FPSLREB Decisions

Heard at Abbotsford, British Columbia,
May 26 and September 7 and 8, 2016.
(PSLREB Translation)

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        The grievor, Paul Dawson, filed five grievances, all related to discipline imposed on him in the form of a four-day financial penalty by the Correctional Service of Canada (“the employer”). In each grievance, he alleged that the penalty was punitive and that it did not comply with the Treasury Board’s policy guidelines for discipline.

2        At the hearing, given that all five grievances were related to the same events, it was agreed that the grievance with Board file number 566-02-8924 would proceed as representative of all the grievances. The decision rendered on that grievance would apply to the remaining four grievances.

3        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 as well as the former Public Service Staffing Tribunal. The Board heard this complaint and grievance under the authority of the related implementing statutory instruments.

II. Summary of the evidence

4        The grievor is a correctional officer (classified CX-02) at the Pacific Institution (“the institution”) in Abbotsford, British Columbia. He was disciplined on May 28, 2012, as a result of his behaviour observed during mandatory annual use-of-force and 9 mm firearms recertification training. The grievor allegedly failed to pay proper attention and slept through the classroom portion of the training. He also allegedly failed to follow the Range Safety Officer’s directions during the live fire exercise held following the classroom session. His prior disciplinary record included a written reprimand for refusing to follow orders that was issued on April 12, 2011.

5        The employer’s concerns with the grievor’s behaviour at the mandatory annual use-of-force and firearms recertification were investigated by Randall Peters and Tuan Nuyen, neither of whom had completed any certification course in conducting such investigations. They were assigned to investigate the matter by Terry Hackett, the warden of the institution at the time, as is evidenced by the convening order (submitted as Exhibit 2, tab 12). They spoke to the recertification instructors and the grievor. 

6        Mr. Peters and Mr. Nuyen concluded that based on the description of the grievor’s behaviour by Mike Gagné, who was the classroom instructor, the allegation of the grievor sleeping during the training was unfounded. Merely because he had his eyes closed during the classroom session did not mean that he was asleep. He did not snore and was responsive to the classroom dialogue. 

7        However, the grievor admitted that he had his head down on his arms on the desk with his toque over his eyes, giving the impression that he was asleep to Mr. Gagné. According to Mr. Peters, the grievor minimized his behaviour by saying that the instructors did not need to see his eyes during the classroom session. Based on this and the statements of Mr. Gagné and Susan Hayre, the other course instructor, Mr. Peters and Mr. Nuyen concluded that the grievor was not paying attention and that he did not participate during the classroom portion of the training. Therefore, this allegation was founded, according to Mr. Peters and Mr. Nuyen. Despite not paying attention, the grievor passed the written portion of the classroom session.

8        Mr. Peters and Mr. Nuyen concluded that based on the officer statement and observation reports (OSOR) filed by Ted Kirby and Ms. Hayre, who were the range officers at the live fire portion of the recertification training, the allegations related to this portion of the training were founded. When the grievor failed to follow Mr. Kirby’s clear instructions during the live fire exercise, he was ordered to leave the range. Mr. Kirby gave instructions in a clear, concise, and loud manner and required the grievor to perform a threat scan following firing as discussed in the classroom session. The investigators had no doubt that, even though Mr. Kirby gave the instructions to the participants at the outdoor firing range while they were wearing ear defenders, the grievor was able to hear the directions and that he failed to conduct the scan as directed.

9        The threat scan exercise required the participants to report how many fingers Mr. Kirby was holding up following firing and the order to secure weapons. The grievor was unable to do it after the first round of fire. He holstered his weapon without direction from the range safety officer, Mr. Kirby, and did not perform a threat scan following the second or third round of fire. Based on this, Mr. Peters concluded that the allegation was founded that the grievor failed to follow the range instructors’ directions. 

10        According to Mr. Kirby, and as corroborated by Ms. Hayre, when Mr. Kirby ordered the grievor to leave the firing range, the grievor called Mr. Kirby a “dick”. The grievor’s recollections of this event were considered but were not credible. He described Mr. Kirby as aggressive and stated that Mr. Kirby disliked him. On the other hand, Mr. Kirby denied the existence of any animosity between him and the grievor. Since there was no one to corroborate the grievor’s version of the interaction in question, while Ms. Hayre corroborated Mr. Kirby’s version, Mr. Peters concluded that on the balance of probabilities, the grievor did in fact use the pejorative comment in question.

11        Mr. Gagné described the training session held on the morning of December 12, 2011. He was the staff training officer for the yearly recertification training in self-defence, use of force, and firearms. To proceed to the firearms portion of the training, the officers were required to pass the use-of-force portion, which was taught in a controlled classroom session. 

12        Following the classroom session, which involved PowerPoint presentations and a review of the employer’s policies, commissioner’s directives, and the Criminal Code (R.S.C., 1985, c. c-46), the officers were required to write a test. During the course of that day’s classroom session, Mr. Gagné noticed that the grievor had his head on the table and that he was clearly not paying attention. Mr. Gagné asked the grievor if he felt alright, and when the grievor responded that he was fine, Mr. Gagné asked him if he was bored by the session. The grievor ignored this question, according to Mr. Gagné.

13        Mr. Gagné testified that he continued with his teaching but that throughout the session, the grievor kept his head on the table. He described the grievor as unaware throughout the session. While Mr. Gagné expected that the grievor would be more attentive after Mr. Gagné questioned him, the grievor continued to show no interest. He did not participate in any way during the training session.

14        Mr. Gagné told Mr. Kirby that the grievor was not participating in the morning session and that he would not cooperate with the training. Mr. Kirby went into the classroom and saw the grievor with his head down and his toque over his eyes. He witnessed the grievor tell Mr. Gagné that he “... didn’t give a f..., [he] had been in the service for 10 years”.

15        Mr. Kirby was the range safety officer on December 12, 2011. The range safety officer is responsible for ensuring that the officers on the firing line properly use and store the weapons and that they adhere to the guidelines for using them. According to Mr. Kirby, anytime an officer finishes shooting, he or she is expected to carry out a threat scan, which is a 360° check to make sure that no other threat exists once the first threat no longer exists. The threat check is intended to break the tunnel vision effect that happens when firing a weapon and the effects of adrenaline associated with firing a weapon in a use-of-force situation.

16        Prior to the first course of firing, Mr. Kirby explained to the participants how they were to carry out the required threat scan. This was demonstrated in the classroom before going to the firing range. The participants were to do one before holstering their weapons. They were then to report how many fingers Mr. Kirby had been holding up. Everything is done on command for the safety of all on the firing range.

17        The grievor did not accurately complete the threat scan after the first course of fire, and he holstered his weapon without carrying out the required scan. Mr. Kirby directed him to conduct the required threat scan, but the grievor continued to refuse. After refusing a second time, the grievor was told to comply or leave the range. Again, he refused to perform the threat scan as directed. Mr. Kirby concluded that it was not safe to have the grievor on the firing range that day. He would not cooperate or follow the range officer’s instructions. He had been given three warnings, and in consultation with Ms. Hayre, Mr. Kirby directed the grievor to unload his weapon and to prove that it was safe by ejecting the magazine, applying the safety, and racking the chamber twice to empty it.

18        The grievor did not initially comply but did eventually, at which point Mr. Kirby took away his weapon. At this point, the grievor started to berate and swear at Mr. Kirby. The grievor was escorted off the range, and Mr. Kirby called the institution to report the incident. The training resumed after Mr. Kirby confirmed that the others on the range were alright to continue. Mr. Kirby and Ms. Hayre filed OSORs concerning this incident. Mr. Gagné also filed an OSOR about the grievor’s conduct in the morning after he heard about the events of the afternoon.

19        On receiving these OSORs, Mr. Hackett issued the convening order to investigate the allegations against the grievor to Mr. Peters and Mr. Nuyen, who both had lengthy experience at the institution. He was satisfied that they had the qualifications to complete the disciplinary investigation. He accepted the conclusions in their report. 

20        A disciplinary hearing was convened, which the grievor attended with his union representative. The grievor was given the opportunity to express any concerns he had with the investigation report, which had been shared with him before the hearing. Mr. Hackett asked the grievor about his conduct on the range that day. He also asked the grievor if there was anything that he should know about and consider when deciding the appropriate discipline.

21        During the disciplinary hearing, the grievor admitted that he could have acted more responsibly. In Mr. Hackett’s opinion, the grievor accepted only minimal responsibility for his actions. It was evident to Mr. Hackett that the grievor did not understand the employer’s concerns about his actions on the firing range and about the safety of those participating. The grievor told Mr. Hackett that he had hurt his hand and that he had been experiencing anxiety that day, although he had never communicated any of this to the range safety officer. Based on everything he heard at the disciplinary hearing, Mr. Hackett concluded that the grievor did not understand the gravity of the situation. The grievor deflected responsibility onto others, including Mr. Kirby.

22        A disciplinary letter was issued (Exhibit 1, tab 1), indicating to the grievor that he had been found to have committed a serious breach of the employer’s code of discipline and its standards of professional conduct (Exhibit 2, tab 3). The letter imposed a four-day financial penalty on him. In coming to this determination, Mr. Hackett considered as a mitigating factor that the grievor took some responsibility for his behaviour. However, there were significant aggravating factors, including the location of the incident, the circumstances of the misbehaviour, the number of times the grievor was spoken to concerning his behaviour over the course of the day, the potential consequences to everyone on the firing range that day, and the grievor’s previous disciplinary record for refusing to follow directions. Mr. Hackett testified that there has to be zero tolerance for such behaviour when the safety of employees is concerned.

23        Mr. Hackett noted that the grievor was not a new employee and that he had been on the firing range many times before this incident. Based on that, he knew what was expected of him there. He knew that the range safety officer had the ultimate control of those on the firing range and that talking back to or refusing to follow that officer’s directions was not allowed. The range safety officer is responsible for the safety of all on the range. Given the threat to the safety of those on the range, including the grievor, Mr. Hackett determined that a more severe penalty was required than a one-day financial penalty as provided in the “Global Agreement Between Correctional Service Canada (CSC) and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN)” (“the global agreement”; Exhibit 2, tab 7, at para. 3).

24        The grievor agreed in his testimony that he was required to conduct a threat scan after each course of fire. The requirement to identify the number of fingers being held up by Mr. Kirby was explained at the range and not in the classroom, contrary to what Mr. Kirby testified. After the first course of fire, the grievor claimed his glasses had fogged up and that he was suffering from extreme anxiety, which was why he could not properly identify the number of fingers. After the second course of fire, the grievor claimed that he did look over his shoulder and that he conducted the threat scan as required but that he was unable to see the number of fingers being held up.

25        Following the second course of fire, the grievor testified that Mr. Kirby was upset with him and that Mr. Kirby “got in his face”. The grievor testified that his hand had been hurt during the second course of fire, which affected his third course of fire. During that third course, he focused on the target and on remaining calm. Mr. Kirby was yelling instructions at the firing line, which the grievor claimed made it hard for him to concentrate.

26        According to the grievor, following the third course of fire, Mr. Kirby made a comment about the grievor needing prescription glasses. The grievor did not recall making any comment about this or anything else that Mr. Kirby said to him while on the range because he did not want his comments to be taken the wrong way. Mr. Kirby continued to yell at the grievor and spit in his face. 

27        According to the grievor’s testimony, following the third course of fire, Mr. Kirby told him to surrender his weapon. Again, he said nothing, according to his evidence. Mr. Kirby mentioned being a “dick”, not the grievor. When Mr. Kirby apologized to the grievor for being a “dick”, the grievor claims that he responded that he understood; it had been a long day for all of them. 

28        Mr. Kirby twice told the grievor to surrender his weapon; he was extremely angry by then. The grievor testified that Mr. Kirby stood behind him with his face at the grievor’s shoulder, yelling at him. Following this, according to the grievor, he went to the table at the back of the range to make safe his weapon. He did not tell Mr. Kirby what he was doing; he was anxious to get out of there. After he was relieved from the range, the grievor returned to the institution and filed his own OSOR.

29        The grievor denied that anything he did while on the firing range was dangerous. His weapon was always pointed at either the ground or the target. When not pointed, it was holstered. He at no time said anything to any of the training officers that day. He did not tell anyone about his anxiety issue or his cut hand. He admitted that he could have asked to be excused from the training exercise but that he did not. He also admitted that he could have been more attentive during the classroom portion of the training.

III. Summary of the arguments

A. For the employer

30        After a disciplinary investigation and hearing, the behaviour demonstrated by the grievor during the 9 mm pistol requalification on December 12, 2011, was determined to be a severe breach of the employer’s code of discipline and of its professional standards 1, 2, and 3. As a result, it imposed a four-day financial penalty (approximately $760) because of the serious nature of the violations, which was consistent with the global agreement.

31        The issues to be determined in this case are whether the employer had just cause to discipline the grievor, and if so, whether the penalty imposed was appropriate. The employer had the burden of proof, and if it was discharged, an adjudicator should reduce a disciplinary penalty only if it is clearly unreasonable or wrong (see Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119). This adjudication was a de novo (new) hearing. It remedied any procedural defects that might have occurred in the course of the disciplinary process and would determine whether the employer had just cause to discipline the grievor.

32        “Professional Standard 1” (“responsible discharge of duties”) and paragraph 6(h) of “Commissioner’s Directive 060” resemble each other. No evidence suggests that the grievor misunderstood his obligations under the requalification exercise. He had completed it several times before. According to Mr. Hackett, as set out in the letter of discipline, the violations the grievor committed were serious. When determining the appropriate level of discipline to impose, Mr. Hackett took into account the fact that the incidents happened on the firing range, the number of times that the grievor refused to follow the Range Safety Officer’s directions, the safety of the others present, the fact that the weapons being used were fully loaded, and the fact that the grievor clearly refused to follow orders. The grievor did not follow the orders not because of a disability but because he chose to do so.

33        The grievor did accept some level of blame for his actions, which was considered a mitigating factor. He was not a new employee and ought to have known that the range safety officer is the boss on the firing range. Firearms requalification is not an ordinary training session. It involves the use of live weapons in a strictly controlled environment. The fact that other loaded weapons and people were involved in the exercise had to be taken into account.

34        Mr. Gagné taught the morning classroom session, which had a test at the end. During this session, the grievor had his head on the table and was clearly not paying attention. He ignored the instructor and refused to engage in the training. According to Mr. Kirby, on the firing range, the grievor understood the orders to carry out a threat scan and how it was to be done. He disobeyed these orders. He never told anyone at the training about being anxious on the firing range; nor did he mention it to Mr. Hackett at the disciplinary hearing.

35        He did mention to Mr. Hackett that Mr. Kirby yelled and spat at him. Mr. Kirby has a loud and assertive voice that the grievor might have perceived as yelling, but it was necessary in the circumstances for Mr. Kirby to be loud given that the participants were outside and were wearing ear protection. If the grievor was suffering from anxiety while on the range, or if his goggles fogged up and made it difficult for him to see, the onus was on him to advise the instructors. He did not.

36        Through his actions, the grievor put his security and the security of the others on the firing range that day at risk. That is why he was sent off the firing range. 

B. For the grievor

37        The employer had to prove on the basis of clear, cogent, and compelling evidence that the grievor failed to follow directions given to him and that he was insubordinate. As part of that evidence, the employer had to prove that the range security officer gave a clear direction, which the grievor refused to comply with. Mr. Hackett testified that his biggest concern with the grievor’s behaviour that day was that he would not follow the Range Security Officer’s orders and that he did not surrender his weapon when ordered to.

38        The evidence did not establish a failure to obey an order. Failing to correctly identify the number of fingers held up by a range security officer does not constitute failing to comply with an order. The requirement to show fingers was not discussed before the first course of fire. 

39        The investigators had no idea what they were doing. They provided no analysis of the evidence and did not identify any contradictions in it. The employer should have ensured that a clear and impartial investigation had been conducted before determining that discipline was warranted.

40        What this case comes down to is Mr. Kirby’s evidence versus that of the grievor. The grievor’s evidence must be preferred; it has never changed throughout the process. On the other hand, Mr. Kirby’s has inflated over time. The point is that the grievor felt that Mr. Kirby was yelling at him since he was unable to comply with the threat scan because the process was unclear and because he was nervous and anxious and uneasy with guns. The grievor prepared his OSOR on his own as soon as he returned to the institution while the instructors prepared theirs in consultation.

41        In the grievance, the grievor mentioned that he was physically and mentally unable to comply with the Range Security Officer’s directions. As for his inattentiveness at the morning classroom session, it was a performance issue and not a disciplinary issue. The grievor admitted that he was inattentive at the classroom session, but he was still able to pass the written test. The fact that part of this incident happened on the firing range was an aggravating factor, but because safety is paramount there, directions must be clear, written, and known to the participants. The grievor still does not know the instructions he was given.

42        Contradictions in evidence must be resolved in the grievor’s favour. For instance, Mr. Kirby could not even remember the “dick” comment. He testified that he gave the grievor three direct orders to surrender his weapon, but this is not in Mr. Kirby’s OSOR. The grievor testified that he wanted to go to a table where he could safely surrender his weapon. There is ample evidence of the grievor’s anxiety in his interview (Exhibit 3A 006-007, at pages 81, 92, and 93).

43        This is a proper case in which to lower the discipline imposed, consistent with what was done in Lewchuk v. Treasury Board (Solicitor General Canada - Correctional Service), 2001 PSSRB 76 at para. 116.

IV. Reasons

44        As counsel for the employer indicated, any irregularity in the investigative process was remedied by the Board hearing this matter. It is trite law that hearings before an adjudicator are de novo hearings and that any prejudice or unfairness that a procedural defect might have caused are cured by the adjudication of the grievance (see Maas v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 123 at para. 118, Pajic v. Statistical Survey Operations, 2012 PSLRB 70, and Tipple v. Canada (Treasury Board),[1985] F.C.J. No. 818 (C.A.) (QL), at 2).

45        Even if it were not so, nothing in the investigation would lead me to conclude that a breach of natural justice occurred. Technical irregularities, such as an investigator’s lack of a training certificate or the lack of a written analysis where the investigators clearly presented a thorough analysis of the evidence with which they were presented, do not constitute breaches of natural justice.

46        The grievor had every opportunity to raise these concerns with Mr. Hackett at the disciplinary hearing and failed to. From this, I conclude that he did not actually find the investigative process offensive, and he raised it at the hearing only in argument. This is not a circumstance such as in Legere v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 65, where investigators demonstrated a clear bias against the grievors and did not take into account the evidence before them.

47        There is conflicting evidence before me. For example, it is unclear who made the “dick” comment, if it was made at all. What it comes to is a question of credibility: Who is more believable, Mr. Kirby or the grievor? To assess a witness’s credibility, the person hearing the evidence must not rely solely on the impression left by the witness but must base the assessment on an examination of how the testimony fits into the evidence as a whole, taking into account other testimony, the facts established, a reasonable probability of events, and the assessor’s experience in human relations (Faryna v. Chorny, [1952] 2 D.L.R. 354).

48        Looking at the quality of the evidence presented by both Mr. Kirby and the grievor, I prefer that of Mr. Kirby. He presented himself in a professional and forthright manner. He admitted what he could not recall. Furthermore, his evidence was corroborated by Mr. Gagné and by the interview of Ms. Hayre. On the other hand, the grievor had absolutely no corroboration for his testimony, even though others were present and would have witnessed the events. His testimony amounted to a general denial of anything Mr. Kirby said in his evidence.

49        What is clear from his evidence is that the grievor was not interested in participating in the requalification sessions on December 12, 2011. His behaviour in the morning carried over into his petulant behaviour in the afternoon on the firing range. Even if his glasses fogged up on the first course of fire, it does not explain his failure to follow directions, which the other participants clearly understood, according to Mr. Kirby’s evidence. Nor does it explain why the grievor failed to inform the range officers of this problem at the first opportunity. Even if the grievor did cut his hand on the second course of fire, this does not explain why he did not perform the threat assessment as required. He did not need his hand to do it. 

50         I accept Mr. Kirby’s evidence that after the third course of fire, the grievor was given a clear direction to surrender his weapon, which he refused to follow. The grievor knew what was expected of him and chose to pursue his own course of action. He chose not to comply with the Range Safety Officer’s direction to make safe and to surrender his weapon and rather pursued his own course, in direct defiance of this order.

51        Clearly a firing range is a place where discipline is required. During live fire exercises, directions must be followed for the safety of all present. Mr. Kirby must have used a loud voice, to get his directions across to the participants, given the ear protection they were using and given that they were outside. It is not credible that he yelled or that he spat at the grievor, as the grievor described. 

52        In his interview with the investigators, the grievor remarked that his heart had been pounding. There are many reasons for such an occurrence, including an adrenaline rush caused by firing a weapon. On its own, this does not establish that the grievor was anxious about participating. If such were the case, he should have told those in charge of the exercise and been excused. He did not, and raising it after the fact as he has done, goes directly to his credibility.

53        Therefore, I conclude that the grievor refused to follow the directions given to him by Mr. Kirby and that he did not participate in the morning classroom session, as described by Mr. Gagné, in violation of the employer’s standards of professional conduct, Professional Standard 1 in particular. Discipline was warranted. I am also satisfied that Mr. Hackett did consider both the mitigating and the aggravating factors before determining what level of discipline should be imposed.

54        The employer has the authority under the global agreement in circumstances of severe misconduct to impose a financial penalty of $760 on a correctional officer II (Exhibit 2, tab 7, at para. 3). I agree with the employer’s assessment that as far as the safety of the grievor and others is concerned, failing to comply with the Range Security Officer’s direction, in addition to the disrespect he showed throughout the requalification process, should be considered severe misconduct. The grievor had recently been disciplined for refusing to follow orders, which in the correctional environment cannot be tolerated for the safety of the inmates, the institution, and the employees. A strong message was required to get this across to him. Therefore, consistent with the principles in Cooper, Ranu v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 89, and McEwan v. Deputy Head (Immigration and Refugee Board), 2015 PSLREB 53, all of which were submitted by counsel for the employer for my consideration, I will not intervene. Therefore, the grievance is dismissed.

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

V. Order

56        The grievances are dismissed.

January 30, 2017.