FPSLREB Decisions

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        The grievor, Lorne Knihniski, grieved disciplinary action taken against him on April 8, 2014, by the employer, the Correctional Service of Canada (CSC or “the employer”). He received a three-day financial penalty for his failure to report to duty on March 14, 2014, and for his insubordinate behaviour towards Correctional Manager (CM) Grace Chopty on March 22 and 23, 2014. At all material times, the grievor was employed as a correctional officer 01 (CX-01) at the Regional Psychiatric Centre in Prince Albert, Saskatchewan (“the institution”).

2        At the hearing, the grievor acknowledged that he did not report for work on March 14, 2014, and he accepted responsibility for his actions. He then changed his requested remedy and sought only the reimbursement of two days of the three-day financial penalty. For that reason, only the evidence related to the insubordination allegations will be addressed.

3        The grievor maintains that not only was the discipline for the insubordination excessive but that by recording the incidents in notes that are used in assessing his performance, he was disciplined twice for the same offences.

4        The grievance was filed in April 2014.  On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

5        On March 22, 2014, the grievor was scheduled to escort an inmate to a hospital outside the institution. Before leaving for the escort, the grievor spoke to CM Chopty and requested to be relieved part way through his shift. When his request was denied, he used inappropriate language towards Ms. Chopty in the presence of staff and others at the institution’s principal entrance.

6        The next day, when Ms. Chopty became aware that the grievor was not carrying his pepper spray (“OC spray”) while on duty as required by policy, she sought him on the unit where he was assigned. Once there, she discovered that not only was he not carrying OC spray as required, but also he was not wearing his duty belt as required.

7        Ms. Chopty asked the grievor to follow her and to meet with her in private to discuss his equipment lapses; he refused. He yelled at her, then swore and stormed off. Later, he appeared at the CM office. He closed the door and continued to yell at her. At one point, he backed her up against the wall of the office and backed off only when she threatened to call the police if he did not.

8        The grievor alleged that double jeopardy applied in the circumstances since following the incident, Ms. Chopty advised him that his behaviour would be noted in his officer’s notes, which are used for performance evaluation purposes.

Ms. Chopty’s evidence

9        On March 22, 2014, Ms. Chopty was the CM responsible for staff movement at the institution. At approximately 06:30, she went to the front gate to supervise staff reporting for their shifts. The principal entrance is a small area; approximately 10 people were present that day, the grievor among them. He was preparing to go on a hospital escort. He told Ms. Chopty that he expected to be relieved at the hospital halfway through his shift, which was unusual since it was a medium-security escort involving two officers. Relief is not provided when two officers are on an escort.

10        When Ms. Chopty told the grievor as much, he became agitated and began yelling. He told her that another correctional manager had told him the night before that relief was possible. He asked Ms. Chopty “why the f… [she] cared if [he] got relieved at half-time”. When Ms. Chopty tried to explain that she was not in charge of the roster that morning and that thus she could not authorize the relief he demanded, the grievor told her to “shut up and listen” and that she was to find him relief at half-time. After he was done yelling, he stormed out of the institution.

11        The grievor had been so loud in the principal entrance that people stopped what they were doing to watch his interaction with Ms. Chopty. A few minutes after he left, he phoned her at the principal entrance. He told her that his partner on the escort was working a short day, so Ms. Chopty would need to send two officers to relieve them at the hospital. She reiterated that that was beyond her control and that he should speak to the CM in charge of the roster. At no time did he apologize for his behaviour.

12        On March 23, 2014, Ms. Chopty was delivering completed performance evaluations. She went to the staff mailboxes to deliver them, and while she was placing them into the mailboxes, she noticed that the grievor’s OC spray was still in his mailbox, where it is stored when an officer is off-duty. All officers are required to carry their OC spray while on duty.

13        Ms. Chopty went to the other CM on duty and asked him to accompany her to the unit where the grievor worked, to deliver the OC spray to him. She asked him to come as added support after the events of the day before.

14        The grievor was working on the Bow Unit, a 100-bed open unit housing volatile mentally ill inmates. He would have been unable to respond without his OC spray, which he is required to wear on his duty belt. When Ms. Chopty arrived on the unit, the grievor was seated behind the desk, operating the doors. Approximately five other officers were also behind the desk as well as about 15 inmates who were milling around the desk, getting their breakfast. It was medication time on the unit. Ms. Chopty asked the grievor to join her in the back office; he refused and told her to say what she needed to say at the desk.

15        Rather than make a scene, Ms. Chopty handed over the OC spray and noticed that the grievor was not wearing his required duty belt. She asked him where it was. He became defensive and stood up and asked her, “What the f… [her] problem is?” He then told her that he had never been issued a duty belt. She directed him to accompany her to the front gate, where she would issue him one. He refused and told her that he was going home sick.

16        When he said that, he was standing very close to her. She was embarrassed that he was yelling at her in front of inmates and other correctional officers. It undermined her authority in front of both of them. She left and returned to the office she shared with the other CM on duty.

17        A few minutes later, the grievor appeared in the doorway of the very small office and insisted on speaking to Ms. Chopty alone. She asked if he wanted a union representative present for the conversation. He began yelling at her and accusing her of picking on him for the events of the day before. He also accused her of bossing him around and wanting to be in control all the time.

18        Ms. Chopty was also yelling at the grievor, saying that she could not believe he went to his post without his OC spray. She then stopped yelling, but he continued, stating that he was not married to her, so he did not have to listen to her. He had by then backed her into a corner and was shouting in her face. She told him to back away and lower his voice, or she would call the police. She felt threatened, which she told him.

19        The grievor did back off. He lowered his voice and began talking calmly to Ms. Chopty. He told her that he felt that she was picking on him because of the previous day’s incident. She explained that she was acting out of concern for his safety and that it was necessary for him to carry all his safety equipment while on duty. He then accused her of being unprofessional. He refused to take the duty belt she offered, stating that he had no need for one as he carried his safety equipment, including his OC spray, in his pockets.

20        Ms. Chopty allowed the grievor to return to his post after the encounter ended. She told him that she would let him know what would happen as a result of the incident. He left without apologizing.

21        Ms. Chopty reported the incident in an email to her manager, Rachel Parker (Exhibit 3, tab 6). She copied the grievor’s CM, Jean-Guy Ouellet. The purpose of the email was to let them know about the incident. She then forwarded the same email to the grievor. In it, she referred to the incident being “done and over with”, to quiet things down. The grievor was known to be very aggressive and to fly off the handle. She thought that by referring to the matter as being done and over, she would ensure that the rest of the shift would be uneventful.

22        At 08:45, half an hour after the first email, Ms. Chopty sent another email to Ms. Parker and Mr. Ouellet, with a copy to the grievor, describing the events of the previous day’s encounter about relief from the hospital escort (Exhibit 3, tab 6, page 2). As indicated to the grievor, she did make note of these events on the officer’s notes used for performance purposes (Exhibit 3, tab 7). On her next shift, she provided a lengthy recounting of the events to her human resources representative, at Ms. Parker’s request (Exhibit 3, tab 8).

23        Mr. Ouellet was the grievor’s direct supervisor at the material times. He met with the grievor and his union representative to discuss the matters in Ms. Chopty’s emails. The grievor indicated that he was not interested in discussing them as he was under the impression that she had finished with the matter. Mr. Ouellet told the grievor that as his direct supervisor, he needed to discuss the inappropriate behaviour the grievor had displayed. The grievor insisted on leaving, and there was no discussion.

24        After looking at all the factors, including the grievor’s behaviour; the environment; his demeanor when addressing a CM; his directing Ms. Chopty to provide relief; his having been belligerent, threatening, and disrespectful to a CM on two occasions in front of other officers and inmates; his refusal to move to a private area to continue a discussion when requested to by a CM; his failure to treat Ms. Chopty with respect and dignity, as required by the employer’s Code of Discipline (Exhibit 3, tab 3); and his unwillingness to resolve these conflicts in a respectful manner, the financial penalty was imposed on him.

25        Mr. Ouellet reached that conclusion because in his words, the grievor’s behaviour had been “over the top”. The grievor was a seasoned officer who had knowledge of the CSC and of its expectations of his conduct. Ms. Chopty’s emails and her additions to the grievor’s officer’s notes were not the end of the matter. Discipline was warranted.

The grievor’s evidence

26        The grievor sought relief from his escort duties on March 22, 2014, because he had a sick child at home. He had spoken to a correctional manager at approximately 05:30 that morning and had requested relief. According to the grievor, CM Sullivan had told him that there should be no problem but that he should ask one of the CMs on duty when he arrived at 06:45. The grievor did so; he asked Ms. Chopty. When he was denied the relief, he became angry, and she took the brunt of it. According to him, he told her that she should “tell whoever is on the desk I want relief at half time and I will get relief at half time” [emphasis added]. He admits his behaviour in this encounter was inexcusable.

27        The grievor phoned Ms. Chopty sometime later to remind her that he was to be relieved at half-time. When he left for the hospital with the inmate, the grievor was upset and ashamed of his actions because the conversation had not ended well.

28        The next day, Ms. Chopty came to Bow Unit, where the grievor was on post. She asked him to join her and another CM, Mr. Dayday, in the back office. He declined because he was in charge of the doors at a time when there was considerable inmate movement, and all the other officers on the unit were otherwise busy. Ms. Chopty informed him that he had failed to put on his OC spray as required for the job. He took the OC spray from her. She then realized he was not wearing a duty belt. He explained that his duty belt was broken and that he had not been issued a one.

29        Ms. Chopty offered to issue him a new belt and ordered the grievor to put on the spray as required. He felt that he was being singled out because of his actions the day before. She was trying to make a point and to show him who was boss. He told her that he was stressed and that he wanted to go home as he was sick.

30        The grievor went to change out of his uniform, but he felt that he could not let the encounter end as it had. He needed to express his concerns about being singled out. He went to the office Ms. Chopty shared with Mr. Dayday. He asked Mr. Dayday to leave so that he could speak to Ms. Chopty alone. He then closed all three doors in that room. The conversation he had with Ms. Chopty was animated and heated on both parts, but according to the grievor, more so on his part. He accepted responsibility at the hearing for the inappropriate language and for raising his voice.

31        The grievor described the conversation as civil once both calmed down. They discussed the incidents of March 22 and 23 civilly. He does not remember getting up and backing Ms. Chopty into a corner and in his words, being “in her face”.

32        The grievor received the emails from Ms. Chopty. He thought things were finished. He had apologized to her. There was no reason to discuss the incidents with Mr. Ouellet as Ms. Chopty had already dealt with the matter.

III. Summary of the arguments

A. For the employer

33        The penalty imposed was appropriate and reasonable in the circumstances and should not be disturbed (see Mercer v. Deputy Head (Department of Human Resources and Skills Development), 2016 PSLREB 11 at para. 55).

34        Ms. Chopty was forthright and credible. Her testimony was not contradicted and must therefore be considered accurate. The grievor’s conduct on March 22 and 23, 2014, was inexcusable and inappropriate in any workplace. He was insubordinate and contentious of authority. His behaviour on Bow Unit was aggravated by confronting Ms. Chopty in her office later that morning rather than taking the time to cool off. The grievor did not apologize or show any remorse. He refused to discuss the incidents at a disciplinary hearing and simply walked out.

35        The grievor’s behaviour did not indicate any understanding of the severity of his misconduct or that it should not be repeated. He suggested in his testimony that he was ashamed and remorseful for his behaviour, but the hearing was the first time he expressed that sentiment. By the time of the hearing, it was too late to say he was sorry. Even then, he never identified what he had done and why it was wrong.

36        The penalty the employer imposed was within a reasonable and appropriate range. It was even at the low end of the disciplinary scale. Ms. Chopty’s emails were intended to defuse the situation, so it was reasonable for Mr. Ouellet to discipline to grievor. (See Bettenson’s Sand & Gravel Co. v. U.F.C.W., Local 401, 2003 CarswellAlta 1125; Finning (Canada) v. I.A.M. & A.W., Local 99, 2003 CarswellAlta 2164; I.A.B.S.O.I., Local 805 v. Canam Steel Works, 1998 CarswellAlta 1457; Lachance v. Treasury Board (Agriculture Canada), PSSRB File No. 166-02-26840 (19960329), [1996] C.P.S.S.R.B. No. 26 (QL); Northwest Waste System Inc. v. Transport, Construction & General Employees’ Association, Local No. 66, 2007 CarswellBC 3214; Quality Meat Packers Ltd. v. U.F.C.W., Local 175/633, 2002 CarswellOnt 4703; Toronto Transit Commission v. ATU, Local 113, 2015 CarswellOnt 14985; and Volvo Canada Ltd. v. C.A.W., Local 720, 1990 CarswellNS 798).

B. For the grievor

37        The only question for the Board to decide is whether the grievor was disciplined twice for the same offences. He admitted to having heated discussions with Ms. Chopty on March 22 and 23, 2014. He admitted that he had been loud and inappropriate. At the hearing, he has admitted that he was insubordinate and accepted responsibility for his actions. The only live issue is whether Ms. Chopty’s entries in the grievor’s officer’s notes were disciplinary and the effect of her email statement that things were over. Mr. Ouellet took it upon himself to pursue disciplinary action, but it was too late.

38        The principle of double jeopardy applies. Once the employer told him that comments would be added to his officer’s notes to be used in his performance review, it could no longer discipline the grievor (see Canada (Attorney General) v. Babineau, 2005 FC 1288 at para. 13; Babineau v. Treasury Board (Correctional Service of Canada), 2004 PSSRB 145 at para. 20; Saskatchewan v. Saskatchewan Government and General Employees’ Union, 2012 SKQB 35 at paras. 28 and 33; and Calgary Co-Operative Association Ltd. v. Calco Club (1991), 23 L.A.C. (4^th) 142).

C. Employer’s reply

39        There is no evidence that officer’s notes are disciplinary. Ms. Chopty sent the email in question very shortly after a heated discussion. The supervisory CM, Mr. Ouellet in this case, generally imposes discipline.

IV. Reasons

40        The grievance is dismissed. The grievor has admitted to the impugned behaviour. His expression of insight and remorse at the hearing rang hollow and was too late. He had many opportunities before the hearing to apologize and to express remorse and never did. During the course of the events for which he was disciplined, the grievor could have stopped his unacceptable behaviour and removed himself from the situation, but he did not. The discipline imposed by Mr. Ouellet was neither wrong nor unreasonable in the circumstances.

41        It is a basic rule of arbitration law that an employer may not impose more than one penalty for the same offence, known as double jeopardy (see Brown & Beatty, Canadian Labour Arbitration, 4^th edition, at 7:4240). The evidence before me does not support a double jeopardy argument. The grievor did not receive two penalties for the same offences. His unacceptable conduct was noted in his officer’s notes for the purposes of conducting his performance review at a later date. There is no evidence showing that the entry in the officer’s notes would have had a negative impact on the grievor, including his future assessments. As such, the notes were not disciplinary.  Double jeopardy did not preclude the employer from recording the grievor’s behaviours for performance purposes in this case and at the same time pursuing disciplinary action for violations of its policies and unacceptable conduct in the workplace.

42         Furthermore, Mr. Ouellet was the grievor’s manager of record. He was responsible for ensuring that the grievor’s unacceptable behaviour was addressed. From Ms. Chopty’s perspective, she took the steps necessary to note the unacceptable behaviour, and she reported it to the CM charged with the responsibility of ensuring that the grievor behaved appropriately in the workplace.

43        For all of the above reasons, the Board makes the following order:

V. Order

44        The grievance is dismissed.

August 10, 2016.