FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Guy Salter (“the grievor”) was a correctional officer, classified CX-01, employed at the Dorchester Penitentiary (“the Penitentiary”) of the Correctional Service of Canada (CSC or “the employer”) in Dorchester, New Brunswick, during the relevant period. He was covered by the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the union”); expiry date, May 31, 2010 (“the collective agreement”). On November 22, 2006, he was suspended with pay pending the outcome of an investigation into allegations that he threatened a correctional supervisor, that he failed to follow protocol for the care of an inmate and that he behaved inappropriately towards a physician treating an inmate.

2 On December 8, 2006, the grievor filed a grievance in which he stated as follows: “I am grieving my suspension from work on the 22nd November 2006.” As corrective measures, he sought to be compensated for any lost shift differentials, overtime opportunities and meal allowances. The grievance was referred to adjudication on April 24, 2007. The employer did not respond to the grievance at any level until August 23, 2010, when it denied the grievance at the final level.

3 On July 22, 2010, the employer filed a jurisdictional objection with the Public Service Labour Relations Board (PSLRB) on the grounds that the matter grieved was neither a disciplinary suspension nor a financial penalty but an administrative suspension. Therefore, it was not a matter that could be referred to adjudication under subsection 209(1) of the Public Service Labour Relations Act (PSLRA). The employer asked that the grievance be dismissed without a hearing.

4 The adjudicator originally assigned to hear the grievance determined that the issue of jurisdiction should be raised at the adjudication hearing and that the parties should be prepared to proceed on the merits of the grievance in the event that the adjudicator reserved the decision on the merits.

5 An adjudication hearing was scheduled for September 9 and 10, 2010, but was postponed at the request of the parties to allow them the opportunity to explore settlement, which proved unsuccessful. The matter was rescheduled to be heard on July 10 and 11, 2012 and was assigned to me by the Chairperson of the PSLRB. On July 5, 2012, the union requested a postponement of the adjudication hearing on the grounds that the grievor was not prepared to deal with what the union alleged was a change in position by the employer. The employer denied the allegation, and the request for a postponement was denied on the grounds that the parties had been provided sufficient notice of the hearing to prepare their cases.

6 At the outset of the adjudication hearing, the employer reiterated its objection to my jurisdiction and alleged that, during the period in question, the grievor made a claim for workers’ compensation based on the continuation of an earlier claim, which was approved retroactively to November 22, 2006. The grievor received his full salary through workers’ compensation benefits, based on the finding that he was unable to work during the period in question. Therefore, he is not be entitled to the allowances sought in the grievance.

7 In response to the employer’s objection to my jurisdiction, the grievor contended that it was not accurate to claim that he was on workers’ compensation during the period in question. In fact, it was “deemed” workers’ compensation. The grievor further stated that there was no administrative matter under investigation, as the investigation clearly related to allegations of wrongdoing and misconduct, which made it disciplinary. The grievor also contended that even if the investigation was not disciplinary, it is necessary that an adjudicator have the jurisdiction to remedy the losses incurred by the grievor.

8 The parties agreed to present evidence on both the merits of the grievance and the objection to jurisdiction and to deal with the objection and any other issues in their closing arguments.

9 Subsequent to the completion of the hearing, but before this decision was completed, Finlay v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 59, was released. As that decision concerned issues that could have had some bearing on the issues in this grievance, a copy of the decision was forwarded to the parties for their comments. Those comments are included in the summary of the parties’ arguments rather than being summarized separately.

II. Summary of the evidence

10 The employer called three witnesses to testify: Norman Leblanc, former warden of the Penitentiary; Chantal Rioux, Return to Work and Harassment Prevention Coordinator at the Penitentiary; and Cécile Allain, Acting Manager, Compensation Services, CSC Atlantic Region. The grievor testified and called Derick Cormier, a correctional officer at the Penitentiary. The employer entered 18 documents into evidence, and the union entered 4 documents.

11 It should be noted that the employer conceded at the outset of the hearing that, although the grievor was suspended with pay pending an investigation into allegations of alleged misconduct, no discipline was imposed. Therefore, although evidence was led concerning the details of the alleged offences, I will summarize that evidence only to the extent that it is relevant to the particular issues before me.

12 Mr. Leblanc testified that the Penitentiary is a medium-security institution that housed about 500 inmates at the time of the grievance. There was also a mental health facility, the Shepody Healing Centre, within the walls of the Penitentiary. Although the mental health facility was physically located within the Penitentiary, it was managed separately.

13 Correctional officers from the Penitentiary provide regional hospital escort services for all male inmates in the employer’s Atlantic region who require health care that cannot be provided within their institutions. The escort teams take inmates to different hospitals throughout the region and stay with them until they are healthy enough to return to their institutions. For example, the Moncton Hospital has two cells for inmates, and the escort team goes there frequently. Mr. Leblanc testified that work on the escort teams is rostered. He explained that the union wanted correctional officers to rotate into the escort team because the work is less stressful than regular security duties and it gives officers a change from institutional pressures.

14 At the time of the events in question, the grievor was assigned to work on the escort team as an accommodation. Mr. Leblanc testified that the grievor had been on stress leave for a long period before the incidents in question occurred. The grievor testified that part of his leave of absence arose from serious threats made against him, which gave rise to post-traumatic stress disorder (PTSD), for which he had received workers’ compensation benefits. He also explained that he had filed harassment complaints against a correctional manager that he had been trying to have resolved for several years without success, which also contributed to his stress.

15 Mr. Leblanc explained that, at some time in the summer of 2006, before the grievor returned to work from his leave of absence, the union requested that he be assigned to the escort team as an accommodation because no other light duties were available. This was an exception to the practice that escort duty is generally rotational. Mr. Cormier, who was a union officer at the time, testified that, while he could not remember exactly how it arose, the agreement to assign the grievor to the escort team was designed to help him reintegrate into the work of the Penitentiary.

16 Mr. Leblanc testified that, in November 2006, he learned of complaints from a Dr. Levesque at the Moncton Hospital that the grievor had prevented his access to an inmate who was waiting for treatment at the hospital. There were also allegations that the grievor failed to follow the protocol for the inmate’s care and that he had engaged in a verbal altercation with Dr. Levesque on November 22, 2006. At about the same time that he received the complaint concerning the grievor’s alleged actions at the Moncton Hospital, Mr. Leblanc testified that he also received a phone call from a CSC staff relations officer, who told him that the grievor was alleged to have threatened a correctional supervisor. Mr. Leblanc testified that he believed that it was not the first time that the grievor had made threats against the correctional supervisor in question.

17 Mr. Leblanc explained that he was concerned about the allegations. In particular, he was worried about the health and safety of the inmate at the centre of the hospital allegations and was concerned that the inmate care protocol had not been followed. He was also concerned that the grievor might have gone too far in his dealings with Dr. Levesque. However, he recognized that he did not have all sides of the story.

18  In cross-examination, Mr. Leblanc acknowledged that the grievor had told him that he had received direction from a correctional supervisor concerning protocol for the inmate’s care. He stated that he asked the deputy warden to check into the grievor’s claim that he had received direction on the inmate care protocol, but no one acknowledged giving the grievor the permission or direction to take the actions he took. He also acknowledged that the grievor had explained that he was trying to prevent the inmate in question from committing suicide. Mr. Leblanc stated that he had received several versions of the facts from different people and that, because there were different versions of the story, he wanted to learn the truth.

19 Because he was concerned that he did not have all the relevant facts, Mr. Leblanc testified that he decided to initiate an independent investigation into all the allegations against the grievor. He stated that he did not necessarily believe everything that he was told by supervisors, and he wanted to be fair to the grievor. He felt that an outside investigator would be independent. In the interim, he also decided that the grievor should be suspended with pay. He stated that he believed that the grievor was experiencing difficulties in returning to work and was emotionally stressed. He believed that the suspension should be with pay so as not to increase the grievor’s stress.

20 The grievor was advised of the suspension in the afternoon of November 22, 2006. He testified that he received a phone call while he was on duty telling him that he was suspended with pay, effective immediately. Because he was still on duty, he had to wait until he was relieved before he could leave. He tried to deliver a written explanation about the incident with Dr. Levesque to the Penitentiary but was told that he was not allowed on the property. Instead, he gave the explanation to two supervisors who met him at the training facility nearby (Exhibit G-4). He testified that the supervisors would not discuss the incident with him.

21 On December 11, 2006, the grievor received a memo that confirmed that he was being placed on leave with pay for an indefinite period, pending the outcome of an investigation into allegations that he threatened a correctional supervisor, that he failed to follow the protocol for the care of an inmate and that he behaved inappropriately toward the physician at the Moncton Hospital on two occasions (Exhibit E-1).

22 Mr. Leblanc testified that it took some time to get the investigation under way. He explained that he wanted to have an investigator from outside the Penitentiary but, because there were no trained investigators in the region, the investigation was not started until January 2007. On January 15, 2007, he provided the investigator with her mandate (Exhibit E-2). The grievor was provided with a copy of the mandate, and Mr. Leblanc confirmed in writing that the grievor would be on leave with pay pending the outcome of the investigation (Exhibit E-3).

23 The grievor testified that he received a copy of a letter sent to Health Canada on January 31, 2007, requesting that a fitness-to-work assessment be performed (Exhibit G-2). Mr. Leblanc explained that he was concerned that the grievor was experiencing difficulties in the workplace.

24 The investigation report was completed on April 16, 2007 (Exhibit E-4). Mr. Leblanc testified that the grievor was not disciplined for the incidents that had formed the basis of the investigation. On April 20, 2007, Health Canada advised the employer that the grievor was capable of performing all his duties as a correctional officer, although it acknowledged that he was under a great deal of stress and suggested a return to work in another institution or that, if that were not possible, reasonable measures be undertaken to alleviate the stress in the Penitentiary (Exhibit G-3).

25 Although the investigation report and fitness-to-work assessment were completed by the end of April 2007, the grievor did not return to work. Mr. Leblanc testified that Deputy Commissioner Simon Coakely told him that the grievor asked to have the suspension with pay continued rather than return to work. In cross-examination, Mr. Leblanc explained that he had the authority to suspend an employee with pay for only a limited period and that an extension of the period had to be approved by the Deputy Commissioner. However, he could not recall the extent of his authority to suspend an employee with pay. He said that the Deputy Commissioner asked him if he supported the extension of the suspension with pay, which he did.

26 Mr. Leblanc also testified that the grievor was dealing with someone at CSC regional headquarters because discussions were ongoing about his harassment complaints. Mr. Leblanc testified that he attended two meetings with Mr. Coakely, the grievor and the grievor’s lawyer. He said that the grievor was threatening to sue the employer over his harassment complaints. He also testified that when an employee files a harassment complaint, an attempt is made to separate the parties, but in this case, the grievor’s complaint was against a correctional supervisor, and therefore, it was hard to ensure separation.

27 The grievor denied that he asked to have the suspension with pay continued. He stated that between May and November 2007, nothing happened with respect to his return to work. He said that he kept asking when he could return to work and that his local union president told him that the employer was studying the investigation report. However, in cross-examination, he acknowledged that he and his lawyer met with Mr. Coakely, Mr. Leblanc and Paulette Belliveau, who was the regional harassment coordinator for the employer, in June 2007, to discuss his harassment complaints. While he did not remember the details of the discussion, he agreed that, among other things, it concerned where he was going to work on his return.

28 The grievor testified that he met with Mr. Leblanc on November 7, 2007. He was told that no discipline would arise from the investigation and that he could return to work. As a result of that meeting, he stated that he went to the Penitentiary dressed in his full uniform on November 12, 2007, believing that everything had been put into place for his return. However, when he arrived at the front door, he was stopped by the officer in charge and was told that he was not allowed to enter. After some discussion, he was taken to see Mr. Leblanc. Mr. Leblanc acknowledged in his testimony that no return-to-work protocol had been drafted and that the grievor’s return to work was not handled according to his expectations. For that reason, the grievor was sent home that day and was told to return the next day to meet with Ron Cormier, the return-to-work advisor.

29 The grievor testified that the following day he returned to the Penitentiary to meet with Mr. Cormier and his union representative. However, the return-to-work protocol was not prepared, so he was sent to the training centre for weapons training. The grievor stated that the instructor asked him if it was safe to take him to the shooting range. He testified that he felt humiliated by the question and that, as soon as the training finished, he went home. He spoke to his psychologist about what happened and told him that he had had enough. The following day, he met with Mr. Leblanc. The grievor testified that his psychologist, who was included in the conversation by telephone, advised Mr. Leblanc that he would put the grievor on sick leave until his return to work was clarified. Mr. Leblanc testified that the psychologist not only suggested that the grievor be sent home but also said that the grievor was unstable.

30 The grievor testified that he submitted a workers’ compensation claim (Exhibit E-12) a few days after meeting with Mr. Leblanc. In cross-examination, he stated that Ron Cormier filled out the form for him and that he signed it without reading it. The grievor said that he was told that he had to submit the forms and send them to Compensation Services in order to be paid. He acknowledged that he received a letter from the workers’ compensation board (Exhibit E-13) advising him that the claim was allowed retroactive to November 22, 2006, based on a recurrence of the PTSD for which he had previously received compensation. He also acknowledged that he never appealed the decision to accept his claim retroactive to November 22, 2006. He stated that he received his regular salary from the employer from November 22, 2006 until 2010, when his status changed. However, he denied that he was receiving workers’ compensation benefits between November 2006 and November 2007, as he was told that he was suspended with pay. Furthermore, he had no impairment in that period and was not asked to provide a medical certificate when he returned to work in November 2007.

31 The grievor testified that he believed that the employer was trying to get rid of him because, while working at another institution, he informed on a colleague, who subsequently was sent to jail. The threats made against him arose from that incident and were serious enough that he had to transfer to the Penitentiary. He traced the origins of his PTSD to that incident.

32 In cross-examination, the grievor acknowledged that he has a black belt in martial arts and that his colleagues knew that he was skilled enough in martial arts to inflict harm. However, in re-examination, he explained that he taught martial arts to children and that he was committed to the principle of non-violence.

33 Ms. Rioux has been a return-to-work advisor and harassment prevention coordinator for the employer for two years. She deals with workers’ compensation in the province of New Brunswick. She explained that Human Resources and Skills Development Canada (HRSDC) operated as the liaison between the CSC and the Workplace Health, Safety and Compensation Commission of New Brunswick(WHSCC), also referred to in some documents as “Worksafe NB,” which administers the workers’ compensation benefits in New Brunswick. In preparing for the hearing, she reviewed the grievor’s files and discovered that one of the documents Worksafe NB sent to him contained the incorrect date (Exhibit E-14). To clarify the effective date of his claim, she called Worksafe NB and received a corrected letter (Exhibit E-5).

34 Ms. Rioux stated that the grievor filed an accident report on October 20, 2005 (Exhibit E-9). On November 16, 2005, the WHSCC allowed the claim based on the grievor’s acute PTSD and provided a status report to the employer (Exhibit E-10). A further status report, provided to the employer on February 15, 2006, indicated that the grievor returned to work on a full-time basis effective February 12, 2006 (Exhibit E-11).

35 On November 27, 2007, the grievor filed a claim recurrence form (Exhibit E-12). The grievor was a sent letter from the WHSCC on February 19, 2008, indicating acceptance of the claim retroactive to November 22, 2006 (Exhibit E-13). However, as Ms. Rioux explained, the following day, a letter that the WHSCC sent to the HRSDC, which confirmed acceptance of the claim, stated that the effective date was November 22, 2007 (Exhibit E-14). Ms. Rioux confirmed that this was the letter that was subsequently amended to reflect that the effective date of the claim was November 22, 2006.

36 Ms. Rioux testified that employees receiving workers’ compensation benefits are considered on injury-on-duty leave (Exhibit E-6). The grievor was considered on injury-on-duty leave effective November 22, 2006 (Exhibit E-7). She stated that any sick leave or other leave used by the grievor during that period would have been credited back to him, as employees on injury-on-duty leave are not required to use any other leave.

37 In cross-examination, Ms. Rioux acknowledged that Part II of the accident report filed by the grievor (Exhibit E-12) did not state the date of the occurrence and that it was filled in by the compensation advisor in charge of the grievor’s pay account. She confirmed that the grievor was on injury-on-duty leave from November 22, 2006 until November 8, 2010.

38 Ms. Allain has been the acting manager of Compensation Services for the employer since April 2, 2012. Through her, the employer entered as exhibits the human resources reports that detailed the grievor’s leave usage between 2006 and 2012 (Exhibits E-15 through 21).

39 Derick Cormier testified that he was the regional grievance officer for the union in November 2006 and that he might have also been the local grievance officer. He said that he was on escort duty with the grievor during the incident with Dr. Levesque that gave rise to one of the allegations against the grievor. He stated that, in his view, Dr. Levesque behaved unprofessionally. He also stated that Dr. Levesque threatened that the grievor would never work at the hospital again.

40 Mr. Cormier stated that he spoke to Mr. Leblanc about what happened between the grievor and Dr. Levesque. He also filed his own complaint about Dr. Levesque’s behaviour because he felt insulted by Dr. Levesque. He testified that he did not believe that Mr. Leblanc followed up on what he was told and that it appeared that the grievor was the only person that the employer investigated.

41 Mr. Cormier testified that he had been somewhat involved in the grievor’s return to work in 2006 and that, although he could not remember all the details, the grievor’s assignment to the escort team was an accommodation. Although he was not involved in the grievor’s return to work in 2007, he believed that conditions were placed on the grievor’s return to work in 2007 that were not there in 2006. For example, he believed that the grievor was not able to return to the hospital. He did not know how the restrictions arose.

III. Summary of the arguments

A. For the employer

42 The employer argued that the grievance does not fall within the parameters of paragraph 209(1)(b) of the PSLRA. The test to satisfy the requirements of that paragraph is two-pronged; first, the grievance must concern a disciplinary action, and second, it must concern a financial penalty.

43 The employer contended that the grievor was not disciplined and that he received no sanction or admonishment. No reprimand or disciplinary letter was placed in his file. Furthermore, Mr. Leblanc testified that the grievor was not disciplined, which is an important fact, because one of the recurring themes in the jurisprudence concerning the nature of disciplinary sanctions is the importance of the intent to discipline. The grievor acknowledged that no disciplinary sanction was imposed after the release of the investigator’s report.

44 The employer noted that the grievance, which related to a suspension with pay, was filed on December 8, 2006, several months before the release of the investigator’s report. It argued that the nature of a sanction must be assessed as of the date on which it was imposed. The fact that an investigation may take a long time does not turn an administrative suspension into a disciplinary sanction. Furthermore, citing Chase v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 9, the employer stated that an adjudicator’s jurisdiction is limited by what was grieved. The question that must be asked is, at the time the grievance was filed, was the sanction disciplinary or administrative?

45 In Canada (Attorney General) v. Frazee, 2007 FC 1176, the Federal Court set out some of the hallmarks of discipline. The Court considered that the intention of the employer and the impact of the impugned action on future discipline were factors in determining whether an employee has been disciplined. The employer stated that the simple fact that allegations have the potential to lead to discipline does not necessarily mean that a suspension pending the investigation of them is disciplinary.

46 The employer noted the Larson criteria, originally set out in Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9, which were examined in Gill v. Treasury Board (Department of Human Resources and Skills Development), 2009 PSLRB 19. In particular, the employer noted the first of the Larson factors, which stated that the question was not the grievor’s guilt or innocence but whether the grievor’s presence in the workplace presented a reasonably serious risk to the employer or its employees. The employer cited both Gill and Smith v. Treasury Board (Solicitor General - Correctional Service Canada), PSSRB File No. 166-2-27445 (19970922), as examples of suspensions imposed by employers pending the results of investigations that were found to be administrative in nature.

47 The employer noted that, on the facts established before me, it was clear that there was no disciplinary motive behind the grievor’s suspension. The allegations set out in the letter of suspension were serious, and they concerned, among other things, a threat allegedly made against another correctional officer. The employer had an obligation to have the matter investigated.

48 As noted in Frazee and Hanna v. Deputy Head (Department of Indian Affairs and Northern Development),2009 PSLRB 94, not every adverse action is disciplinary. Nor is every financial loss a financial penalty. Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, held that a financial loss must be attached to a disciplinary action to be considered a financial penalty. In this grievance, the grievor was placed on leave with pay, which the employer had the discretion to impose under clause 30.18(b) of the collective agreement. The employer noted that the grievor did not grieve that the employer’s action was an inappropriate use of the collective agreement. Furthermore, there was no debate about what is captured when someone is placed on leave with pay. Had the grievor filed a grievance alleging a violation of the collective agreement, a discussion would have been possible about whether leave with pay entitles employees only to their pay or whether it includes their pay and applicable allowances.

49 The employer argued that even if the suspension with pay could be found disciplinary, the grievance is moot because the grievor was on injury-on-duty leave from November 22, 2006 until November 2010, because of his workers’ compensation benefits. The grievor received correspondence from the workers’ compensation board that advised him that his claim for benefits had been accepted retroactive to November 22, 2006, and he was compensated as an injured worker from November 22, 2006 until November 2010. The grievor did not question or appeal that decision. The employer stated that the grievor could not have it both ways. He could not say that he lost potential overtime opportunities and other work-related benefits as a result of a disciplinary suspension for the same period that he claimed to be disabled.

50 In support of the grievor’s claim that he was disabled during the period in question, the employer noted the evidence from Mr. Leblanc, who testified that he extended the grievor’s leave with pay at the grievor’s request. He testified that the Deputy Commissioner told him that the grievor asked to have the suspension with pay extended during discussions between the grievor, his lawyer and the employer. While the grievor did not admit that he requested to have his leave with pay extended, he admitted that, in discussions about his harassment complaint with the employer held during his suspension, the issue of his return to work was discussed. This evidence supports that given by Mr. Leblanc.

51 The employer also argued that the collective agreement does not support the grievor’s claim for allowances and benefits, such as lost overtime opportunities. Clause 2.01 of the collective agreement defines “allowance” as compensation for the performance of special or additional duties. “Overtime” is defined as work performed in excess of an employee’s scheduled hours. The grievor was not at work and therefore did not perform special or additional duties, and he was not scheduled, so he was not performing work in excess of his scheduled hours. Nor was he entitled to shift premiums or meal allowances, since he had to be working to be entitled to those benefits. It is not part of leave compensation to receive benefits arising from the performance of work duties.

52 In its submissions on the Finlay decision, the employer took the position that it established that employees who are suspended with pay pending administrative investigations are not entitled to work-based benefits, such as those being claimed by the grievor in this case, until the investigation is completed and the allegations are declared unfounded. The employer submitted that “… the logical application of Finlay would support a finding that the suspension of Mr. Salter was administrative in nature and that he has no further entitlements.”

B. For the grievor

53 The grievor stated that this grievance raised the important question of whether an employer’s right to suspend an employee for long periods, pending an investigation, is unfettered. Even if the suspension began as an administrative action, how long could it last? The grievor submitted that, in answer to that question, the time allowed to conduct an investigation should be very short and should be only what is necessary for the employer to gather the information that it requires to take action. Otherwise, there would be no incentive for an employer to complete investigations in a timely fashion.

54 The grievor contended that the employer had all the information required to make a decision on the allegations against him at its fingertips. An investigation was not necessary. For example, the grievor noted that one of the allegations was that he contravened protocol by calling the police concerning the inmate’s claims. The grievor’s response to that allegation was that he had been instructed to make the call to the police by the correctional supervisor. Since all calls in and out of the Penitentiary are recorded, the employer simply had to examine the tapes to determine the truth of the allegation. Therefore, a lengthy investigation was not necessary. Similarly, the employer did not need a lengthy investigation to determine that the alleged threat of assault was simply a manner of speaking and not a serious threat. From the outset, the employer had all the information that it needed to make a decision.

55 Because the information was so readily available to the employer, the grievor argued that the extended period of the suspension points to disguised discipline. He observed that no attempt was made to obtain his version of events. Instead, he was suspended immediately, even before he was advised that an investigation would take place. That fact supports his contention that the suspension was disciplinary in nature. Furthermore, once the investigation report was issued, there was certainly no longer any reason to continue his suspension. Yet, even though the investigation report was issued in April 2007, the grievor remained on suspension until November 2007, when he returned to work briefly and learned that no discipline would be imposed on him.

56 The grievor stated that the employer’s argument on mootness was brought to his attention only days before the start of the hearing and that it was not the employer’s original position on the grievance. It originated from an interpretation of the grievor’s workers’ compensation claim and the decision of the workers’ compensation board to backdate his claim to November 22, 2006. However, working against that argument is the fact that when the grievor returned to work in 2006 after a long period of leave, he was not subject to any limitations. Furthermore, the employer sought a medical opinion of his fitness to work in January 2007 and was advised by a Health Canada physician in April 2007 that he was fit for duty. For a person to be on workers’ compensation benefits, a medical certificate establishing disability is required, which does not exist for the grievor. Even if he had experienced a recurrence of a previous injury, that did not mean that he was not capable of working through the entire period in question.

57 In fact, the grievor was on suspension with pay during the entire period. No one thought that he was sick at that time. The grievor stated that Ms. Rioux testified that the code relating to the grievor’s absence meant suspension with pay, not injury-on-duty leave. He noted that he was not asked to provide a medical certificate certifying his fitness to return to duty in November 2007, when he returned following the period of suspension. Had he been on sick leave or disability, a certificate of fitness would have been required on his return to work. The grievor’s claim for benefits was made in November 2007 and was the result of the treatment that he received on his return to work following the period of suspension and did not relate to the period of suspension.

58 The grievor argued that, as a general proposition, corrective action is designed to put the person wrongly suspended in the position that he or she would have been but for the wrongful action. It is not necessary that work actually be performed to entitle the grievor to the benefits that he would have been entitled to receive had he not been wrongly suspended.

59 The grievor stated that in Frazee, the Federal Court confirmed that how an employer characterized its action is not determinative. Instead, an adjudicator must look behind the employer’s action to determine the actual motivation.

60 The grievor argued that the suspension was, in fact, disguised discipline and that it was unjustified. He asked that the grievance be allowed and that the determination of damages be reserved.

61 The grievor argued that the Finlay decision concerned an almost identical fact situation and therefore “… the application of the reasoning in the Finlay decision to the present matter ought to lead to the grievance being upheld and the remedies sought being allowed.”

C. Employer’s rebuttal

62 The employer stated that the evidence supported the need for an investigation because Mr. Leblanc did not know all the facts. Each story always has more than one side, and Mr. Leblanc testified that for that reason he wanted an independent investigation. Furthermore, the allegations had potential implications for the security of the Penitentiary. There was a potential threat against a correctional supervisor. In a correctional facility, the employer would be remiss if it did not pay attention to and investigate the kind of words used by the grievor.

63 Concerning the grievor’s suggestion that the period of the suspension with pay is being re-characterized after the fact, the employer stated that the issue did not arise out of the blue. Contrary to the grievor’s statement that no restrictions were placed on him when he returned to work in 2006, the evidence was that he was placed on the escort team at the union’s request to ease him into the workplace. No evidence was led as to why the workers’ compensation board decided to award the grievor benefits retroactive to November 22, 2006. However, it is known that the grievor signed the application for benefits and that he was represented at that time by both a union representative and an employer representative. Nor did he appeal the decision of the workers’ compensation board.

64 In addition, evidence was adduced that supports the fact that there were concerns about the grievor’s fitness to work. Although this is not a grievance concerning the grievor’s return to work, the grievor acknowledged in his testimony that his return to work was a topic of discussion in June 2007.

65 The employer reiterated that the suspension with pay imposed on November 22, 2006 was administrative and is therefore not adjudicable. Alternatively, the grievance is moot because the grievor was receiving workers’ compensation benefits during the period in question. Accordingly, the employer asked that the grievance be dismissed.

IV. Reasons

66 This grievance arose because the grievor was suspended from duty with pay on November 22, 2006, pending the results of a disciplinary investigation. The results of the investigation were released on April 16, 2007, and no discipline was imposed. Despite that fact, the grievor did not return to work until November 2007. Although he was suspended with pay, he contends that the suspension was disciplinary and that it constituted a financial penalty, because he missed overtime opportunities, shift premiums and other benefits by not being at work. He seeks those missed opportunities and benefits as corrective action.

67 The employer contended that, under paragraph 209(1)(b) of the PSLRA, for the grievance to be adjudicable, the sanction must be disciplinary and must relate to a financial penalty. It argued that in this case, neither requirement was satisfied. The employer also argued that, even if I found that the grievor had been suspended for disciplinary reasons, the grievance was moot because the grievor was on injury-on-duty leave for the entire period and in receipt of workers’ compensation benefits, which superseded any disciplinary action.

68 That argument was based on the fact that the grievor’s return to work in November 2007 lasted only about a day-and-a-half, at which point he went on sick leave that was subsequently accepted as a recurrence of an earlier workplace injury for which he had received workers’ compensation benefits. In fact, he was awarded workers’ compensation benefits retroactive to November 22, 2006, the date on which he had been suspended with pay. The employer argued that the allowances and benefits claimed in the grievance were based on missed work opportunities, but since the grievor was, by virtue of his workers’ compensation claim, not able to work, he was not entitled to them.

69 The grievor argued that if an employer can suspend an employee pending an investigation without review or oversight, there would be no incentive for the employer to complete the investigation. He stated that the fundamental question raised by the grievance was just how long an administrative suspension pending an investigation can last before it becomes disciplinary. Concerning the employer’s alternative argument on mootness, the grievor disputed that he was on workers’ compensation benefits for the period in question, describing the benefits as “deemed” rather than actual benefits.

70 It is clear that this case has two issues. The first relates to my jurisdiction and, specifically, to whether this grievance falls within paragraph 209(1)(b) of the PSLRA, which provides 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 …

71 The second issue concerns the question of mootness and, specifically, whether the grievor’s retroactive receipt of workers’ compensation benefits for the period in question renders his claim for overtime opportunities and other benefits and allowances missed during the period of suspension effectively moot. Logically, the question of whether the matter before me is moot should be examined first, since if the matter is moot, there is no reason to consider other issues. However, in this case, the parties thoroughly argued the jurisdictional question. Furthermore, the claim for workers’ compensation benefits was made a year after the suspension in question was imposed and was awarded retroactively. For that reason, I believe that the character of the grievor’s suspension must be determined based on the information available when it was imposed.

72 The question of what constitutes a disciplinary sanction is not, of course, new. As noted by the Federal Court in Frazee, “… not every action taken by an employer that adversely affects an employee amounts to discipline.” In Frazee, the Court held that one of the factors to consider when determining whether discipline occurred is the intention of the employer, although it recognized that the employer’s actual intention might differ from its stated motivation for the sanction. In determining the employer’s real motivation for the sanction, the Court noted that an examination of the impact of the action on the employee would be an important consideration. For example, the Court observed that if the sanction was out of proportion to the rationale being given, had a significant impact on the employee’s career or suggested that the employer considered the employee’s behaviour culpable, it might be possible to determine that discipline had occurred.

73 In Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70, the adjudicator held that an administrative suspension without pay pending an investigation became a disciplinary action when the employer exceeded the time frame that the adjudicator thought reasonable for the completion of the investigation. On judicial review, the Federal Court overturned that decision on the basis that the adjudicator considered only the length of time for the investigation and not the employer’s intent in taking its action (Attorney General of Canada v. Basra, 2008 FC 606). However, the Federal Court of Appeal reversed the lower court’s decision (2010 FCA 24), finding that the adjudicator had, in fact, considered the employer’s intent in evaluating the sanction in question.

74 Following Frazee and Basra, the role of an adjudicator in assessing the nature of a sanction to determine jurisdiction was succinctly set out in King v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 45, at para 62, where the adjudicator stated as follows:

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.

75 In the circumstances of this grievance, and based on Mr. Leblanc’s testimony, I believe that when he first imposed the suspension with pay on the grievor on November 22, 2006, his intent was not disciplinary. He testified that he was concerned about the allegations against the grievor and was particularly concerned that they involved the health and well-being of an inmate. He explained that he was worried that the grievor was experiencing difficulties in returning to work from a period of sick leave and was stressed. He said that he initiated the investigation because he was concerned that he did not have all the facts, and he was aware that there were different sides to the story. In support of this testimony, evidence was adduced that he arranged for the grievor to undergo a medical examination to determine his fitness to work, which is not, in my view, consistent with a disciplinary motive. Furthermore, he testified that he suspended the grievor with pay so as not to add to the grievor’s stress. Given that evidence, I accept that the initial motivation in suspending the grievor was not disciplinary.

76 However, both the investigation report and the results of the fitness-to-work examination were available to Mr. Leblanc by the end of April 2007, at the latest. The grievor was found capable of performing all the duties of his position. Although the medical report acknowledged that the grievor was experiencing some stress in the workplace because of his relationships with other staff and recommended that consideration be given to a change in work location or to implementing measures to alleviate his stress in the workplace, nothing in the report stated that he could not return to work.

77 Despite the fact that there was no obvious basis arising from the medical report to continue the suspension, the grievor was not returned to work until November 2007. Mr. Leblanc testified that he was told that the grievor asked to have the suspension continued. However, the grievor testified that he did not ask to have the suspension continued. In my view, the grievor’s direct evidence is preferable to the hearsay offered by Mr. Leblanc. In fact, the grievor testified that he asked repeatedly when he could return to work and that the local union president told him that the employer was studying the disciplinary investigation report. He also testified that he was not told until his meeting with Mr. Leblanc on November 7, 2007 that no discipline would be imposed as a result of the investigation.

78 The employer suggested that the fact that the employer and the grievor and his counsel met in June 2007 to discuss the grievor’s ongoing harassment complaints supported its contention that the grievor’s continued absence from work was either at his request or as a result of his demand for accommodation. I do not believe that the evidence about the June meeting was sufficiently clear or detailed to allow me to conclude that the suspension continued at the grievor’s request, especially in light of his explicit evidence to the contrary and in light of a medical report that stated that he was fit to perform the duties of his position. Ongoing discussions about accommodation measures do not necessarily exclude a return to work, and it is notable that no official documents clarified the grievor’s status between April and November 2007. It is also notable that Mr. Coakely did not testify, even though he apparently approved the continuation of the suspension with pay and perhaps could have explained the reasons for it.

79 I believe that employer’s failure to return the grievor to the workplace in April 2007, once it received the investigation report, converted what had been an administrative suspension to a disciplinary suspension. Even though the grievor’s suspension was with pay, he experienced a continuing financial loss based on missed overtime opportunities and lost allowances. Furthermore, a suspension, with or without pay, is involuntary and creates a negative perception on both the affected employee and his or her colleagues, particularly when it arises in the context of a disciplinary investigation. In my opinion, the failure to return an employee to work promptly following the receipt of an investigation report is punitive. There is simply no way to find that the employer’s silence and inaction in such circumstances was benign.

80 Although Mr. Leblanc testified that no discipline was imposed on the grievor following the issuance of the report, in fact, no official statement to that effect was given to the grievor until November 7, 2007, when he was told he could return to work. No other reasonable explanation was advanced for the suspension during that period. Based solely on those facts, I consider that the grievor’s suspension between April 20, 2007, when the employer had both the investigation report and the fitness-to-work evaluation, and November 7, 2007, when the grievor was told he could return to work, was disciplinary and unjustified, given Mr. Leblanc’s statement that he decided not to impose discipline.

81 In the normal course of events, a conclusion that the suspension was unjustified would lead to a determination of the appropriate remedy. On that issue, I understood the employer to argue that the allowances and benefits claimed by the grievor, as well as the missed overtime opportunities, would not be payable on a plain reading of the collective agreement, which requires that employees actually work to receive an entitlement.

82  As a general principle, I do not agree with that argument. Adjudicators routinely award compensation for missed overtime opportunities and missed benefits and allowances to remedy unjust disciplinary suspensions. Furthermore, in Finlay, which concerned an administrative reassignment with pay pending a disciplinary investigation, the adjudicator found that once the employer determined that no disciplinary action would be taken against the grievor, he was entitled to be returned to his position and to benefit from the normal benefits and opportunities available to employees. The adjudicator held that the failure to do so constituted a disciplinary action. Therefore, the grievor was entitled to be reimbursed for the benefits that he lost as a result of the reassignment.

83 As I indicated, in the normal course, I would order such a remedy in this case. However, one final issue must be considered. On November 27, 2007, following his abortive attempt to return to work in November 2007, the grievor filed an application for workers’ compensation benefits (Exhibit E-12). Although the application stated that the last day that he worked was November 21, 2007, it also noted that since his last compensation claim, he had returned to work only from February 2006 to November 2006 and then briefly in November 2007. The claim was made on the basis that it was a recurrence of the grievor’s former, compensable injury and that he was not prepared to return to work when he did. In February 2008, that claim was allowed retroactively to November 22, 2006 (Exhibit E-5), and at some point in 2009, the grievor’s status was changed retroactively to injury-on-duty leave (Exhibit E-7).

84 The grievor did not contest the retroactive application of his workers’ compensation benefits. From his perspective, he was still being paid by the employer, and there was no practical difference to him. However, whether or not he appreciated the difference, his acceptance of workers’ compensation benefits retroactively to November 22, 2006 was an unequivocal statement that he was disabled due to an injury suffered while on duty for the entire period for which he is claiming benefits in this grievance.

85 I do not think that the retroactive awarding of workers’ compensation benefits makes it impossible to find that the employer’s motivation in suspending the grievor after April 20, 2007 was disciplinary. At that time, the claim for benefits had not been made, and as I have found, the information available to the employer did not support a finding that the grievor was not fit. For all the reasons that I have given, but for the successful claim of workers’ compensation benefits, I would have found that the grievor was subject to a disciplinary suspension between April 20, 2007 and November 7, 2007. However, the practical effect of the awarding of workers’ compensation benefits retroactive to the first day of the grievor’s suspension from work means that the suspension was retroactively converted to injury-on-duty leave.

86 Accordingly, it is not possible to award the grievor compensation for benefits missed as a result of the suspension, since that suspension was superseded by his subsequent successful application for workers’ compensation benefits. All that I can do is issue a declaration that the grievor was suspended without just cause between April 20, 2007 and November 7, 2007. For that reason, I can only partially allow the grievance.

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

V. Order

88 I declare that the grievor was suspended without just cause between April 20, 2007 and November 7, 2007.

September 25, 2013.

Kate Rogers,
adjudicator