FPSLREB Decisions

Heard at Abbotsford, British Columbia,
November 5 to 7, 2014, and May 12 to 15 and November 3 to 5, 2015.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        The grievor, Gaelan Joe, alleged that discipline imposed on him on June 14, 2013, by the acting warden of Matsqui Institution (“the employer”) was unwarranted, excessive, and unfounded in facts and law. He alleged that the disciplinary action the employer took against him was based on a biased and an incomplete and unreliable investigation.

2        The grievor filed his grievance on July 16, 2013. The first level of the grievance process was waived and the grievance was denied at the second level on August 2, 2013. The grievance was transmitted to the third and final level on August 20, 2013. The employer rendered no decision at the final level and the grievance was referred to adjudication on November 8, 2013.

3        On October 28, 2014, the employer replaced the one-day suspension without pay with a written reprimand. On October 29, 2014, the employer objected to the adjudicator’s jurisdiction to hear the grievance. On October 31, 2014, the parties were informed that the issue of jurisdiction could be raised at the start of the hearing scheduled for November 5, 2014.

4        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 to replace the former Public Service Labour Relations 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 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) as that Act read immediately before that day.

II. Summary of the evidence

5        The employer raised the issue of the adjudicator’s jurisdiction over this matter as the disciplinary action initially taken, which was referred to adjudication (an one-day suspension without pay), had been replaced by a letter of reprimand in the days leading to this hearing.

6        The employer imposed the one-day suspension without pay on the grievor due to inappropriate comments he had made about Andrew Marshall, correctional manager, scheduling and deployment, and his wife, Janelle Marshall, a correctional officer 2 (“CX-02”), both of whom (“the Marshalls”) worked at Matsqui Institution (“the institution”), where the grievor was also a CX-02.

7        The evidence in this case required 10 days of hearing and involved testimony from 8 witnesses for the employer and 5 for the grievor, including him. Not all that testimony was significantly relevant to the issues before me to warrant summarizing it separately. To the extent that it was essential to the determination before me, it has been included. In some cases, it has not been summarized because of the witnesses’ peripheral involvement in the matters before me. This is particularly so given that over the period of 2010 to 2012, the institution had three wardens who either convened investigations, received investigation reports, or imposed discipline. The constant throughout the period was Mark Bussey, who at all material times was the assistant warden, operations (AWO). His evidence is reported in detail later in this decision.

8        The employer launched an investigation into the grievor’s conduct after a two-year period during which he made allegations against the Marshalls. The grievor alleged that Mr. Marshall was manipulating the scheduling system to favour his wife. His comments were hurtful, demeaning, and offensive because they were not true. The employer conducted two investigations into these allegations, which exonerated Mr. Marshall.

9        Even though he knew that they were false, the grievor continued to make the same allegations, claiming that he was entitled to in his role as local union president. In the employer’s opinion, he crossed the line from legitimate union activity to the point of harassing the Marshalls. His conduct according to the employer’s witnesses warranted discipline at the lowest end of the disciplinary spectrum for his violation of the employer’s “Standards of Professional Conduct” (Exhibit 3, tab 2). The employer determined that an one-day suspension without pay was appropriate. On October 28, 2014, the disciplinary action taken against the grievor was amended, and a letter of reprimand was substituted (Exhibit 18).

10        At all times relevant to this grievance, Mr. Marshall was the correctional manager responsible for scheduling correctional officers at the institution. He tracked employee leave, updated rosters, managed overtime, entered correctional officer leave into the Scheduling and Deployment System (SDS), and was generally responsible for ensuring that the institution was appropriately staffed with correctional officers. The grievor was the local union president and often disagreed with how Mr. Marshall was scheduling correctional officers and in particular with how Mr. Marshall scheduled his wife. The grievor made comments to management on numerous occasions, which resulted in the employer investigating Mr. Marshall twice for alleged favouritism and irregularities in his approach to scheduling.

11        On July 31, 2012, Mr. Marshall filed a harassment complaint against the grievor (Exhibit 3, tab 6), alleging that, based on the events of the period commencing in March 2010, the grievor had launched a campaign of personal attacks on him because of his approach to scheduling. Mr. Marshall had initially filed a harassment complaint in 2010 but withdrew it after Mr. Bussey told him that it was not a good idea and that it would have serious implications for his career. Greg Larocque investigated the complaint and concluded that two of Mr. Marshall’s harassment allegations were founded.

12        Despite the fact that the grievor’s allegations about Mr. Marshall were investigated twice (by Brenda Lamm in 2011 (resulting in “the Lamm report”, Exhibit 16), and by Kevin Morgan in 2012 (resulting in “the Morgan report”) resulting in a finding that Mr. Marshall did no wrong, the grievor continued to make the offensive comments at labour-management meetings at the institution and at such regional meetings, where representatives from all institutions in the region were present. Mr. Marshall was informed of the grievor’s comments by people who attended the meetings, including Mike Boileau, who was the institution’s warden, and Mr. Bussey.

13        Mr. Marshall stated that the grievor’s comments were offensive to him because they were not true and they questioned his credibility and integrity. When scheduling statutory holidays, Mr. Marshall sat with a union representative. They then distributed statutory holiday shifts to those who had the fewest number of statutory shift hours worked, based on the total hours worked by everyone. He stated that he did not favour his wife when scheduling statutory holiday shifts to ensure that she received overtime pay, as the grievor alleged. Mr. Marshall also stated that he ensured that the statutory holiday hours were distributed as equally as possible based on the number of hours the officers had previously worked and in a manner consistent with the collective agreement.

14        In December 2010, Mr. Marshall was removed from the institution so that the employer could investigate the continuing allegations that the grievor had made against him. The result was the Lamm report, which concluded that the grievor’s allegations were unfounded. In fact, the investigator commented that Mr. Marshall did a good job of accommodating employees’ leave and substitution requests, which benefited all staff. In addition, he was able to accommodate requests for time off from the local union executive.

15        Mr. Marshall had been directed not to process his wife’s leave requests in the SDS and to have another correctional manager deal with them. He initially complied. Having another correctional manager deal with his wife’s leave requests seemed time consuming and silly to Mr. Marshall, so after a few weeks, he decided to process her requests just like any other correctional officer’s leave requests. According to Ms. Lamm, who investigated the allegations, it was not favouritism.

16        When Ms. Marshall went to her husband and reported that she also felt harassed by the grievor, Mr. Marshall changed her line on the schedule to a “spare line”, so that she would not have to work with the grievor. The Lamm report did not find any favouritism in that. It was done in an open and transparent way in accordance with policy. Mr. Marshall had consulted the assigned human resources advisor on how to balance his wife’s hours, which he would not have done, according to his testimony, had he been trying to hide anything.

17        After the institution’s management accepted Ms. Lamm’s conclusions, Mr. Marshall returned to the institution as a living unit correctional manager. He eventually returned to the scheduling and deployment position, when management asked him to clean up those processes, even though he was reluctant. He was disgruntled and upset that management had not given him the benefit of the doubt.

18        On August 26, 2010, another correctional manager at the institution told Mr. Marshall about allegations the grievor had made that Mr. Marshall had removed staff from the leave board to accommodate Ms. Marshall. Staff at the institution could refer to an electronic calendar to verify if any leave opportunities were available; it had no bearing on the roster. Mr. Marshall stated that this was just another allegation the grievor made to muddy the waters.

19        In early 2012, the Warden told Mr. Marshall that the grievor had repeated his allegations, this time at the Regional Labour Management Committee meeting. Mr. Marshall could not understand why the grievor had raised these issues again since they had only recently been investigated by Ms. Lamm. The grievor had begun making his allegations to regional and national headquarters representatives. A second investigation was convened, this time with Mr. Morgan as the investigator. He investigated the same favouritism allegations and concluded that they were unfounded.

20        According to Mr. Marshall, the truth was that he was accommodating a number of people, not just his wife. When a correctional officer wanted his or her schedule adjusted to meet personal needs, he tried his best within the rules to accomplish that. No one ever complained when he filled the scheduling and deployment role at Mountain Institution. The grievor according to Mr. Marshall was just trying to make him look bad.

21        The grievor alleged that Mr. Marshall was showing favouritism by allowing correctional officers to substitute shifts. These allegations, like the others, were unfounded according to the Lamm and Morgan reports. Despite the fact that the grievor’s allegations about scheduling practices were investigated and proven without basis, he kept repeating them. He knew that his allegations were untrue and that they were not legitimate union concerns. Mr. Marshall considered it harassment. When he could no longer take it in May 2012, he went on sick leave.

22        Ms. Marshall stated that she filed a harassment complaint against the grievor in July 2012 after feeling harassed for more than two years. He had repeatedly made allegations about her husband and had alleged that she had received special scheduling treatment from her husband. Beginning in March 2010, the grievor repeated his allegations that Ms. Marshall was receiving preferential treatment from her husband, that she was not working all the shifts required of her, that she was taking leave that she was not entitled to, and that her husband was manipulating the correctional officer schedule to assign her statutory holidays and overtime.

23        Her husband told her that the grievor had raised complaints about his scheduling practices at an institutional labour-management committee meeting with the Warden. Ms. Marshall was extremely upset by these comments because they were according to her not true; the grievor had never raised them with her. She spoke to other correctional officers in the institution and found out that the rumours were widespread and were the topic of frequent discussions among union members.

24        After discovering this, Ms. Marshall emailed (Exhibit 4) the local union executive and the people to whom she had spoken about the rumours. She expressed her concerns about these discussions and rumour mongering. Her intention was to defend herself against the allegations and to show that they were unfair.

25        On March 27, 2010, Ms. Marshall was off sick. On her return the next day, she was told that the grievor had met with the other members of her crew to explain why she had sent the email and why the allegations of favouritism were being made. After that meeting, she sensed that her work environment changed dramatically. She was being snubbed. She was no longer included in the socializing in the grievor’s office with other members of their crew. Since she felt that the work environment was toxic and because she and the grievor worked on the same crew, Ms. Marshall emailed the regional union president, requesting the union’s assistance in stopping the rumours. None was forthcoming, so she transferred to a different crew to avoid working with the grievor.

26        Ms. Marshall did “sub” (change her usual scheduled rotation) to work night shifts because of her childcare needs, while others “subbed” for other personal reasons. She took a vacant post on nights or found someone to trade shifts with. The union had advocated for others in similar situations to benefit from special arrangements, but Ms. Marshall received no help from the union even though she also was a member of the bargaining group.

27        Ms. Marshall described the grievor’s comments as an attack on her credibility, which caused her immense stress. She began using sick leave to avoid work. On December 3, 2010, she applied for an internal and external competition to qualify for a correctional manager position. When she was successful and was appointed to an acting correctional manager position, Mr. Bussey, the AWO, advised her that the grievor had told him that the union did not support her development as a correctional manager. He had also told the AWO that the staff did not like Ms. Marshall and that they would not work with her. She was extremely upset by these comments. She thought she deserved the opportunity based on her performance. If the staff did not like her, in her opinion it was not because of anything she had done but rather because of the rumours being spread by the grievor.

28        Ms. Marshall was concerned that these comments would prevent her professional advancement, so she confronted the grievor. He did not apologize. He told her that she was “collateral damage” because of her relationship with Mr. Marshall, who was the union’s true target. She filed a harassment complaint against the grievor, which Mr. Larocque then investigated.

29        When Ms. Lamm concluded after her investigation into Mr. Marshall’s scheduling practices that Ms. Marshall had not received any exceptional treatment that other correctional officers had not received, Ms. Marshall testified that the grievor began telling staff that the investigation was wrong. Nothing changed after the investigation, and the grievor continued with his unfounded comments.

30        In 2012, a new warden, Vince LeBlanc, took over at the institution. He met with Ms. Marshall after the grievor made a complaint about her at a Regional Labour-Management Committee meeting. He told her that he had walked into many complaints about the goings-on at the institution, including the scheduling allegations and the grievor’s comments. Mr. LeBlanc told Ms. Marshall that he was convening a new investigation into the allegations so that everyone could move on.

31        On June 29, 2012, Ms. Marshall met with the second investigator, Mr. Morgan, who wanted her version of the scheduling complaints at the institution. She told him that everything had already been investigated and that she had nothing new to add. She was provided with a redacted copy of the second investigation report, in which Mr. Morgan had made no significant findings. His investigation was much broader than just the scheduling issues. However, he concluded in his findings that there was nothing new to investigate about scheduling since the last report. According to Ms. Marshall the rumours the grievor had spread were unsubstantiated.

32        Ms. Marshall then met with the grievor and expressed her concerns, most of which were reflected in her 2010 email (Exhibit 4). She was upset with the union as she expected the courtesy of receiving the same treatment that other union members received. The grievor agreed that he would do things differently in the future, but nothing changed. After Mr. Morgan’s investigation was complete, the complaints and rumours continued. They stopped only when Ms. Marshall filed the harassment complaint against the grievor.

33        Ms. Marshall knew that the complaints continued at the labour-management committee meetings. Things did not end according to Ms. Marshall, despite two investigations. The rumours followed her even once she was excluded from the bargaining agent. Between March 2010 and July 2012, her husband was the correctional manager of scheduling and deployment (except for the time during which he was removed from the institution). When she was an acting correctional manager, she was scheduled primarily by the AWO, which did not end the grievor’s rumours and complaints. There was no end to it, which is why she filed the harassment complaint. The grievor filed an unfair labour complaint against her when she was an acting correctional manager.

34        The grievor’s behaviour had a significant impact on Ms. Marshall’s life. She dreaded going to work and excluded herself from the social aspects of the workplace. She exhausted her sick leave and annual leave to avoid work. The rumours affected her family every day; she became not the type of parent she wanted to be. She was put on medication for sleep and anxiety to deal with the situation, which continued to bother her. The grievor questioned her integrity and credibility at a time when she was trying to advance her career. Ms. Marshall tried to defend herself, but she felt it was useless; her coworkers believed the grievor.

35        Mr. Larocque investigated Ms. Marshall’s harassment complaint and determined that two of her allegations were founded; that being the interference with her career and related to his description of her as collateral damage in his war against her husband.

36        Mr. Bussey became AWO at the institution in January 2010. On his arrival, Mr. Boileau, the institution’s warden at that time, mandated Mr. Bussey to get overtime expenses under control. New procedures were developed for scheduling and subbing, to reduce overtime costs. Mr. Marshall was mandated to implement those changes and to manage the rosters. As a result, overtime costs at the institution were significantly reduced.

37        The grievor went to Mr. Bussey to discuss how Mr. Marshall was handling the statutory holiday schedules, overtime, hours owed, subbing, and “statting” people off (removing them from the roster on a statutory holiday when they should have been scheduled according to their line of the schedule). These topics were constant sources of discussions between them. Initially, the grievor was seeking information on why the changes were implemented. The nature of these conversations gradually morphed into complaints about how Mr. Marshall was implementing the AWO’s directions.

38        Mr. Bussey initially had no concerns about the tone of the grievor’s comments. The frequency and consistency of his complaints led Mr. Bussey to believe that something else was going on. Mr. Bussey confirmed with Mr. Marshall that he was following the directions Mr. Bussey had given him, and he then relayed that to the grievor.

39        The grievor’s complaints evolved into comments about Ms. Marshall’s schedule and questions about her integrity. In Mr. Bussey’s opinion, the grievor was crossing the bounds of professional behaviour. His demeanour was agitated, angry, and upset when discussing overtime and subbing issues. Mr. Marshall became the focal point of the grievor’s concerns. His comments increased in intensity and frequency and frequently were about Ms. Marshall’s schedules.

40        In an attempt to keep things on a professional level, Mr. Bussey met with the grievor and Mr. Marshall to determine the source of the conflict. The meeting left Mr. Bussey with the conclusion that Mr. Marshall was scheduling correctional officers to meet his own agenda, despite the fact that audits of correctional officer scheduling at the institution had found no malfeasance. Nevertheless, Mr. Bussey relayed to the grievor that there were no indications of anything inappropriate in Mr. Marshall’s scheduling processes.

41        Mr. Bussey felt that things quieted down briefly after this report, but within a month, the rumours began again. The grievor complained that Mr. Marshall was upsetting staff by moving people around in the schedule for no reason. He made similar comments at labour-management consultation committee meetings.

42        When overtime usage dropped, the grievor suggested that the employer back off its control of overtime. He claimed that Mr. Marshall was overzealous in his application of the deployment standards. Mr. Bussey told the grievor that the employer was not prepared to back off its approach to overtime and that Mr. Marshall had been following the AWO’s directions.

43        As the AWO, Mr. Bussey attended local labour-management committee meetings, at which the grievor’s comments mirrored those made to him. The grievor repeated his allegations of favouritism on Mr. Marshall’s part. He also made indirect statements to that effect and challenged how Mr. Marshall was dealing with scheduling statutory holidays and overtime and how he was substituting shifts. The grievor was forceful in his comments, which Mr. Bussey saw as defending the union membership the grievor represented.

44        When the grievor’s comments about Mr. Marshall became more personal and started to include comments about Ms. Marshall, Warden Boileau told the grievor that he was crossing the line and that he was to be respectful. The comments continued inside and outside meetings and included comments about Ms. Marshall. Mr. Bussey began to filter what he took to Mr. Marshall, who was becoming agitated and upset about the comments. Mr. Bussey thought that the comments had become offensive and had surpassed the grievor’s union role.

45        The grievor made other comments about Ms. Marshall to Mr. Bussey, particularly when they discussed acting correctional manager assignments. The grievor told Mr. Bussey that he would not support any acting correctional manager opportunities for Ms. Marshall as it was clear that she did not have the staff’s respect. Development opportunities for correctional officers are at management’s discretion, so Mr. Bussey did not take the grievor’s opinion into account when making acting appointment decisions. Mr. Bussey met with Ms. Marshall and let her know about the barriers she would face while managing the staff’s perception of her.

46        The comments about Ms. Marshall’s acting assignment happened once. The grievor did not raise the lack of staff support for Ms. Marshall after that. However, he continued to make comments about her being given preferential treatment. When Mr. Bussey told Mr. Marshall that his wife’s name had begun coming out in the grievor’s comments, Mr. Marshall told Mr. Bussey that he was being harassed and that this was just another attack on him; his wife was being used as a pawn against him.

47        No less than 95% of the complaints Mr. Bussey received concerning staffing and deployment at the institution came from the grievor or someone accompanied by him. Mr. Bussey initiated Ms. Lamm’s investigation late in 2010 after a meeting with the grievor, at which it was reported that Mr. Marshall was approving Ms. Marshall’s leave requests. Mr. Bussey had directed Mr. Marshall not to have anything to do with approving Ms. Marshall’s leave or to make any decisions concerning scheduling for overtime hours.

48        In this case, it turned out that the grievor was right according to Mr. Bussey. Mr. Marshall was in fact approving his wife’s leave. Mr. Bussey had ongoing concerns with Mr. Marshall’s failures to follow his directions and with ongoing complaints about how he was carrying out his scheduling duties. In consultation with the Deputy Warden, it was decided to commence Ms. Lamm’s investigation. Mr. Marshall was assigned to the regional headquarters office during the period of the investigation.

49        In 2010, Ms. Lamm was tasked with looking into all issues related to overtime, substitutions, and scheduling and deployment in general. The employer wanted to verify that nothing else was lurking in the closet. Ms. Lamm looked into whether Mr. Marshall was manipulating the SDS; whether overtime was being distributed equitably; whether Mr. Marshall was showing bias in approving shift trades; and whether there was preferential treatment, favouritism, nepotism, or any malfeasance in scheduling correctional officers at the institution. The employer wanted to be accurate when it claimed that nothing questionable was going on. The grievor was asked to provide specific information related to his allegations, not anecdotal evidence, which he eventually did.

50        Mr. Bussey never read the Lamm report, but the Warden briefed him on its results. Ms. Lamm concluded that only the allegations related to approving Ms. Marshall’s leave were founded. Mr. Marshall was also found to have exercised the limits of his discretion more often than he should have. The grievor was briefed on the findings and was advised that Mr. Marshall would return to the institution in February 2011 as a unit correctional manager. Another correctional manager was assigned to the scheduling and deployment duties to stop the grievor’s criticism and to protect Mr. Marshall from any further complaints.

51        Mr. Bussey was concerned about the deterioration of the labour relations environment with Mr. Marshall in the scheduling and deployment role. Another correctional manager took over that role; however, he did not have Mr. Marshall’s skills in controlling and assigning overtime. While the nepotism comments stopped, the cost of overtime increased dramatically. The assistant deputy commissioner, institutional operations, Michael Hanly, demanded that it be brought under control, so Mr. Marshall was returned to the scheduling and deployment role. Overtime then decreased.

52        Mr. Bussey stated that the grievor was not happy with Mr. Marshall’s return; he raised concerns about Mr. Marshall’s behaviour in his scheduling and deployment role, and nothing changed, in the grievor’s opinion. He began raising complaints about relief being scheduled six weeks in advance, about overtime, and about staffing on statutory holidays and questioned why the same people were always being subbed onto the graveyard shift. The grievor began addressing his complaints to Mr. Bussey and to the wardens, Mr. Boileau and Mr. LeBlanc. The complaints continued until Mr. LeBlanc told the grievor that he would not entertain any further complaints related to matters already investigated. The grievor then began bringing the old complaints to bilateral meetings between Mr. Bussey and the grievor, labour-management committee meetings, and other ad-hoc meetings.

53        In 2012, Mr. Bussey commented to Mr. Marshall that Mr. Hanly was tired of scheduling issues at the institution being raised at regional labour relations meetings. Mr. Marshall was told that he needed to improve his relationship with the union and with Mr. Joe. Shortly after that, Mr. Marshall filed a harassment complaint against the grievor.

54        Shelley Boyer was an acting correctional manager at the institution in October 2009. Her substantive position was as a CX-02 there. She was present in the CX-02 office in April 2010 when the grievor made comments to the effect that Mr. Marshall showed favouritism towards his wife and that he granted her requests for shift trades and overtime. The room was full of officers, and it came across to Ms. Boyer that the grievor was trying to rally the troops behind his cause in his battle with the Marshalls. Ms. Boyer told Mr. Marshall about it, which upset him, as he believed the comments were lies. It was not the first time Ms. Boyer had heard the grievor make vague and what Ms. Boyer described as unsubstantiated comments about Mr. Marshall. She had heard them while attending labour-management committee meetings in 2010.

55        Mr. Larocque investigated the harassment complaints the Marshalls made against the grievor. As part of his investigation, he used the Lamm and Morgan reports as references. He also applied the decision in King v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 64, when determining the grievor’s rights as a union representative. If the grievor’s statements were malicious or deliberately false, they were not protected. Since the Lamm report proved that the concerns the grievor raised in his union role were unsubstantiated, which was later confirmed in the Morgan report, Mr. Larocque concluded that they were deliberately false and malicious.

56        Furthermore, the Morgan report determined that the grievor had raised no new issues that had not been previously dealt with in the Lamm report. Mr. Larocque concluded that it was proper for the grievor to raise his concerns with how Mr. Marshall carried out his scheduling and deployment role but that when the grievor knew that the Lamm report found no wrongdoing by Mr. Marshall, the grievor’s continued comments and allegations became improper. Furthermore, his repeated comments amounted to an abuse of authority according to Mr. Larocque.

57        The grievor’s allegations against Mr. Marshall according to the employer’s witnesses were retrospective. They testified that he brought up nothing new after the Lamm and Morgan reports. They further testified that there was no evidence that Ms. Marshall was treated differently from any other correctional officer. The grievor was aware of the Lamm and Morgan reports as he had discussed them with the warden, Mr. Boileau, and Mr. Bussey once they were completed. If Mr. Marshall had filed his complaint in 2011 rather than in 2012, Mr. Larocque might have concluded otherwise, because the Lamm investigation had not yet occurred.

58        When the grievor was provided with copies of the harassment investigation reports, he was directed not to share them with anyone beyond his advisor. Despite that, he sent the report to Corinne Blanchette, a labour relations advisor with the union, who was not his advisor at the time. The grievor also shared the results with Gord Robertson, the union’s pacific regional president, who then emailed the commissioner of the Correctional Service of Canada (CSC). Mr. Robertson had no right to know what was in the complaint or the report.

59        Mr. Larocque concluded that the grievor’s description of Ms. Marshall as collateral damage was intended to be an attack on Mr. Marshall. The grievor merely speculated that Mr. Marshall shared confidential information with his wife. It was clear to Mr. Larocque that the grievor’s intentions were to keep Mr. Marshall out of the scheduling and deployment role. According to Mr. Larocque the grievor never denied making comments about Ms. Marshall, including about her acting opportunities, and never denied trying to influence the selection process for an acting correctional manager.

60        Mr. Hanly attended all Regional Labour-Management Committee meetings, to address operational issues. Representatives of the union and management from each institution in the region attended them. The grievor attended them and frequently complained about how the correctional manager, scheduling and deployment, dealt with the rosters. While the grievor did not use Mr. Marshall’s name, it was not necessary; referring to the position was sufficient as there is only one correctional manager, scheduling and deployment, at the grievor’s institution. He claimed that substitution lines were being managed so inefficiently as to be ridiculous, that officers’ lines were being changed 66% of the time, and that Mr. Marshall was not managing substitution and overtime efficiently. Mr. Marshall’s response to the officers’ concerns was allegedly abusive.

61        Mr. Hanly took these concerns back to the institution’s management team, which advised him that all scheduling was being done in accordance with the collective agreement. Mr. Marshall might have shifted officers in the rotation more than once, but he did it to reduce overtime, and he complied with the collective agreement. Mr. Hanly reported this back to the Regional Labour-Management Committee, but the union representatives were not satisfied. Mr. Robertson, the regional union president, continued to raise the issues directly with Mr. Hanly. According to Mr. Robertson, Mr. Marshall was at the root of the labour problems at the institution.

62        The complaints kept coming from Mr. Joe; they became more personal in the spring of 2012. By late fall or early winter 2012, Mr. Robertson, the grievor, and Mr. LeBlanc met in Mr. Hanly’s office to mediate the union’s concerns. It was clear to Mr. Hanly that the problem was that staff would go to Mr. Marshall and request a schedule move to suit their needs. Mr. Marshall would move a substitute into the evening slot and accommodate the requests for changes to the day shifts. The substitute was then required to cover for someone on sick or annual leave, which meant someone else had to be moved to cover the change made to suit the first request. Mr. Hanly made it clear at that meeting that Mr. Marshall would be directed to stop moving people that way. Shift exchanges were allowed, but the substitutes were no longer to be managed that way.

63        The union was not in favour as the ability to move around in such a fashion was a benefit to its members. They focused their dissatisfaction on Mr. Marshall. They claimed that he was using the roster to his benefit and to that of his wife. Mr. Hanly heard this allegation more than six times in group discussions and at the Regional Labour-Management Committee meetings. They expressed their dissatisfaction with the fact that they had raised their concerns with how Mr. Marshall scheduled the officers before, and yet he was back in the job, even though he had been removed. The comments continued into mid-2013.

64        The grievor made comments to the effect that Mr. Hanly had to be an idiot not to see the blatant favouritism Mr. Marshall displayed towards his wife. Mr. Hanly felt that the grievor was frustrated that Mr. Marshall was allowed to shift around his wife’s schedule. Mr. Hanly went through the SDS records personally, looking for anomalies. He did find that there was more movement, including of Ms. Marshall, due to substituting at the institution than at other institutions, but it was not alarming. Mr. Hanly reported as much to Mr. Robertson.

65        In 2012, labour relations at the institution were problematic according to Mr. Hanly. While it was not normal for him to be so involved in an institutional issue, the grievor consistently raised the same complaints over and over, which Mr. Hanly believed would not be resolved if he did not personally look into them.

66        Bobbi Sandhu became the institution’s acting warden in November 2012. When she arrived, Ms. Lamm’s investigation had been completed (see the report in Exhibit 16) and Mr. Morgan’s investigation was underway (see the report in Exhibit 20) as were the investigations into the harassment complaints Mr. and Ms. Marshall had filed against the grievor. Mr. Hanly advised Ms. Sandhu of the findings in the Lamm and Morgan reports and left it with her to deal with the outcome.

67        Mr. Marshall admitted scheduling officers outside the collective agreement to keep employees happy. He believed that as long as all the staff worked the required hours, everything was acceptable. He took the risk of misapplying the collective agreement because he thought it was reasonable. Ms. Sandhu dealt with him about resolving these issues.

68        She also had to deal with the grievor as a result of the conclusions in Mr. Larocque’s reports (Exhibit 3, tabs 5 and 14). Mr. Marshall’s allegations that the grievor made repeated, malicious, and recklessly false allegations about him during regional and institutional meetings and in July 2012 during an institutional investigation process were founded, according to Mr. Larocque. Likewise, Ms. Marshall’s allegations that the grievor interfered with her career and that he made repeatedly false complaints against her at Regional Labour-Management Committee meetings were founded. In addition, the grievor shared information about Ms. Marshall with Mr. Robertson when directed not to, which Mr. Robertson shared with the CSC’s commissioner.

69        Ms. Sandhu invited the grievor to a disciplinary hearing held on June 5, 2013. At the hearing, he was asked for his position on the founded allegations. He stated that he had not harassed either of the Marshalls as he had at all times been acting in his union role. He never accepted any responsibility or accountability for his transgressions, which was a significant factor for Ms. Sandhu when assessing whether to take disciplinary or non-disciplinary action. She also considered his disciplinary record and his length of service. He had breached standard 3 of the employer’s Standards of Professional Conduct (Exhibit 3, tab 2) and items 10(a) and 10(e) of the employer’s “Code of Discipline (CD-060)” (Exhibit 3, tab 1). On June 14, 2013, Ms. Sandhu imposed a one-day suspension without pay, but on October 28, 2014, she substituted a written reprimand at the recommendation of her labour relations advisor despite still being of the opinion that the suspension had been warranted.

70        Rebecca Wight was a CX-01 at the institution who met with the grievor and Mr. Bussey on December 2, 2010, to advise him that she felt harassed by Mr. Marshall because she was being treated differently, had been demoted, was the subject of undue scrutiny, and had been disciplined for not doing her rounds properly, even though she conducted them the same as the other correctional officers did. She told Mr. Bussey that it was his job to get Mr. Marshall under control and to stop his abuse of authority. She raised the favouritism he had shown to Ms. Marshall, particularly when it came to shift trades and leave. Mr. Bussey threatened Ms. Wight about the consequences of filing an unfounded harassment complaint.

71        Ms. Wight attempted to mediate between the grievor and Ms. Marshall since she was a personal friend of the Marshalls. She stated that she remembers the grievor explaining his role in the union and that his goal was to ensure that scheduling and deployment were done transparently. In her opinion, he had no intent to attack Ms. Marshall.

72        Troy Foseth spent six years on the institution’s Scheduling Committee developing schedules that worked for the employer and the union members. The committee examined the excessive use of subbing at the institution. Some correctional officers were being subbed so many times in a month that they were working schedules completely different from those they had originally received, which violated the collective agreement. Mr. Foseth was inundated with subbing complaints from correctional officers. Other concerns related to scheduling statutory holidays. In 2010, in his opinion, there was a definite pattern of accommodating some shift preferences, which resulted in others being forced to substitute scheduled rotations.

73        Tatiana Clarke was a member of the union executive at the local and regional levels. In 2012, she became the union’s national vice-president. She was at a meeting on March 24, 2010, at which the topic of Mr. Marshall’s use of discretion in the scheduling process and the favouritism he showed his wife were discussed. The grievor was dancing around the issue, and Ms. Clarke did not understand why he did not address the favouritism concerns, so she demanded an explanation.

74        Mr. Robertson attended labour-management committee meetings at the local, regional, and national level. A round table discussion is held at the end of those meetings in which local representatives provide synopses of the status of labour relations at their sites, including any outstanding or upcoming issues. During these meetings and round table updates, only issues are identified; names are not mentioned. Positions might be identified.

75        He testified that in 2012, labour relations at Matsqui were very poor, particularly with the arrival of Mr. LeBlanc as the warden. Issues were not being resolved locally. The union tried to find solutions to improve the situation and tried to organize a meeting of stakeholders at the institution in an attempt to resolve the conflicts. There were several issues related to scheduling, subbing, and favouritism. Any information Mr. Robertson had, which became the topic of discussions, came from the grievor. Despite the fact that the same allegations were investigated twice, by Ms. Lamm and by Mr. Morgan, and despite their findings that nothing was awry, the union would not accept their conclusions. There were significant issues with favouritism, not just in the case of Ms. Marshall, and there were outstanding issues related to subbing, switching shifts, and statutory holidays. There were also issues with communications with Mr. Marshall.

76        Furthermore according to Mr. Robertson in the first six months of 2012, there were five Regional Labour-Management Committee meetings about the institution’s labour relations situation, two meetings with the institution’s warden, and two conference calls with the employer’s national headquarters. Mr. Robertson sent an email to Warden LeBlanc (Exhibit 40) demanding action to resolve issues directly related to how Mr. Marshall applied employer policies, the “Global Agreement” addendum to the collective agreement, and the collective agreement. Mr. LeBlanc did not respond. Although the issues were brought up several times in several forums, nothing was resolved, despite the two investigations.

77        The grievor told Mr. Robertson that he was under investigation for harassment. The union wanted it stopped as in its opinion, the Marshalls were “forum shopping”. The intention for filing these complaints according to the grievor was to stop the grievor’s expressions of concern related to scheduling; none of it was personal. To assist the grievor, Mr. Robertson lobbied the CSC’s commissioner to have the complaints dismissed. The Commissioner sent out the CSC’s head of conflict resolution to help resolve the conflict; the person’s attempts were also unsuccessful.

78        The grievor testified that Ms. Marshall and he began working on the same crew in 2009. After October 1, 2009, when Mr. Marshall took over the scheduling and deployment role, the grievor had the feeling that Ms. Marshall was consistently being subbed so that her schedule coincided with Mr. Marshall’s, to meet the couple’s childcare needs. Before October 1, 2009, the grievor believed that Ms. Marshall’s childcare needs were met via Ms. Marshall being assigned to a slow rotation post. Ms. Marshall was the first to have the option of changing shifts to meet childcare needs. Others on the crew were disgruntled with this as they might have preferred to take advantage of such an option. Essentially, Ms. Marshall was allowed to work her own schedule by subbing according to the grievor.The only alternative open to others after Mr. Bussey put an end to shift exchanges was to request to be put on a Monday-to-Friday day shift.

79        The grievor attended an institutional labour-management committee meeting on March 24, 2010, despite having booked off sick that day. Mr. Marshall required him to provide a doctor’s certificate for that day, or otherwise, he would not be paid. The grievor brought this up at the meeting. Ms. Clarke raised the question of Ms. Marshall being treated differently and asked why she was not subject to the same sick leave rules as everyone else. She expressed her concerns about a correctional manager having a relationship with a correctional officer that he or she managed.

80        At a meeting with Mr. Bussey on December 2, 2010, the grievor accompanied Ms. Wight to discuss how she felt that Mr. Marshall was treating her differently. Ms. Wight raised the issue of open-ended shift trades — of correctional officers trading shifts with themselves. She stated that Ms. Marshall had Mr. Marshall’s computer password and that he was still managing Ms. Marshall’s leave. Mr. Bussey brought up that Ms. Marshall was to be given an acting correctional manager assignment. The grievor asked Mr. Bussey how he thought that that would be received by the correctional officers, with all the scheduling and deployment issues that were going on. Mr. Bussey never told the grievor that his question was inappropriate. At the end of the meeting, the grievor referred to Ms. Marshall as collateral damage in the fight against her husband.

81        When Mr. Bussey told Ms. Marshall that she had been the topic of the December 2, 2010, meeting, she became upset. She challenged the grievor, who apologized for bringing up her name when they were discussing her husband. He stated the he should never have referred to her as collateral damage.

82        By 2012, Ms. Marshall had alleged repeatedly that the grievor had brought up her name at labour-management committee meetings. He reviewed the minutes of those meetings for any references to her but could find none. In March 2012, Ms. Marshall filed allegations against the grievor, stating that he had called two correctional officers in an attempt to incite them against a correctional manager. She filed an officer’s statement and observation report (OSOR) to this effect.

83        The grievor obtained the phone records for his phone for the time frame when the calls were allegedly made, which proved according to him he had made no such calls. In April 2012, Mr. LeBlanc told him that he was not chasing ghosts. Ms. Marshall’s OSOR was then retracted.

84        The evidence was that in the late spring and summer of 2012, the topic of concern was the amount of dissatisfaction that subbing was causing at the institution. It affected everyone in the union there, and they were angry. The grievor was tired of addressing it at both the institutional and regional labour committee meetings. Management had the right to substitute correctional officers as required when their names appeared on the “sub-line”. The problem was that the people being subbed were not always on the “sublist”, which caused a ripple effect and required others to be substituted elsewhere as well. Eventually, Warden LeBlanc put an end to subbing, and overtime dropped. He issued a memo to correctional managers ending subbing on July 31, 2012 (Exhibit 12).

85        Furthermore according to the evidence beginning in 2001, if a correctional officer’s schedule indicated that he or she was assigned a post on a statutory holiday, he or she worked the holiday. If an officer was assigned to a sub-line, he or she was not required to work that day and was forced to take the holiday off. All that changed at Christmas 2009. No notice was sent out to the union or the members of the change in practice. The local union members came to the grievor asking why this had happened, and only when the grievor looked into it did he find out that a change had been made.

86        At the same time, a clawback occurred, according to the grievor. Officers who were off on a statutory holiday and who normally worked a 12.75-hour shift and were paid for the entire 12.75 hours were to be paid for only 8.5 hours for a statutory holiday. To be paid for the entire 12.75-hour shift, officers were required to make up 4.25 hours of time or to use banked time or vacation. For statutory holiday purposes, a day would be considered 8.5 hours and not the duration of a shift.

87        All the witnesses agreed that working on a statutory holiday is very lucrative for a correctional officer, but the benefit was significantly reduced, as only 8.5 hours of the 12.75-hour shift qualified for the statutory holiday premium. Management did not bring the change to the union before its implementation. Mr. Marshall did it through a schedule change, not management. He had spoken to Kelly Dillabough, a member of the union executive, about the process change, but it was never discussed at an institutional labour-management committee meeting as it should have been.

88        These changes and others related to who would be off on statutory holidays were implemented on April 1, 2010, when everyone would have had zero hours banked. Who was to be off on the Easter weekend (the first statutory holiday in the fiscal year) was determined alphabetically. These changes were of considerable concern to the correctional officers. The grievor raised these concerns with institutional management at an institutional labour-management committee meeting. A memorandum of understanding was developed for use on July 1 that year, which reverted to the previous process for determining who would or would not work on a statutory holiday.

89        The grievor’s complaints about the scheduling and deployment processes in 2010 caused management to initiate Ms. Lamm’s investigation. The institution’s management shared no information with the grievor concerning the investigation other than Warden Boileau advising him that his allegations had been determined unfounded. A couple of days after the grievor spoke to Mr. Boileau, Mr. Bussey told the grievor what Ms. Lamm had investigated.

90        In about March 2011, Mr. Marshall returned to the institution as the correctional manager of the first-floor living unit. The grievor worked on the same unit. They had a professional relationship. The grievor liked Mr. Marshall as a correctional manager. However, at times in his union role, the grievor disagreed with decisions Mr. Marshall made in his correctional manager role.

91        The grievor was present on December 2, 2010, when Ms. Wight met with Mr. Bussey concerning Mr. Marshall. She told Mr. Bussey that Mr. Marshall allowed Ms. Marshall to do phantom shift-trades (trading shifts with herself for a shift to be determined at some point in the future). This was specifically prohibited under the memorandum of understanding on shift trades in place since 2009.

92        The grievor’s interaction with Ms. Marshall deteriorated after that point. They barely spoke, and Ms. Marshall left his crew in January 2011.

93        According to the grievor the general types of union issues the grievor dealt with were related to changes in institutional policies, memorandums of understanding, or equipment. Subbing (changing correctional officers from one line in the rotation to another) became the most contentious issue the union faced when in June 2011 management started subbing officers from days to night or nights to days without the appropriate amount of time off in between. This was the focus of the union’s concerns from June 2011 to the end of 2012. These concerns were brought up at institutional labour-management committee meetings and management meetings, with Mr. Bussey, and with Mr. Marshall once he resumed his scheduling and deployment role.

94        The grievor never denied management had the right to do what it was doing; the concern was the amount of subbing, particularly after 16-hour shifts. He spoke out about his concerns, and on January 23, 2012, Ms. Boyer advised him that he was the subject of a disciplinary investigation. The allegations were initially that the grievor had organized the union members in an attempt to incite them against her; they changed to him making an attempt to discredit her. The grievor was removed from the institution pending the completion of the disciplinary investigation. The investigator concluded that the allegations were not founded.

95        The grievor testified that he attended Regional Labour-Management Committee meetings on February 21, April 26, May 24, June 27, and in September, October, November, and December 2012. At the May meeting, one item from the institution was to be discussed. In June, the grievor raised issues with fire load, subbing, and institutional leadership at the round table discussion. Before the round table at the May meeting, he had not made any comments at the meetings.

96        On May 23, 2012, the grievor met with Peter German, the regional deputy commissioner, Mr. Hanly, Mr. LeBlanc, Mr. Robertson, Ms. Blanchette, and Ms. Dillabough. The discussions focused primarily on the situation of one particular correctional officer employed at the institution. The grievor expressed that he felt targeted by Ms. Boyer in particular since she had initiated an investigation into the grievor’s conduct in February 2012. The group also discussed subbing.

97        The grievor testified that at no time was the grievor warned that he was crossing a line with his behaviour at labour-management committee meetings. Likewise, at no time was he warned that he was being harassing towards the Marshalls by his behaviour at these meetings.

98        He described the June 27 meeting was very contentious. Earlier that month, a change-of-command ceremony had taken place, in which the correctional officer staff did not want to participate. Warden LeBlanc accused the grievor of inciting the boycott and threatened to convene another investigation. He claimed that the grievor made comments about being ordered to go, which the grievor proved to be the case by calling in another correctional officer, who confirmed the order.

99        The grievor testified to numerous examples of discontent within the union membership for which Mr. Marshall was responsible due to scheduling changes he had made. The grievor was involved directly or peripherally in resolving these concerns, as were Mr. Foseth, Denise Cork, Justin Ott, Ms. Dillabough, and others, all of whom were union representatives.

100        On April 20, 2012, at a disciplinary hearing for a member, Warden LeBlanc told the grievor he was going to launch another investigation into his behaviour, in response to a list of points for discussion at an upcoming labour-management meeting that the grievor had sent him. These were items for discussion, not allegations, which Mr. LeBlanc said caused him concern. The grievor was upset that the Warden had decided to investigate these concerns rather than sit down and discuss them. After that, the grievor’s relationship with Mr. LeBlanc became very strained. The grievor told Mr. LeBlanc that he did not want to get into trouble for bringing forward issues.

101        In September 2012, according to the evidence the grievor was given a copy of the Morgan report and was told that it was to be discussed at the October 2012 institutional labour-management committee meeting. He disagreed, as there was insufficient time to review it. Eight new agenda items were to be discussed at that meeting, which left no time to discuss the Morgan report. The grievor wanted the meeting to complete the new items before discussing the Morgan report.

102        Mr. Morgan interviewed the grievor and asked him to provide specific examples under each of the concerns he had raised. He provided examples of favouritism (Exhibit 17, pages 13 and 14). He also raised issues that he had been told were unfounded, which had been provided to Warden LeBlanc in an email on May 4, 2012. The tone of the email was an emotional response to being asked for allegations at 9:00 when it had been agreed they would be submitted by close of business that day. Many of these examples were related to Mr. Marshall.

103        The grievor testified that he also provided information to the regional president about activities at the local level. It was his role to keep the regional president up to date on concerns with the operations at the institution. Much of this information was included in an email Mr. Robertson sent to the CSC’s commissioner, Don Head. The grievor was unaware that Mr. Robertson had sent it.

104        The grievor told Mr. Robertson that he felt he was being targeted. He was concerned that the institution’s management would remove him from the institution. Mr. Robertson advised him that in his opinion, the harassment complaints were frivolous. Raising issues that affected union members at the institution was the grievor’s role as the local president. There was nothing personal in his actions. Mr. Robertson wanted to make things better and to fix the problems. His focus was on the optics of the situation, while the grievor focused on specific incidents.

III. Summary of the arguments

A. For the employer

105        When this matter was referred to adjudication, the grievor had suffered a one-day suspension without pay. At the time of the hearing, the disciplinary action had been replaced with a written reprimand. The adjudicator lost jurisdiction when the disciplinary action was changed. When it comes to questions of jurisdiction, it does not matter what the disciplinary action was at the time the matter was referred to adjudication but rather what it was at the time of the hearing (see Canada (Attorney General) v. Robitaille, 2011 FC 1218 at paras. 26 to 30; and Rogers v. Canada Revenue Agency, 2009 FC 1093 and 2010 FCA 116). Rendering a decision on a penalty that does not exist would result in increasing the penalty. It would not make sense. There is no live issue between the parties.

106        The  decisions of the Federal Court and Federal Court of Appeal are clear. It is irrelevant to the adjudicator’s decision when the written reprimand was handed down. Furthermore, the employer has the right to change its mind to resolve a grievance. If the penalty is fixed at the time of the referral to adjudication, then the employer’s hands are tied, which would be poor labour relations.

107        As to the merits of this case, three questions are to be answered: Did the grievor harass the Marshalls? Was he acting within the confines of his role as a union representative? Was the discipline imposed appropriate?

108        Harassment is defined in the employer’s harassment prevention policy (Exhibit 3, tab 3, at page 5). It includes serious, repeated, rude, offensive, or degrading remarks. The employer ensured that the harassment allegations were investigated. Mr. Larocque looked at all the allegations, even though some happened outside the 12-month period identified in the policy because he believed that they proved a consistent and continuing pattern of behaviour that established that the grievor was guilty of harassing the Marshalls.

109        Scheduling and deployment issues were first raised in 2010 with Mr. Boileau and Mr. Bussey. The grievor raised 95% of them. As a result, the employer charged Ms. Lamm with investigating the allegations of favouritism, of changing the schedule to suit Ms. Marshall’s needs, of giving her more statutory holiday shifts, and of her otherwise benefitting from Mr. Marshall’s role as the correctional manager, scheduling and deployment.

110        Alleging that Mr. Marshall used his position to favour his spouse was very serious. It was a serious threat to his reputation and called into question his ability to do his job fairly. The grievor’s comments were hurtful, and he knew or ought to have known that they were offensive to Mr. Marshall. Ms. Lamm found nothing to substantiate the grievor’s allegations, which were based only on speculation, hearsay, and opinion.

111        The grievor was told that the issues he raised were unfounded. He should have let it go unless he had concrete evidence to support his allegations. He had no right to continue to say that Mr. Marshall was guilty of favouritism when it was proven untrue. Even after Ms. Lamm’s investigation, the grievor continued with the same allegation, which was that Ms. Marshall benefitted from her husband’s role as the correctional manager, scheduling and deployment. It was made not only in private bilateral meetings but also at institutional and Regional Labour-Management Committee meetings.

112        By the spring of 2012, the grievor’s complaints raised at regional labour relations consultation committee meetings became personal and were primarily directed at the Marshalls. He continued to do so through 2013 until he stopped attending the regional meetings. The Regional Labour-Management Committee meetings were a very public venue, which many of Mr. Marshall’s colleagues attended. It was not only damaging to Mr. Marshall’s reputation for the grievor to make these comments, but also, since Mr. Marshall did not attend the meetings, he could not defend himself.

113        Mr. Hanly followed up with the institution’s management and was advised that there was no evidence of favouritism or mishandling of the sublist. The grievor’s unfounded allegations made their way to the commissioner through Mr. Robertson. The grievor should not have perpetuated the rumours, knowing that the allegations had been investigated and had been determined unfounded. It was his duty as a member of the union executive to let the members at his institution know that the investigation into the allegations had been completed and that the results indicated that they were unfounded. Instead, he continued in his pursuit of the Marshalls, which resulted in the second investigation, carried out by Mr. Morgan.

114        The allegations that Mr. Morgan investigated essentially repeated those that gave rise to Ms. Lamm’s investigation in 2010. Even after he received Mr. Morgan’s investigation results, the grievor continued to make the same allegations and to ensure that Mr. Robertson pursued them. After two investigations, repeating the same allegations without any new evidence was harassment. The grievor had the right to disagree with the Morgan report, but he did not have the right to continue to pursue the Marshalls as he did. He should have stopped making his comments.

115        The grievor interfered with Ms. Marshall’s career progression by making comments to Mr. Bussey. He also commented at the institutional labour-management committee meetings. A local president’s role does not include intervening in management’s decisions about whom to promote. The grievor was not acting in a union capacity when he made these comments. Ms. Marshall was upset at the lack of representation she received from the union, and this attempt to jeopardize her career and damage her reputation. When Mr. Marshall heard the comments about his wife, he took them as a personal attack. To the Marshalls, these comments were deeply personal.

116        In addition, after he received Mr. Larocque’s confidential harassment investigation reports, the grievor distributed them beyond those who were authorized to receive them. He breached the requirement to maintain confidentiality throughout the harassment investigation process. An email written by Mr. Robertson contained details of the harassment complaint that the grievor had provided to him. The grievor put his own spin on the complaints even before they were investigated in an attempt to make them go away.

117        The Joss v. Treasury Board (Agriculture & Agri-Food Canada), 2001 PSSRB 27, decision gives a good overview of what must be determined to establish a case of harassment. For general harassment to exist, there must be objectionable conduct directed at the complainant. The conduct must be unwelcome. The perpetrator must have known or ought to have known that the conduct was unwelcome. The conduct must demean, belittle, or cause personal humiliation or embarrassment to the complainant. The conduct includes acts, comments, or displays made on a one-time or continuing basis (see para. 59 of Joss). The continuous unfounded comments the grievor made in this case were obviously intended to hurt a person. The standard of proof in harassment cases is that on the balance of probabilities, the conduct amounted to harassment at law, including the law of contract (see para. 78).

118        The grievor’s repeated statements, if not true, were harmful to Mr. Marshall’s reputation. Allegations of favouritism are very serious, and continuing to make those comments when he knew that they were unfounded showed a pattern of reckless behaviour that fell outside the grievor’s role as a union representative. Statements based on a falsehood are not protected by his union role. It does not matter whether the comments were made about an employee or a manager. (See Nowen v. Treasury Board (Solicitor General - Correctional Service Canada), 2001 PSSRB 47; King, 2008 PSLRB 64 at para. 192; Toronto (Metropolitan) v. Canadian Union of Public Employees, Local 79 (1998), 70 L.A.C. (4^th) 110 at para. 16; Burns Meats Ltd. v. Canadian Food & Allied Workers, Local P139 (1980), 26 L.A.C. (2d) 379; Brampton (City) v. Amalgamated Transit Union, Local 1573 (1989), 7 L.A.C. (4^th) 294 at paras. 56 and 58; and Sun-Rype Products Ltd. v. Teamsters, Local 213 (2010), 191 L.A.C.(4th) 129 at paras. 159, 160, 161, and 163).

B. For the grievor

119        The onus was on the employer to prove based on clear and cogent evidence that the grievor’s behaviour warranted discipline. He has shown that during the period in question, the relationship between the union and management at the institution was strained. Labour relations were difficult. He admitted bargaining unit members brought up Mr. and Ms. Marshall frequently when they brought scheduling issues to him as their union representative. In turn, he would bring up Mr. and Ms. Marshall when he discussed the union’s concerns with how the correctional manager, scheduling and deployment, was scheduling correctional officers, including Ms. Marshall.

120        The employer was unable to show that the allegations were false, and the documents submitted as exhibits clearly show that they were true. The fact that the grievor continually brought up the issues is a testament to his commitment to labour relations. There were issues with subbing; correctional officers were forced to work other officers’ shifts with very short turnarounds. The employer just did not understand the impact of a short turnaround between shifts on members’ health, and it was incumbent on the grievor to continue to raise it until the employer understood.

121        Realistically, if the grievor harassed Mr. and Ms. Marshall over a two-year period, would Mr. Bussey or Mr. Boileau have put up with it? The first time that the grievor heard that Mr. Marshall had intended to file a harassment complaint earlier than he did but was told by management it would not be in his best interests was at this hearing. It cannot be used to establish a pattern of harassment from 2010 to 2012. In May 2012, Mr. Marshall’s name came up at a regional labour-management consultation committee meeting. It came up by virtue of reference to his position. The grievor is entitled to raise issues affecting his members at these meetings.

122        The Lamm report was not independent or thorough. Ms. Lamm did not analyze changes Mr. Marshall had made to the schedules; nor did she assess the credibility of those she interviewed. She made no mention of Ms. Marshall accessing the SDS via her husband’s user code. Mr. Marshall admitted to doing three-way and phantom shift trades, contrary to the national policy, and yet no finding of culpability was made. Only Ms. Marshall was allowed to make open-ended shift trades, which were also contrary to national policy. Mr. Marshall violated the collective agreement, and the grievor was entitled to demand that the employer deal with his scheduling practices and ensure that the collective agreement was followed. Ms. Lamm concluded that Mr. Marshall should have been exonerated because the scheduling anomalies were caused by him being too accommodating.

123        Mr. Boileau did not deal with the results of the Lamm report and Mr. Marshall’s admissions. He left it to Mr. Bussey, who did not even read it. If the employer believed that the grievor was harassing Mr. Marshall, why, after the Lamm report was released, did it reassign Mr. Marshall as the correctional manager on the living unit where the grievor worked? It was because there was nothing upon which to conclude that the grievor was harassing Mr. Marshall.

124        Mr. Marshall testified that he filed a harassment complaint against the grievor in 2010. He also testified that management ignored it. The truth was that he withdrew it. Clearly, he was not a credible witness. He gave the same information to Mr. Larocque and made no effort to correct it. But for the fact he was forced to clarify this allegation on cross-examination at this hearing, he would never have mentioned that he withdrew his complaint.

125        The grievor was entitled to raise labour relations concerns, and all his comments were labour-relations related. They were not made in the presence of Mr. or Ms. Marshall, so they could not have been directed at them. The employer never told him that the comments were improper or unprofessional. The only person who concluded that they were improper was Mr. Larocque, who misunderstood labour relations, collective agreements, and the union’s role. He did not know what type of issues a union representative would raise, let alone when and where. Mr. Larocque went so far as to comment that the grievor was involving himself in things that belonged to management when in fact they were issues related to the application of the collective agreement.

126        Labour-management committee meetings are not a public forum. The collective agreement sets out who is entitled to attend. They are required under the PSLRA. Bilateral meetings are held between the union executive and local executive members with different levels of management at the institutional, regional, and national levels. Any subject of concern to the union can be raised, according to Mr. Boileau. Issues related to scheduling correctional officers might very well have been discussed at the meetings, but the employer provided nothing specific as to the times and places when the grievor made the allegedly offensive comments. Mr. Bussey himself was the source of many of the comments. He did not attend either labour-management committee or bilateral meetings, so he would have been only repeating information relayed to him third- or fourth-hand. The one comment that the grievor realized was offensive was made in the heat of the moment when Mr. Bussey told him about the upcoming acting assignment for Ms. Marshall. He apologized for it.

127        Being a union representative does not impose a standard of perfection. The grievor admitted that he made the collateral damage comment, but Ms. Marshall agreed with it. In her emails to her crew, she stated that what affected Mr. Marshall affected her. When she sent those emails, she relied on hearsay; Mr. Marshall reported to her what Mr. Bussey had told him. Ms. Marshall could have talked to the grievor about it but chose not to and believed the story Mr. Bussey and her husband told her.

128        There is no evidence that the grievor tried to interfere with Ms. Marshall’s career. She testified that he did not interfere but that he tried to. Mr. Bussey said that the grievor’s comments about not supporting Ms. Marshall’s acting appointment had no impact on his decision. Only Mr. Larocque believed that the grievor had interfered with Ms. Marshall’s career. Mr. Marshall speculated that the grievor was responsible for both Ms. Lamm’s and Mr. Morgan’s investigations into his scheduling practices. Management had initiated both of them; the grievor sought only to sit down and discuss the union’s concerns, which is evidence of his desire to resolve the situation.

129        Mr. Larocque’s investigation was without merit as it was based on a policy that was not in effect. Under the proper policy, a complaint must be filed within 12 months of an alleged violation. He should not have speculated about any extenuating circumstances, which prevented Mr. and Ms. Marshall from filing their complaints within the policy’s timelines. Ms. Marshall’s complaint was based on allegations dating back to 2010. It should never have been investigated. The complaints were reprisals for the grievor raising issues of favouritism and improper scheduling benefits. Furthermore, Mr. Larocque made findings that were not open to him to investigate, such as a breach of privacy by the grievor when he forwarded the draft report to the attention of Ms. Blanchette. The grievor was entitled to the representative of his choice. It was not a breach of privacy to change his representative or indeed to add a representative.

130        A distinction must be made between statements made internally and those made externally. A union representative must have more latitude when speaking internally. In this case, the grievor tried to resolve issues reported to him by his members through the labour-management consultation committees. Emails sent by the Marshalls, in particular Ms. Marshall, spread the concerns far wider than anything the grievor did.

131        As for the matter of jurisdiction, the grievor disagreed with the employer’s argument that the adjudicator is without jurisdiction as the penalty imposed was a written reprimand. Ms. Sandhu decided to change the penalty. She testified that she did not think changing the penalty was appropriate and that a one-day suspension without pay as originally imposed was still appropriate in the circumstances. The change came at the second level of the grievance process and was made at the eleventh hour. The employer’s only reason for the change was to avoid a full-blown hearing into Mr. Marshall’s actions. An adjudicator’s jurisdiction is fixed at the time of a referral to adjudication. A grievor should not be denied the right to have his or her grievance heard by ousting the adjudicator’s jurisdiction via substituting a written reprimand, which is non-adjudicable, for a suspension without pay, which is adjudicable. The question of whether the discipline was warranted remains a live issue.

132        The principle established in Parkolub and Hu v. Canada Revenue Agency, 2007 PSLRB 64, has been followed repeatedly. It states that an adjudicator has jurisdiction if, when the grievance was referred to it, the grievor had the right to adjudication. There is no reason to change that approach. The Robitaille fact situation differs from the one in this case and should not be applied to overturn the jurisprudence that arose from Parkolub and Hu. Unlike in Robitaille, there has been no response at the final level of the grievance process in this case. Ms. Sandhu made the decision at the second level, and the grievor would be without the right to judicially review the employer’s decision without a final-level response. Adjudication is his only remedy. (See also Reasner v. Treasury Board (Transport Canada), PSSRB File No. 166-02-26260 (19950607), [1995] C.P.S.S.R.B. No. 51 (QL); and Rajakaruna v. Treasury Board (Revenue Canada, Taxation), PSSRB File No. 166-02-23135 (19930413), [1993] C.P.S.S.R.B. No. 59 (QL)).

133        In Rogers, the grievor’s penalty was reduced to a letter of reprimand when the parties agreed to the change during the grievance process, which was not so in this case. The parties in this case did not agree to a new penalty. Ms. Sandhu unilaterally decided to substitute the written reprimand, and in her testimony, she stated that she believed that the financial penalty originally imposed was the correct disciplinary measure.

134        What constitutes harassment depends on how a reasonable person would view the impugned behaviour. Harassment is an unacceptable social behaviour that has its roots in a particular time and place and that cannot be appreciated unless the entire situation is considered. Legitimate disagreements must be distinguished from harassment. In a conflict, the conduct of both parties must be examined. For one to harass another, the conduct of one must be focused on the other in a repetitive and hostile manner, which negatively impacts his or her dignity or integrity (see Centre hospitalier régional de Trois Rivières (Pavillon St-Joseph) c. Syndicat professional des infirmières et infirmiers de Trois Rivières (Syndicat des infirmières et infirmiers Mauricie-Coeur-du-Quebéc),, [2006] R.J.D.T. 397 (“Trois Rivières”).

135        The grievor’s comments were not malicious or recklessly false. He was acting in good faith, pursuing the union members’ interests. Even if the statements were inappropriate, he was still immune from disciplinary repercussions as he was acting in his union capacity. There is no standard of perfection that the grievor should have met while pursuing the union’s interests. He referred to Mr. Marshall only by discussing his position in a restricted forum. Comments made internally in a restricted forum differ from those made in a public forum. As long as the comments were not malicious or knowingly reckless or false, the grievor was protected (see Burns Meats Ltd.; Interforest Ltd. v. International Woodworkers, Local 1-500 (1990), 12 L.A.C. (4^th) 257; Toronto (Metropolitan); Saskatoon (City) v. Canadian Union of Public Employees, Local No. 47, 2012 CanLII 55909 (SK LA); Scruby v. Staub, PSSRB File No. 161-02-420 (19870616), [1987] C.P.S.S.R.B. No. 166 (QL); Shaw v. Deputy Head (Department of Human Resources and Skills Development) et al., 2006 PSLRB 125; Canada (Attorney General) v. Demers, 2008 FC 873; and King, 2008 PSLRB 64).

C. Employer rebuttal

136        The issue is whether the comments the grievor continued to make about Mr. Marshall favouring Ms. Marshall by not scheduling her as he did others and by allowing her to substitute her shifts, contrary to policy, were offensive. The grievor has shown no recognition of the impact his repeated comments had on the Marshalls. The grievor based his comments on a perception of a conflict of interest and not on the facts.

IV. Reasons

137        There are potentially three questions for me to decide in this matter:

1. Does the adjudicator have jurisdiction to hear a disciplinary grievance when the penalty was a letter of reprimand? If the answer is “no”, I need not proceed further. If the answer is “yes”, then I must answer the second question.
2. Did the grievor harass Mr. and Ms. Marshall as alleged? If the answer is “no”, I need only allow the grievance. If the answer is “yes”, in whole or in part, I must answer the third question.
3. Was the penalty imposed by the employer appropriate in the circumstances?

138        The employer argued that since the initial suspension imposed against the grievor was replaced with a letter of reprimand before the hearing, there was no live issue, and the adjudicator has no jurisdiction, since letters of reprimand cannot be referred to adjudication. The PSLRA imposes limitations on what grievances are adjudicable, as follows:

…

Reference to adjudication

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.

…

139        The Federal Court ruled in Robitaille that Parliament decided that only grievances disputing the most severe disciplinary actions may be referred to adjudication. Only those grievances related to a termination, demotion, suspension, or financial penalty may be referred to adjudication. A written reprimand, although disciplinary, does not result in the consequences listed in s. 209(1)(b) of the PSLRA.

140        However, Robitaille is distinguishable on the facts from the case before me. In that case, the grievor filed a grievance specifically against a letter of reprimand that had replaced a 15-day suspension. That grievance was referred to adjudication. In the case before me, the grievance referred to adjudication related to the one-day suspension without pay. The grievor did not grieve the letter of reprimand that was substituted allegedly at the second level of the grievance process. There is still a live issue to be determined, which is whether disciplinary action was warranted, and if so, whether the penalty imposed was reasonable in the circumstances.

141        The grievor’s representative argued that the principle established in Parkolub and Hu  should be followed, which isthat this adjudicator has jurisdiction if, when the grievance was referred to it, the grievor had the right to adjudication. There is no reason to change that approach. Unlike in Robitaille, there was no response at the final level of the grievance process in this case. Ms. Sandhu made the decision at the second level and testified that in her opinion, the suspension originally imposed was warranted. She agreed to substitute the letter of reprimand for the suspension in hopes of preventing the need for adjudication. I question Ms. Sandhu’s authority to alter the penalty after she had issued her decision at the second level and the grievance has been referred to the final level. At that point, it is at the discretion of the person identified as the final level of the grievance process who has the authority to alter Ms. Sandhu’s decision. As Ms. Sandhu may not have had the authority to change the penalty once the grievance had been referred to the final level and according to the decision in McWilliams et al. v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 58, that a failure to reply at the final level of the grievance process is a de facto denial of the grievance, adjudication of the one-day suspension is the grievor’s only remedy.

142        The grievor argued that the Robitaille fact situation differs from the one in this case and that it should not be applied to overturn the jurisprudence that arose from Parkolub and Hu, and I agree. I feel confident that Parliament and the Federal Court did not envision using the prohibition against referring a letter of reprimand to adjudication to be used by employers to oust the adjudicator’s jurisdiction on the eve of a hearing by substituting a letter of reprimand. Public policy demands that in the interests of effective labour relations, the employer’s decisions be subjected to scrutiny. The employer should not be allowed to evade this scrutiny by changing the original discipline to a letter of reprimand on the courthouse steps.

143        For those reasons, I have determined that an adjudicator has jurisdiction to hear this matter. The question then becomes whether disciplinary action was warranted. The grievor challenged the quality of the investigations into the harassment complaints filed by Mr. and Ms. Marshall. 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 and Turner 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). That being said, any irregularities in Mr. Larocque’s investigation are of little consequence in the circumstances of the case. As to whether the grievor’s pattern of comments dating back to 2010 should have been considered, it is clear to me that such a pattern exists, particularly since the labour relations environment at the institution between 2010 and 2013 was at the heart of many of the comments made by the grievor.

144        The grievor admitted to making allegations in different labour relations forums that the correctional manager, scheduling and deployment, at the institution was abusing his authority and that he was not scheduling correctional officers according to the collective agreement and policy. He did not deny discussing those allegations with several union members with whom he worked. It is impossible that anyone familiar with the institution did not know to whom the grievor was referring. He also did not deny that as a result of his comments, Ms. Marshall suffered collateral damage. His comments were not directed specifically at her, but she was affected by the ongoing scrutiny of her schedule and by his comments, which were intended to prevent her from receiving an acting appointment as a correctional manager. The fact that the employer chose not to consider the grievor’s comments when making the appointment is irrelevant. The intent was to influence the employer’s decision.

145        The grievor claimed that his comments were innocent, that he made them in the course of his union activities, and that therefore he was exempt from being disciplined for them. The evidence clearly established that during the period in question, a very turbulent labour relations environment existed at the institution, which a series of wardens attempted to resolve. The employer did not ignore the grievor’s comments; it undertook two investigations, by Ms. Lamm and Mr. Morgan, both of which found that other than Mr. Marshall’s failure to follow direction about recording his wife’s leave, nothing was untoward in his scheduling practices.

146        The grievor should have known that continually repeating the allegations that Mr. Marshall abused his role as the correctional manager, scheduling and deployment, could have aggravated the situation and might have contributed to the unrest in the labour relations environment at the institution. Furthermore, the numerous scheduling documents submitted as exhibits (Exhibits 21, 22, 23, 30, 56, 67, and 58) do not support the grievor’s allegations. In particular, I note that his allegation that Ms. Marshall’s schedule was changed so as to ensure that she worked more statutory holidays is contradicted by her leave report, which shows that she used annual leave to cover those shifts rather than working them. That together with the grievor’s testimony that he preferred to work every statutory holiday, with the exception of Good Friday, causes me to question his true motive when he made his allegations about Ms. Marshall.

147        The grievor asserted that his comments about the scheduling issues at the institution were protected as he was at all times acting in his union capacity. I do not accept this with respect to his comments about Ms. Marshall, whose schedule seemed to be the focus of his concerns. After two investigations that proved him wrong in so far as his comments about her, the grievor knew or ought to have known that his conduct was objectionable. For those reasons and his recognition in his testimony that he should not have made certain comments about Ms. Marshall, I agree with Mr. Larocque’s conclusions that the grievor harassed her.

148        As a union representative, the grievor was entitled to challenge the employer’s actions when it scheduled its employees. He was also entitled to raise his concerns at the different labour relations functions as he did. Scheduling employees was not the union’s only concern at the time was according to all who testified, it was a very tumultuous time for labour relations at the institution. Union members were dissatisfied with many things at the institution, and it was the grievor’s role as local president to bring them forward in an attempt to resolve them. It would have been impossible for him to raise the issues facing the union members at the institution without referring to the people involved. It would not have been possible to challenge the scheduling issues without referring to the correctional manager, scheduling and deployment, since that position was uniquely responsible for scheduling correctional officers. Since Mr. Marshall was the one and only scheduler at the relevant times, with the exception of when he was removed while under investigation, referring to the position or the person would have amounted to the same thing.

149        Union speech is not without its limits. Union representatives are entitled to express criticisms that have the potential to affect the employer as long as the criticisms are not malicious and they do not make statements that are knowingly or recklessly false. Being animated or emotional when expressing opinions does not give rise to justifiable disciplinary action. According to the Federal Count in King v. Canada (Attorney General), 2012 FC 488, the burden of proof was on the employer to establish on the balance of probabilities that the grievor acted outside the proper scope of his union duties, which it did not do with respect to the grievor’s comments about scheduling and deploying correctional officers at the institution.

150        Throughout this process, including at adjudication, the grievor was very animated when expressing his beliefs that something was awry with the scheduling and the labour relations environment in general at the institution. I accept his evidence that his only intention was to protect the rights of his union local’s members and to ensure the proper application of the collective agreement and policies. The fact that he had a somewhat stormy relationship with Mr. Marshall did not make his expression of these concerns any less legitimate. A review of the same scheduling documents clearly demonstrated multiple changes to schedules, which were upsetting to the union membership, even if they did not violate the collective agreement.

151        Comments made by union representatives must be considered in light of the context in which they were made. As the grievor’s representative stated, as long as the grievor’s comments were not malicious or knowingly reckless or false, he was protected (see Burns Meats Ltd.; Interforest Ltd.; Toronto (Metropolitan); Saskatoon (City); Scruby; National Steel Car Limited; Shaw; Demers; and King, 2012 FC 488). The grievor’s statements about scheduling reflected the legitimate concerns of his membership and were not knowingly false or reckless.

152        Doggedly pursuing these allegations even in light of Ms. Lamm’s and Mr. Morgan’s investigations, given the labour relations environment at the time, was not malicious; nor were the statements entirely untrue. There were apparent inconsistencies in the scheduling practices at the institution, some of which were intended to reduce overtime, while others were to meet the requests of the members who individually approached the correctional manager, scheduling and deployment. However, this does not meet the definition of harassment as set out in Trois Rivières and Joss.

153        Having concluded that the grievor did in fact harass Ms. Marshall, disciplinary action was warranted. As I said in Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119, an adjudicator should reduce a disciplinary penalty imposed by management only if it is clearly unreasonable or wrong. Had the employer not already reduced the penalty to a written reprimand, I would have upheld the one-day suspension originally imposed as it was neither unreasonable nor wrong given my conclusion that the grievor had in fact harassed Ms. Marshall. I read with interest the numerous decisions provided in support of both parties’ arguments. While I have not cited and addressed each and every one, I took them into consideration in coming to my conclusion.

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

V. Order

155        The grievance is dismissed.

September 23, 2016.