FPSLREB Decisions

I. Individual grievance referred to adjudication

1 In January 2011, Lynne Chauvin (“the grievor”) was suspended for 10 days by the deputy head of the Offices of the Information and Privacy Commissioners of Canada (“the respondent”). On February 15, 2011, the grievor filed a grievance challenging the January 2011 10-day suspension. In that grievance, she also challenged a five-day suspension served November 15 to 19, 2010, and a three-day suspension served October 26 to 28, 2010. A respondent’s representative informed the grievor on February 17, 2011 that she could not “accept the Grievance in its present state,” since the grievor was grieving three different disciplinary matters, and that each should be treated separately. The respondent did not reply to that grievance, but it was referred to adjudication.

2 In July 2011, the respondent wrote to the Public Service Labour Relations Board (“the Board”) arguing that the grievance was not adjudicable as it was never accepted by the respondent and because it had not been dealt with within the grievance procedure. The respondent also objected to the timeliness of the portion of the grievance related to the 3 and 5-day suspensions. The grievor did not agree with the respondent’s position, stating that she wished to have all three suspensions dealt with at adjudication. She did not, however, in her response provide any reasons or arguments to counter those set out by the respondent.

3 In January 2012, I met with the parties to clarify that question and to speak with them in preparation for this hearing. I then ruled that the hearing would be limited to the 10-day suspension since it was too late for the grievor, on February 15, 2011, to grieve suspensions imposed on her in October 2011 and in November 2011. The collective agreement between the Treasury Board and the Canadian Association of Professional Employees for the Economics and Social Science Services Group (expiry date: June 21, 2011) (“the collective agreement”) applied to the grievor. According to clause 40.12 of the collective agreement, the grievor should have grieved within 25 days of when she was made aware of the October and November 2011 suspensions, but she did not. By February 2011, the 25-day period had expired. I reject the respondent’s arguments to the effect that the grievance was not able to be accepted by it as it contested three separate suspensions. Nothing in the collective agreement or the legislation prevents a grievor from filing one grievance to contest several disciplinary suspensions. I therefore also reject the respondent’s contention that the grievance was not adjudicable as a result of the respondent’s decision to not deal with it.  

4 At the opening, I reminded the parties that the hearing was to deal with only the 10‑day suspension. The parties accepted that ruling that the 3 and 5-day suspensions were untimely and that the hearing would only be on the 10-day suspension. The grievor also confirmed that she referred her grievance to adjudication only under paragraph 209(1)(b) of the Public Service Labour Relations Act and not under subparagraph 209(1)(c)(i) as well, as indicated on the Notice of Reference to Adjudication of her grievance.

II. Summary of the evidence

5 The respondent adduced 19 documents in evidence. It called Jennifer Stoddart, Patricia Kosseim and Anne Desjardins as witnesses. At the time of the grievance, Ms. Stoddart was Privacy Commissioner of Canada. She imposed the 10-day suspension on the grievor. Ms. Kosseim was General Counsel for the respondent. When the incidents that led to the 10-day suspension occurred, she was the grievor’s direct supervisor. Ms. Desjardins was a human resources advisor for the respondent. The grievor testified. She did not adduce any documents in evidence.

6 The grievor began to work for the respondent in 2007. At the time of the grievance, she worked as a paralegal in the respondent’s legal services directorate. According to Ms. Kosseim, the grievor did very good work and was very competent and very diligent in respecting timelines in her first few years of employment, but problems arose when she was appointed as a paralegal.

7 In June 2010, the respondent imposed a one-day suspension on the grievor, in October 2010, a three-day suspension, and in November 2010, a five-day suspension. The suspension letters were adduced in evidence. In those letters, the respondent, among other things, disciplined the grievor for her insubordination in not cooperating with her supervisor, in not cooperating with work colleagues to allow them to access the Records and Documents Information Management System (RDIMS), in submitting incomplete work, and in failing to collaborate with her colleagues in performing her work. In each letter, the respondent warned the grievor that further breaches of conduct could lead to more severe disciplinary action, including dismissal.

8 On January 11, 2011, the respondent imposed the grieved 10-day suspension on the grievor. According to the respondent, that decision was based on four incidents that happened in November and December 2010. Those incidents involved the grievor’s lack of cooperation in providing information to her paralegal colleague, her non‑attendance at sessions during the respondent’s Information Management Week, her lack of cooperation in providing RDIMS information for a training session, and her initial absence from and then late arrival at that training session. The next four paragraphs summarize the evidence adduced at the hearing on each of those incidents.

9 Ms. Kosseim testified that the grievor did not cooperate in providing basic information to her new paralegal colleague. On November 23, 2010, the new paralegal wrote to Ms. Kosseim stating that she needed to know how to open files in the RDIMS, how to assign them a number, how to make paper files and how to close a file. Ms. Kosseim forwarded those questions to the grievor the same day. The next day, she asked the grievor to share her experience with her new colleague, to bring her up to speed on how things were done at the respondent’s workplace. On November 29, 2010, at a meeting with Ms. Kosseim, the grievor gave her back a printed copy of the November 23 email questions from the new paralegal, along with her handwritten answers beside each one. In essence, I find that the grievor failed to provide the information requested and instead indicated simply that she was the one who arranged the creation of electronic folders, assigned numbers and closed paper files. Ms. Kosseim brought those questions to the grievor again at a meeting on December 6, 2011. On December 29, the grievor provided some incomplete answers, which were not very helpful, according to Ms. Kosseim. The grievor testified that, since the respondent hired the new paralegal, it should have trained her. She testified that the new paralegal could not even perform simple tasks, like making labels.

10 Ms. Kosseim testified that, on November 23, 2010, she strongly encouraged the grievor to participate in the scheduled events of the respondent’s Information Management Week, held from November 23 to 26, 2010. On November 24, Ms. Kosseim wrote the grievor, asking her to participate in the sessions related to her work, and in particular encouraging her to participate in the sessions on security awareness and recordkeeping “… as well as in the future training sessions on ATIP.” According to Ms. Kosseim, the grievor told her on November 29 that she did not attend any of those sessions and she did not provide any reasons to explain why she did not attend. At the hearing, the grievor first testified that she did not attend any of those sessions since it “was stuff that [she] already knew.” In cross-examination, the grievor said that she attended one of the sessions but was not sure which one.

11 Ms. Kosseim testified that she asked the grievor several times to help with preparing for the December 9, 2010 RDIMS training session, which would teach the legal staff how to save records consistently in the RDIMS to facilitate subsequent searches and retrievals. In the past, the grievor had been the only person to save records in the RDIMS. After that training, all the legal staff would do their own saving. Ms. Kosseim testified that she needed the grievor to cooperate since the grievor was the RDIMS content expert. Ms. Kosseim asked the grievor in writing on November 24, 2010 to prepare prototype profiles to be used in the December 9, 2010 session on how to save legal opinions, litigation-related documents, legal correspondence, legal memos and litigation instructions. On November 29, 2010, Ms. Kosseim once again asked the grievor for the prototype profiles. On December 6, the grievor provided some documentation that Ms. Kosseim felt was incomplete and unsatisfactory, of which she informed the grievor. In April 2011, long after the training session and two months after the 10-day suspension, the grievor provided another version of the profiles, which were, according to Ms. Kosseim, complete and excellent. Ms. Kosseim had no doubt that the grievor could provide the required profiles. That delay showed the grievor’s uncooperative behaviour.

12 Ms. Kosseim testified that the grievor was expected to attend and to actively participate in the December 9, 2010 RDIMS training session since she was the RDIMS content expert. Ms. Kosseim testified that, at the beginning of the training session, she noted that the grievor was not there. She testified that she went to her cubicle to remind her to attend. According to Ms. Kosseim, the grievor showed up at the training session 40 minutes later, and her tardiness negatively impacted the training sessions. Further, she did not have her glasses with her and could not see the overhead projections. Ms. Chauvin testified that she was very knowledgeable in all aspects of the RDIMS, that she did not need to attend that training session and that it would have been a waste of her time to attend. She testified that she did not know that she was required to attend, and she admitted that she initially did not attend. She also said that, 30 minutes after the session started, Ms. Kosseim came to see her and asked her to attend. She completed a task that she was doing and showed up five minutes later.

13 Ms. Chauvin testified on several issues not related to the four incidents for which the 10-day suspension was imposed. According to her, in December 2009, her acting supervisor screamed at her. In September 2010, she had to fix several errors in some files made by the other paralegal. The grievor also mentioned that her work description was signed by her supervisor in 2007 but was presented to her only in July 2009, and she signed it in March 2010. She also referred to a memo from her acting supervisor dated February 11, 2010, asking her to participate in meetings and to advise in advance if she could not participate. The grievor testified that she saw that memo only in April 2010. She said that she always advised people when she had appointments and could not be at work. She also testified about some incidents in which some of her lawyer colleagues were rude and showed a lack of respect for her.

14 Ms. Stoddart testified as to why she imposed the 10-day suspension. She based her decision on Ms. Kosseim’s and Ms. Desjardin’s recommendations, on the four incidents described earlier, and on past disciplinary actions imposed on the grievor, which were all related to her insubordination. For Ms. Stoddart, the grievor was unwilling to improve and did not want to cooperate with her work colleagues and supervisor. More severe discipline became justified.

III. Summary of the arguments

A. For the respondent

15 The respondent argued that the grievor was guilty of misconduct by being insubordinate in the four described instances, as shown by the evidence adduced at the hearing. The evidence clearly showed that orders were given to the grievor, that the person who gave the orders had the authority to give them and that the grievor refused to comply with those orders. The respondent reminded me of the evidence adduced in support of its argument.

16 The grievor admitted to some of her wrongdoing but also denied part of it in cross-examination. Her testimony did not connect with most of the evidence adduced at the hearing. She refused to provide answers to her paralegal colleague, to attend information management sessions or to prepare adequate material for the December 9, 2010 RDIMS training session, and she was initially not present at that session. Those incidents all amounted to insubordination.

17 The grievor was disciplined in October 2010 in the form of a suspension for three days for insubordination, then again for five days in November 2010 for the same reasons. Under the doctrine of progressive discipline, the respondent was right in imposing more severe discipline in January 2011 for the new incidents of insubordination. 

18 The respondent referred me to the following decisions: Focker v. Canada Revenue Agency, 2008 PSLRB 7; Rioux v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 32; Desrochers v. Treasury Board (Solicitor General of Canada), PSSRB File No. 166-02-26340 (19980116); Desrochers v. Attorney General of Canada, 2002 FCA 333; Shuniah Forest Products Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2693, [2000] O.L.A.A. No. 811 (QL); Trillea-Scarborough Shopping Centre Holdings Ltd. v. Service Employees International Union, Local 204 (1990), 14 L.A.C. (4th) 396; Vancouver General Hospital v. Hospital Employees’ Union, (2002) 107 L.A.C. (4th) 392; British Columbia Hydro and Power Authority v. International Brotherhood of Electrical Workers, Local 258, (2002), 113 L.A.C. (4th) 337; Chopra et al. v. Treasury Board (Department of Health), 2011 PSLRB 99; Hogarth v. Treasury Board (Supply and Services), PSSRB File No. 166‑02-15583 (19870331); Noel v. Treasury Board (Human Resources Development Canada), 2002 PSSRB 26; Byfield v. Canada Revenue Agency, 2006 PSLRB 119; Doucette v. Treasury Board (Department of National Defence), 2003 PSSRB 66; Duske v. Canadian Food Inspection Agency, 2007 PSLRB 94; Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 50; Wentges v. Treasury Board (Department of Health), 2010 PSLRB 24; Bérard v. Treasury Board (Agriculture Canada), PSSRB File Nos. 166-02-22344 and 22914 (19930423); and Faryna v. Chorny, [1952] 2 D.L.R. 354. The respondent also referred me to several sections of Brown and Beatty, Canadian Labour Arbitration, Fourth Edition.

B. For the grievor

19 In her arguments, the grievor repeated most of the points raised in her testimony. She reiterated that, in December 2009, her acting supervisor screamed at her and that, at other times, some lawyers showed a lack of respect for her, even though the respondent had provided all staff with mandatory training on respect in the workplace. She said that at times she felt verbally abused, threatened and harassed. She also referred to the February 2010 memo and to her work description, which were presented to her long after they were written.

20 The grievor also testified that she was very dedicated to her work and provided examples of times when she was helpful to colleagues at work and outside the workplace. She always advised her supervisor when she had an appointment or was absent. She felt that she was not treated fairly because she was disciplined and other people who showed a lack of respect for her were not.   

IV. Reasons

21 The grievor was suspended because, according to the respondent, she refused to follow instructions and was insubordinate. She had been suspended in the past for similar behaviours.

22 The respondent had the burden of proving that the grievor was insubordinate. Abundant case law explains insubordination and specifies the required evidence to prove it. Insubordination occurs when an employee refuses to do what he or she has been told to lawfully do by the employer. In situations in which the employee must have been aware of the duties expected of him or her but decided not to perform those duties, no specific words on the part of the employer are required for insubordination to occur. To prove insubordination, the respondent must prove that an order was given, that it was clearly communicated to the employee by someone with the proper authority and that the employee refused to comply. None of those principles apply if the order given by the respondent put the health and safety of the employee at risk or involved unlawful or illegitimate activities. 

23 The evidence adduced at the hearing clearly supported the assertion that the grievor was insubordinate and that the respondent was justified in imposing disciplinary action against her.

24 First, the respondent adduced sufficient evidence to prove on a balance of probabilities that the grievor was insubordinate when she did not cooperate when she was asked to help train her new paralegal colleague. She was clearly not cooperative in answering some basic questions from her colleague and in fact did not deny that she had not provided the responses that had been requested of her. Instead, the grievor explained her behaviour by stating that the respondent had the responsibility to train that new employee. That is not a proper answer and does not excuse the grievor’s behaviour. As asked by the respondent, the grievor should have cooperated to help training the new paralegal. She understood the request being made of her and refused to co-operate. In so doing, she was insubordinate.

25 Second, the evidence adduced by the respondent clearly supports its allegation that the grievor’s supervisor asked her to attend some of the Information Management Week activities put together by the respondent from November 23 to 26, 2010. I find that the grievor clearly understood that her employer expected her to attend and that, for her own reasons, she decided to ignore the instructions. The grievor did not deny it in her initial testimony. Rather, she testified that she did not attend those sessions because it “was stuff that [she] already knew.” According to Ms. Kosseim’s testimony, the grievor told her on November 29 that she did not attend those sessions. In cross‑examination, she contradicted herself and said that she attended one session but could not remember which session she had attended. Because the grievor contradicted herself, I give more weight to Ms. Kosseim’s testimony. I believe that Ms. Kosseim made it clear to the grievor that she was to attend some of the sessions offered that week and that she was insubordinate by not attending any.

26 Third, the evidence also supports the contention that the grievor was asked to prepare some material for the December 9, 2010 RDIMS training session, since she was the content expert, but that she did not prepare the required material on time. That evidence was not contradicted and indeed the grievor never touched on this issue in her testimony. I agree with the respondent that the grievor’s failure to produce the report as requested amounts to insubordination.

27 Fourth, Ms. Kosseim testified that she asked the grievor to attend and to actively participate in the RDIMS December 9, 2010 training session. The grievor testified that she did not need to be there, that it was a waste of time for her to attend and that she did not know that she was expected to attend. I believe that Ms. Kosseim asked the grievor to attend that session because of the grievor’s expertise in RDIMS and that the grievor understood that her presence was required. Ms. Kosseim’s explanations are credible and consistent with the rest of her testimony. I believe that the grievor was insubordinate in not initially attending the RDIMS training session, and after, in not actively participating in that session on December 9, 2010.

28 The grievor adduced very little evidence to counter the employer’s evidence that she was insubordinate. She cannot justify her behaviour by pointing to other unconnected occasions where she has felt offended by coworkers or supervisors.

29 Those four incidents all fall under the definition of insubordination. Even if I did not consider the last incident, for which I have only Ms. Kosseim’s word against the grievor’s, I would still conclude that the grievor was insubordinate on more than one occasion a few weeks after the respondent had suspended her for insubordination for three days and then again for five days. Considering those incidents and that they occurred a few weeks after the grievor was disciplined for insubordination, the respondent was justified in imposing a more severe suspension. The respondent chose to impose a 10-day suspension. There was nothing unreasonable in the respondent progressing from a 5-day to a 10-day suspension in applying the principle of progressive discipline.  

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

V. Order

31 The grievance is denied.

June 12, 2012.

Renaud Paquet,
adjudicator