FPSLREB Decisions

I. Individual grievances referred to adjudication

1This matter involves two grievances about two suspensions of the grievor, Stephen Paynter.

2The reasons for the suspensions are stated as follows in letters dated June 30, 2011 (Exhibits E-4 and E-6), from Pierre Ferland, Director General (“DG”), Solutions, Information, Science and Technology Branch, Canada Border Services Agency (“the employer”):

Exhibit E-4 (two-day suspension):

…

Further to the disciplinary hearing held on April 18, 2011, the following is to advise you that you are being disciplined for insubordination and disrespectful behaviour.

In the hearing, it was discussed that on April 11, 2011, you were insubordinate and disrespectful towards, Karen Lyon, Director, Commercial Systems Development Division.

As a result of the fact-finding conducted and the disciplinary hearing, I have determined that this type of behaviour is unacceptable as well as being in contravention of both the CBSA Code of Conduct and the Values and Ethics Code for the Public Service.

In determining an appropriate disciplinary measure, I have taken into account all mitigating factors, including, but not limited to, length of service, absence of identified performance issues, and absence of a prior disciplinary record. I have also considered all aggravating factors, including, but not limited to, the lack of remorse and limited sense of responsibility shown at the disciplinary hearing and your position of authority as a Project Leader.

…

Exhibit E-6 (10-day suspension):

…

Further to the disciplinary hearing held on April 18, 2011, the following is to advise you that you are being disciplined for inappropriate use of the Canada Border Services Agency (CBSA) corporate network.

In the hearing, it was discussed that CBSA Network Monitoring established the presence of 11 inappropriate images, including 8 images of nudity and/or genitalia and an additional 3 inappropriate images of female celebrities on your assigned H:Drive in the directory “My Documents/My Pictures.”

As a result of the disciplinary hearing, I have determined that your actions constitute serious misconduct, call your judgement into question; furthermore, your actions constitute a serious breach of the CBSA Code of Conduct, CBSA Policy on the use of Electronic Resources, Treasury Board Policy on the Use of Electronic Networks, and the Values and Ethics Code for the Public Service.

…

3The parties introduced 15 exhibits into evidence. Counsel for the employer called two witnesses, and the grievor’s representative called the grievor.

II. Summary of the evidence

4The parties addressed the two grievances consecutively.

5The grievor is a CS-03 project leader. He was supervising three employees and two consultants at the time in question. An integral part of the evidence concerned the investigation of an employee supervised by Mr. Paynter. As this employee’s actions are not an issue in this grievance and as this employee did not testify and was not afforded an opportunity to defend himself, throughout this decision, that employee is referred to as “X”.

A. Karen Lyon

6Karen Lyon is Director, Communications Systems, Development Division for the employer. She is responsible for the delivery of system development projects. Many of the systems are interrelated. She is responsible for a very large project called “e-Manifest,” which involves other directorates feeding into the project as well as being available for regular consultations. Outside deliverables and their timelines have an impact on the tight timelines and deliverables for this project.

7Ms. Lyon has worked with the grievor over the years including both as a manager and as his director. She testified that they had a good working relationship, but that, when she became a director, she stated that she found him “more challenging.” She mentioned that, in January of 2009, “a number of incidences” were brought to her attention. She indicated that until the events in issue he had always been respectful.

8At the time of the incident that led to the grievor’s first suspension, Ms. Lyon was no longer Mr. Paynter’s director.

1. First incident

9In April, 2011, Ms. Lyon was conducting an investigation involving X as a result of a concern over X’s use of sick leave. X was supervised by the grievor. Ms. Lyon was continuing an investigation that began when she was their director.

10Ms. Lyon went to visit X, who was not at his desk. X’s desk was located next to Mr. Paynter’s cubicle. Ms. Lyon stated that she noticed that the grievor was “looking at [her].” She asked the grievor, “Is X in today?” He did not acknowledge her.

11Ms. Lyon asked again. The grievor replied, “I don’t want to tell you,” and repeated his answer a second time. Ms. Lyon stated that she then said, “As X’s project leader, I’m asking you if the employee is in today.” According to her, the grievor then became very agitated. He very quickly became angry and said, “I don’t want to tell you, you’re a liar, you’re not my director, I don’t have to tell you.”

12At that point, Ms. Lyon said to the grievor, “That’s fine, I’ll talk to your director,” and she left.

13When asked if she thought that the grievor was aware of the investigation of X, Ms. Lyon testified that she had spoken with the grievor some days earlier about X’s leave. She felt that as a result, the grievor would have been aware of the investigation.

14As a result of a recent reorganization, Ms. Lyon was no longer the grievor’s director, but because his new director had recently left, and because there was an interim acting director, the DG and the employer’s Human Resources branch (HR) felt that Ms. Lyon should retain responsibility for the investigation. Ms. Lyon testified that the grievor would have been aware of this decision. Ms. Lyon had met with Mr. Paynter because he was responsible for approving X’s leave.

15When asked about the grievor’s response to her question, Ms. Lyon testified that her reaction was one of shock. It was a simple question, and he provided a quick response. She stated: “Calling me a liar. I was very disturbed by the disrespect. I try to do my best. He did this in front of all my staff.”

16Ms. Lyon testified that she spoke with her DG and the employer’s Labour Relations branch about the incident. She reported to Labour Relations that X was not present. She reported the confrontation with Mr. Paynter to the DG.

17Ms. Lyon has never received an apology from Mr. Paynter.

2. Second incident

18Ms. Lyon testified that, as X’s supervisor, Mr. Paynter should have noticed a pattern to X’s use of sick leave. She thought that there might be email exchanges between the two concerning this and asked the employer’s security department (“Security”) for direction about whether or not there was a valid reason to investigate/search the grievor’s e-mail files. She was told that, any time management has a reason, Security determines whether it should be done.

19Ms. Lyon explained that she felt that Mr. Paynter kept his computer monitor at an awkward angle to hide his screen so that it could not be observed by others. On one occasion, Ms. Lyon deliberately sat in the guest chair in his office so that she could view the screen, and Mr. Paynter immediately minimized the window he was viewing. She thought that it was very suspicious behaviour. Security said that it would look into his computer.

20There was no testimony about any email exchanges concerning the leave issue, but Ms. Lyon testified that Security identified 11 inappropriate images on Mr. Paynter’s personal “H” drive.

21Ms. Lyon spoke with Mr. Paynter’s manager, who advised her that only Mr. Paynter would have been able to put the 11 images where they were found. No one else had access.

22Ms. Lyon had a discussion with Labour Relations and then a meeting with Security to determine the degree or level of inappropriateness of the images found on the grievor’s computer. The CBSA, as a guardian of the Canadian border against inappropriate material entering the country, uses a system to identify whether or not material is inappropriate and to determine the level of inappropriateness. Security reviewed the material and advised Ms. Lyon regarding the material’s level of appropriateness. Ms. Lyon was shown one picture, which displayed a woman on a car, scantily clad.

23Following the meeting with Security, Ms. Lyon shared Security’s observations with Labour Relations and with her DG.

24At that time, the DG took over responsibility for the file. Ms. Lyon had no further involvement in the investigation or the disciplinary hearing on April 18, 2011 or with the images.

3. First incident: details

25In cross-examination, Ms. Lyon confirmed that her summary of allegations, which document is cited below, was “very accurate” (Exhibit 3). The summary was provided to Mr. Paynter on April 13, 2011 by Mr. Ferland, along with a Notice of Disciplinary Hearing which was scheduled for April 18, 2011:

…

I had promised to provide [X] with an update of next steps related to an HR issue we were dealing with. On the morning of April 11^th I went to [X]’s desk to provide him with some information. X was not at his desk. Stephen Paynter, his project leader sits right next to him. As I turned to leave Stephen was looking at me. I stopped and asked him if X was in today. Stephen looked disgruntled and asked why I wanted X. I said I had wanted to relay some info to him and again asked is he in today. I mentioned I just wanted to know so I would know whether to stop back later or not or if he was on vacation when he would be back. Stephen said he did not want to say. I found this odd so I said Stephen I am asking you as X’s project leader to simply state whether he is in today or not. Stephen appeared agitated and said he didn’t want to tell me. (In relation to the HR issue I was dealing with, I had had a conversation with Stephen about his responsibilities in regard to monitoring his staff’s leave. I was therefore aware that Stephen was not happy and could see where he might be touchy about my asking if X was in.) I was however bewildered as to why Stephen would take such offence to such a simple question and react in such a strong and disrespectful way. I stated that as X’s PL I was asking him a simple question and why would he not want to tell me. Stephen became quite agitated and loud. He said in an unpleasant and hateful way that X was not in. He said I was a liar and he did not want to deal with liars. He said I had told him that X had said things and that X had never said these things and that I was a liar. He was almost shouting and said he did not work for me and didn’t have to tell me anything. I did not want this to escalate further as we were in the middle of the section. I said ok, I would request information thought his own director and left.

I left feeling completely surprised. This had not started out to be anything other that a casual question asked in a friendly and courteous manner. I take extreme offence to his calling me a liar.

[Sic throughout]

26According to Ms. Lyon, X’s pattern of leave abuse was very blatant and was too obvious to miss. She had met with the grievor about it because he had approved the leave. In that conversation, which she stated was challenging, the grievor’s response was, “Everyone does it, it’s no big deal.” Ms. Lyon stated that she told the grievor the following: “I have a different opinion and I will share it with the new director.”

27Ms. Lyon testified that it was not her intention to engage the grievor when she went to see X. The situation morphed from a simple question. She stated the following: “I don’t know why he refused to answer the question.”

28Ms. Lyon summarized her thoughts and observations about the grievor as follows: he had used an unpleasant and hateful way in stating that X was not in. Ms. Lyon then elaborated that it was “his tone of voice, look on his face, he was very angry, snappish, hateful, aggressive, angry, he was almost shouting that she took offence to.” She stated that she was not exaggerating.

29Ms. Lyon thought that there were four to six cubicles in the grievor’s area but that the people working in them could not necessarily be seen. She stated that no one responded to the outburst. She said the following: “It was a very short, quick incident. I left very quickly and told him I would speak with his director.”

30When asked about any complaints, Ms. Lyon stated that “no one brought a complaint” to her about the incident. She did not know if anyone was present in the other cubicles. She further stated that “people might bury their heads rather than become involved.”

31Ms. Lyon stated that she did not misconstrue what she heard Mr. Paynter say. He said to her, “You’re a liar.” She was surprised by his actions; she was not imagining anything, even though she was upset.

32Ms. Lyon has known the grievor for many years. She did not identify any other altercations but stated that “things were brought to [her] attention by staff” but never name-calling or shouting. She stated that she had “had to deal with incidents brought to [her] attention.”

33When asked to describe Mr. Paynter, Ms. Lyon said the following:

[He was] very knowledgeable, a good worker, but he had a great deal of difficulty dealing with people, he was defensive, and people had difficulty dealing with him. He had aspirations to improve his skills to be promoted into management. He has never been reprimanded; there is nothing in his file. He has been spoken to on more than one occasion, a long history of that. There have been discussions about where best to place him.

34Ms. Lyon stated further that several incidents had occurred with the grievor. As an example she noted that at one point, he had used the “Informal Conflict Management System” (ICMS). There were also significant communications issues between two project groups. The grievor and Ms. Lyon used the ICMS on that issue as well. The DG was aware that the ICMS had been used, even though he was not the DG when it took place.

35In reviewing her testimony about her reaction to what Mr. Paynter said to her, Ms. Lyon stated the following: “I left. I said, ‘That’s fine, I’ll ask your director.’” However, she did not do that right away, and she was not aware of whether Mr. Paynter’s director addressed the issue. In her words, “It all escalated into a DG investigation.”

36Ms. Lyon did not initially ask about X in any official way but eventually asked the grievor, “As [you are] the project leader, is he in today?”

37In response to questions about the grievor and X, Ms. Lyon stated that she was “looking into X’s leave, not sure if Mr. Paynter knew of any more issues. [She] thought they were friends.”

38In response to questions about X, Ms. Lyon said that X had no issues with her. She stated: “X had issues and made disparaging remarks about the CBSA, about their selection process. X had filed a number of grievances about that. X was an integral part of the communications issue between the two project groups. X had opinions on all staffing actions.”

4. Second incident: details

39The questioning then turned to the issue of the inappropriate images on the grievor’s computer and his 10-day suspension.

40Ms. Lyon stated that the positioning of Mr. Paynter’s computer monitor “appeared to be uncomfortable so [she] walked into his office and sat in his guest chair and he blanked out his monitor.” She stated as follows: “I wanted to test out my theory that he was hiding something.” When asked about when it occurred, a March 15, 2011 memo to Ms. Lyon was referenced, which refers to a review of Mr. Paynter’s H drive storage of the 11 inappropriate images.

41Ms. Lyon said that she did not initiate the investigation of the grievor’s computer but that it was part of the investigation of X and any e-mail exchanges between Mr. Paynter and X about X’s leave. “We questioned what we should be looking at and Security looked at his computer.” Ms. Lyon could not recall the time frame when Mr. Paynter’s computer files were investigated.

42Mr. Paynter was not asked to provide Ms. Lyon with a “leave log” for X because she already had access to it. She approached Mr. Paynter only after an issue was identified with X’s leave pattern.

B. Mr. Ferland

43Mr. Ferland has been DG, Information Technology (IT) Solutions for the employer since February of 2010. He and Mr. Paynter work on the fourth floor at the employer’s 250 Tremblay Road office in Ottawa. They have never worked together.

1. First incident

44At the disciplinary hearing on April 18, 2011, Mr. Ferland’s duties were to assess the facts and render a decision.

45In assessing the facts, Mr. Ferland stated that the grievor “acknowledged the facts in both grievances.” He further stated that “the disciplinary process takes a while. In some cases they understand and no discipline is required, but not at this hearing. There was no sense of remorse or an apology.”

46Mr. Ferland stated that the grievor was “insubordinate; he refused to perform a function that is part of his duties. Karen [Ms. Lyon] is part of the organization although not Mr. Paynter’s direct director.” He indicated that Mr. Paynter had been disrespectful in his tone and with his words during the hearing. He said that Mr. Paynter said that he “misspoke” when referring to the first incident.

47Mr. Ferland has a good relationship with Ms. Lyon, and she has his confidence. She had mentioned that Mr. Paynter was a confrontational communicator and that, at times, she felt personally intimidated by him. As the DG, Mr. Ferland must monitor such situations and protect employees.

48Mr. Ferland testified that “Ms. Lyon holds her integrity at a high value.” He chose her to manage the e-Manifest project because, in his words, “[s]he is resilient, professional, genuine and loyal. She characterizes in a precise manner.”

49Mr. Ferland indicated that, after the first incident with the grievor, Ms. Lyon was very distraught. He surmised that there may be nothing worse to say to her than to call her a liar. He asked her to take a deep breath and explain what happened.

50Mr. Ferland was aware of incidents involving the grievor leading to the use of the ICMS. He was aware of allegations of intimidation, of confined spaces in the workplace and of a lack of windows. He stated that difficult discussions should most often be held behind closed doors.

51Mr. Ferland was asked to review the employer’s “Code of Conduct” as it relates to discipline and stated as follows:

It’s about respect, 90 million visitors a year are processed face to face, and sometimes we have to deal with difficult issues. It’s part of the corporate culture. Important elements are the tone of voice, choice of words and professionalism. Mr. Paynter should have answered Ms. Lyon’s question.

52Mr. Ferland identified such mitigating factors on the grievor’s behalf as a good work record and no formal discipline on file. Aggravating factors considered were the grievor’s lack of remorse and limited sense of responsibility and the many attempts he made during the disciplinary hearing to confirm that Ms. Lyon should not have asked him the question about X.

53Mr. Ferland further testified as follows:

In assessing discipline, it’s important to make a statement … this must not happen in the workplace … as part of management and leadership, an employee makes an impact and must lead by example. As people rise in the organization, expectations increase.

54HR recommended a two-day suspension for the grievor, which Mr. Ferland agreed was appropriate.

2. Second incident

55On the issue of the 11 inappropriate images, the grievor acknowledged placing them on his personal H drive.

56Mitigating factors in the grievor’s favour were his length of service, the lack of formal discipline on his file and the lack of recent viewing of the images.

57Aggravating factors counting against the grievor included his knowledge of IT policies, the seriousness of the incident, his lack of remorse, his limited sense of responsibility, the images’ sexual content and his position as a project leader.

58Mr. Ferland stated the following: “CBSA is very strict about its policies and its public perception. This is not the kind of leadership we look for in the public eye. We look for protection, insurance and integrity.”

59The IT Security Group created these, which flowed from existing policies created by the employer’s predecessor, the Canada Customs and Revenue Agency entity. The policies apply to 60,000 employees.

60In assessing the situation, Mr. Ferland did not view the grievor as someone who understood why the images were inappropriate. The images had a sexual connotation. Although Mr. Ferland did not view them, they were sent to Security for the identification of their level of inappropriateness. The employer, as a government agency, uses a process to prevent pornography from entering the country. It has a “scale of offensiveness.” However, the employer did not put into evidence the conclusions of security related to the images’ level of inappropriateness.

61According to Mr. Ferland, the grievor violated at least five of the employer’s policies.

62Based on a summary of the jurisprudence, HR recommended a 10-day suspension for the grievor, which Mr. Ferland agreed was appropriate, considering the combined impact of sexual content and prior discipline for the incident with Ms. Lyon.

3. Cross-examination

63In cross-examination, Mr. Ferland was asked about his knowledge of Mr. Paynter. His evidence indicated that, as the DG, he had never worked directly with Mr. Paynter but that he had known him for more than three years.

64When asked about the qualities required for a project leader position, Mr. Ferland identified “leadership, communication skills and the ability to coordinate the work of others” and had to agree that, since Mr. Paynter had occupied his position since 1999, he would have had those qualities, although some improvements were needed. His work was never questioned.

65At the April 18, 2011 meeting, Mr. Ferland described Mr. Paynter’s reluctance to admit his wrongdoing, which led to much discussion. Mr. Ferland was trying to understand if Ms. Lyon’s allegations were factual.

66In referring to Mr. Paynter, Mr. Ferland testified as follows: “He used the words ‘but I misspoke’… it was a long discussion … he doesn’t report to Karen [Ms. Lyon]. Eventually, he did say ‘I called her a liar’ ... he acknowledged that her allegations were correct, but he did not actually say it.” Mr. Ferland stated that he had wanted a proactive response from Mr. Paynter and did not want to have to go fishing for the required acknowledgement.

67Mr. Ferland weighed both Ms. Lyon’s and Mr. Paynter’s versions of events. He stated that he also considered “Ms. Lyon’s state of mind that day in my office”, after her confrontation with Mr. Paynter.

68Mr. Ferland did not think that Ms. Lyon could have been having a bad day on the day of the incident with the grievor. He did not think that she made up her story. He felt that she was intimidated. In Mr. Ferland’s words, “She came to my office, cold-headed and factual, but she did falter a bit during our meeting.”

69Ms. Lyon reported to Mr. Ferland that Mr. Paynter was very confrontational, which is why they had used the ICMS. There had been, over the years, management discussions about Mr. Paynter’s communication style. The ICMS has, in the past, been used only five times in Mr. Ferland’s three years there, and Mr. Paynter was involved in two of them. The ICMS sessions are used to promote teamwork. The ICMS is used to attempt to find informal solutions.

70Mr. Ferland said that he was aware that there had previously been issues with Mr. Paynter. However, he did not speak with the grievor when they arose; Ms. Lyon did.

71Mr. Ferland did not discuss the incident with Mr. Paynter’s Acting Director at the time. There was no need for him to become involved. Mr. Ferland had control of the investigation. There were allegations, and he decided to keep the circle of knowledge of them small.

72With respect to the two-day suspension of the grievor recommended by HR, Mr. Ferland questioned whether it was balanced, and he received a positive response. Mr. Ferland thought that two days was appropriate. Had the incident involved a uniformed employee, a more severe response would have resulted.

73In describing Ms. Lyon, Mr. Ferland said that she has integrity and loyalty to the employer.

74When asked if Ms. Lyon had been the subject of criticism from employees, Mr. Ferland indicated that some grievances had been filed but that that was normal. He stated that she had been very sympathetic in her responses to grievances and criticism.

75On the issue of the inappropriate images on the grievor’s computer, Mr. Ferland recalled that, at the meeting on April 18, the grievor admitted to saving the images on his hard drive. There was no discussion about why he saved them there. The grievor showed a lack of remorse and had no real reaction. He did not ask if he was to delete them. Security would have wanted them removed. When asked, “Did he advise you that he had removed them?”, Mr. Ferland replied as follows: “He may have, I don’t recall.”

76The inappropriate images consisted of eight pictures of nudity and three of celebrities. They were reviewed according to the employer’s scale of offensiveness but no findings on how they rated were provided at the adjudication hearing. They were considered offensive, but not pornographic. They did not depict violence or pedophilia and were not illegal.

77HR made recommendations based on its review of the jurisprudence. Suspensions are to be corrective, not punitive. The jurisprudence recommends dismissal if images are shared, of which no evidence was adduced in the grievor’s case.

C. Mr. Paynter

78The grievor is a project leader (CS-03) with the employer.

79The grievor reports to a project manager (CS-04), who reports to an IT director (CS-05). That person reports to a director general (EX-03), who in turn reports to a vice-president.

80The grievor does not report to other directors except through his project manager. Normally, he reports on an exceptional basis; otherwise, he reports weekly or monthly as required.

1. First incident

81On April 11, 2011, the grievor was reporting to another director, not Ms. Lyon. From November 2010 until March 4, 2011, he filled an acting CS-04 role with another directorate in another location.

82On April 11, 2011, Ms. Lyon asked the grievor about X. In his testimony, he stated the following: “His desk was next to mine … there are five people reporting to me in my area. X reported to me.”

83The context of the exchange with Ms. Lyon was difficult; she was very short with the grievor. She asked, “Is the employee in?” He replied, “No, he wasn’t.” After a few more exchanges in which he supplied no information about X’s whereabouts, the grievor told Ms. Lyon that X told him that “X didn’t say what you said X said.”

84The grievor stated that this phrase was a reference to an earlier conversation that he had with X following X’s meeting with Ms. Lyon over the issue of his sick leave. The grievor stated that X was “shell-shocked, suffering emotional distress … seeing the state X was in, I left X alone. I was distressed for X.”

85When approached by Ms. Lyon and asked again where X was, the grievor stated as follows: “I recalled the images from last week … I did not want to contribute to any more stress.” Thus, he testified as follows: “I would rather not answer that; I could have said ‘I don’t know,’ but I’m the guy dealing with the employees day in and day out. Karen [Ms. Lyon] stomped her foot, went to her office [50 to 60 feet away].”

86The grievor stated that Ms. Lyon did not give him a direct order to respond.

87The grievor commented on the summary of allegations (Exhibit E-3), specifically where it states: “Re: - Stephen [the grievor] appeared agitated and said he didn’t want to tell me [Ms. Lyon].” He stated the following: “That’s a departure from what people would say about me, I’m a cool customer, with poise … speak at the same level all the time, calm, don’t raise my voice regardless of the context, not an emotional person.”

88On the allegation, “Re: - He [the grievor] said, in an unpleasant and hateful way that X was not in,” the grievor stated the following: “No, I said X is not in, there was no flavour to it.”

89On the allegation, “Re: - He [the grievor] said I [Ms. Lyon] was a liar and he did not want to deal with liars,” the grievor stated the following: “That’s not consistent. She stomped away, lost her composure … I’ve told the DG she cycles up … she would have flipped on me if I called her a liar … it would have meant Armageddon … not many people would accept being called a liar.”

90On the allegation, “Re: - He [the grievor] was almost shouting,” the grievor stated as follows: “No, I said no such thing. I’m not given to unnecessary verbiage; shouting is not part of my M.O.”

91The grievor identified his workstation with respect to those of his colleagues as being on an outside wall against some windows. The director and the DG have inner offices without windows. Senior employees have workstations next to windows; contractors and consultants and less-senior employees have workstations without windows. Five or six cubicles separate the grievor’s cubicle and Ms. Lyon’s office.

92The grievor stated the following: “I categorically refuse that I was shouting. My employees appreciate my emotional balance, always the same. Because I don’t show emotion, if anything, it looks like I don’t care. No colleagues remarked to me that they had overheard a short, loud incident.”

93On the allegation, “Re: - HR Issue and Karen’s [Ms. Lyon’s] comments, ‘Have you noticed this pattern about X’s leave. X wasn’t sick,’” the grievor stated as follows:

I told her no, I had not noticed a pattern. For part of the period I was away on an acting assignment in another area, the manager did not report any irregularities to me. I thought that X’s leave balances reflected those of a 20-year employee. She [Ms. Lyon] gave me a tirade about sick leave and abuse in the public service, told me I wasn’t doing my job. I wrote to the VP about this and spoke with others about X’s leave.

94On the allegation, “Re: - I [the grievor] did not want to escalate this,” the grievor stated as follows:

After she left, I expected to hear about this from my director, but I heard nothing. She never spoke to me about this again. X was my colleague, not a friend outside the workplace. Ms. Lyon thought that we were friends and that I was protecting X. ICMS was initiated on two fronts, the first time involved my complaints to the then DG about Ms. Lyon’s communications towards me. The second ICMS was initiated because of a conflict between two working groups and because X came to our group as a result of … filing harassment grievances and staffing issues in the other group. X initiated the second ICMS.

95At the April 18 fact-finding meeting, the grievor found Mr. Ferland hostile and thought his body language and facial expressions were very negative. The grievor felt like he was being treated as the worst criminal around after 20 years with a clean record. He stated: “I never admitted to calling Ms. Lyon a liar, that never happened, and I have maintained that throughout all the grievance levels. I admitted that we had history.”

96The disciplinary letter of June 30, 2011 (Exhibit E-4) imposed a two-day suspension on the grievor for insubordination and disrespectful behaviour. Mitigating factors were his clean disciplinary record and lack of performance issues. The major aggravating factors were identified as “the [grievor’s] lack of remorse and limited sense of responsibility shown at the disciplinary hearing.” Mr. Paynter explained as follows: “There was a clear disagreement on the truth of what happened. I didn’t think that I had done anything, no tone, no loud voice, no name-calling, no questioning her [Ms. Lyon’s] authority … that never happened.”

97The final-level grievance reply of December 16, 2011 states the following at the second paragraph (Exhibit 12):

It is my understanding that the Director of Commercial Systems Development division manages the human resources issues involving an employee that reports directly to you. I am also informed that you were aware of this arrangement. However, when your Director asked several times for information about this employee, you refused to comply stating that you wanted to protect the privacy of the employee. Finally, you also used unacceptable language toward your Director.

98Mr. Paynter testified that that was not accurate and that he was not aware of any such arrangement. He stated as follows: “On March 31, Ms. Lyon did not make me aware of any issues. My director was not Karen [Ms. Lyon], so the reference to ‘your Director’ is not accurate.” He stated further that he had no experience with “this disciplinary stuff” and that he did not use unacceptable language.

2. Second incident

99The grievor was very open and candid about the issues. He had placed 11 inappropriate images on his personal H drive in 2008. They were received from a friend, were opened and saved, and were never again accessed. That friend also sends other e-mails and includes pictures, family pictures, his mother’s pictures, e-mail jokes and lodge regalia. The grievor saves everything. He said that he is a busy person and that he tells people not to send him such emails. He said that he told his friend not to send him “stuff anymore.” He said that, when the employer brought the images issue to his attention, he realized they were on his H drive. He did not say that he forgot that they were there, and he did not say why they were not deleted. They were not shared with anyone else.

100The grievor testified that he had trouble locating the emails after he was informed that they were on his computer. As a result, he just deleted everything.

101When asked why he did not delete the pictures earlier, the grievor could only say that it was an error in judgement.

102The grievor deleted the images on the same day as he was informed about them. Therefore, he was puzzled by the comment that he showed a “lack of remorse”.

103In summary, the grievor testified that he did not forward any images, movies or “porn.” At his hearing, an HR representative stated that the images were not pornographic, that they showed no violence and that they did not contain any child pornography, only nudity. No colleagues saw the images or complained about them. The grievor stated that, if he were not so busy at work, they would not have remained on his computer.

104At the disciplinary hearing on April 18, the 2-day and the 10-day suspensions were dealt with together. The grievor was not presented with the pictures. He did not know until the day of the adjudication hearing how they were discovered. He did not tell anyone that he had deleted the pictures, but at the next meeting, the same HR representative told him that he knew that the grievor had deleted them. The grievor assumed that he was being continuously monitored.

105The grievor testified as follows:

At the April 18, 2011 meeting, Mr. Ferland was not satisfied with my lack of remorse; however, at the meeting, I accepted responsibility, I accepted that the images should not have been there, I removed them, I accepted accountability. I discussed this with my union employment relations officer prior to the meeting, and he thought that I had shown a proper response on all fronts. On the June 30th 10-day suspension, I had thought that, following the third level, there was a pause, but in the end, it stayed at 10 days. I knew then that I was going to take it to the PSLRB.

106At that point in the hearing, the employer asked to recall Ms. Lyon.

107Ms. Lyon testified that Mr. Paynter was away on assignment over the winter of 2010-2011. The employer was investigating X’s leave abuse. According to Ms. Lyon, X had admitted to leave abuse. Mr. Paynter’s replacement over the four months might not have noticed a pattern. Ms. Lyon brought the issue to Mr. Paynter’s attention at the end of March 2011, the day after she met with X. Her contention was that there was a noticeable pattern of leave abuse, that Mr. Paynter should have seen it, as he was X’s supervisor, and that it should have been investigated.

108Mr. Paynter was cross-examined by the employer. He did not agree with the summary of allegations included with Exhibit E-3, as stated by Ms. Lyon. In particular, he stated that he had not been unpleasant and that he had not acted hatefully. He had not been agitated, loud, unpleasant or hateful. He stated that he never raises his voice, that he has a calm demeanour and that he is not prone to exaggeration.

109In response to questions about the March meeting with Ms. Lyon about X’s leave pattern, Mr. Paynter stated that he was not made aware of the reason for the meeting, that Ms. Lyon provided limited information, that the meeting had no structure and that accusations were made about a pattern to X’s leave usage. When Ms. Lyon stated in the meeting that X had admitted to using sick leave when he was not sick, the grievor thought that it was contrary to his understanding.

110X had been under three years of emotional strain, as witnessed by Mr. Paynter, and was in a shell-shocked state. Mr. Paynter was concerned about X’s emotional state, given that X was under a doctor’s care for stress issues, and he did not want to be a party to stressing X any further.

111Mr. Paynter said that he makes no apologies for having his knowledge and his opinions.

112Mr. Paynter was not aware that X had admitted to any wrongdoing. Mr. Paynter stated that Ms. Lyon claimed that X had admitted to not being sick. The grievor stated that he must have approved the leave that X had submitted in the three weeks since the grievor returned to the work section.

113When the grievor spoke with X and told him that he had heard that X had admitted to not being sick, X replied, “I never said that.”

114Mr. Paynter was next questioned by the employer about a December 2008 email exchange with his manager on a work-related issue. Mr. Paynter had taken exception to being advised twice about the same issue, once directly and a second time when his manager forwarded the original advisement. His replied in capital letters and seemed to indicate frustration with being over-monitored. Mr. Paynter could not recall the context or explain the outburst and his seeming loss of control.

115Questioning continued on the issue of the disciplinary hearing of April 18, 2011 and Mr. Ferland’s evidence that Mr. Paynter had acknowledged Ms. Lyon’s allegations without saying the actual words. Mr. Paynter’s evidence was that Mr. Ferland’s assumption was incorrect. Mr. Paynter said he did not acknowledge using the word “liar.”

116In his reply to Mr. Ferland’s evidence that the grievor said that he misspoke when confronted by Ms. Lyon, the grievor stated that he did not recall saying so.

117Mr. Paynter was asked if Ms. Lyon was lying in her list of allegations. His response was that he could not speak to Ms. Lyon’s motivation but that he thought that some of it derived from their history. Mr. Paynter said that there was history between the two starting from when he made complaints in 2009.

118Mr. Paynter was unaware of how or why his computer files were accessed. His evidence was that he found out only at the adjudication hearing that Ms. Lyon suspected that email correspondence about X’s leave issues might exist and launched the investigation into Mr. Paynter’s computer files. He further stated that he was not told about an investigation of X’s sick leave usage.

119Mr. Paynter’s evidence about the images found on his computer was that he had received an email with attachments from a friend. He opened the email, then opened and saved the attachments and deleted the email, which he did with most emails he received. He stated that he was usually very busy and that he had saved all types of items, including family photos, jokes and the like. He deleted the emails because he no longer needed them and was not going to forward them to anyone.

120The grievor agreed that he was aware of the employer’s policies on “Appropriate Use of Electronic Mail” and its “Code of Ethics and Conduct.”

121Mr. Paynter was asked by his representative about the context surrounding Exhibit E-14 and the email in bold text sent to his manager. Mr. Paynter explained that they had been introducing a replacement for an existing software feature. He stated as follows:

There was lots of consternation about the software in the organization. We (our team) were being disrespected by the other team. People were holding me responsible for the changes. I didn’t develop it, I just delivered it. There were lots of unfair pot shots at our team.

122The bottom line was that the grievor’s manager came to see him about the exchange to say that she did not mean anything by it, and nothing escalated from there.

IV. Summary of the arguments

123The employer addressed the issues as follows:

• For the 2-day suspension, did the alleged conduct occur? Was the discipline reasonable?
• For the 10-day suspension, did the alleged conduct occur? Was the discipline reasonable?

124On the day on which Ms. Lyon was looking for X, no one was at X’s desk. She received no response from the grievor when she asked him if X was in the office. The grievor became belligerent, loud, unpleasant and hostile. He began shouting and called her a liar.

125In the case of the 10-day suspension, Mr. Paynter admitted to violating several of the employer’s policies, and the employer imposed what it considered appropriate discipline.

126In both cases, the employer followed a recommendation from HR, which supported its position with a summary of the jurisprudence.

127The employer imposed a two-day suspension on the grievor because of the seriousness of the confrontation and his accusation that Ms. Lyon was lying, even though he had a clean disciplinary record. Given Mr. Paynter’s supervisory position, it was important to set an example.

128The employer supported its position by referring to the following cases: Sheet Metal Workers’ International Association, Local 473 v. Bruce Power LP, [2009] Can Lii 31586 (ONLRB); Maple Leaf Consumer Foods, a Division of Maple Leaf Foods Inc. v. United Food and Commercial Workers Canada, Local 175, (2008) Can Lii 63548 (ONLA); Chauvin v. Deputy Head (Offices of the Information and Privacy Commissioners of Canada), 2012 PSLRB 66; Doucette v. Treasury Board (Department of National Defence), 2003 PSSRB 66; Johnston v. Treasury Board (Human Resources Development Canada), 2003 PSSRB 66; Schuberg v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-15123, 15159, 15350 and 15424 (19860318); Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107; and Ferguson v. Treasury Board (Solicitor General Canada - Correctional Service), PSSRB File No. 166-02-26970 (19961028).

129For the 10-day suspension, the employer summarized the situation that led to the discovery of the inappropriate images and tied it to the imposition of the 2-day suspension for insubordination, which was imposed at the same time.

130Building on the two-day suspension and using progressive discipline, Mr. Ferland again followed HR’s recommendation for a 10-day suspension and supported it by referencing a number of cases, as follows: Gannon v. Treasury Board (National Defence), 2002 PSSRB 32; Andrews v. Deputy Head (Department of Citizenship and Immigration), 2011 PSLRB 100; and Briar et al. v. Treasury Board (Solicitor General Canada - Correction Service), 2003 PSSRB 3.

131Mr. Ferland emphasized the fact that the employer is the gatekeeper and is responsible for keeping inappropriate material out of Canada and that it must show leadership on that issue. Therefore, a 10-day suspension was appropriate.

132The grievor’s representative took the employer’s vision of Mr. Paynter to task when it represented him as anti-social, as showing no remorse, as being not accountable, argumentative and as debating what occurred. Those are extreme exaggerations that serve the employer’s ends.

133Mr. Paynter’s work history as well as his responsibilities in the workplace were reviewed, and emphasis was placed on the affirmation of the employer’s witnesses that the grievor produced good work and that he had been a responsible employee since 1999.

134Much of the evidence and the summary of allegations was of the “he said - she said” type, but there was no third-party support for it.

135Mr. Paynter testified that he was concerned about the welfare of his employee and that he was perhaps overly cautious and defensive in his exchanges with Ms. Lyon. He did not plan a confrontation. He did not think that he was required to respond. He did not say, “I don’t know”; instead, he said, “I would rather not answer that,” he did not want to contribute to any more stress on X.

136In support of his position, the grievor referred me to Black’s Law Dictionary (9^th ed.) and its definition of “insubordination,” as well as to Province of Manitoba v. Manitoba Government and General Employees’ Union, Bahniuk v. Canada Revenue Agency, 2009 PSLRB 141, Focker v. Canada Revenue Agency, 2008 PSLRB 7, and Mohan v. Canada Customs and Revenue Agency, 2005 PSLRB 172, and to other cases in which lesser penalties were imposed for more serious incidents.

137On the issue of the 10-day suspension, the grievor’s representative stated that the grievor made a full disclosure and admitted that he was wrong to have saved the images. He emphasized that the images were received and saved only once. They were never shared, accessed or forwarded to anyone. The grievor never had any intent to do anything with them. He was busy. He received emails regularly and pretty much automatically saved them. He had difficulty finding the images at issue on his computer, so he deleted everything in the relevant folder, including other personal messages and family pictures.

138A representative for the grievor’s union stated that 10 days was not a reasonable penalty for the images issue and argued against the employer’s rationalization of its jurisprudence being reasonable in the circumstances. The images were not pornography or pedophilia and did not display bondage. There were no videos, just nudity. The images were never shared, inadvertently or otherwise. This issue has been blown out of proportion.

V. Reasons

A. First incident

139The grievor was suspended for two days as a result of alleged confrontation with a director of the employer. While the parties produced evidence that there were difficulties between the two, the evidence also showed that the grievor provided consistently good output, that there were never any issues about the quality of his work, and that until the alleged confrontation, he had always been regarded as a respectful employee.

140The employer, in an attempt to paint a picture of the grievor as a difficult individual, referred to his use of the ICMS process. The employer intimated that in two instances where the process had been engaged, it had been instituted because of the grievor. First, the grievor clearly refuted this conclusion by testifying that the first use resulted from the grievor’s complaints concerning his dealings with Ms. Lyon and the second instance had been engaged by employee X and concerned the fractured relations between two working groups. Secondly, I see nothing in the employer’s evidence regarding the grievor’s use of the ICMS process that substantiates the allegation that he is difficult. As far as is disclosed by the evidence, the grievor appropriately used a process open to him and this mere fact should not be held against him. No evidence was lead, or indeed any allegation made, that the grievor’s use of the process in the one instance where he had initiated it was in any way frivolous, abusive or in bad faith.

141The grievor established that he was concerned about his employee, which seems to have clouded his judgement when he responded to Ms. Lyon. The grievor should have responded to Ms. Lyon’s query, regardless of his sympathy towards X. However, I am unable to conclude that he was insubordinate as his uncontradicted evidence was that he was never given an order by Ms. Lyon.

142On the issue of his allegedly disrespectful behaviour, the employer’s allegation on this point focused on the grievor’s tone. Indeed, the employer’s argument characterized the grievor as belligerent, loud and hostile. If a short, heated and almost shouting exchange occurred between the grievor and Ms. Lyon, it would have been helpful to have heard from witnesses, who were purportedly nearby. And if the exchange was as described by the grievor, the open concept work environment would allow those nearby to overhear any exchange at a normal tone. Neither party offered any third party testimony, but I am mindful that it is the employer who bears the burden of proof in this case. The employer suggested that they might have buried their heads rather than become involved. I would think that that was possible, but it is just as probable that, if those persons were reluctant to testify, it might have been because nothing was overheard and that stating otherwise would have contradicted a director of the employer.

143On balance, I find that, while there might have been words between the parties, I cannot conclude either way what happened and what was said by either party. I found that both Ms. Lyon and the grievor testified honestly and earnestly, but their versions of the exchange are opposed. The employer has disciplined Mr. Paynter for having spoken to Ms. Lyon in a loud, belligerent and hostile manner whereas the grievor, while admitting his reluctance to answer Ms. Lyon’s question, testified firmly that he had never raised his voice or challenged the employer’s authority. Each version was internally consistent and each witness was credible, leaving me unable to conclude what actually occurred that day. As the employer bore the burden of proof on this issue and was required to convince me on the balance of probabilities that the incident occurred as described in the employer’s letter of suspension but did not do so, I must rescind the suspension.  

B. Second incident

144The grievor was suspended for 10 days as a result of having 11 inappropriate images on his computer.

145The grievor acknowledged that the images were on his H drive and immediately accepted responsibility. The employer emphasized that that did not imply remorse on the grievor’s part. It is not contested that the grievor opened and saved the images but never did anything with them, or accessed them again.

146The fact that the email was opened is not by itself an indication of wrongdoing; in fact, we all open emails and are sometimes surprised by what we encounter.

147However, there is an issue with saving the images that must be addressed. The employer has identified that saving these images represents a violation of five employer policies:

- Values and Ethics Code for the Public Service;

- Treasury Board Policy on the Use of Electronic Networks;

- CBSA Code of Conduct;

- CBSA Policy on the Use of Electronic Resources;

- CBSA Policy on the Appropriate Use of Electronic Mail (E-mail)

The grievor was aware of these policies and I find that he has violated the Treasury Board’s Policy on the Use of Electronic Networks (Appendix C) by receiving and downloading a file whose main focus is nudity. He is also in violation of Annex D of the CBSA’s Policy on the Use of Electronic Resources for the same reason.

148The employer testified that a system is in place to grade the level of image offensiveness. It stated that it referred the images at issue for grading. The employer did not present the findings of that grading, even when I asked for them. I am left to speculate whether the level of offensiveness had any bearing on the discipline imposed.

149As I have already concluded, discipline should not have been imposed for the exchange between Ms. Lyon and Mr. Paynter.

150If there is now no previous discipline on the grievor’s file, I must take this into account in assessing whether or not the discipline imposed for this incident was reasonable.

151This is the first instance of discipline for Mr. Paynter. He has a good work history and I have considered the grievor’s length of service.  I have also considered the fact that he immediately acknowledged the misconduct and the fact that he never accessed the images again after receiving them and never shared them with anyone.  I believe the penalty of ten days is unreasonable and should be reduced considerably to reflect a first offence of misconduct. Therefore, it is necessary to determine the appropriate penalty. I do not find most of the case law cited by either party helpful to that purpose.

152However; I am influenced by the discipline handed out in the case of the Province of Manitoba v. Manitoba Government and General Employees Union, [2009] M.G.A.D. No. 18.

153In this case, three correctional officers were suspended for periods ranging between three and seven days for receiving, emailing, and viewing a pornographic video clip, which was also seen by two inmates, all of which took place in a specialized sex offender unit.

154The level of misconduct in the Manitoba case was serious, it was pre-meditated and the penalties imposed were, as a result, substantial. In this case, the grievor’s conduct was less serious, and a momentary action which resulted in no embarrassment to the employer and had no effect on the workplace.

155In the case of Mr. Paynter, I therefore conclude that only a minimum deterrent is necessary and that a one-day suspension will suffice.

156For all of the above reasons, I make the following order:

VI. Order

157I allow the first grievance and set aside the two-day suspension.

158I partially allow the second grievance. I set aside the 10-day suspension and replace it with a one-day suspension.

159I order the employer to reimburse Mr. Paynter for eleven days of salary and benefits.

160I remain seized of this matter for a period of 90 days from the date of my decision to resolve any disputes about the calculation of the amounts payable to Mr. Paynter.

June 28, 2013.

Michael F. McNamara,
adjudicator