FPSLREB Decisions

The grievor and the grievances

1 Donna Reid-Moncrieffe (“the grievor”), an employee in the Mississauga, Ontario, office of the Department of Citizenship and Immigration (“the department”), presented six grievances to adjudication. In four grievances, she alleged she had suffered discrimination and harassment. One grievance related to a 30-day suspension without pay, and one related to her discharge from employment. At the opening of the hearing, she withdrew the four discrimination and harassment grievances.

2 The 30-day suspension without pay, imposed on the grievor by letter dated November 3, 2011, resulted from long-distance telephone calls she made from her office telephone without authorization. The discharge, imposed by letter dated October 11, 2012, resulted from two absences from work, the first on September 13, 2012, and the second on September 17, 2012.

3 The grievor, who was 48 years old at the time she testified, had been employed in the department (and its predecessor) since 1988. She began there as a clerk. At the time of her discharge, she was a citizenship officer at the PM-03 group and level. Her regular daily hours of work were from 7:15 a.m. to 3:15 p.m.

4 The grievor had a prior disciplinary record, the full details of which were not revealed in the evidence. However, in April 2010, she was suspended without pay for 25 days as a result of various acts of misconduct that were described as “preferential treatment or conflict of interest.” She was warned in the letter of suspension that “… further misconduct could lead to more severe disciplinary measures, up to and including termination.”

5 Upon her return from the 25-day suspension on October 4, 2010, the grievor met with Maureen Lewis, her manager, who wanted, as she testified, to “re-orient [the grievor] to the workplace.” Ms. Lewis gave the grievor a memorandum setting out the department’s expectations of her. The memorandum read, in part, as follows:

…

• Annual leave is subject to operational requirements and is therefore required to be requested in advance.
• Request for any other type of leave must be in accordance with the collective agreement.
• If on any given day you cannot report to work on time or will be away for any leave that has not been pre-approved, such as illness or you experience unexpected delays, you must make every reasonable effort to contact your supervisor at 905[-XXX-XXXX]. If she is not available, you must then make every reasonable effort to contact the Manager at 905[-XXX-XXXX]. If you are unable to reach either individual during regular business hours, you must leave a detailed voice mail message which indicates the reason for your absence, the duration of your absence, the type of leave you are requesting, and a phone number where you can be reached.

…

• All instructions from the manager and supervisor must be read and followed.

6 On January 4, 2012, after the grievor returned to work from her 30-day suspension, Ms. Lewis met with her again to assist with her reorientation to the office. She gave the grievor a new memorandum of the employer’s expectations of her. The new memorandum was longer and more detailed than the earlier one, although it did repeat much of what had appeared previously. Of particular note is that the new memorandum contained a slightly different statement of the procedure the grievor had to follow if she was unable to report for work. This is what it stated on the subject (with additions to the earlier memorandum being underlined in this decision, and deletions being struck through):

If on any given day you cannot report to work on time or will be away for any leave that has not been pre-approved, such as illness or you experience unexpected delays, you must make every reasonable effort to contact your supervisor by phone before the scheduled start of your workdayat 905[-XXX-XXXX]. If she is not available, you must then make every reasonable effort to contact the Manager at 905[-XXX-XXXX]. If you are unable to reach either individual during regular business hours, you must leave a detailed voice mail message which indicates the reason for your absence, the duration of your absence, the type of leave you are requesting, and a phone number where you can be reached.

7 The new memorandum also stated that “[l]ong distance personal phone calls are not to be made except for emergency cases and where pre-authorization has been given by your Supervisor or Manager” [emphasis in the original]. In addition, it contained the following statement: “Failure to adhere to the standards outlined above will result in disciplinary action up to and including termination.”

8 The grievor is African-Canadian and had been actively involved in union affairs. In the discrimination and harassment grievances, since withdrawn, she alleged that the abusive treatment she had suffered had its origins in her race and her union activity, a theme that was also raised in the remaining grievances.

Collective agreement provisions

9 The collective agreement applicable to the grievor was the one between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group (all employees), with an expiry date of June 20, 2014 (“the collective agreement”). The following provisions were referred to:

…

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

…

34.06 The Employer shall give an employee as much notice as is practicable and reasonable of approval, denial, alteration or cancellation of a request for vacation or furlough leave… .

…

35.02 An employee shall be granted sick leave with pay when he or she is unable to perform his or her duties because of illness or injury provided that:

(a)      he or she satisfies the Employer of this condition in such manner and at such time as may be determined by the Employer;

and

(b)      he or she has the necessary sick leave credits.

35.03 Unless otherwise informed by the Employer, a statement signed by the employee stating that, because of illness or injury, he or she was unable to perform his or her duties, shall, when delivered to the Employer, be considered as meeting the requirements of paragraph 35.02(a).

…

Unauthorized use of telephone

10 On January 19, 2011, Ms. Lewis sent an e-mail to her staff, as well as to the citizenship judges working out of the Mississauga office, about the use of the office telephones. This is what she wrote:

Upon reviewing the Bell telephone bill, I note that there are a number of long distance charges. While I understand that our business often requires us to contact clients and colleagues outside of our local calling area, personal long distance phone calls are not to be made.

If you are required to make a personal call for urgent reasons, please let your supervisor know.

I will be distributing the portions of the bill relevant to each phone number and will be asking you to identify what is personal and what is business.

11 Ms. Lewis testified that, as of that time, about half of the addressees of the e-mail had used the office telephones for personal long-distance calls. As Ms. Lewis had to approve payment of the office telephone bill, the finance clerk had brought the issue to her attention. The personal calls were expenses for which the employees, and not the Government of Canada, were responsible. It was contrary to departmental policy to use government equipment for personal purposes.

12 In the months following her e-mail, Ms. Lewis performed a cursory review of the telephone bills to see whether this unacceptable practice had continued.

13 The telephone bills dated July 13, 2011, and August 13, 2011, revealed that 33 long-distance telephone calls had been made from the grievor’s telephone number during those two months. The grievor, when shown the bills, acknowledged that 32 of the calls had been personal, and one had been business. The cost of the personal calls appears to have been $6.90. Their total duration was 146.1 minutes.

14 Ms. Lewis testified that she was concerned by the grievor’s violation of procedures. After consulting Labour Relations, she met with the grievor. The grievor told her that the calls arose from two pressing personal situations with which she was dealing at the time. The first was that her daughter was going away to university in Hamilton, Ontario, and the grievor was trying to arrange accommodation for her. The second situation was the serious illness of an aunt who lived in Owen Sound, Ontario. Ms. Lewis, who had previously been informed of these two situations by the grievor, had suggested that, if she needed time to attend to them, she should take some leave.

15 The grievor testified that she had not intended to violate Ms. Lewis’ directive. The two of them had met in July 2011, at which time she had informed Ms. Lewis that her daughter would be going to university in Hamilton and that her aunt was ill. She believed at the time that Ms. Lewis had authorized her to make long-distance calls from the office telephone for these purposes, but she later realized that she must have misunderstood her. The grievor added that she had a cell phone of her own, which she would have used to make these calls if she had been aware that using the office telephone was a problem. When Ms. Lewis brought this matter to her attention, she immediately gave her $10.00 in cash to cover the cost of the calls. However, Ms. Lewis asked her to make out a cheque to the Government of Canada, which the grievor did, right away. In her testimony, the grievor apologized for her mistake.

16 Heidi Jurisic, Director of GTA West for the department, was informed of this situation by Ms. Lewis. She decided to suspend the grievor for 30 days without pay, a measure beyond Ms. Lewis’ authority. Ms. Jurisic testified that, in reaching this decision, she took into account that the grievor had not accepted responsibility for the violations and had expressed no remorse. She was also struck by the number of personal calls the grievor had placed. The grievor, she testified, had provided no explanation why she could not have complied with the directive about the use of the telephone. She testified that the grievor was the only employee in the office who had made personal long-distance calls without authorization after January 19, 2011, the date of Ms. Lewis’ directive. She acknowledged that the grievor had reimbursed the government for the cost of the calls. She relied on advice from Labour Relations that, in the continuum of disciplinary measures, the only possible step between a 25-day suspension and discharge was a 30-day suspension.

17 The letter of suspension, dated November 3, 2011, read, in part, as follows:

…

I am satisfied that your actions were wilful and that you knew or ought to reasonably have known that your conduct was inappropriate and a direct breach of management’s directive.

Given the above, I have determined that a significant disciplinary measure is required to both correct your behaviour and to prevent any future breaches of conduct. In keeping with the principles of progressive discipline, I have decided to issue you a 30 day suspension without pay….

…

Please note that this is your final warning and any further misconduct will result in the termination of your employment.

Absence on September 13, 2012

18 On the afternoon of August 31, 2012, the Friday before Labour Day, the grievor was absent from work. On August 30, the grievor had completed a request for leave for the afternoon of August 31, but did not transmit it for approval until 3:07 p.m. Geny Petraki, the grievor’s supervisor, testified that by 3:07 p.m. on August 30, she (Ms. Petraki) had left the office, her regular working hours being from 7:00 a.m to 3:00 p.m. every day. Without having received approval for her requested leave, the grievor left work on August 31 before her normal quitting time. Ms. Petraki felt that the grievor’s absence on August 31 should be treated as an unauthorized absence and one that was expressly forbidden by the memoranda of expectations the grievor had received. However, in discussions with Labour Relations, it was pointed out that the grievor might have been mistaken about Ms. Petraki’s quitting time and that she should therefore be given the benefit of the doubt. Ms. Petraki reluctantly approved the leave. She sent an e-mail to the grievor on September 4, which read as follows:

Hi Donna, as you know I leave the office at 3:00 p.m. every day. I was not able to approve this leave as you sent it to me after I was gone for the day and was not in on Friday. You taking leave without it being approved as you know is unauthorized leave. That being said, I will approve it now but note in the future if this happens it will not be approved.

If I am not in the office, please let Maureen [Lewis] know you have submitted leave to me and I have not approved it, so you can then reassign it to her to be approved prior to your absence.

Thank you for your attention to this matter.

19 On September 13, 2012, just over a week after Ms. Petraki’s e-mail, the grievor again took leave without authorization. The previous day, the grievor had made a request for one day of vacation leave to be taken on September 13 by way of an e-mail to Ms. Petraki, sent at 3:20 p.m., which read as follows: “I have to take annual leave tomorrow September 13, 2012. I am sorry. My peoplesoft [sic] was not working. So, I am submitting my request to you by hard copy.”

20 PeopleSoft was the software used by the department to manage employee leave. Since the grievor was unable to use it on the afternoon of September 12, she sent the e-mail to Ms. Petraki and left a handwritten leave application on Ms. Petraki’s desk.

21 Ms. Petraki testified she was shocked to discover the grievor’s leave application. The grievor had been specifically informed on September 4 that Ms. Petraki left work at 3:00 p.m. and that vacation leave could be taken only with prior approval. Ms. Petraki brought this matter to the attention of Ms. Lewis.

22 Ms. Lewis testified that she was usually in her office from 8:00 a.m. to 4:00 p.m., and the grievor could have asked her, at 3:20 p.m. on September 12, for authorization for the leave. The grievor, it appeared, made no attempt to contact Ms. Lewis that afternoon. After consulting with Labour Relations, Ms. Lewis decided that she had to meet with the grievor to discuss this latest violation. She was planning to meet with her on Monday, September 17. However, the grievor, according to Ms. Lewis, appeared to be avoiding a meeting. When pressed by Ms. Lewis, the grievor replied: “I can’t deal with the meeting right now. Call my lawyer.”

23 On September 21, not yet having spoken to the grievor, Ms. Lewis sent her an e-mail, telling her that her absence on September 13 would be recorded as unauthorized leave.

24 The grievor testified that she believed at the time she made this request for leave that Ms. Petraki was at work until 3:30 p.m. In any event, had her PeopleSoft been working, her request would have come to Ms. Petraki’s attention before 3:00 p.m. She knew she had vacation leave credits to cover her absence. She was also not aware of any staff changes or commitments that would have prevented her from taking leave that day. She added that she had had a few short-notice leave applications approved in the past.

25 The grievor further testified that in keeping with the “culture” at the office, where she had worked for 24 years, an employee could take leave for which he or she had applied, even without prior authorization, unless informed that the employer had turned down the application.

Absence on September 17, 2012

26 At about midnight on September 16-17, the grievor left a voice mail message for Ms. Petraki that she would not be in to work on September 17 as she was sick. She left a telephone number where she could be reached.

27 Ms. Lewis decided that this leave request, not having complied with the procedure stated in the memoranda of expectations given to the grievor, which required her to contact Ms. Petraki or Ms. Lewis before the scheduled start of her working day, had to be treated as unauthorized leave.

28 Ms. Lewis added, in cross-examination, that the grievor should have had no difficulty complying with the requirement in the second memorandum of expectations that she call in before the start of her scheduled working day. Ms. Lewis herself would not have been at work until 8:00 a.m, but Ms. Petraki started at 7:00 a.m., which was before the grievor, who started at 7:15 a.m.

29 The grievor testified that she knew she was supposed to request sick leave before the time she was due to report for work. However, she was ill that night. She left a message for Ms. Petraki at midnight. She could not fall asleep until about 4:00 a.m. She then slept through until about 1:00 p.m. She felt she had complied with the protocol in the memoranda of expectations. It was never her intention to disregard the employer’s directive. She had worked in a supervisory role, and she understood management’s perspective on such questions. In her testimony, the grievor again apologized for anything she had done wrong in relation to the sick leave request.

30 The grievor added that she felt the respondent was discriminating against her by imposing on her, but not on any other employees, the requirement that she report an absence due to illness before the scheduled start of her working day.

31 The grievor also testified that she now recognized that, at the time, she was experiencing hormonal changes, which could account for some of her adversarial behaviour towards Ms. Lewis, even though the two had known each other for many years and had had a good relationship. This could account for a letter she sent to Ms. Lewis on October 10, 2012, entitled “Victim Impact Statement”, in which she accused her of dishonesty and harassment.

32 Evidence was also given on behalf of the grievor by Elaine Bower, a recently retired long-service employee in the grievor’s office, who had also been president of the union local. She testified that she had been granted sick leave even though she did not speak to a manager or supervisor before the time she was due to report for work. She also testified that employees, including herself, would take vacation leave for one day at a time without getting prior approval, and she had never heard of anyone being disciplined for this before the grievor. She acknowledged, however, that she had had no attendance issues and had not been subject to any memoranda of expectations.

33 The grievor’s unauthorized absences on September 13 and 17 were brought to the attention of senior management, and Robert Orr, Assistant Deputy Minister (Operations), approved her discharge from employment. Mr. Orr was briefed on the grievor’s misconduct. He concluded that the grievor appeared to be a person who was not prepared to take responsibility or to work within the system despite several clear warnings. In view of her repeated failure to comply with instructions, he concluded that the employment relationship had been irreparably damaged and that the respondent could not have the required trust in her.

Parties’ submissions

34 Counsel for the respondent maintained that the facts were simple and uncontested. The grievor had committed three disciplinary violations. The respondent followed the principles of progressive discipline, with the result that it was fully justified in imposing a 30-day suspension followed by a termination. The facts revealed a clear unwillingness by the grievor to follow procedures, making it impossible for her employment to continue.

35 As for the protocol in the memoranda of expectations for the granting of sick leave, the adjudicator asked counsel for the respondent whether the respondent had purported to add a condition to the granting of sick leave which was incompatible with clause 35.02 of the collective agreement. Counsel replied that, if the grievor felt that the protocol was not in conformity with the collective agreement, she should have followed the rule of “obey now, grieve later” rather than simply disobey the protocol.

36 Counsel for the respondent referred to the following decisions: City of Calgary v. C.U.P.E., Local 37 (2010), 196 L.A.C. (4th) 225; Wentges v. Deputy Head (Department of Health), 2010 PSLRB 24; Pugh v. Deputy Head (Department of National Defence), 2013 PSLRB 123; Teti v. Deputy Head (Department of Human Resources and Skills Development), 2013 PSLRB 112; Northwest Territories Power Corp. v. Union of Northern Workers (2004), 132 L.A.C. (4th) 275; Weyerhaeuser Co. (Drayton Valley Operations) v. United Steelworkers Local 1-207 (2007), 159 L.A.C. (4th) 56; and Dearnaley v. Treasury Board (National Defence), PSSRB File Nos. 166-02-15008, 15009, 15154 and 15155 (19851101).

37 The grievor’s representative noted that the memoranda of expectations given to the grievor held her to a higher standard than other employees. He argued that the evidence supported the conclusion that she had been discriminated against on the ground of her race, contrary to article 19 of the collective agreement. The respondent should not therefore be permitted to rely on the rules contained in the memoranda.

38 According to the grievor’s representative, the protocol contained in the second memorandum of expectations concerning sick leave was also inconsistent with clause 35.02 of the collective agreement, which was an additional reason the respondent could not rely on it. Moreover, the requirement of giving advance notice of absence due to illness was unreasonable since Ms. Petraki started work only 15 minutes before the grievor, making it very difficult, under the best of circumstances, for the grievor to give notice to Ms. Petraki before her (the grievor’s) scheduled starting time.

39 The representative further argued that nothing the grievor had done met the definition of a “culminating incident”.

40 The respondent had taken a heavy-handed approach to disciplining the grievor, being more concerned to punish her than to attempt to correct her behaviour. In particular, in the case of the use of the office telephone, the respondent should have accepted the grievor’s explanation that she had acted under a misunderstanding. She had her own cell phone, and there was no reason for the respondent to reject her explanation that she believed she was authorized to use the office telephone.

41 As for the taking of vacation leave before it had been formally approved, the representative maintained that the grievor had acted in accordance with the “culture” at the office, which allowed employees to make the assumption that leave had been approved unless they heard from the respondent to the contrary.

42 The grievor should be reinstated in employment, according to her representative. There had been no wilful disregard of management’s instructions, merely some possible misunderstandings. There was no challenge to management’s authority. The respondent had been micromanaging the grievor, as if looking for an opportunity to discipline her. The grievor’s behaviour was also likely affected by the hormone changes she was experiencing at the time. The adjudicator should reduce the penalty.

43 In the course of his submissions, the grievor’s representative referred to Wentges; Pugh; City of Calgary; and Lâm v. Deputy Head (Public Health Agency of Canada), 2011 PSLRB 137.

Reasons

44 The first observation I wish to make is that the grievor has not presented a shred of evidence to support her allegation that her race or union activity was relied on by the respondent in its disciplinary decisions. All I have in support of that allegation are the bald assertions of the grievor and her representative, which are manifestly insufficient to transfer an onus onto the respondent.

45 The next question I wish to address is whether any discipline was warranted for the grievor’s unauthorized use of the office telephone for personal long-distance calls.

46 The grievor placed 32 such calls over a two-month period, some six months after Ms. Lewis’ e-mail telling employees to stop this practice. The grievor’s explanation in her testimony was, essentially, that she mistakenly believed that Ms. Lewis had approved her making these calls and that, as soon as she realized she was mistaken, she reimbursed the respondent the $6.90 that had been charged by Bell.

47 I am satisfied that making long-distance calls on the employer’s telephones without permission is a disciplinary offence even if the employee has not been specifically warned to refrain from any such activity: see, e.g., Quigley v. Treasury Board (Employment and Immigration Canada), [1989] C.P.S.S.R.B. No. 67, and Toronto Community Housing Corporation v. Toronto Civic Employees Union, Local 416 (Duncan grievance), [2012] O.L.A.A. 206.

48 There were undoubtedly factors in this case that tend to reduce the grievor’s culpability. I refer in particular to the modest cost of $6.90 for the calls in question, which can be compared, for example, with the $13,000 worth of calls in Toronto Community Housing Corporation, or the $563 worth of calls in Quigley. I also refer to the grievor’s prompt recognition of her responsibility and her tendering of payment for the calls immediately this was brought to her attention.

49 If this had been a first disciplinary offence for the grievor, one would have expected a minimal disciplinary response, notwithstanding Ms. Lewis’ e-mail of January 19, 2011. However, since the grievor had a disciplinary record, the most recent penalty being a 25-day suspension in April 2010, it is impossible for me to conclude that the 30-day suspension without pay imposed by Ms. Jurisic was unwarranted.

50 The discharge was imposed on the grievor following two absences from work.

51 The first absence was on September 13, 2012. The grievor requested vacation leave for September 13 on the previous afternoon. She sent her request for leave to her supervisor, Ms. Petraki, at 3:20 p.m., by which time Ms. Petraki had left the office. The grievor made no attempt to contact Ms. Lewis, her manager, for approval, even though Ms. Lewis was usually at work until 4:00 p.m. Without receiving any approval of her leave request, the grievor absented herself from work on September 13.

52 For the respondent, the grievor’s misconduct in failing to report for work on September 13 was aggravated by two factors. Firstly, the memoranda of expectations she had received on October 4, 2010, and January 4, 2012, had specifically reminded her of the need to have any vacation leave pre-approved. Secondly, on September 4, 2012, a little more than a week earlier, Ms. Petraki had reinforced this message to the grievor, and had reminded her that she (Ms. Petraki) left work at 3:00 p.m.

53 For the grievor, her failure to request the leave in a timely fashion was attributable to problems with the PeopleSoft system used in the department. She also sought to avoid responsibility for her failure to request the leave in advance by claiming that the “culture” in the office allowed employees to take leave for which they had applied for even if it had not yet been approved and by claiming that she was undergoing changes in her hormones at the time.

54 I am not impressed by any of the grievor’s excuses for not complying with the common-sense requirement that employees obtain pre-approval of their leave.

55 As for the alleged “culture” at the office, the grievor’s evidence on its existence was entirely hearsay. The testimony of Ms. Bower, while not entirely hearsay, lacked the specificity that would be required for a finding in favour of the grievor on this subject. The respondent’s witnesses were not even questioned by the grievor’s representative about this alleged culture. But, more importantly, even if there was an unwritten understanding allowing employees to take vacation leave in the absence of pre-approval, the respondent had made it clear to the grievor in the memoranda of expectations that she had to have all her vacation leave applications approved in advance. I was not given any evidence about the precise reasons that led the respondent to impose this requirement on the grievor. However, while the grievor might have felt that this requirement was discriminatory towards her, she did not convince me that this was the case and in any event, she was not at liberty simply to disobey it. She could have challenged it by way of grievance, but failed to do so. She was therefore obliged to obey the memoranda of expectations on this subject.

56 The grievor also claimed that her failure to comply with this requirement could be attributed to changes in her hormones. However, apart from her own testimony, no evidence was adduced to support her claim to that effect. If an employee intends to rely on health issues to avoid disciplinary penalties, the least an adjudicator expects is that the defence be supported by something other than the employee’s own testimony, preferably by medical evidence.

57 I am satisfied that disciplinary action was warranted for the grievor’s unauthorized absence on September 13.

58 The grievor’s absence from work on September 17, 2012, was the final offence relied on by the respondent in support of the discipline imposed on the grievor. The grievor called in at about midnight and left a voice mail message that she was ill and would not be reporting for work that day. She left a telephone number where she could be reached. She made no attempt to speak directly with her supervisor or manager before the scheduled start of her working day, at 7:15 a.m., thereby breaching the following condition contained in the second memorandum of expectations:

If on any given day you cannot report to work on time or will be away for any leave that has not been pre-approved, such as illness or you experience unexpected delays, you must make every reasonable effort to contact your supervisor by phone before the scheduled start of your workday. If she is not available, you must then make every reasonable effort to contact the Manager at 905[-XXX-XXXX]. If you are unable to reach either individual during regular business hours, you must leave a detailed voice mail message which indicates the reason for your absence, the duration of your absence, the type of leave you are requesting, and a phone number where you can be reached.

59 The grievor’s explanation for her failure to comply with this requirement was that she was ill that night. She left the voice mail message at midnight. She fell asleep at 4:00 a.m. and slept through until 1:00 p.m. She felt that, in the circumstances, she should be considered to have acted in conformity with the memorandum. I note that the grievor’s account of her health and her sleep that night was not challenged in cross-examination.

60 In the course of argument, I suggested to counsel for the respondent that, by requiring the grievor to call in, the respondent might have been attempting to add a condition to the granting of sick leave, something it could obviously not do. The parties to the collective agreement had specified, in clause 35.02, the conditions an employee must meet to be entitled to sick leave, and the respondent had no right to require more from the grievor. On reflection, however, it seems to me that while the call-in requirement could undoubtedly not be considered as a condition to the granting of sick leave, the respondent was at liberty, in the interests of managing its workforce, to require that it be made aware, in a timely fashion, of employees’ inability to report for work as scheduled. I note that a similar conclusion was reached in Wentges.

61 The requirement imposed on the grievor, in the event she was unable to show up for work on time, was that she make every reasonable effort to speak to her supervisor (Ms. Petraki) or her manager (Ms. Lewis) before the time she was due to report. Ms. Petraki regularly started work at 7:00 a.m, the grievor at 7:15 a.m. and Ms. Lewis at 8:00 a.m. As a result, what the memorandum of expectations required of the grievor was that she attempt to call Ms. Petraki between 7:00 and 7:15 a.m. The grievor’s testimony that, on September 17, she was asleep between 7:00 and 7:15 a.m., having finally fallen asleep at 4:00 a.m. after taking ill that night, is certainly plausible. Although it might appear that it was so convenient for the grievor to have been asleep at the critical time that I should treat her testimony with scepticism, I have no valid reason to reject her testimony on this point.

62 It is well established that an employer cannot discipline an employee for insubordination unless it proves that the non-compliance was a deliberate refusal of management’s order or an attempt to undermine management’s authority: see, e.g., Volvo Canada Ltd. v. C.A.W., Local 720 (1990), 12 L.A.C. (4th) 129. I am not satisfied that the grievor’s failure to attempt to reach her supervisor during the brief window between 7:00 and 7:15 a.m. as a result of being asleep constitutes insubordination, according to this test. In these circumstances, I cannot conclude that discipline was justified for the grievor’s failure to comply with the call-in requirement.

63 The grievor’s discharge from employment was based on her unauthorized absences on September 13 and 17, 2012. I have found that discipline was justified for the September 13 absence, but not for the other one. The question I therefore have to address is whether, given the grievor’s disciplinary record, discharge was an appropriate sanction for the September 13 absence.

64 I should state in the first place that it appears likely from the evidence that the only reason the grievor was not discharged immediately after the September 13 absence was that she had been avoiding Ms. Lewis, and that Ms. Lewis did not manage to meet with her until after the September 17 incident. Believing that the grievor had twice absented herself without authorization in September, the respondent decided to cite the two absences as grounds for the discharge.

65 In any event, even if I am wrong on that point, I am satisfied that discharge was not an over-reaction for the unauthorized absence on September 13. If this absence were looked at in isolation, it could not support a discharge. However, since I have upheld the 30-day suspension imposed for unauthorized long-distance telephone calls, it is impossible to conclude that the discharge was unreasonable. According to the principle of progressive discipline, an employer is justified in escalating the sanctions it imposes on an employee for successive disciplinary infractions. If the employer discharges the employee, the validity of the discharge depends on the employee’s entire disciplinary record and not just on the gravity of the culminating offence. After the 30-day suspension in November 2011, the respondent cannot be faulted for discharging her from employment for the September 13 incident.

66 For all the above reasons, I make the following order:

Order

67 The grievances are dismissed.

March 7, 2014.

Michael Bendel,
adjudicator