint made in bad faith is one pursued for improper reasons or motives and is not prompted by an honest mistake as to one's rights or duties. The term bad faith normally connotes moral blameworthiness on the part of the person accused, and includes conduct designed to mislead or pursued for an improper purpose. Bad faith contemplates a state of mind affirmatively operating with a furtive design or ill will…

309 In the circumstances of this matter, in my view “bad faith” may be characterized as improper motive. In determining whether bad faith exists, the adjudicator in McMorrow v. Treasury Board (Veterans Affairs), PSSRB File No. 166-02-23967 (19931119) said the following:

It is trite to say that a determination of whether there is good faith or not must be gleaned from all the surrounding circumstances; there can be a multitude of sets of facts that may result in a conclusion of bad faith … keeping in mind of course that good faith should always be presumed.

310 I turn now to an examination of the circumstances of the matter. Mr. Harder took up his position on March 30, 2009. He had no previous involvement with any of the grievor’s issues. His only interaction of significance with the grievor prior to November 19, 2009 was on October 2, 2009. On that date, he directed the grievor to put a stop to any unprofessional conduct he might observe in the workplace. This arose out of an incident involving a member of the grievor’s team and was completely separate from any issue concerning the grievor. Between October 2 and November 19, 2009, the grievor never approached Mr. Harder to express concerns about him. The grievor filed the harassment grievance on November 19, 2009, the same day that Mr. Harder had directed him to attend work-related meetings. Mr. Harder testified that he was shocked and hurt by the allegation of harassment, since he had worked diligently to build a respectful workplace from the time of his arrival. In conformity with the harassment policy, Mr. Leigh was delegated by the Assistant Commissioner to investigate the harassment grievance. He determined that the allegations were unfounded. The evidence disclosed that the grievor failed to substantiate his allegations against Mr. Harder or present any mitigating circumstances, whether at the fact-finding of November 20, 2009, the disciplinary hearing of November 24, 2009, or the meeting of December 2, 2009 when the letter of discipline was issued. Mr. Ell, Mr. Fandrich and Mr. Leigh all testified that the proper exercise of managerial authority does not constitute harassment. Mr. Fandrich also stated that not every difference of opinion in the workplace constitutes harassment. Furthermore, at no time did the grievor apologize to Mr. Harder.

311 Did the grievor file his grievance for improper reasons or motives, or was he merely prompted by an honest mistake as to what had occurred? Is he, in having filed the grievance against Mr. Harder, morally blameworthy in some way? As the grievor did not testify, I am precluded from determining the subjective element of the test. Furthermore, as stated in Canadian Labour Arbitration at paragraph 3:5120:

…

Arbitrators generally have adopted the same view as the civil courts with regard to the conclusions to be drawn from the failure of a person to be called as a witness who could have been called and who could have given evidence of matters within his knowledge. Thus, where a party can, by his own testimony, throw light on the matter and fails to do so, an arbitrator is entitled to infer that such evidence would not have supported his position.

…

312 Accordingly, I draw the inference that had the grievor testified, he would not have proffered any evidence that supported his allegations of harassment against Mr. Harder.

313 What conclusion would then be drawn by a reasonable person, well-informed of all the circumstances and finding himself or herself in the same situation? Based on the evidence, I am of the view that a reasonable person could arrive at no other conclusion but that the grievor wielded his allegations of harassment purely as a weapon against Mr. Harder for having issued work-related directives to him with which he did not agree. Put simply, the grievor filed the harassment grievance for an improper motive. As stated in a decision of the British Columbia Labour Relations Board, Tillicum Haus Society, [2000] B.C.L.R.B.D. No. 278, “Improper motive is the hallmark of bad faith …” I find that the employer proved that the grievor filed the allegations of harassment in bad faith, thereby subjecting him to discipline for inappropriate use of the CRA’s Preventing and Resolving Harassment policy.

314 The grievor argued that, as an employee cannot be disciplined for filing a harassment complaint, the grievance should be allowed. That argument was based on Ms. White’s testimony that it is CRA policy that an employee would not be disciplined for filing a harassment complaint, even if unfounded. However, the grievor’s argument ignores the part of her testimony where she stated that the harassment policy’s requirement that a complaint be made in good faith was to ensure that such complaints are serious and not to be initiated frivolously. I reject the grievor’s argument, as the employer proved that the grievor’s use of the policy was not just unfounded but inappropriate, thereby subjecting him to discipline as provided under the policy.

315 Furthermore, I find that the employer, which has the burden of proof, has made out a prima facie case justifying discipline concerning this grievance, thereby shifting the burden to the grievor, who failed to discharge it.

316 With respect to the severity of the discipline imposed, Mr. Leigh testified that use of the harassment policy in a frivolous or vexatious manner is taken very seriously by the employer. As that type of infraction is not provided for in Appendix C of the Discipline Policy, he stated that he used his judgment in selecting a penalty, considering the seriousness of the grievor’s actions. As the range for Group 3 infractions was from 1 to 30 days and that a 10-day suspension had been imposed, Mr. Leigh determined that a 20-day suspension was appropriate. However, the appropriateness of the penalty must be considered in light of the fact that I have reduced the 10-day suspension imposed by the employer to one of 5 days.

317 As mentioned, inappropriate use of the harassment policy is viewed as a very serious matter by the employer. Unsubstantiated allegations of harassment may have far-reaching consequences in the workplace. The testimonies of both Mr. Ell and Mr. Fandrich agreed that the employer’s harassment policy is not to be used in a frivolous manner. Had the grievor’s file at the time that the employer imposed discipline contained a 5-day suspension rather than a 10-day suspension, I do not think it likely that it would have found a 20-day suspension for inappropriate use of its harassment policy to be in keeping with the principles of progressive discipline. While no such infraction appears on the grid in the Disciplinary Policy, the penalty must nevertheless be sufficiently severe to impress upon the grievor the seriousness of his conduct. In my view, a 10-day suspension is an appropriate penalty in the circumstances and the grievance will accordingly be allowed to that extent.

D. The termination of employment (Board File No. 566-02-3955)

318 I shall deal first with the grievor’s argument that the grievance challenging the termination of his employment should be allowed in the absence of a culminating incident justifying reliance by the employer on the grievor’s disciplinary record.

319  The grievor argued that the fact that Mr. Leigh testified that in terminating the grievor’s employment, he was not imposing discipline, indicates that there was no basis for the termination. Mr. Leigh stated that he did not view the termination as discipline because to him, the purpose of discipline is corrective. As he was terminating the grievor’s employment, there would be no need for further corrective action and therefore the termination was not disciplinary. While Mr. Leigh was sincere in his view, in my opinion he misunderstood the nature of a disciplinary sanction. While the goal of discipline is to correct, the sanction itself is to punish. If Mr. Leigh were correct in his belief, there would be no such thing as a disciplinary discharge, as one can never correct the behaviour of an individual who is discharged. I agree with the employer’s submission that Mr. Leigh’s view of the termination is not determinative of the matter.

320 Just as in human rights cases, where the employer denies that it discharged an employee for disciplinary reasons, or in cases where the employer argues that a worker is an independent contractor rather than an employee, my role here is not to simply accept the employer’s characterization as the foundation for my analysis. Rather, my role is to review the circumstances of the grievor’s termination and to re-characterize it, if necessary.

321 There is no doubt that the grievor’s employment was terminated for disciplinary reasons. As stated in the letter of termination, Mr. Leigh terminated the grievor’s employment by virtue of the authority granted to him under paragraph 51(1)(f) of the Canada Revenue Agency Act, which reads as follows:

51.(1) The Agency may, in the exercise of its responsibilities in relation to human resources management,

…

(f) establish standards of discipline for its employees and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct and the circumstances and manner in which and the authority by which or by whom those penalties may be applied or may be varied or rescinded in whole or in part…

…

322 Furthermore, in cross-examination, Mr. Leigh agreed that the termination of the grievor’s employment fell under Article 17 of the collective agreement governing discipline.

323 In the letter of termination, the first paragraph refers to the grievor’s disciplinary history. The third paragraph sets out the grievor’s behaviour over the years, which was within his control. Page 2 of the termination letter refers to prior discipline imposed on the grievor for his attitude, which is characterized as gross insubordination, as well as his unsupported allegations of harassment against others. The letter also states that in the employer’s evaluation, the application of further discipline to the grievor would change nothing.

324 All of this gives a clearly disciplinary tone to the letter of termination. While Mr. Leigh might have mischaracterized the reasons for termination, in fact the employer discharged the grievor for disciplinary reasons. While Mr. Leigh said that he did not dismiss the grievor on account of the January 18, 2010 meeting alone, he did take that behaviour and his prior behaviour into account and terminated his employment for reasons that are grounded in discipline.

325 Did a culminating incident occur? Before making that determination, it is helpful to recall the meaning of the doctrine of the culminating incident. It is described as follows in Canadian Labour Arbitration at paragraph 7:4310:

The doctrine of the culminating incident delineates those circumstances in which it is proper for an employer to rely on an employee's poor employment record in order to justify taking more serious action than might otherwise be warranted by the other circumstances of the case. It is the logical corollary of the proposition that an employee's long and blameless employment record may properly be relied on by an arbitrator to ameliorate a disciplinary penalty. In the standard case, the doctrine says that where an employee has engaged in some final, culminating act of misconduct or behaviour for which some disciplinary sanction may be imposed, it is entirely proper for the employer to consider a checkered and blameworthy employment record in determining the appropriate sanction for that final incident.

…

326 Paragraph 7:4312 of Canadian Labour Arbitration addresses the final incident as follows:

In order for an employer to make use of the doctrine of the culminating incident, it must prove the existence of a final incident deserving of some discipline or, in the case of non-culpable behaviour, a "proper and appropriate occasion" to review the employee's performance overall. Although there may be offences that are so trivial they will not satisfy the rule, the condition has been held to have been satisfied, and the prior record of the grievor properly considered, even where the final act only warrants a written warning. Conversely, if the employer is unable to prove some final act for which discipline may be imposed or which justifies a review of his or her employment history, it cannot rely on the employee’s prior record to support the discipline…

327 The employer submitted that there were two culminating incidents contained in the letter of termination, the first being that in December 2009, while the grievor was serving his suspensions, Ms. White determined that he had been uncooperative with Mr. Mattern’s investigation and so informed Mr. Leigh. The second culminating incident cited by the employer was the grievor’s untruthfulness at the outset of the meeting of January 18, 2010. I shall address each of these submissions in turn.

328 The employer submitted that failure to cooperate with a harassment investigation was a serious matter which contravened the harassment policy. The section of the termination letter (Exhibit G-5) dealing with this matter reads as follows:

In July 2009, the Assistant Commissioner, Prairie Region, recognized the need for a review of your continuing allegations of harassment and discrimination against management by an independent third party. An external investigator was appointed to examine your continuing allegations. The investigator’s report was provided to the Assistant Commissioner on December 29, 2009. Based upon the external investigator’s report, the Assistant Commissioner determined that all allegations were unfounded. She also noted, based on the comments in the investigator’s report, that you had failed to participate meaningfully in the investigation process, as you declined to provide evidence or substantive comment despite ample opportunity to do so.

329 In her letter to the grievor dated January 11, 2010 (Exhibit E-19), Ms. White referred to the grievor’s lack of participation in the investigation as follows:

…

This +investigation was your opportunity to provide information and evidence to an external investigator to support your allegations. During this investigation you have declined to review, validate or sign your interview statement; thereby limiting your cooperation to participating in the interview. Additionally, when presented with the information that the Investigator did not have a copy of your interview statement, you refused to provide a copy. Consequently, the investigation and subsequent determinations were completed based on the information from the witnesses and the respondents as well as information from the grievances. Your lack of full cooperation in the completion of this investigation is disappointing to me.

…

330 The remainder of Ms. White’s letter addresses each of the grievor’s 13 allegations of harassment and their respective findings. There is no indication or warning that the grievor would face discipline due to his lack of cooperation in the investigation. That is in keeping with the employer’s policy and Ms. White’s testimony that an employee would not face discipline for filing a harassment complaint which proved to be unfounded, unless the complaint was malicious or made in bad faith. Moreover, the letter of termination does not specify that the grievor was terminated for failing to cooperate with the investigation. Following the section reproduced in paragraph 328 of this decision, the termination letter then addresses the grievor’s employment relationship and the meeting of January 18, 2010. It is clear that within the context of the 2.5 page letter of termination, the reference to the grievor’s lack of cooperation with the investigation formed part of the employer’s recital of issues in his relationship with senior management since 2002, or, as Mr. Leigh put it, “the whole package.” Furthermore, in his opening remarks at the January 18, 2010 meeting as recorded by Mr. Harder (Exhibit E-37), Mr. Leigh referred to the grievor’s lack of cooperation in the investigation of his 13 allegations of harassment and stated that he was distressed by that. In the meeting, he added that continued, unfounded and frivolous allegations by the grievor would no longer be tolerated and if the grievor was in violation of the employer’s policies, he would be subject to discipline. The discussion on attempting to mend the employment relationship then began. On the evidence, it is my view that at the outset of the meeting, the employer did not contemplate disciplinary action for the grievor’s lack of cooperation in the investigation and had expressly waived its right to do so. It therefore cannot rely on the grievor’s conduct in that regard to support a culminating incident. Based on the evidence, I reject the employer’s contention that the grievor’s failure to cooperate with the investigation constituted a culminating incident.

331 The second culminating incident asserted by the employer was the grievor’s statement at the outset of the meeting, when he claimed that he had not been disrespectful to management as well as the grievor’s evasiveness in responding to questions as well as his hostile tone and accusatory attack on Mr. Harder.

332 According to Mr. Harder’s notes of the January 18, 2010 meeting, the grievor did claim he had not been disrespectful to management. As the employer said, the grievor’s statement was made at the beginning of the meeting. This is confirmed by Mr. Harder’s notes of the meeting, which comprise 15 typewritten pages, excluding Mr. Leigh’s opening remarks. Mr. Harder’s testimony and his notes indicate that the meeting began at 9:00 a.m. and ended at 3:40 p.m. The grievor’s statement is recorded on page 1 of those notes. There was then some discussion between Mr. Leigh and the grievor, where the grievor said he would respect senior management and expect to be respected, after which the notes indicate there was a short break from 9:35 to 9:42 a.m. The meeting continued throughout the day and no further reference to his statement was recorded by Mr. Harder in his notes. It seems to me that had the employer considered the grievor’s claim that he had not been respectful to management to be a serious matter, Mr. Leigh would have immediately terminated the meeting to contemplate whether disciplinary action would ensue. As that did not occur, in my view, the employer cannot now rely on the grievor’s statement, standing alone, as a culminating incident.

333 Moreover, an employee has the right to deny an allegation by the employer, whether it is, for example, for theft, poor attitude or substandard work performance, and not be disciplined for the denial. If discipline ensues, it is for the allegation and not the denial, unless the manner of the denial itself constitutes a form of misconduct.

334 With respect to the employer’s argument that during the meeting the grievor was evasive in responding to questions, in reviewing Mr. Harder’s notes, I do not entirely disagree with the employer’s characterization. It should be recalled that Mr. Leigh testified that the meeting of January 18, 2010 was extremely important and that he had made this clear in his opening remarks on that day by asking the grievor whether he was willing to work with senior management. The grievor was obviously aware that his employment status was in question and as recorded in the notes, at certain points during the meeting seemingly attempted to avoid direct responses to certain questions. As the dialogue with the grievor continued throughout the day, Mr. Leigh was apparently able to deal with this aspect of the discussions. While the grievor’s conduct cannot be characterized as helpful, neither can it be termed as misconduct. There is no evidence that discipline was contemplated in this regard and it was not addressed in the notes. Accordingly, I do not retain it as evidence of a culminating incident.

335 The letter of termination reveals no intention on the employer’s part to terminate the grievor’s employment on the basis of these two alleged culminating incidents. The attempt to characterize it as such appears to me to have been conceived in hindsight.

336 The employer’s most compelling argument in support of a culminating incident is that concerning the grievor’s angry outburst attacking Mr. Harder at what proved to be the end of the meeting. To place that incident in context, Mr. Harder’s notes indicate that there was a break during the meeting from 1:53 to 3:30 p.m. When the meeting reconvened, Mr. Leigh stated that he had reviewed his notes of the meeting and was trying to determine whether the employment relationship should continue. He said that he needed more time to review his notes and make a final decision, and told the grievor he would be on paid leave until Friday, January 22, 2010, unless he called him into the office earlier. If Mr. Leigh hadn’t called by Thursday afternoon, the grievor was to report to Mr. Leigh at 9:00 a.m. on Friday. That is the point at which the grievor’s outburst occurred. Mr. Harder’s notes then record Mr. Leigh as stating the following:

This is quite disturbing. We have just spent the day discussing how we move forward with the relationship and then we go through this episode. We should conclude the meeting and I will send you a letter.

337 I agree with the employer’s submission that the grievor’s angry attack on Mr. Harder constituted misconduct deserving of a disciplinary response. It was similar to the grievor’s outburst during his meeting with Ms. Bauer, for which he had been disciplined. There is no evidence that up to the point of the grievor’s outburst, Mr. Leigh had decided to terminate the grievor’s employment. He had told the grievor that he would review his notes and make a final decision by January 22, 2010. The fact that he informed the grievor that he might call him to report to work earlier than January 22, 2010, indicates to me that Mr. Leigh had not yet made a decision and the possibility still existed that the grievor’s employment might continue.

338 The grievor argued that in cross-examination, Mr. Leigh stated that he did not discipline the grievor for his behaviour in relation to the episode at the end of the January 18, 2010 meeting where he became angry and accusatory against Mr. Harder. That response was within the context of Mr. Harder’s belief that his decision to terminate the grievor’s employment was not disciplinary because there was no intent to correct. I have dealt with Mr. Leigh’s characterization of the termination of the grievor’s employment earlier in this decision.

339 While the employer did not discharge the grievor solely for his outburst of January 18, 2010, that interaction was behaviour-related, culpable, within the grievor’s control and led the employer to make the decision that it did. The grievor’s behaviour in that meeting was not irrelevant to the employer’s decision and in fact, is at the nub of it. Mr. Leigh stated in cross-examination that the grievor’s behaviour on January 18, 2010 pushed him over the edge. He said that the grievor’s anger continued to rise throughout the day, even though he was offered many opportunities to mend the relationship. Mr. Leigh believed that no matter how hard management tried or what they did, nothing would salvage the broken relationship.

340 I find that there was culpable conduct on the grievor’s part in the meeting for which the employer was entitled to discipline him. I must now determine whether the grievor’s misconduct warranted the disciplinary penalty of termination.

341 The grievor’s disciplinary record upon which the employer relied when it terminated the grievor’s employment consisted of the following: a written reprimand and suspensions of 1, 3, 10 and 20 days. However, I have reduced the 10 and 20-day suspensions to 5 and 10 days respectively. Based on the grievor’s disciplinary record as it now stands, is termination the appropriate disciplinary penalty?

342 In my view, the grievor’s termination is excessive in the circumstances. Faced with the grievor’s disciplinary record as I have now determined it, I conclude that it is unlikely that the employer would have imposed the penalty of discharge. In arriving at this conclusion, I have relied upon Mr. Leigh’s testimony concerning his determination of the 10 and 20-day suspensions. He stated that, having imposed a 10-day suspension and dealing with a disciplinary infraction not specifically provided for in the employer’s Discipline Policy, in his judgment a 20-day suspension was the appropriate disciplinary measure.

343 At this stage, I would normally assess whether a suspension should be substituted for the termination of the grievor’s employment. However, the employer has requested that I consider awarding the grievor compensation in lieu of reinstatement.

E. The appropriate remedy

344 I turn now to the employer’s alternative submission that should the grievance challenging the grievor’s termination be allowed, the appropriate remedy is that the grievor be awarded compensation in lieu of reinstatement.

1. Remedial authority of the adjudicator

345 The first issue to be considered is the remedial authority of an adjudicator under the PSLRA to order compensation in lieu of reinstatement. This was addressed in argument by the parties. Among the cases referred to were the decisions of the Federal Court of Appeal in Gannon and Lâm. In Gannon, which was decided under the predecessor statute, the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA), the Federal Court of Appeal ruled that, where a grievor was found to have been terminated without just cause, the PSSRA limited the remedial authority of adjudicators to ordering the grievor’s reinstatement.

346 In Lâm, the Federal Court of Appeal ordered that the matter be referred back to the adjudicator who had issued the initial decision for redetermination of the issue of appropriate remedy. The adjudicator’s decision on redetermination (Lâm v. Deputy Head (Public Health Agency of Canada), 2011 PSLRB 137) (“Lâm 2011”) was issued after the conclusion of the hearings before me. The adjudicator traced the history of the matter at paragraphs 1 to 3 of her decision:

1 The grievor, Thu-Cùc Lâm, was terminated from her employment with the federal public service on July 12, 2006. As the adjudicator, I ruled that the termination was unjustified. However, I refused to order her reinstatement for the reasons outlined in my decision (see Lâm v. Deputy Head (Public Health Agency of Canada), 2008 PSLRB 61). The grievor applied for judicial review of my decision on the grounds that I did not give her the opportunity to make arguments about her reinstatement.

2 The Federal Court allowed the application for judicial review in part (see Lâm v. Canada (Attorney General), 2009 FC 913) and ordered a hearing scheduled to hear the parties on the appropriate remedy. The grievor appealed that decision. The Federal Court of Appeal set aside the Federal Court’s decision and ordered the matter referred back to me to redetermine the appropriate remedy (see Lâm v. Canada (Attorney General), 2010 FCA 222). The Court of Appeal’s judgment is as follows:

[1] We are of the view that the judge of the Federal Court, having found that the adjudicator had failed to allow the parties to make submissions on the issue of the appropriate remedy, had to refer the case back to the adjudicator for redetermination.

[2] It is therefore appropriate to allow the appeal, to set aside the decision of the Federal Court and to order that the matter be referred back to the same adjudicator for redetermination of the issue of the appropriate remedy.

…

3 Although the Federal Court judge ruled on the merits of broadening an adjudicator’s jurisdiction in termination cases to include damages rather than just reinstatement, the Federal Court of Appeal did not address this issue. Therefore, the issue of an adjudicator’s authority to award damages rather than having to order reinstatement for an unjustified termination remains outstanding.

347 As the adjudicator determined that the PSLRA grants adjudicators the authority to award compensation in lieu of reinstatement, I requested that the parties provide supplementary written submissions concerning the application, if any, of that decision to the present matters.

348 In Lâm 2011, the adjudicator analysed the wording of the PSLRA in contrast to that of the PSSRA as concerns the scope of an adjudicator’s jurisdiction. Those provisions read as follows:

[Provisions of the PSSRA]	[Provisions of the PSLRA]
…	…
97. (2) After considering the grievance, the adjudicator shall render a decision thereon and (a) send a copy thereof to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the employee, whose grievance it is, belongs …	228. (2) After considering the grievance, the adjudicator must render a decision and make the order that he or she considers appropriate in the circumstances. The adjudicator must then (a) send a copy of the order and, if there are written reasons for the decision, a copy of the reasons, to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the employee whose grievance it is belongs; and (b) deposit a copy of the order and, if there are written reasons for the decision, a copy of the reasons, with the Executive Director of the Board.
…
	…

349 The adjudicator noted that the inclusion in subsection 228(2) of the PSLRA of the wording that an adjudicator “… must render a decision and make the order that he or she considers appropriate in the circumstances” broadened the remedial authority of adjudicators. She referred to the jurisprudential evolution of the Supreme Court of Canada with respect to the expansion of arbitral authority and to the acknowledgement by the Federal Court of Appeal in Amos v. Canada (Attorney General), 2011 FCA 38 at paragraph 75, that the remedial authority of adjudicators under the PSLRA is not limited to a specified list of enumerated remedies. The adjudicator also pointed out that the preamble added to the PSLRA provides that “… harmonious labour-management relations is essential to a productive and effective public service.” In determining that she had jurisdiction to award compensation in lieu of reinstatement, the adjudicator in Lâm 2011 stated the following at paragraph 101 of her decision:

[…] I find that it would be contrary to the purpose and spirit of the PSLRA and that it would disregard the labour relations expertise recognized by our courts to limit an adjudicator’s discretion to reinstating a grievor for each termination without cause, even when, in the adjudicator’s opinion, this is not viable, because of the circumstances of the case. Consequently, although reinstatement is to be favoured, this right is tempered by evidence that re-establishing the employment relationship does not have a reasonable chance of success.

350 In its written submission agreeing with the determination by the adjudicator in Lâm 2011 that adjudicators under the PSLRA have jurisdiction to award damages in lieu of reinstatement, the employer advanced that this finding was buttressed by the decision of the Supreme Court of Canada in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, released on the same day as Lâm 2011. In that case, the Court held that on judicial review, curial deference was appropriate where a labour arbitrator applied the equitable doctrine of estoppel. The employer referred to paragraph 49 of that decision, where the Court stated:

Labour arbitrators are uniquely placed to respond to the exigencies of the employer-employee relationship. But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord.

351 In its written submission, the union acknowledged that the PSLRA broadened the remedial authority of adjudicators to include awarding compensation in lieu of reinstatement as confirmed by Lâm 2011.

352 In order to exercise the flexibility referred to by the Supreme Court of Canada, adjudicators must be granted the authority to do so by their enabling statute. I agree with the adjudicator’s determination in Lâm 2011 and with the parties’ submissions that under subsection 228(2) of the PSLRA, adjudicators have the jurisdiction to award compensation in lieu of reinstatement, should they deem it appropriate in the circumstances.

2. Factors relevant in determining whether or not to award compensation in lieu of reinstatement

353 It is well established by the case law that the exercise by an arbitrator of the jurisdiction to award compensation in lieu of reinstatement requires the existence of exceptional circumstances. As stated in Canadian Labour Arbitration at paragraph 7:4422:

… [I]n exceptional circumstances, where an arbitrator concludes that an employee is incapable of learning from and correcting past behaviour and/or a viable employment relationship cannot be restored, the arbitrator may limit relief to ordering the employer to pay compensation in lieu of reinstatement even where the discharge was otherwise without just cause.

354 In Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28 cited by the employer, the Supreme Court of Canada stated the following:

52 […] The parties do not question the development of arbitral consensus in requiring a finding of exceptional circumstances before substituting damages in lieu of reinstatement. Rather, their focus is on the nature and scope of such circumstances. The appellant, in particular, submits that there is no particular focus on culpable conduct in the cases examined by the court.

53 Decisions in which exceptional circumstances have been found are widely disparate on the facts. A review of such decisions highlights the difficulty with which bright-line distinctions may be marked between culpable and non-culpable conduct in assessing whether circumstances sufficiently exceptional exist so as to justify the board’s refusal to reinstate. While culpable conduct is far more likely to lead to a poisoned or inhospitable work environment than conduct characterized as non-culpable, the consequences of the conduct and not its characterization should be the primary focus of the remedial inquiry. It bears repeating that arbitrators are equipped with broad remedial jurisdiction to secure prompt, final and binding settlement of disputes arising out of the interpretation or application of the collective agreement and disciplinary action taken by employers.

54 For arbitration to be effective, efficient and binding it must provide lasting, practicable solutions to workplace problems. Commensurate with the notion of exceptional circumstances as developed in arbitral jurisprudence is the need for arbitrators to be liberally empowered to fashion appropriate remedies, taking into consideration the whole of the circumstances. To rob arbitrators of access to the full breadth of the employment context risks impairing their role as final arbiters of workplace disputes. Arbitrators are well positioned on the front lines of workplace disputes to weigh facts and assess credibility as the circumstances warrant.

355 As the employer pointed out, there is a strong presumption in favour of reinstatement. This was referred to by the Supreme Court in Lethbridge Community College at paragraph 56:

56 As a general rule, where a grievor’s collective agreement rights have been violated, reinstatement of the grievor to her previous position will normally be ordered. Departure from this position should only occur where the arbitration board’s findings reflect concerns that the employment relationship is no longer viable. In making this determination, the arbitrator is entitled to consider all of the circumstances relevant to fashioning a lasting and final solution to the parties’ dispute.

356 What then are the factors to be considered in determining whether the employment relationship is viable? As the employer submitted, the most commonly accepted test is that established in DeHavilland. In that decision, having reviewed several cases, the arbitrator set out the following factors “in no particular order” at paragraph 5 of the decision:

1. The refusal of co-workers to work with the grievor.
2. Lack of trust between the grievor and the employer.
3. The inability or refusal of the grievor to accept responsibility for any wrongdoing.
4. The demeanor and attitude of the grievor at the hearing.
5. Animosity on the part of the grievor towards management or co-workers.
6. The risk of a "poisoned" atmosphere in the workplace.

357 The employer cited NAV Canada v. I.B.E.W., Local 2228 (Coulter), (2004) 131 L.A.C. (4th) 429, where, having set out the DeHavilland factors, the arbitrator added at paragraph 16:

Doubtless there are others, for the practices enumerated are but instances of a principle generally understood namely, that where the relationship between the grievor and the employer is no longer a viable one, having been so irretrievably damaged that it cannot be resuscitated, it is inappropriate to order reinstatement even though the penalty of discharge does not meet the just cause standard.

358 The assessment whether to award compensation in lieu of reinstatement does not require distinguishing between culpable and non-culpable conduct. As the Supreme Court of Canada stated in Lethbridge Community College, “… the consequences of the conduct and not its characterization should be the primary focus of the remedial inquiry.” In deciding whether to award compensation in lieu of reinstatement, the adjudicator in Doucette considered the non-disciplinary conduct of the grievor in that case at paragraph 105:

Although I have not considered evidence related to non-disciplinary matters as part of the grievor’s prior record for disciplinary purposes, it is evidence that can be considered when assessing whether the bond of trust between the grievor and the employer, which has most definitely been broken by his acts of insubordination, can be repaired.

359 With these guiding principles in mind, I turn now to determining whether or not the grievor should be reinstated.

3. Determination whether the grievor should be reinstated

360 As noted by the adjudicator in Bahniuk, 2009 PSLRB 141 at paragraph 133, “… a difficult employment relationship … has endured for many years between the grievor and CRA senior management.” The evidence in the matters before me showed that CRA senior management had had concerns with the grievor’s conduct in the workplace since at least 2002, when it referred him to a health care professional for a fitness to work evaluation with respect to managing his behaviour in the workplace, and placed him on an action plan to improve his behaviour (Exhibit E-40).

361 In 2004, in an attempt to explore approaches and solutions to foster a relationship based on CRA values, senior management, with the grievor’s agreement, arranged for a third party, Mr. Blahun, to hold discussions with the grievor. Mr. Blahun’s report (Exhibit E-50) is significant, as the evidence has demonstrated that the conclusions he drew proved to be prescient. Among his conclusions were the following:

…

Mr. Bahniuk appears to be a very strong willed person who seems to enjoy the confrontations inherent in challenging management.

…

It is my view, based on his comments, that he is unable or unwilling to accept that there is a management hierarchy that is responsible for making decisions at different levels and that management has the right to accept or reject his and others’ suggestions. Based on our discussions, it is also my belief that he is unable or unwilling to accept that he has an obligation under his contract of employment to carry out the employer’s responsibilities, mandate, and goals by performing his duties in a manner consistent with a normal employer/employee relationship.

…

It is my view that a person with Mr. Bahniuk’s experience, education and position within the organization, could not truly believe that his method of dealing with disagreements with management is acceptable. Based on his comments and criticisms, it is my view that Mr. Bahniuk views every issue as a win-lose situation.

Mr. Bahniuk has indicated by his comments that he is unwilling to put things that happened in the past aside and to move on to work towards a more meaningful relationship. He has painted his superiors as being corrupt and incompetent. Although he believes that he is banging his head against a wall and not making much progress, he is willing to continue this way for the rest of his career with CRA.

It is imperative that this undesirable working relationship be resolved by whatever means is necessary. Failure to do so could result in a systemic deterioration of the working environment subsequently affecting a greater number of staff.

…

362 It is clear from the evidence that the grievor’s position as team leader required regular interaction with senior management. Both Mr. Harder and Mr. Leigh testified to that requirement, and the work description of a team leader (Exhibit E-24) contains several references to the grievor’s obligations in that regard. In order to sustain a viable working relationship between the grievor and senior management, it is essential that the parties in this relationship be capable of mutual respect and trust. Based on the evidence of the grievor’s past behaviour, I am convinced that those elements are absent from his relations with senior management and would not be restored were he to be reinstated.

363 So far as respect is concerned, it appears to have been a one-way street. The evidence showed that over the years, the employer repeatedly made good faith efforts to improve the working relationship with the grievor. Whether through discussion, an action plan, offers of preferential consideration for other opportunities or progressive discipline, such efforts were met with resistance by the grievor and were of no avail. Although the grievor had agreed to hold discussions with Mr. Blahun, the latter’s report includes the following statement from the grievor:

[…] Mr. Bahniuk stated that he has no faith in the process that I was conducting as I don’t have the power to do anything. He stated that he felt that any recommendations that I had would be biased anyway and this process was merely a kind of façade, just to show to others that management was trying to do something.

364 The grievor persisted in this attitude. Ms. White testified that she convened the investigation into the grievor’s allegations of harassment in good faith. Yet in a fax dated October 23, 2009 (Exhibit E-18), the grievor stated that he suspected that the investigation was, “… an attempt by the Assistant Commissioner to appear to meet the due diligence of the position.”

365 Even as late as the meeting of January 18, 2010, Mr. Leigh testified that all the employer sought from the grievor was some indication, however slight, that he was willing to move forward to accept responsibility for his conduct and improve the working relationship. In return, the grievor indulged in unprovoked outbursts and insubordinate conduct which indicated his disdain for senior management. He told Mr. Harder that he could work with him if Mr. Harder were respectful and honest. This bears out Mr. Blahun’s observation that the grievor’s approach to management is confrontational and argumentative. In my view, the employer should not be required to tolerate such recalcitrant conduct from the grievor to the point of utter exhaustion or capitulation. The complexity of an organization such as the CRA makes it necessarily hierarchical in structure. The evidence shows that the grievor is unable to accept direction from senior management, and I am not persuaded this attitude would change were he to be reinstated. Indeed, I am convinced that it would not. The evidence is that at the January 18, 2010 meeting, the grievor acknowledged that the employment relationship was broken. Mr. Fandrich testified that he was not surprised to learn that the grievor had made that statement. Based on the evidence, in my view, the employment relationship is clearly broken.

366 In regard to the element of trust, the testimony of Mr. Harder and his notes of the January 18, 2010 meeting indicate that the grievor acknowledged that there was no trust in the employment relationship. In addition, Mr. Randall, the union representative, testified that there was a lack of trust between the grievor and management and vice-versa. At the January 18, 2010 meeting, the grievor stated that he would require the presence of a union representative at any future meetings with Mr. Harder until he felt that sufficient trust had been built up. Not only was such a demand unrealistic from an operational standpoint, as the testimonies of Mr. Harder and Mr. Leigh indicate, but it is not for the grievor to impose conditions on work-related meetings convened by senior management. The employer stated in the letter of termination that the employment relationship and trust between the grievor and the CRA was irreparably damaged. The evidence supports that conclusion.

367 Several employer witnesses testified that they could no longer work with the grievor in the event that he was reinstated. In its written submission, the union raised several points, which it contended demonstrated that this factor did not apply to the grievor’s circumstances.

368 The union’s first point was that the managers’ testimony in that regard was motivated by the fact that the grievor had filed a grievance alleging harassment by senior managers. In fact, no evidence of such a causal link was presented by the union in support of such an argument through its own witnesses. The only evidence on the point was a question put to Mr. Mapplebeck in cross-examination, namely whether he could work with an individual who had filed allegations of harassment against him. Mr. Mapplebeck replied that his desire not to work with the grievor did not arise out of the harassment complaints, but rather out of the severe emotional toll he sustained in supervising the grievor. I therefore reject this argument.

369 The union’s second point was that, of the managers who testified to their inability to work with the grievor, only Ms. Belot and Mr. Mapplebeck had been in a direct reporting relationship with the grievor, and the grievor had not reported to Ms. Belot for 10 years. In my view, the union cannot discard the testimony of certain employer witnesses in this regard simply because they were in an indirect reporting relationship with the grievor. According to the evidence, the issue, since at least 2002, has been the grievor’s relationship with senior management. As stated earlier in this decision, the grievor’s work description requires that he regularly interact with senior management. The same applies to the union’s argument that the grievor’s colleagues or team members did not testify that they could not work with him.

370 In its third point, the union questioned the managers’ credibility on the basis that their testimony contradicted the grievor’s performance appraisals for 2007-2008 (Exhibit E-12, Attachment 13) and 2008-2009 (Exhibit G-5). The union referred to the following extract which appeared in both appraisals: “Throughout the review period, Stan worked respectfully and cooperatively with his Manager and was observed to do the same with his colleagues.” However, in respect of senior management, the following assessment is found in the 2008-2009 appraisal:

…

His actions with his Manager, colleagues and staff are carried out in a professional and respectable manner, however, this does not always extend to senior management. Stan has had some challenges in the past in his dealings with senior management and they continue today. This has resulted in a less cooperative relationship with senior management as it relates to issues of the past.

…

371 While the union placed emphasis on certain aspects of two of the grievor’s performance appraisals, this is not a case where the grievor is accused of substandard work performance. Furthermore, as the employer pointed out, most of the positive references cited by the grievor relate to his technical expertise and his interaction with the members of his team.

372  It is true, as the union pointed out in its written submission, that Ms. Bauer has retired. Indeed, other senior managers in the Calgary TSO may also have changed positions. However, the possibility that there may have been changes in senior management does not in itself portend an improved working relationship in the event the grievor is reinstated. As the evidence demonstrated, the grievor’s conduct in relation to Mr. Harder was displayed at, and based on, their first interaction on October 2, 2008, where the grievor disagreed with a legitimate work-related directive issued by Mr. Harder. Furthermore, there is nothing in the evidence to indicate to me that the grievor’s confrontational behaviour would change if a new senior management team is in place at the Calgary TSO. As the grievor stated in the January 18, 2010 meeting, he was open to change, but within the restriction of his own values. Based on the evidence of his behaviour, in my view, the grievor’s reinstatement would inevitably lead to further confrontation and tension, requiring further energy and resources of management to deal with him.

373 According to the evidence, save for his apology to Ms. Bauer, the grievor expressed no remorse nor took any responsibility for his conduct. As he did not testify, I did not have the opportunity of hearing him in that regard.

374 Based on all of the evidence, it is my view that the bond of trust between the grievor and the CRA has been irreparably damaged and that the employment relationship is no longer viable. Accordingly, in the exceptional circumstances of this matter, I decline to reinstate the grievor and conclude that compensation in lieu of reinstatement is the appropriate remedy.

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

V. Order

376 In Board File No. 566-34-3958, the grievance is dismissed.

377 In Board File No. 566-34-3957, the grievance is dismissed.

378 In Board File No. 566-34-3956, the grievance is allowed in part as follows: the 10-day suspension is modified by substituting a suspension of 5 days; the 20-day suspension is modified by substituting a suspension of 10 days. The employer is directed to reimburse the grievor 15 days’ pay and any relevant benefits.

379 In Board File No. 566-34-3955, the grievance is allowed in part. The grievor will be awarded compensation in lieu of reinstatement. I will remain seized of this grievance for a period of 60 days from the date of this decision in order that the parties may attempt to arrive at a negotiated settlement, failing which the parties shall advise the Board and a hearing will be scheduled.

October 5, 2012.

Steven B. Katkin,
adjudicator