FPSLREB Decisions

Individual grievances referred to adjudication

1 Leanne Cooper (“the grievor”) filed two grievances related to disciplinary action taken against her by the Correctional Service of Canada (“the respondent”), which arose from an incident on September 8, 2011. The grievor sought to have the discipline rescinded and to be made whole.

Summary of the evidence

2 At the outset of the hearing, counsel for the respondent sought to have the grievances before me dismissed on the basis that they had been abandoned by the grievor. The grievor did not appear; nor did anyone appear on her behalf, despite having received notice of the hearing (see Exhibits 2 through 7).

3 The grievor at all material times was employed as a correctional officer (CX-01) at Warkworth Institution, a medium-security facility located in Campbellford, Ontario. Counsel for the respondent led evidence through three witnesses, which established that the grievor was involved in an altercation with Correctional Manager Thomas Rittwage while he was in the course of executing an order from Deputy Warden Christine Cairns to remove a soft drink dispenser that had been brought into the institution without prior approval from the main control post, where the grievor worked. The grievor disagreed with its removal and became very loud and verbally abusive, calling out names and screaming and shouting insults at Mr. Rittwage. At one point, she pushed Mr. Rittwage in an attempt to get out the door in front of him.

4 This incident was witnessed by Correctional Manager Doran Grayson, Correctional Manager John Farrow, Correctional Officer Schmael (also classified CX-01) and five other staff who were working on the feeding crew. Written statements and observation reports were filed and submitted as Exhibit 1, tabs 15 through 19. All described the grievor’s behaviour that day consistently with the evidence of the three employer witnesses. It was also witnessed by inmates who were being moved from breakfast service back to their cells. Following the incident, the grievor filed a complaint against Mr. Rittwage, alleging he had touched her in the course of the exchange (see Exhibit 1, tab 12). Nothing in the statements submitted by the witnesses corroborated the grievor’s allegations, and all described her as the only one making a scene or behaving inappropriately in the workplace.

5 A disciplinary hearing was held on October 4, 2011. Notes of the meeting are found at Exhibit 1, tab 11. At the meeting, the grievor admitted that the allegations against her were true, that she had been disrespectful towards Mr. Rittwage and that the allegations made in her statement (Exhibit 1, tab 12) were not true. She did not express any regret or apologize for her behaviour.

6 Tim Gunter was the grievor’s manager. He initiated the disciplinary hearing following reports of her inappropriate behaviour in the workplace. He testified that following the disciplinary hearing, he reviewed all the statement and observation reports, including the grievor’s statement. He concluded that she had violated the respondent’s Code of Discipline, which clearly identifies behaving in an abusive or discourteous fashion and fighting with other employees as infractions, and the Standards of Professional Conduct in the Correctional Service of Canada,which requires employees to follow the instructions of supervisors or any member in charge of the workplace in a professional and courteous manner.

7 Having concluded that the grievor had violated both the Code of Discipline and the Standards of Professional Conduct in the Correctional Service of Canada, Mr. Gunter reviewed her employment and disciplinary records and, consistent with the Global Agreement Between Correctional Service Canada (CSC) and The Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (UCCO-SACC-CSN) (“the Global Agreement”), Part III, he assessed a financial penalty of $160.00 for a first disciplinary offence. Regardless, Mr. Gunter felt that a more severe penalty was warranted in the circumstances, but his hands were tied, and he imposed the penalty set out in the Global Agreement.

8 As the grievor did not appear at the hearing nor send anyone on her behalf, no evidence was led in support of her grievances or to contradict the evidence placed before me by the respondent.

Summary of the arguments

9 In support of the respondent’s motion that these grievances be deemed abandoned, counsel for the respondent referred me to two decisions: Howitt v. Deputy Head (Canadian Food Inspection Agency), 2013 PSLRB 51, and Tshibangu v. Deputy Head (Canadian Food Inspection Agency), 2011 PSLRB 143. In both cases, the grievors failed to appear despite having participated throughout the scheduling process.

10 The grievor’s failure to appear, given the abundance of evidence that she was aware of the hearing and despite having been advised that the hearing could proceed in her absence, lends itself to only one conclusion: she has abandoned her grievances.

11 As to the matter of the appropriateness of the disciplinary action, the grievor admitted culpability at the disciplinary hearing and did not express any regret or remorse. She did not apologize or express regret for her behaviour. The discipline imposed was consistent with the Global Agreement for a first disciplinary offence and was reasonable in the circumstances. An adjudicator should not interfere with discipline that was reasonable and that was imposed for just cause (see Yarney v. Deputy Head (Department of Health), 2011 PSLRB 112, and Hogarth v. Treasury Board (Supply and Services), PSSRB File No. 166-02-15583 (19870331)).

12 The grievances should be dismissed as having been abandoned. In the alternative, they should be dismissed on the basis that the discipline was reasonable in the circumstances.

Reasons

13 I am convinced on the basis of the evidence before me that the respondent has made a prima facie case that discipline was warranted in these circumstances. The discipline imposed was consistent with the Global Agreement between the parties, and I see no reason to interfere. The adjudicator in the Hogarth decision, at page 6, identified as follows when an adjudicator should interfere when considering discipline:

I agree … that an adjudicator should only reduce a disciplinary penalty imposed by management if it is clearly unreasonable or wrong. In my view, an adjudicator should not intervene in this way just because he feels that a slightly less severe penalty might have been sufficient. It is obvious that the determination of an appropriate disciplinary measure is an art, not a science…

14 I do not believe that a lesser penalty was appropriate in this case. The respondent’s penalty will stand.

15 As to the matter of whether the grievances were abandoned, I think that the grievor’s lack of communication with the Registry Operations of the Public Service Labour Relations Board (“the Board”) and the respondent, as demonstrated in Exhibits 2 through 7 inclusive together with her failure to appear at or to send a representative to the hearing, is sufficient to constitute abandonment of her grievances. The adjudicator dealt with a similar situation at paragraph 17 of the Tshibangu decision and found that, “… despite the Board’s efforts to contact him, the grievor has made no attempt to contact the Board. This demonstrates no interest on his part in advancing his grievance.” There is also a general public interest in the efficient administration of justice that advances dispute resolution, prevents unnecessary delays and is respected by the parties. Similar to Howitt, this comes into play here. (See Howitt at para 16)

16 I have determined therefore, that the grievances should be dismissed. In the alternative, the grievor has abandoned her grievances.

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

Order

18 The grievances are dismissed.

September 25, 2013.

Margaret T.A. Shannon,
adjudicator