FPSLREB Decisions

I. Grievances referred to adjudication

1 Shaina Cassin (“the grievor”) was at the relevant time a correctional officer employed by the Correctional Service of Canada (“the employer” or CSC) at the Kingston Penitentiary in Kingston, Ontario (“the institution”). According to her letter of offer of employment (Exhibit E-1, Tab 1), she was hired effective June 1, 2009 at the CX-01 group and level and was subject to a probation period of 12 months, ending on May 31, 2010. As a result of her successful candidacy in a selection process, the grievor was promoted to the CX-02 group and level effective March 9, 2010 (Exhibit E‑1, Tab 3).

2 By letter dated April 9, 2010, the employer placed the grievor on indefinite suspension without pay (Exhibit E-1, Tab 8), pending an investigation of an off-duty incident that occurred on April 3, 2010, which will be described later in this decision. That letter stated that the grievor’s file would be reviewed on or before April 30, 2010. On April 15, 2010, the employer issued the grievor an amended letter of suspension without pay that corrected the date on which the incident occurred (Exhibit E-1, Tab 9). In a letter dated April 30, 2010 (Exhibit E-1, Tab 11), the employer informed the grievor of the continuation of her suspension without pay pending further review of the matter, to be undertaken on or before May 21, 2010. She filed a grievance contesting the indefinite suspension on April 19, 2010, which bears Public Service Labour Relations Board (PSLRB or “the Board”) file number 566-02-4083.

3 By letter from the employer dated May 27, 2010, the grievor was advised that she had been rejected on probation (Exhibit E-1, Tab 4) and that her employment was terminated, on payment of one month’s salary in lieu of notice. She filed a grievance against the rejection on probation on May 31, 2010 (PSLRB File No. 566-02-4280), alleging that the employer’s decision to terminate her employment was discriminatory and that it was contrary to the relevant collective agreement and to the Canadian Human Rights Act, R.S.C. 1985, c. H-6. Both grievances were referred to adjudication under paragraph 209(1)(b) of the Public Service Labour Relations Act (PSLRA), which reads as follows:

209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

…

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty…

…

4 The grievor’s bargaining agent, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the union”), provided notice to the Canadian Human Rights Commission (“the Commission”) under section 210 of the PSLRA, alleging that the grievances raised an issue involving the interpretation or application of the Canadian Human Rights Act, namely, that the employer suspended the grievor indefinitely and terminated her employment on grounds of behaviour directly related to her disability, i.e., alcoholism. By letter dated September 8, 2010, the Commission informed the PSLRB that it did not intend to make submissions in these matters.

II. Objection to jurisdiction

5 The employer objected to my jurisdiction to hear these grievances on the following grounds. First, the indefinite suspension without pay was administrative in nature, to allow the employer to gather information about the incident in question. Since the suspension did not constitute disciplinary action, it could not have been referred to adjudication under paragraph 209(1)(b) of the PSLRA. Second, for the rejection on probation, the employer took the position that it was carried out in accordance with section 62 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (PSEA), which reads as follows:

62. (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

(a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or

(b) the notice period determined by the separate agency in respect of the class of employees of which that employee is a member, in the case of a separate agency to which the Commission has exclusive authority to make appointments,

and the employee ceases to be an employee at the end of that notice period.

(2) Instead of notifying an employee under subsection (1), the deputy head may notify the employee that his or her employment will be terminated on the date specified by the employer and that they will be paid an amount equal to the salary they would have been paid during the notice period under that subsection.

6 The employer submitted that, since it is an organization named in Schedule IV to the Financial Administration Act, R.S.C. 1985, c. F-11,and since paragraph 211(a) of the PSLRA prohibits the referral to adjudication of a grievance concerning a termination of employment under the PSEA, then the grievor is precluded from referring her rejection on probation grievance to adjudication. Paragraph 211(a) of the PSLRA provides as follows:

211. Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

(a) any termination of employment under the Public Service Employment Act…

7 I informed the parties that I would take the objections to jurisdiction under reserve and that I would hear the merits of the grievances.

III. Summary of the evidence

8 The essential facts of the incident that led to the grievor’s indefinite suspension without pay and rejection on probation are not in dispute. During the evening of April 2, 2010, into the early hours of April 3, 2010, the grievor and two female correctional officer colleagues were at a bar in Kingston’s downtown core. Shortly before the bar closed, one of them alleged that she had been assaulted by a male patron. She notified police via her cell phone. Police officers soon arrived. At that point, the grievor and her colleagues were outside the bar. The colleague who had been assaulted identified herself and her two colleagues as correctional officers. The police officers entered the bar with her to attempt to identify the male patron. The grievor attempted to re-enter the bar to check on her colleague’s condition but was refused entry by the doorman. One of the police officers came to the door, and the grievor again stated why she wished to re-enter the bar. The police officer refused, as the bar was closing, and warned the grievor that she was trespassing and directed her to leave the area. This occurred more than once, with the grievor shouting in a profane manner that she was a correctional officer. At one point, a police officer attempted to physically move the grievor. The grievor shoved him back. She was then placed under arrest and taken into custody. The grievor was charged with two statutory offences, the first under the Liquor License Act, R.S.O. 1990, c. L. 19, for being intoxicated in a public place, and the second under the Trespass to Property Act, R.S.O. 1990, c. T. 21, for failing to leave the premises after being directed to (Exhibit E-1, Tab 5). The grievor was detained in a jail cell for the remainder of the night and was released at about 09:30 on April 3, 2010. She did not report her arrest and statutory charges to her supervisor.

9 On April 9, 2010, the grievor was directed to report to the acting warden’s office to complete an Officer’s Statement/Observation Report (OSOR) about the incident. She then met with two union representatives, following which she was handed a letter placing her on indefinite suspension pending an investigation. That same day, the Acting Warden issued a convening order for a fact-finding investigation into the incident. The investigation report (Exhibit E-2) was completed on April 28, 2010, and its findings were provided to the grievor on May 12, 2010. On May 25, 2010, a disciplinary hearing was held with the grievor and her union representatives. The grievor was rejected on probation by letter dated May 27, 2010, and her employment was terminated on the payment of one month’s salary in lieu of notice (Exhibit E‑1, Tab 4).

A. For the employer

10 At the time of the incident, Mike Jensen was Acting Warden of the institution. He was first notified of the incident involving the grievor on April 8, 2010 by a telephone call from Acting Deputy Warden Tim Hamilton. Mr. Hamilton had been alerted to the incident by Lisa Blasko, a CSC security intelligence officer, who in turn had received information from an individual termed a “reliable source.” Neither Ms. Blasko nor the reliable source testified. As Mr. Jensen was not at the institution on that day, he had several telephone discussions with Mr. Hamilton, as well as with the employer’s labour relations advisers. Upon learning that the grievor would be working the next day, Mr. Jensen arranged to interview her upon her arrival at work and for the presence of a union representative. Upon completion of her OSOR, the grievor met with her union representative in a separate room. Following that meeting, Mr. Jensen handed the grievor the letter of indefinite suspension dated April 9, 2010. That letter reads in part as follows:

…

… [P]lease note that you have been suspended without pay effective 09 April 2010 until further notice. The reason for this suspension is your reported off duty conduct on the morning of 02 April 2010 which included public intoxication and the assault of a police officer. This incident reportedly resulted in charges being laid by the police. If found to be true, your actions, as well as your failure to report the matter to the employer prior to resuming your duties, are a very serious breach of the Standards of Professional Conduct.

…

Your file will be reviewed on or before 30 April, 2010 and you will be notified in writing of the results of this review.

…

11 Mr. Jensen testified that, on April 8, 2010, Mr. Hamilton prepared a document known as the “Larson criteria” (Exhibit E-1, Tab 8), which set out the criteria used by CSC management to justify a suspension based on an assessment of risk to the reputation of the institution, its staff, its inmates or the public. This is an employer document, the basis of which is found in the Board’s decision in Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9. Mr. Jensen stated that the grievor was suspended because her conduct called into question her judgment, reliability, trustworthiness and integrity. He said that, as correctional officers are subject to a security clearance, trustworthiness is a factor key for the employer to protecting sensitive information in the workplace. Based on the available information about the incident, he concluded that mitigating the risk to the institution was warranted until all the relevant facts could be gathered. On April 9, 2010, Mr. Jensen issued a convening order for a fact-finding investigation into the incident.

12 Mr. Jensen testified that, later on April 9, 2010, the union president, Mike Roberts, came to his office and asked about the information that management possessed about the incident involving the grievor. Mr. Roberts told Mr. Jensen that he was not aware of the incident but that he would be representing the grievor.

13 On April 15, 2010, Mr. Jensen issued an amended letter of suspension to the grievor that was identical to the initial letter dated April 9, 2010, except that the date of the incident, which had been stated as April 2, 2010, was corrected to April 3, 2010. Mr. Jensen stated that there had been some confusion about whether the incident had occurred on the night of April 2 or in the early morning of April 3, 2010.

14 Mr. Jensen testified that on April 23, 2010 he completed the second Larson criteria assessment document (Exhibit E-1, Tab 10) to ensure the accuracy of the original assessment. Based upon the second review, he determined that the grievor should remain on suspension.

15 In cross-examination, Mr. Jensen stated that he did not speak with Ms. Blasko’s source or with the police, although he saw copies of the statutory offences with which the grievor was charged. Mr. Jensen had not met the grievor before her arrival at his office on April 9, 2010.

16 Mr. Jensen said that the letter of suspension dated April 9, 2010 was prepared that same day and that it was handed to the grievor after their meeting at 07:15.

17 Mr. Jensen stated that, between April 8 and 23, 2010, he reverted to his substantive position of Deputy Warden of the institution.

18 Jay Pyke became Acting Warden of the institution during April 2010 and assumed the substantive position of Warden on October 1, 2010. On April 30, 2010, Mr. Pyke reviewed the matter in accordance with the Larson criteria. By letter of that same date, he notified the grievor that her suspension would continue until further notice (Exhibit E-1, Tab 11), as follows:

…

The reason for this suspension is your off duty conduct on the morning of 03 April 2010 which has been investigated around issues of public intoxication, physically pushing a Police Officer, Trespassing, and violation of Public Service values. This incident resulted in offence notifications being issued by the police. Further review will be completed by the employer in which your actions as well as your failure to report the matter to the employer prior to resuming your duties, are [sic] a very serious breach of the Standards of Professional Conduct and the Code of Discipline.

…

19 In testimony, Mr. Pyke justified extending of the grievor’s suspension on the grounds that her conduct had demonstrated a breach of trust, a lack of integrity and poor decision making. The proper use of those skills is paramount in the correctional environment. Mr. Pyke stated that adhering to established protocols is highly important to avoid potentially dangerous situations. He considered the grievor’s acknowledgement that she was aware of the CSC’s Code of Discipline.

20 The reasons for the grievor’s rejection on probation were stated as follows in the employer’s letter, signed by Mr. Pyke and dated May 27, 2010:

You have been employed as a Correctional Officer at Kingston Penitentiary, on an indeterminate basis since June 1, 2009. Your letter of offer indicated that you would serve a 12 month probationary period, which would be completed by end of day 31 May 2010.

During your recently completed Correctional Officer Training Program and Performance Evaluation Report, you were made aware of the specific job duties, requirements, standards of performance and conduct expected of a Correctional Officer. Upon receipt of your employment offer, you were provided with a copy of CSC’s Standards of Professional Conduct, CSC’s Code of Discipline and Values and Ethics Code for the Public Service. You signed a declaration that you “read and familiarized yourself with the Standards of Professional Conduct and the Code of Discipline” and undertook to maintain them. It was your responsibility to seek guidance from your supervisor on any areas that you felt required explanation or clarification.

In December 2009 you were counselled by an Acting Correctional Manager regarding several observations reported to management regarding inmate boundary concerns. You were offered advice and cautioned about offenders seeking to gain personal information about staff members, including yourself.

A convening order was struck on 9 April, 2010 to investigate allegations of inappropriate behaviour displayed by you while off duty in the community on or about 3 April, 2010. The investigation found that on the morning of 3 April, 2010 you were charged with two Statute Violations, public intoxication and trespassing in a busy public location. Further you failed to advise your supervisor of these charges prior to resuming your duties. The results of the fact finding were shared with you on 12 May, 2010, and a subsequent meeting was held with you and your UCCO-SACC-CSN representatives on 25 May, 2010 during which you clarified content of the fact finding report and provided some additional information for consideration. You provided a response that I took into consideration however I cannot overlook the severity of your actions.

Given the above, it has been determined that you are no longer suitable for employment with Correctional Service Canada or the Public Service of Canada due to your inability to adhere to Standard 1 (Responsible Discharge of Duties), 2 (Conduct and Appearance) and 4 (Relationship with Offenders) of CSC’s Standards of Professional Conduct. In addition you have committed infractions under sections 6) c. d. and e. of the Code of Discipline.

The expectations of Correctional Officers within the Correctional Service of Canada are that they conduct themselves in a professional and responsible manner both on and off duty. Accordingly, as per the authority delegated to me by the provisions of Section 62(1) of the Public Service Employment Act, I am rejecting you on probation from your position with the Public Service of Canada, effective 27 May, 2010. You will receive 1 month’s remuneration, in lieu of notice, from 28 May 2010 until 28 June 2010.

…

21 Standard One of the Standards of Professional Conduct in the Correctional Service of Canada (Exhibit E-1, Tab 7) (“Standards of Professional Conduct”) reads in part as follows:

RESPONSIBLE DISCHARGE OF DUTIES

Staff shall conduct themselves in a manner which reflects positively on the Public Service of Canada…

22 Standard Two of the same document reads as follows:

CONDUCT AND APPEARANCE

Behaviour, both on and off duty, shall reflect positively on the Correctional Service of Canada and the Public Service generally. All staff are expected to present themselves in a manner that promotes a professional image, both in their words and in their actions.

…

Staff must take care, both on and off duty, to present themselves as responsible law-abiding citizens.

Employees who commit criminal acts or other violations of the law, particularly if the offences are repeated or serious enough to result in imprisonment do not demonstrate the type of personal or ethical behaviour considered necessary in the Service. Accordingly, any employee who is charged with an offence against the Criminal Code or against other federal, provincial or territorial statutes must advise his or her supervisor before resumption of duties.

At times, an employee may experience personal problems which may affect his or her job performance. The Service has a responsibility to offer assistance to members facing such difficulties. Notwithstanding this offer of assistance, personal problems are not considered a reason to ignore or fail to take action on poor employee performance or behaviour.

23 The provisions of the Code of Discipline (Exhibit E-1, Tab 6), relied on by the employer, read as follows:

Conduct and Appearance

6. Behaviour, both on and off duty, shall reflect positively on the Correctional Service of Canada and on the Public Service generally. All staff are expected to present themselves in a manner that promotes a professional image, both in their words and in their actions…

Infractions

An employee has committed an infraction if he or she:

…

c. acts, while on or off duty, in a manner likely to discredit the Service;

d. commits an indictable offence or an offence punishable on summary conviction under any statute of Canada or any province or territory, which may bring discredit to the Service or affect his or her continued performance with the Service;

e. fails to advise his or her supervisor, before resuming his or her duties, of being charged with a criminal or other statutory offence;

…

24 Mr. Pyke testified that he based his decision to reject the grievor on probation on the findings of the fact-finding investigation, which concluded that she had breached the cited provisions of the Code of Discipline and Standards of Professional Conduct, of which she was aware. He was of the view that her conduct and failure to report the incident meant that he could not support her continued employment as a correctional officer.

25 Mr. Pyke stated that, at the disciplinary hearing of May 25, 2010, the grievor admitted to, on the night in question, having been highly intoxicated, to having assaulted a police officer, and to having been charged with two statutory offences and not reporting them to a supervisor. She also admitted that her behaviour had been inappropriate for a correctional officer. Mr. Pyke testified that, with respect to shoving the police officer, the grievor said that she had reacted to the invasion of her personal space by the police officer in accordance with her training as a correctional officer by “creating space.” As for her failure to report the two statutory infractions, the grievor stated that she had been advised by a union official that she was not required to, as they were not criminal charges. The grievor stated that, at the police station, she had identified herself as a correctional officer to the booking police officer to avoid being placed in a common cell.

26 In cross-examination, Mr. Pyke testified that, at the disciplinary hearing, the grievor said that she was seeking treatment from a psychologist for her drinking, as the latter thought that she had more than a social drinking problem. Asked what weight he placed on the grievor’s statement that she was seeking treatment for her alcohol use, Mr. Pyke stated that it was one of many considerations taken into account in arriving at the decision to reject her on probation.

27 Mr. Pyke stated that he had never met the grievor before the disciplinary hearing and that no concerns with her job performance had been brought to his attention.

28 As for the grievor’s failure to report the statutory offences to her supervisor, Mr. Pyke said that Mr. Roberts, the union representative, asserted that he had advised her not to report those offences, as they were not criminal charges. Mr. Pyke stated that he replied that giving notification to the union is not giving notification to management.

29 Mr. Pyke stated that, in reaching his decision, he considered that the grievor had been cautioned about inmate boundary concerns in December 2009.

B. For the grievor

30 In her testimony, the grievor acknowledged that she had been highly intoxicated on the night of April 2 to 3, 2010, that she had been charged with the two statutory offences, that she had shoved a police officer, that she had been held in a cell overnight and that she had not reported the incident to her supervisor, although she had worked on April 5 and 6, 2010. The grievor testified that she did not report the statutory offence charges to her supervisor as she had been advised by a union representative that, since they were not criminal offences, reporting them to management was not required.

31 The grievor stated that, when she arrived at Mr. Jensen’s office, he asked her whether she had gotten into trouble on the previous weekend. She admitted that she had. The grievor acknowledged the OSOR that she prepared at Mr. Jensen’s request on April 9, 2010 (Exhibit E-2, Annex F) and the transcript of her interview with the investigators on April 23, 2010 (Exhibit E-2, Annex B) as part of the fact-finding investigation. The grievor stated that she was forthright with the investigators and that she told them that she was receiving treatment for alcoholism. The grievor also stated that she had not provided management with copies of the statutory offence charges and that she had not authorized the police to release information about the incident.

32 The grievor testified that she applied for a promotion to the CX-02 level through a competition process in November 2009 and that she was promoted effective March 9, 2010.

33 As for the third paragraph of the termination letter, which alleges that in December 2009 the grievor had been cautioned about inmate boundary concerns, she acknowledged that she had been cautioned but that the Acting Correctional Manager had told her that the caution would not be entered on her record.

34 In cross-examination, the grievor stated she had called Mr. Roberts on the evening of April 3 or April 4, 2010 and that he had advised her that she did not have to report the offences as they were not criminal charges. The grievor acknowledged that Mr. Roberts was not part of institution management.

35 The grievor acknowledged her signature on documents stating that she had received the Code of Discipline and Standards of Professional Conduct and that she had undertaken to maintain the standards of professionalism and integrity set out in those documents (Exhibit E-1, Tab 2).

36 The grievor testified that, during her interview on April 23, 2010, she acknowledged that her behaviour had been inappropriate and that her conduct had affected the CSC’s reputation.

IV. Summary of the arguments

A. For the employer

37 Counsel for the employer argued that the indefinite suspension without pay imposed on the grievor was administrative in nature and that, accordingly, I lack jurisdiction to review that decision.

38 Counsel for the employer submitted that, for me to assume jurisdiction, there must be evidence of the employer’s intent to discipline the grievor. Counsel argued that, no such evidence was adduced by the grievor. Counsel referred to the letters of suspension and the Larson criteria documents (Exhibit E-1, Tabs 8 to 11) as evidence that the employer’s sole consideration was whether it deemed it a risk to have the grievor work on the institution’s premises while the fact-finding investigation was being conducted. In support of her argument, counsel cited King v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 45.

39 As for the rejection on probation, counsel for the employer referred to the legislative framework cited earlier in this decision, section 62 of the PSEA and paragraph 209(1)(b) and subsection 211(1) of the PSLRA.

40 Counsel cited Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134, as setting out the evidentiary burden on both the employer and the grievor in cases of rejection on probation under the current PSEA and referred to paragraph 111 of that decision, in which the adjudicator stated the following:

111 In my view, the change between the former PSEAand the new PSEA, when viewed in the context of the recent jurisprudence of the Supreme Court of Canada on the appropriate approach to public employment, does not significantly alter the substance of the approach that adjudicators should take to grievances involving the termination of a probationary employee. However, the omission of the words “for cause” in section 62 of the new PSEA does change the burden of proof requirements. The burden of proof on the deputy head has been reduced. The deputy head’s burden is now limited to establishing that the employee was on probation, that the probationary period was still in effect at the time of termination and that notice or pay in lieu has been provided. The deputy head no longer has the burden of showing “cause” for the rejection on probation. In other words, the deputy head does not have the burden of establishing, on a balance of probabilities, a legitimate employment-related reason for the termination of employment. However, the Treasury Board Guidelines for Rejection on Probation require that the letter of termination of employment of a probationary employee set out the reason for the decision to terminate employment. The deputy head is still required to tender the letter of termination as an exhibit (normally through a witness) to establish that the statutory requirements of notice and probationary status have been met. That letter will usually state the reason for the decision to terminate the employment of the probationary employee. The burden then shifts to the grievor. The grievor bears the burden of showing that the termination of employment was a contrived reliance on the new PSEA, a sham or a camouflage. If the grievor establishes that there were no legitimate “employment-related reasons” for the termination (in other words, if the decision was not based on a bona fide dissatisfaction as to his suitability for employment: Penner at page 438) then the grievor will have met his burden. Apart from this change to the burden of proof, the previous jurisprudence under the former PSEA is still relevant to a determination of jurisdiction over grievances against a termination of a probationary employee.

41 Counsel for the employer submitted that the letter of rejection on probation signed by Mr. Pyke and the evidence adduced by the employer satisfied the legislative and case law requirements that the employer had a legitimate employment-related reason for terminating the grievor’s employment while on probation, due to her off‑duty misconduct. Counsel submitted that the grievor admitted her misconduct and acknowledged that it discredited the CSC’s reputation.

42 Counsel turned next to the grievor’s testimony that Mr. Roberts, her union representative, advised her on April 3 or 4, 2010 that she need not report the statutory offences to her supervisor. Counsel for the employer pointed to Mr. Jensen’s testimony that, during his meeting with Mr. Roberts on April 9, 2010, the latter stated that he had not been aware of the incident of April 3, 2010. Counsel submitted that section 6(e) of the Code of Discipline was clear in requiring employees to report to their supervisors any statutory offences with which they were charged. Counsel cited Tobin v. Canada (Attorney General), 2009 FCA 254, in support of her argument that the Code of Discipline and Standards of Professional Conduct apply to off-duty conduct.

B. For the grievor

43 The grievor’s representative referred to the transcript of the grievor’s interview by a CSC investigator on April 23, 2010, annexed to the fact-finding report, in which the grievor admitted that she had assaulted a police officer. The grievor’s representative pointed out that the grievor had not been charged with assault and that she had reacted to being shoved by the police officer in the manner in which she had been trained as a correctional officer.

44 The grievor’s representative then referred to the employer’s argument that, at their meeting of April 9, 2010, Mr. Roberts told Mr. Jensen that it was the first time he had learned of the incident involving the grievor. The grievor’s representative submitted that Mr. Roberts had not disclosed his conversation with the grievor on April 3 or 4, 2010, because discussions with union representatives and employees are confidential and are disclosed only in unique circumstances.

45 The grievor’s representative submitted that Mr. Pyke’s testimony that he had not spoken with police or read any official police reports of the incident, and Mr. Jensen’s testimony that he was not aware of the identity of the reliable source, was in contrast to the initial Larson document prepared by Mr. Hamilton, in which it is stated that Mr. Hamilton spoke with the police officers involved in the incident. The grievor’s representative submitted that the police had not been authorized by the grievor to release information about the incident to the CSC. Therefore, the employer had access to information to which it was not legally entitled. The grievor’s representative argued that the CSC was not entitled to use information obtained from the police for its human resources management purposes.

46 The grievor’s representative further argued that the grievor did not pose a real risk to the institution, its staff or its inmates. She submitted that the employer did not demonstrate evidence of damage to the CSC’s reputation or to its relationship with its criminal justice partners. She stated that Mr. Jensen decided on April 8, 2010 to suspend the grievor before receiving her OSOR.

47 As for the requirement for correctional officers to report statutory offences, the grievor’s representative referred to paragraph 44 of Tello, in which a union grievance officer testified that he had been unaware that employees were required to report tickets received for offences under the Ontario Highway Traffic Act, R.S.O. 1990, c. H-8.

48 The grievor’s representative submitted that the employer should have accommodated the grievor’s addiction to alcohol and cited Dhaliwal v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 109, in support of her argument. The grievor’s representative stated that the grievor had acknowledged her errors and that her behaviour was inappropriate and requested that I substitute a lesser disciplinary measure for the termination.

C. Employer’s rebuttal

49 Counsel for the employer submitted that the grievor did not present evidence or argue that the indefinite suspension was disciplinary in nature. Similarly, she submitted that there was no evidence or argument that the rejection on probation was a sham or camouflage.

50 As for the grievor’s argument about the union official’s testimony as reported in Tello, counsel for the employer pointed out that such an argument was rejected by the adjudicator in paragraph 132 of that decision, in which he stated the following:

132 The fact that the deputy head relied on the Code of Discipline on reporting statutory offences that were not known by correctional officers at the Kingston Penitentiary does not constitute bad faith. The grievor was made aware of his obligation to abide by the Code of Discipline.

51 With respect to the grievor’s argument that the CSC should have accommodated her addiction, counsel for the employer argued that the grievor did not adduce evidence of such a disability and further that her addiction was not disclosed before the incident of April 3, 2010. Counsel pointed to the final paragraph of Standard Two of the Standards of Professional Conduct and stated that the grievor had not brought any such personal problem to the employer’s attention. Counsel distinguished Dhaliwal from this case on the basis that that matter dealt with the overuse of family-related leave, of which the employer was aware.

V. Reasons

A. The indefinite suspension - PSLRB File No. 566-02-4083

52 As stated, the employer objected to my jurisdiction to hear this grievance on the basis that it was administrative and not disciplinary in nature. The employer argued that, as a result, the indefinite suspension without pay could not be referred to adjudication under paragraph 209(1)(b) of the PSLRA.

53 Although an employer might characterize a suspension as administrative, an adjudicator is nonetheless required to look behind such a characterization to examine the circumstances of the employer’s intent when it decided to suspend a grievor. This requirement was aptly stated by the adjudicator as follows in King, at paragraph 62:

62. The essential point that I draw from Frazee and from the Basra decisions is that I am required to examine the specific circumstances of this case for evidence depicting the respondent’s intent when it decided to suspend the grievor without pay and thereafter. If I am satisfied that the respondent has proven that, on a balance of probabilities, the intent underlying its “administrative” decision was non-disciplinary at the time of the decision and that it continued to be non-disciplinary during the resulting suspension, I must decline jurisdiction. Conversely, if the respondent has failed in its burden, then I must find that its decision was disciplinary in its essential character regardless of how the respondent described it and that, as a consequence, I have jurisdiction to consider the grievance under paragraph 209(1)(b) of the Act.

54 The Larson-inspired reviewdocument that the employer completed three times during the course of the investigation sets out several criteria, drawn from that decision, for consideration by management. Under each criterion, there is room for management to add case-specific facts explaining how each criterion relates to that particular case. Below are the criteria which are set out in the document in question:

1. The issue is not whether the grievor is guilty or innocent, but rather whether the presence of the grievor as an employee of the CSC can be considered to present a reasonably serious and immediate risk to the legitimate concerns of the employer.

2. The onus is on the CSC to satisfy the existence of such a risk and the simple fact that a criminal charge has been laid is not sufficient to comply with that onus. The CSC must also establish that the nature of the charge is such as to be potentially harmful or detrimental or adverse in effect to the CSC’s reputation or product or that it will render the employee unable to properly perform his duties or that it will have a harmful effect on other employees or its clients or will harm the general reputation of the CSC.

3. The CSC must show that it did, in fact, investigate the criminal charge to the best of its abilities in a genuine attempt to assess the risk of continued employment. The burden, in this area, on the CSC is significantly less in the case where the police have investigated the matter and have acquired the evidence to lay the charge than in the situation where the CSC any [sic] has initiated proceedings.

4. There is further onus on the CSC to show that it has taken reasonable steps to ascertain whether the risk of continued employment might be mitigated through such techniques as closer supervision or transfer to another position.

5. There is a continued onus on the part of the CSC during the period of suspension to consider objectively the possibility of reinstatement within a reasonable period of time following suspension in light of new facts or circumstances which may come to the attention of the CSC during the course of the suspension. These matters, again, must be evaluated in the light of the existence of a reasonable risk to the legitimate interest of the CSC.

55 As mentioned earlier in this decision, CSC management completed that document on three occasions during the grievor’s suspension: April 8, 23 and 30, 2010. Having reviewed those documents, it is apparent to me that the reasons stated to justify the above-cited criteria were expanded on each date as the employer gathered more information. In this regard, the grievor provided an OSOR on April 9, 2010 and, according to the investigation report, was interviewed within the context of the fact-finding investigation on April 23, 2010. The investigation report also indicates that one of the grievor’s colleagues present on the night of the incident provided an OSOR on April 23, 2010 and was interviewed by the investigators on the same date, while her other colleague provided her OSOR on April 9, 2010 and was interviewed on April 26, 2010.

56 The employer’s review documents clearly state that the employer learned of the incident involving the grievor from one of the police officers who attended the scene and whom she assaulted. Although the review document dated April 8, 2010 indicates that management was to attempt to obtain a copy of the official police report, no further mention of a police report is made in the subsequent documents. The only references to police reports were the testimonies in cross-examination of both Mr. Jensen and Mr. Pyke. Mr. Jensen stated that he had never spoken to the police, and Mr. Pyke testified that he had neither spoken to the police nor reviewed any official police reports about the incident before reaching his decision to reject the grievor on probation.

57 The grievor’s representative submitted that the police should not have released any information about the incident to the employer without the grievor’s authorization. No evidence was adduced that the police released its report of the incident or that the employer initiated requests for information about the incident with the police. Although Mr. Jensen had been made aware of the incident when he convened the grievor to the meeting of April 9, 2010, he did not immediately confront her with that information. According to her testimony-in-chief, Mr. Jensen asked her whether she had gotten into trouble the previous weekend, which she immediately acknowledged. In my view, this argument has not been legally substantiated in any manner whatever. Although the grievor’s representative contested the release, by police, of any information related to the incident in issue, she did not substantiate her argument by reference to any statutory prohibition or jurisprudence.

58 Counsel for the employer submitted that the grievor did not present evidence or even argue that the indefinite suspension was disciplinary in nature. The grievor did, however, clearly make this allegation in referring the grievance to adjudication and also in her reply to the employer’s preliminary objection. In that letter, it was alleged that for the union, any removal from the workplace without pay constituted discipline. I have therefore decided to address the allegation and, as stated in King, to address the issue of whether or not the employer’s intent in imposing the suspension was administrative rather than disciplinary.

59 I accept that the employer met its burden of proof for that issue. The testimonies of both Mr. Jensen and Mr. Pyke demonstrated that they did not reach a conclusion about the position to be taken by the employer vis-à-vis the grievor until all the facts concerning the incident had been gathered, investigated and assessed. There was no evidence of disciplinary intent by the employer. This is supported by the Larson review documents, which, as stated, trace the employer’s path of adding information as it became available through the investigative process and of assessing that information in terms of risk to the institution. The employer’s evidence was uncontradicted. Therefore, I find that the indefinite suspension without pay imposed on the grievor was administrative in nature, and accordingly, I do not have jurisdiction over this grievance.

B. The rejection on probation - PSLRB File No. 566-02-4280

60 As stated in Tello, the burden of proof is on the grievor to show that the rejection on probation was a sham or camouflage. If the grievor can demonstrate that the employer’s decision was not based on a legitimate employment-related reason, then her burden will be met.

61 There is no dispute that the grievor was on probation at the time of her termination and that she was given pay in lieu of notice of the termination, as permitted by section 62 of the PSEA.

62 The grounds relied on by the employer that relate to the grievor’s suitability for employment are her failure to report being charged with two statutory offences to her supervisor; her failure to adhere to Standards One and Two of the Standards of Professional Conduct; and her violations of sections 6(c), (d) and (e) of the Code of Discipline. Those provisions apply to off-duty conduct; see Tobin. The grievor admitted to her misconduct on all of these grounds. She has consequently failed to prove that the employer’s decision was based on reasons unrelated to her suitability for employment.

63 In its third paragraph, the letter of termination contains a statement that the grievor had previously been cautioned regarding “inmate boundary concerns”. In her testimony, the grievor stated that the Acting Correctional Manager told her at the time that the caution would not be entered on her disciplinary record. The employer did not contradict her testimony on this point. Although the grievor raised this issue in evidence, her representative did not raise it in argument, leaving me somewhat perplexed as to the relevance of the issue. I assume that the grievor views the caution as the first step in disciplinary action taken by the employer, the second such step being her rejection on probation. I do not share her perspective on this. Given the uncontested evidence to the effect that following the caution, the grievor was promoted to the CX‑02 level through competition, I conclude that the caution did not, in the employer’s mind, constitute an infraction serious enough to deny the grievor a promotion. I have also concluded that the employer did not, in rejecting the grievor on probation, act with disciplinary intent. Instead, I am persuaded that the employer’s decision was motivated by a genuine concern for the grievor’s suitability, and that the “inmate boundary concerns” mentioned in the letter of rejection on probation were merely further, although minor (even in the employer’s mind) evidence of such unsuitability. I find that for the employer, the incident on the night of April 2-3, 2010, was, in and of itself, sufficient proof of unsuitability.

64 In respect of the grievor’s failure to report the statutory offences to her supervisor, she testified that she relied on advice from a union official that offences need not be reported unless they are of a criminal nature. That reliance did not relieve the grievor of the requirement to report statutory offences to her supervisor, as clearly stipulated in the Code of Discipline. The grievor acknowledged that she was made aware of her obligation to abide by the Code of Discipline and the Standards of Professional Conduct. As stated in paragraph 132 of Tello, reliance by the employer on the statutory offence reporting provision of the Code of Discipline, although that provision might be unknown to correctional officers, does not constitute bad faith. Even had the grievor reported the statutory offences to her supervisor, the employer would not, in my view, have been precluded from rejecting her on probation, as it would still have been open to it to conclude that her conduct that evening was indicative of unsuitability for her position.

65 The grievor’s representative relied on Dhaliwal in support of her argument that the employer should have accommodated the grievor’s alcohol problem. I do not find that decision helpful in this matter. That case involved the rejection on probation of a correctional officer for the overuse of family-related and sick-leave credits. In Dhaliwal, the adjudicator found that the grievor’s conduct was not at issue and that the employer’s decision was not based on all the relevant facts. The adjudicator took jurisdiction based on his finding that the grievor had established the employer’s bad faith. Here, the employer’s decision was not taken until it had gathered all of the relevant facts. Moreover, in this case, the sole issue was the grievor’s conduct.

66 I turn now to the grievor’s argument that the employer’s actions of suspending her indefinitely and of terminating her employment were discriminatory and were contrary to both the applicable collective agreement and the Canadian Human Rights Act (CHRA). As the grievances were not referred to adjudication under paragraph 209(1)(a) of the PSLRA, the “no discrimination” provision of the collective agreement is not properly before me, but the allegations under the CHRA remain. At the hearing, the only direct evidence of the grievor’s alcohol problem was her own testimony that she informed the investigators that she was seeing a psychologist who had told her that she had “more than a social drinking problem” and Mr. Pyke’s testimony that she raised it at the disciplinary hearing of May 25, 2010. No testimony or supporting evidence from a physician was tendered at the hearing. The grievor had the burden of proving that she had a disability. I find that she failed to do so and accordingly dismiss this argument.

67 Having reviewed all the evidence, I find that the grievor did not establish that the employer used a sham or camouflage in rejecting her on probation. Nor did she establish that the termination of her employment was due to anything other than a bona fide dissatisfaction as to her suitability for employment. Accordingly, I find that I do not have jurisdiction over this grievance.

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

VI. Order

69 I order these files closed.

March 26, 2012.

Steven B. Katkin,
adjudicator