FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Frédéric Purtell (“the grievor”) is a correctional officer, classified CX-01, employed at the Edmonton Institution (“the institution”) of the Correctional Service of Canada (“the employer”) in Edmonton, Alberta. The grievor was covered at all relevant times by the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada – CSN; expiry date, May 31, 2010 (“the collective agreement”). On March 6, 2009, he filed a grievance alleging that he was inappropriately disciplined when he was sent home from work on November 11, 2008. As corrective action, he requested that he be compensated for all money owed to him.

2 The employer denied the grievance at the first level of the grievance process on April 7, 2009, and at the second level on June 10, 2009. The grievor referred it to adjudication on June 29, 2009.

3 On November 16, 2009, the employer filed an objection to an adjudicator’s jurisdiction on the grounds that the grievor was sent home from work on November 11, 2008, for administrative rather than disciplinary reasons; therefore, the grievance did not fall within paragraph 209(1)(b) of the Public Service Labour Relations Act (PSLRA). The employer stated that the grievor was sent home from work because his jewelry did not conform to the employer’s dress code in that he was wearing hoop earrings rather than studs. Because the grievor refused to remove the earrings in question, he was sent home. His pay was withheld because he had not worked, not because he had been disciplined.

4 The grievor responded to the employer’s objection to jurisdiction on November 27, 2009 and reiterated his position that he had been disciplined, citing both case law and employer policies.

5 The employer responded to the grievance at the final level of the grievance process on February 25, 2010. In that response, the employer reiterated its position that it had not disciplined the grievor. It also noted that the grievance was untimely, but the issue of timeliness was not pursued at the hearing.

6 Further to a pre-hearing teleconference on March 2, 2010, it was decided that the employer’s preliminary objection would be dealt with at the outset of the hearing and that the parties should be ready to proceed on the merits of the grievance, should a decision on the preliminary objection be reserved. However, at the hearing I determined that it would be more efficient to deal with the objection to jurisdiction in final argument rather than as a preliminary matter, as the evidence on the merits and on the objection would be the same.

II. Summary of the evidence

A. For the employer

7 The employer called Larry Demerais and Jamie Cook to testify and introduced two documents into evidence. The grievor testified and called Todd Ginger to testify. He introduced four documents into evidence. There was evidence concerning a particular female correctional officer, who was not a party to the proceedings and was not called to testify. As her identity is not relevant to the issue before me, I have chosen to identify her by the initials “AB”.

8 Mr. Demerais testified that on November 10, 2008, he was an acting correctional manager and was one of two correctional managers responsible for the supervision of the staff at the institution that day. Therefore, he was one of the grievor’s supervisors that day. He stated that the grievor was a recent arrival from the Quebec region and that his involvement with the grievor up to that day had been minimal.

9 At the morning staff briefing on November 10, 2008, Mr. Demerais noted that the grievor was wearing earrings that were large enough to be seen from a distance. Mr. Demerais stated that he had a brief conversation with the grievor in which he explained that the earrings were not appropriate. He said that the grievor did not agree that there was a problem with them. He said that the grievor told him that his earrings had been accepted in the Quebec region. Because of their difference of opinion, Mr. Demerais later went to the office and downloaded a copy of the Guidelines for CSC Uniforms, Dress Code and Scale of Issue (“the Dress Code”)(Exhibit E-1), which stated at subsection 51(b) that hoop earrings could not be worn.

10 Mr. Demerais explained that there were health and safety reasons for the restrictions on the kinds of earrings that could be worn while on duty. In particular, he stated that because of the nature of the work, there was always a possibility of becoming involved in a physical altercation with inmates, and for that reason, any type of accessory that could be pulled, tugged or torn from the body was a concern.Although Mr. Demerais could not remember exactly how large the grievor’s earrings were, he remembered that they were of a significant size and that they were not studs.

11 After downloading the Dress Code, Mr. Demerais highlighted the relevant sections and later that day took it to the grievor, who was working in the segregation unit. Mr. Demerais offered to provide him with a French version of the document, if that was necessary. He said that because it was near the end of the day, he took no further action. He assumed that the grievor would adhere to the policy the next day. He did not speak to the grievor again that day and did not speak to him on November 11, 2008.

12 Mr. Demerais acknowledged in cross-examination that subsection 8(a) of the employer’s Code of Discipline (“the Code”; Exhibit G-2) could be interpreted as establishing that wearing inappropriate earrings is a disciplinable infraction. However, he stated that he had had no intention of disciplining the grievor. He was simply providing information. Mr. Demerais agreed that he received copies of all the policies, including the Treasury Board’s Guidelines for Discipline (“the Guidelines”; Exhibit G-1), during his basic training, and he acknowledged that they define a suspension as the temporary removal of an employee from the workplace. He also acknowledged that they set out the steps for determining whether misconduct occurred.

13 Mr. Demerais did not remember noticing that any other employees wore earrings similar to those worn by the grievor. He said that he did not think that there were any exceptions to the Dress Code and that he knew of other circumstances in which officers were told to remove pins or other decorations from their uniforms.

14 Mr. Cook was a correctional manager on duty on November 11, 2008. He testified that he began the day shift by briefing the staff on the issues of the day. At the briefing, he noticed that the grievor, who was sitting about 20 feet away from him, was wearing large hoop earrings. After Mr. Cook completed the briefing and handed out the day’s assignments, he asked the grievor to accompany him to his office because he wanted to speak to him about his earrings in a private setting.

15 Mr. Cook explained that he told the grievor that his earrings did not conform to the Dress Code requirements and that they were a safety concern. He asked the grievor to remove them. The grievor told Mr. Cook that he wanted to consult his union representative. Mr. Cook testified that the grievor left the office and returned a short time later after speaking to Jason Raabis, the union local president. The grievor told Mr. Cook that he did not want to remove his earrings.

16 Mr. Cook told the grievor that if he wished to remain at work, he would have to remove his earrings. He explained that the earrings were a safety risk and that the grievor would not be fit for duty if he did not remove them. He did not recall exactly what the grievor said in response to his direction, but he thought that it was in effect that he would not remove the earrings and would not follow the direction given. Mr. Cook said that there was no one else in the office with them but that Mr. Raabis was nearby. He did not know if Mr. Raabis heard the conversation.

17 Mr. Cook testified that it was not his intention to discipline the grievor by sending him home, even though he could have disciplined him for his refusal to remove the earrings. He stated that no disciplinary letter was placed on the grievor’s file. He explained that his intention was to protect the grievor by removing him from any danger that could arise because of the way he was dressed. Had the grievor removed his earrings, he could have worked his shift. The grievor chose not to. Because he chose to go home rather than remove his earrings, he was not paid for his shift, which meant that he did not receive the premium for working on a statutory holiday.

18 Mr. Cook explained that employees are given a copy of the Standards of Professional Conduct in the Correctional Service of Canada (“the Standards”; Exhibit E-2) when they begin their employment with the employer. The Standards cover conduct and appearance. Read together with the Dress Code, it was clear what jewellery was permitted. Mr. Cook also explained that there was a safety aspect to the restrictions on jewellery, because large hoop or dangly earrings could be torn from the ears in an altercation with an inmate.

19 In cross-examination, Mr. Cook was asked why he did not reassign the grievor to another post if he was concerned about the grievor’s safety. Mr. Cook stated that a reassignment to another post would not have removed the safety concerns. He reiterated that the grievor was sent home because he would not remove his earrings and not for refusing a direct order. On re-examination, he clarified that the Dress Code applied to all staff on duty, regardless of assigned post. He stated that he was not aware of any exceptions to the application of the Dress Code.

20 Mr. Cook said that he did not notice other employees that day wearing earrings that violated the Dress Code. He said that in the past, he had asked other employees to remove earrings that violated the Dress Code and that they always did as asked. In his experience, the grievor was the only employee who refused to remove his earrings. Furthermore, Mr. Cook stated that he had sent unshaven employees home to shave because the Dress Code requires officers to be clean-shaven. He stated that usually, the employees returned to work after shaving.

21 In cross-examination, Mr. Cook was asked if he observed a female correctional officer, AB, wearing hoop earrings on November 11, 2008. He said that he knew the officer in question but that he did not remember noticing whether she was wearing hoop earrings that day. However, he said that he had spoken to her about her earrings on another occasion. Although he could not remember the date, he said that he asked the officer to remover her earrings because they were hoops, and she did.

22 Mr. Cook testified that a couple of weeks after the event in question, the grievor apologized to him for his actions on November 11, 2008. Mr. Cook said that the grievor’s apology was sincere and that he acknowledged that he had acted like an “asshole.”

B. For the grievor

23 The grievor began working at the institution in October 2008. He transferred from the Leclerc Institution in Quebec. He testified that he was fully aware of the Dress Code and other policies because he was a health and safety officer for the union local.

24 The grievor testified that he did not attend the staff briefing on November 11, 2008. He said that he was working in the segregation unit that day and that the officers who worked there rarely attended the staff briefing. He said that he was told by another officer in the segregation unit that he should remove his earrings. At about 09:00, he was sent to meet Mr. Cook.

25 Mr. Cook repeated the same instruction to the grievor to remove his earrings that Mr. Demerais had given him the day before. The grievor was told that if he did not remove the earrings, he would be sent home. He did not agree that there was a safety issue. He told Mr. Cook that at the Leclerc Institution, he was permitted to wear the earrings. However, Mr. Cook said that the earrings were not acceptable at the institution.

26 The grievor stated that he might have been sarcastic with Mr. Cook. He said that he had a document from a jeweller that stated that the earrings were not hoops but that Mr. Cook was adamant that they were hoops. Since Mr. Cook was not a jeweller, the grievor refused to accept the direction to remove the earrings. He stated that the conversation was not really a discussion, because Mr. Cook would not listen. The grievor was given the choice of removing the earrings or going home. He refused to remove the earrings, so he was sent home.

27 In cross-examination, the grievor acknowledged that he had a choice of removing the earrings or going home and that he knew the consequence of not removing them. He also agreed that his discussion with Mr. Cook had been heated and that he had behaved inappropriately. He stated that the discussion took place in front of other staff, and for that reason, he apologized to both Mr. Cook and Mr. Demerais publicly.

28 The grievor stated that he was not paid for the day in question, which meant that he lost the premium pay for working on a statutory holiday. He said that when he followed up with a clerk from the institution’s human resources section, he was shown a page from a human resources computer program that stated that he was suspended without pay on November 11, 2008 (Exhibit G-4).

29 The grievor stated that he was not the only employee who wore hoop earrings. He said that on November 10, 2008, AB wore hoop earrings throughout her shift.

30 Mr. Ginger testified that he was a union representative at the institution at the time in question. He said that he was familiar with the Dress Code policy. His recollection was that at the time of the incident in question, a number of employees wore different types of earrings.

31 Mr. Ginger stated that he had a brief conversation with Mr. Cook on November 11, 2008. Mr. Cook told him that he had sent the grievor home because he refused a direct order to remove his earrings.

III. Summary of the arguments

A. For the employer

32 The employer argued that the decision to send the grievor home on November 11, 2008, was administrative and not disciplinary, and therefore, the grievance should be dismissed for lack of jurisdiction. The burden rested on the grievor to establish that the action was disciplinary as there was no letter of discipline, no disciplinary investigation and no disciplinary sanction. In fact, none of the hallmarks of discipline was present. The grievor did not work because he refused to remove his earrings and therefore was not fit for duty. Because he did not work, he was not paid. The choice not to work was entirely his own.

33 Citing Canada (Attorney General) v. Frazee, 2007 FC 1176; Canada (Attorney General) v. Basra, 2008 FC 606; King v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 45; Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112; and Stokes v. Treasury Board (National Defence), PSSRB File No. 166-02-14619 (19850418), the employer argued that its intent is a key factor in determining whether an action is disciplinary or administrative. In this case, its concern was the grievor’s safety. Had he removed his earrings as requested, the matter would have been resolved. There was no evidence that he was sent home as punishment. The employer was simply trying to enforce the Dress Code, which was established to ensure safety and professionalism. Because the grievor was not dressed properly, he was not fit to work, and if he was not fit to work, he could not be at work. As noted in Chafe et al., a financial loss does not necessarily mean that a disciplinary penalty was imposed. In Stokes, an employee who refused to shave his sideburns was sent home because the Dress Code did not permit employees to have facial hair. The grievance was dismissed for want of jurisdiction because sending the employee home for such reasons was not found disciplinary.

34 The employer also argued in the alternative that if the action of sending the grievor home because he was wearing inappropriate jewellery was disciplinary, then that action was warranted because the grievor’s refusal to obey direct order constituted a reasonable cause for discipline. The grievor’s refusal to comply with the direct order to remove his earrings could be characterized as insubordination. He was aware of the Dress Code and knowingly violated it. The appropriate response to his actions was to send him home. The employer has the right to enforce the Dress Code, and it has the right to discipline for insubordination.

35 The employer argued that the experiences of other employees are not relevant to the grievor’s situation but that, in any case, there was no evidence that other employees wore hoop earrings with the employer’s acquiescence. The grievor actually identified only one other employee as wearing hoop earrings, but there was no evidence to suggest that the employer permitted her behaviour. In fact, Mr. Cook testified that he spoke to AB and that she removed her earrings. Furthermore, the fact that the grievor was permitted to wear his earrings when he worked at the Leclerc Institution in Quebec is also not relevant. Citing Canada v. Barrett (1984), 53 N.R. 60 (C.A.), the employer stated that adjudicators cannot consider penalties imposed in other regions.

36 The employer stated that if sending the grievor home when he refused to remove his earrings were found to be a disciplinary penalty, then that sanction would be appropriate in the circumstances. In Almeida and Capizzo v. Treasury Board (Revenue Canada - Customs & Excise), PSSRB File Nos. 166-02-17058 and 17059 (19890125), the adjudicator found that the employer’s decision to send the grievors in that case home when they refused to remove political buttons from their uniforms was disciplinary but also found that the discipline was warranted. Similarly, in Arnfinson v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File No. 166-02-10375 (19820125), the grievor’s refusal to wear a uniform parka was found to be insubordination, and a one-day suspension was upheld. In Castonguay v. Treasury Board (Revenue Canada - Customs & Excise), PSSRB File No. 166-02-17531 (19881028), and Mackie v. Treasury Board (Solicitor General - Correctional Service), PSSRB File No. 166-02-21893 (19920601), the refusals of the grievors in those cases to comply with similar directions to comply with Dress Code requirements was found to justify sending them home for the balances of their shifts.

37 The employer stated that its action of sending the grievor home was not disciplinary, and therefore, the grievance should be dismissed for want of jurisdiction. However, even the action is found disciplinary, the sanction imposed was well within the permissible range, and the grievance should be dismissed on that basis.

B. For the grievor

38 The grievor’s claim is based on the fact that he was disciplined and suspended without pay. He argued that an adjudicator has jurisdiction to consider his grievance. In Attorney General of Canada v. Grover, 2007 FC28, the Federal Court held that adjudicators must determine whether an employer’s action was administrative or was, in reality, disguised discipline, based on all the surrounding facts and circumstances. He stated that one of the components of discipline is that it prejudicially affects an employee. He argued that he was prejudicially affected by being sent home and by losing not only the pay for the day that he was sent home but also the opportunity to earn premium pay for work on a designated paid holiday.

39 The grievor stated that paragraph 209(1)(b) of the PSLRA and clause 20.23 of the collective agreement provide that a disciplinary action is a suspension or a financial penalty. He stated that it was clear that the employer disciplined him and unfairly exercised its authority when it suspended him on November 11, 2008. Furthermore, the employer acted in bad faith because it could have reassigned him to another post if it was so concerned about his safety but chose not to. Instead, he was sent home. He contended that the employer chose to send him home on Remembrance Day because it resulted in a greater loss of pay to him than sending him home at any other time.

40 Citing Lindsay v. Canada Border Services Agency, 2009 PSLRB 62, the grievor argued that when the employer sent him home for the day because he was not properly dressed, its intent was to punish him, and therefore, the action was disciplinary. In support of the allegation that the action was disciplinary, the grievor noted that Mr. Ginger testified that Mr. Cook told him that he sent the grievor home because he refused a direct order to remove his earrings.

41 The grievor also noted that the Guidelines (Exhibit G-1) treat suspension as a disciplinary matter. The list of infractions set out in the Code (Exhibit G-2) includes the failure to comply with a direct order. The grievor refused to comply with a direct order, so the employer’s response must have been disciplinary. In his testimony, Mr. Cook was clear that infractions of the Dress Code must be corrected promptly and that disciplinary action would be imposed if deemed necessary.

42 The grievor argued that the employer’s order was not fair because other employees were permitted to wear hoop earrings. Mr. Ginger gave a specific example of one such employee in his testimony, and while no other specific examples were offered, the grievor was clear that he knew that other employees were permitted to wear hoop earrings.

43 The grievor contended that the cases cited by the employer were not relevant. The Stokes and Mackie cases concerned specific issues arising from the requirement to be clean-shaven in order to don a self-contained breathing apparatus. In Arnfinson, the grievor was not wearing his proper uniform, which is not so in this case. In Almeida and Capizzo, the grievors were wearing political buttons while working in jobs that required them to deal with the public, but that was not the situation in this case because the grievor did not deal with the public.

44 The grievor stated that the imposition of discipline was inappropriate and asked that his grievance be allowed and that he be compensated for the time lost when he was sent home. He also asked for damages with interest.

C. Employer rebuttal

45 The employer noted that the Grover decision cited by the grievor predated Basra, in which it was held that to determine whether an action is disciplinary or administrative, it is necessary to consider the employer’s intent.

46 In Lindsay, cited by the grievor, there was confusion concerning the Dress Code, which is not an issue in this case. Furthermore, Lindsay was judicially reviewed on the issue of termination of employment (Lindsay v. Attorney General of Canada, 2010 FC 389). In considering whether a grievor’s termination of employment was administrative or disciplinary, the Court noted that the burden rests with the grievor to establish disguised discipline. At paragraph 46, the Court also noted that to determine whether an action is administrative or disciplinary, it is necessary to consider the employer’s intent.

47 There was no bad faith in the decision to send the grievor home on a designated paid holiday. There was no evidence to support the suggestion that the fact that it was a designated paid holiday played any role in the decision. The grievor lost his opportunity to work on a designated paid holiday because of his decision not to remove his earrings.

48 The grievor was given a warning and a chance to comply with the Dress Code. There was no bad faith in not sending him home on November 10, 2008, when Mr. Demerais first spoke to him about his earrings. It was near the end of the shift, so there was no issue of condoning a safety violation.

49 The employer contended that the Code and Guidelines were not engaged in this grievance. Furthermore, no facts were presented that would justify a remedy for damages.

IV. Reasons

50 On March 6, 2009, the grievor filed a grievance, which read as follows: “I was inappropriately disciplined by being sent home on 2008-11-11.” As corrective action, the grievor asked to be compensated for “all monies owed for that day.”

51 The facts that led to this grievance are relatively straightforward. The grievor had transferred to the institution in October 2008. On November 10, 2008, Mr. Demerais, working as a correctional manager, noticed that the grievor was wearing hoop earrings that he said were large enough to be noticed from a distance. He told the grievor that the earrings were not appropriate and provided him with a copy of the Dress Code (Exhibit E-1), which provided at section 51(b) that “… earrings may be worn with pierced ears only, but they must be stud earrings of a conservative pattern, no hoops … .”

52 On November 11, 2008, Mr. Cook, who was also a correctional manager, noticed that the grievor was wearing large hoop earrings. Mr. Cook testified that he noticed the grievor’s earrings during the staff briefing at the beginning of the shift on November 11, 2008. The grievor denied that he attended the briefing and stated that he was sent to see Mr. Cook by another employee at about 09:00. Although nothing turns on the issue, I find Mr. Cook’s evidence more compelling than the grievor’s, because no other evidence was presented that would explain why Mr. Cook would have asked the grievor to attend a meeting if he had not seen his earrings at the briefing.

53 Mr. Cook repeated the advice given to the grievor by Mr. Demerais that under the Dress Code, hoop earrings were not acceptable. He asked the grievor to remove his earrings. After obtaining advice from his union representative, the grievor refused to remove his earrings. He was told that he could not work as long as he was wearing the earrings. He continued to refuse to remove the earrings, and consequently, he was sent home. He testified that he was not paid for his shift on November 11, 2008, which was a designated paid holiday.

54 The employer argued that sending the grievor home was not a disciplinary act but an administrative one. The grievor was not dressed in accordance with the Dress Code, and because he refused to remove earrings that constituted a safety risk, he was sent home. According to the employer, it was a simple case of “no work, no pay.” The grievor contended that the employer did not send him home for safety reasons but because he refused a direct order and that the action was disciplinary, not administrative.

55 My jurisdiction to hear this matter is limited by subsection 209(1) 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

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

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

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required; or

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

56 This grievance was referred to adjudication under paragraph 209(1)(b) of the PSLRA. In it, the grievor alleged that he was “inappropriately disciplined.” As noted by the Federal Court in Lindsay, the burden of proof to establish that the employer’s action was disciplinary rested with the grievor. The fact that he was prejudicially affected by being sent home, on its own, does not establish that the action was disciplinary. In Frazee, the Federal Court noted that “… not every action taken by an employer that adversely affects an employee amounts to discipline.” Citing Frazee, the employer argued that to determine whether an action is administrative or disciplinary, it is necessary to examine the employer’s intention, and in this case, it did not intend to discipline the grievor, even though it could have.

57 Although intention is clearly a factor in determining whether an action is administrative or disciplinary, as noted by the Court in Frazee, “… how the employer chooses to characterize its decision cannot be by itself a determinative factor.” Because the grievor’s refusal to remove his earrings could have been characterized as insubordination and could have resulted in discipline, it is necessary to determine the employer’s intention from the surrounding facts and circumstances.

58 In this case, other indicia of discipline are not present. There was no disciplinary interview, no letter of discipline and no record of discipline. I do not consider the screen shot printout of the page from the employer’s human resources grievance program (Exhibit G-4) helpful since it simply describes what was grieved. There was no evidence that the grievor’s career prospects were adversely affected by the employer’s action. Consequently, in my opinion, the only real clue as to what the employer intended comes from the event itself.

59 In Castonguay, which was followed by the adjudicator in Lindsay, the adjudicator held that when the employer sent the grievor in that case home with instructions not to return until the next day, it intended to discipline him. The adjudicator considered that if he had been given the option of returning to the worksite as soon as he was properly dressed, the action would have been administrative. In Lindsay, the adjudicator explained the reasoning at paragraph 77 as follows:

[77] I agree with the distinction made in Castonguay. If an employee is sent home to change into clothes that are acceptable under the Dress Code, the employee is not paid for the time spent to go to change. That is a “no work, no pay” situation. If an employer sends an employee home for the day because the employee is not properly dressed, the employer’s intent is to punish the employee, so at that point it becomes a disciplinary action.

60 In this case, Mr. Cook testified that had the grievor removed his earrings, he could have worked his shift. The grievor acknowledged that he would have been able to work had he removed his earrings. There was no evidence before me to suggest that he would not have been permitted to return to work as soon as he removed the earrings. The choice to leave the workplace was his, not the employer’s. In my opinion, that fact makes it difficult to find that the employer intended to discipline the grievor for insubordination.

61 The grievor argued that the employer’s decision to send him home on a designated paid holiday was made in bad faith and that it was designed to ensure that his loss was increased. I do not accept that argument. Mr. Cook testified that the earrings worn by the grievor constituted a safety risk and that under the Dress Code, they were not permitted. Assigning the grievor to a different post was not an option. The grievor chose not to remove his earrings and therefore was not permitted to work. The fact that it was a designated paid holiday played no role in that decision.

62 Based on the evidence before me, even if I were to find that the employer’s action was disciplinary, I would conclude that discipline was warranted and that the penalty was not unreasonable. The grievor was told that his earrings were not acceptable under the Dress Code. The fact that he had apparently worn them without problems at his former institution was not relevant to the issue before me, since that evidence was presented without context or explanation. Nor was there any real evidence that the employer tolerated other employees in the institution wearing hoop earrings. The only direct and concrete evidence concerning the employer’s response to the allegation that AB wore hoop earrings came from Mr. Cook, who testified that when he noticed her wearing hoop earrings, he asked her to remove them, and she did. That evidence does not support the grievor’s allegation of differential treatment.

63 The grievor refused a direct order from his supervisor. There was no suggestion that the order was unlawful, discriminatory or even unreasonable. The grievor acknowledged that his behaviour was inappropriate, sufficiently enough that he felt the need to publicly apologize to both correctional managers some time later. Given those facts, discipline could be justified.

64 However, I do not find that the grievor satisfied the onus to prove that the employer’s action was disciplinary. The fact that the grievor was not permitted to work his shift on November 11, 2008, was entirely within his control. He could have removed his earrings and worked. He chose not to. The employer’s intention under those circumstances cannot be characterized as disciplinary. Accordingly, I must allow the employer’s objection to jurisdiction and dismiss the grievance.

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

V. Order

66 The grievance is dismissed.

February 7, 2014.

Kate Rogers,
adjudicator