FPSLREB Decisions

Heard at Moncton, New Brunswick,
February 12 and December 13 to 15, 2016.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        The grievors, Megan Comeau and Darin Pettis, grieved the disciplinary action imposed on them by the employer, the Correctional Service of Canada. They alleged that the one-day financial penalty imposed against them was without cause and that it contravened the employer’s code of discipline and its guidelines for discipline.

2        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014 84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board and the former Public Service Staffing Tribunal. The Board heard these grievances under the authority of the related implementing statutory instruments.

II. Summary of the evidence

3        The facts of this case are simple. The grievors are correctional officers (CXs) at Springhill Institution in Springhill, Nova Scotia (“the institution”). On October 3, 2012, they were dispatched to relieve other CXs who had been assigned to guard an inmate from the institution while he received inpatient medical treatment at a hospital in Halifax, Nova Scotia. The grievors were provided with a secure vehicle to travel from Springhill to Halifax and intended to return in that same vehicle the next morning at the end of their shift. The officers they relieved also had a vehicle supplied to them by the employer; it was an ordinary passenger vehicle.

4        During the course of their overnight shift, medical staff at the hospital in Halifax advised the grievors that the inmate was to be released on October 4, 2012. Based on that information, the grievors exchanged vehicles with their colleagues and returned to the institution in the passenger vehicle, which meant leaving the secure vehicle for their colleagues to use to transport the inmate back to the institution.

5        The employer considered this display of what the grievors thought was initiative as insubordination. According to the employer’s witnesses, their decision violated a direct order given to them by Karen Coveyduck, a correctional manager (CM) at the institution, to return with the secure vehicle. As a result, they received one-day financial penalties as discipline for their insubordination.

6        James Wallace testified on behalf of the employer. He is a duty CM at the institution. In October 2012, he was the acting CM responsible for scheduling and deploying CXs. He worked a standard 9-to-4 shift, Mondays to Fridays. Near the end of his shift on October 3, 2012, he spoke to CM Coveyduck about sending relief CXs to the hospital in Halifax to guard the inmate who was an inpatient there. They spoke about the vehicle the grievors were to drive from Springhill to Halifax. The vehicle dispatch sheet, which identified that vehicle, showed that they were to return in a different vehicle. It showed them leaving the institution in a secure vehicle (called “P6”) and returning in a vehicle that was not secure (called “P49”).

7        Mr. Wallace testified that Ms. Coveyduck was concerned about P6 being left in Halifax because it meant that the institution would be short secure vehicles. If P6 was not returned, there would be only one other secure vehicle that could be driven without a special class of driver’s licence. Mr. Wallace and Ms. Coveyduck agreed that P6 should be returned in case it was needed; returning it was the safest thing to do.

8        The inmate was classified as minimum security. Mr. Wallace considered him low risk. Mr. Wallace could not remember if the inmate had been sent to the hospital in restraints. According to Mr. Wallace, secure vehicles are normally used to transport inmates on medical escorts. At the time of his conversation with Ms. Coveyduck, Mr. Wallace was not aware that the inmate would be released the next day.

9        Mr. Wallace testified that he spoke to the grievors about the change in plans for the vehicles. He told them to bring P6 back, contrary to what was shown on the vehicle dispatch sheet. He remembered speaking to Ms. Comeau in the parking lot as he was leaving at the end of his shift. He claimed that he was left with the impression that the direction about the vehicle was clear and that she understood what he had told her to do. He did not remember if she asked any questions about the change. He assumed that Ms. Coveyduck would give Ms. Comeau the same direction when she gave the escort briefing. According to Ms. Coveyduck’s evidence, she did not speak to Ms. Comeau; nor did she provide the grievors with an escort briefing before they left for Halifax.

10        Ms. Coveyduck testified that the grievors did not return P6 as they had been directed to. A medical emergency arose at the institution that required a secure vehicle, which was not available because the grievors had failed to obey the order to return P6.

11        The term “emergency” is used loosely at the institution to describe anything from a planned doctor’s visit to a 911 situation. It simply means that the temporary escorted absence was not scheduled with 72 hours’ notice. Any unscheduled medical escorts should have been noted in the duty CM’s log (Exhibit 3, tab 9).

12        Ms. Coveyduck has been the duty CM at the institution for more than 10 years. In October 2012, she worked the day shift, from 06:00 to 18:30. In the afternoon of October 3, she had a discussion with CM Wallace concerning the return of P6 the next day. The grievors were to use it to travel to Halifax for an overnight escort shift. Her opinion was that the vehicle was required the next day because of a planned inmate movement. If it was not returned, and a medical emergency arose on the next day, the institution would be short secure vehicles that could be driven by any officer with a basic driver’s licence.

13        Ms. Coveyduck testified that she had two conversations with Mr. Pettis, one on the phone, and one in her office, during which they discussed which vehicle was to be returned to the institution the next day. She remembered clearly telling Mr. Pettis that if he and Ms. Comeau took a secure vehicle to Halifax that night, it had to be returned to the institution the next morning. She explained why the secure vehicle was needed on-site. Since the inmate in hospital was classified as minimum security (even though the threat risk assessment (Exhibit 5) that authorized transferring him to the hospital classified him as medium security), a secure vehicle was not needed; the institution had a greater operational need to have P6 on-site. Given the inmate’s threat risk assessment, he could have been transported in any vehicle, so the grievors had no reason to return in P49.

14        Ms. Coveyduck testified that she “had the impression” that Mr. Pettis understood and that he would return P6 to the institution the next day. She had no reason to believe that the grievors would not return in P6 the next morning. Two escorts were scheduled for October 4, for which Ms. Coveyduck required secure vehicles that anyone could drive. The institution had three such vehicles, of which one was on loan to Atlantic Institution, one was required for an escort, and one was being used by the grievors. Two other secure vehicles could be used for the escorts, but they required a class 4 licence.

15        At approximately 09:00 on October 4, 2012, Ms. Coveyduck received a phone call from the institution’s healthcare department. She testified that she was advised that an emergency medical transfer was scheduled for that day. Since less than 72 hours’ notice was provided, it automatically became a secure escort, which required that the CXs be armed and that a secure vehicle be used.

16        Ms. Coveyduck then assigned staff to conduct the escort and told them to use P6. When the officers went to get P6, they discovered that it was not at the institution. Ms. Coveyduck told the CXs to look again because based on her discussion with Mr. Pettis the day before, it had to be there. According to her, another CX called the officers in Halifax and discovered that they had P6.

17        Since P6 was not available, and since another secure vehicle, P5, was in use on another escort, Ms. Coveyduck had to find a driver who was licensed to drive the other secure vehicles. She called the fleet office and found a driver who then took the two CXs and the inmate on the medical escort.

18        Had there been no other driver available, Ms. Coveyduck testified that she would have had to call an ambulance to take the inmate to his appointment. From the time she was advised of the medical escort to the time the inmate left the institution, approximately 40 minutes passed. The medical escort was not a true emergency as it was only for a medical appointment. It was an emergency only because it was scheduled without 72 hours’ notice. While the medical escort did in fact happen, it did not happen as Ms. Coveyduck would have preferred.

19        By deviating from the escort plan, the grievors jeopardized the safety of the institution, inmates, and staff. Therefore, Ms. Coveyduck decided that disciplinary action was necessary.

20        A disciplinary hearing was held for Mr. Pettis on November 6, 2012. He was present with his union representative, Jeff Wilkins. Also present was CM Beth Leclair. The purpose was to discuss what had transpired and to ask Mr. Pettis what his rationale had been for not following the directions he had been given. According to Ms. Coveyduck, Mr. Wilkins objected to the hearing because in his words, she was “judge, jury, and executioner”.

21        When Mr. Wilkins finished, Ms. Coveyduck testified that she asked Mr. Pettis if he wanted to say anything. He merely told her that he had followed the directions on the dispatch sheet because they had made more sense to him despite the directions Ms. Coveyduck had given him. He offered no reason for not telling her which vehicle he had left in Halifax.

22        Based on this, Ms. Coveyduck determined that Mr. Pettis had committed acts of misconduct. He had not followed a CM’s order. He had left the safety of the inmates, staff, institution, and public vulnerable because Ms. Coveyduck was left lacking the resources to deal with a crisis. When determining the appropriate penalty, she considered Mr. Pettis’s record as a mitigating factor. He had no previous disciplinary record. The aggravating factors were the vulnerability to the institution that he had caused; the employer’s every right to expect that a CX will respect the a CM’s rank; and the fact that he expressed no remorse, took no responsibility, and attempted to conceal that he had disregarded an order.

23        According to Ms. Coveyduck’s evidence, this all amounted to a violation of section 6(h) of “CD-060”, which is the employer’s code of discipline and professional standard about the grievor’s responsible discharge of his duties. Given the severity of the offence and its potential consequences and the blatant disregard for her office, Ms. Coveyduck determined that pursuant to the global agreement between the union and the employer (Exhibit 1, tab 6), a one-day financial penalty was appropriate. She testified that she considered an oral or written reprimand but that she dismissed both options because in her opinion, they were not severe enough given the nature of the offence and the blatant insubordination displayed by Mr. Pettis.

24        That same day, Ms. Coveyduck, Ms. Leclair, and Mr. Wilkins met with Ms. Comeau. Mr. Wilkins reiterated his concerns about Ms. Coveyduck’s role in the discipline process. Ms. Comeau said nothing, at Mr. Wilkins’s direction. Since Ms. Comeau presented no mitigating factors, and given that she expressed no remorse and did not accept responsibility, because of the vulnerability of the institution and her lack of respect for Ms. Coveyduck’s rank, Ms. Coveyduck concluded that the same penalty that was imposed on Mr. Pettis was appropriate, even though she left it to Mr. Wallace to deliver the discipline to Ms. Comeau.

25        According to Ms. Coveyduck’s testimony, Ms. Comeau and Mr. Pettis had both been given a direct order, and by virtue of Ms. Coveyduck’s rank, they were expected to follow her orders. According to Ms. Coveyduck, if CXs were allowed to disrespect orders given to them by a CM, mayhem would result, as it would were CXs allowed to do what they thought appropriate.

26        Mr. Pettis had been employed at the institution at the CX-01 group and level for 2.5 years at the time of this incident. He reported directly to CM Alistair MacLean. Before this incident, he had no disciplinary record. Since the start of his employment there, he has been assigned to conduct temporary escorted absences of inmates. He is familiar with the policies and exigencies of this type of assignment.

27        On October 3, 2012, he received a phone call asking if he would report to work early so that he would have time to drive to Halifax to relieve other officers on hospital surveillance duty. He did not recall who called him. Mr. Pettis testified that he agreed and that he reported to the institution at approximately 15:30. He spoke to CM Coveyduck, who requested that P6 be brought back the next morning for use by other officers the next day. She did not tell him why, only that it was needed the next day. She did not give him an escort briefing.

28        When Mr. Pettis drew the keys to the vehicle at the principal entrance, he referred to the vehicle log to find out which one had been assigned to him. The logbook indicated that he was to take P6 to Halifax and to return with P49. CXs cannot choose the vehicle to use on an escort; it is assigned and recorded in the vehicle logbook.

29        In the early hours of the overnight shift at the Halifax hospital, after the doctor had completed his rounds, the grievors were advised that the inmate was to be discharged that morning, according to Mr. Pettis’s testimony. With this information, he and Ms. Comeau decided to leave P6 behind for the other officers to transport the inmate back to the institution. The practice at the institution was to use secure vehicles to transport inmates, particularly those classified as medium security, such as the inmate at issue, according to the escorted temporary absence permit (Exhibit 5). By leaving P6 behind for their colleagues, the grievors intended to prevent the institution from having to send another vehicle and officers to pick up P49, the inmate, and his escort officers.

30        The grievors did not call the institution to have this change authorized as Mr. Pettis believed that policies gave him the authorization to make it. He testified that inmate escorts are governed by policy but that the escort officers have some discretion, such as the route to take and when to remove restraints for medical exams. He believed that it was the correct thing to do in the circumstances and that doing so would save the institution time and money and the need to send another vehicle to Halifax, which would have tied up two vehicles and a number of additional personnel. He said that in retrospect, he should have asked for permission from the CM on duty.

31        Mr. Pettis did not recall going to the duty CM’s office to return the cellphone, although he testified it would have made sense to do it. He also did not recall speaking to Ms. Coveyduck. He had no particular reason not to tell her about the change in vehicles; he was tired after a night shift and the drive. The next time he heard about this issue was on October 31, when he received the notice of the disciplinary hearing. No one had spoken to him about the events in the meantime.

32        At the disciplinary hearing, Mr. Wilkins expressed his concerns with what Ms. Coveyduck had undertaken. He had instructed Mr. Pettis to attend but not to participate because of the union’s disagreement with how the disciplinary hearing was being conducted. At that hearing, Mr. Pettis told Ms. Coveyduck that he had done what he had thought was practical. She ended the hearing at that point, and Mr. Pettis was offered no other opportunity to address the concerns. Ultimately, he was advised that Ms. Coveyduck was imposing a $160 financial penalty on him; the severity surprised him. The decision he and Ms. Comeau had made had seemed an obvious choice, and any side effects of it had been unintended.

33        Like Mr. Pettis did, Ms. Comeau testified that she had had no previous disciplinary record before October 3, 2012. On that day, Mr. Wallace called her in early to work overtime on an escorted temporary absence in Halifax. Mr. Wallace indicated to her that there was an issue with the vans used by the institution but did not give her any particular direction.

34        When Ms. Comeau arrived at the institution, she encountered Mr. Wallace, who told her to pick up an envelope in the duty office containing a new warrant concerning the inmate. According to her, he made no mention about what type of vehicle to return or what to do if the inmate was discharged from the hospital. She picked up the envelope as directed. Ms. Coveyduck was on the phone at the time, so Ms. Comeau did not speak to her. No escort briefing was provided, which is required by policy.

35        Ms. Comeau corroborated Mr. Pettis’s description of the events of that night shift. She did not remember who told them or exactly when they were told that the inmate was to be discharged on October 4 but did remember it happening. She also corroborated Mr. Pettis’s evidence about the practice at the institution to use a secure vehicle to transport an inmate.

36        The decision was made to leave P6 behind for the officers who had the care and control of the inmate and who were responsible for returning him to the institution in that context. Ms. Comeau relied on Mr. Pettis’s judgement. The inmate was on a secure escort; therefore, a secure vehicle was required, based on the practice at the institution.

37        At no time did Ms. Comeau or Mr. Pettis intend to be insubordinate, according to her evidence. She agreed with Mr. Pettis that leaving the vehicle for the other CXs to transport the inmate was the safest thing for the officers, the inmate, and the public.

38        Upon her return to the institution, Ms. Comeau encountered Mr. Wallace, who told her that “Karen [Coveyduck] was mad as hell at you and pissed off”, because she and Mr. Pettis had not returned P6. The next time Ms. Comeau heard anything further about it was on October 31. Before the notice of the disciplinary hearing was issued, no one had talked to Ms. Comeau about why P6 had been left in Halifax. At the disciplinary hearing, Mr. Wilkins again noted the conflict of interest with Ms. Coveyduck being judge, jury, and executioner. Ms. Comeau refused to comment after Mr. Wilkins made it clear that the union did not consider the circumstances of the meeting fair.

39        Ms. Comeau testified that on November 1, 2012, in the company of her union representative, she met with Judy Amos, the assistant warden of operations, to provide an explanation but that nothing came of it.

40        After the disciplinary hearing, Ms. Comeau tried three times to explain the situation to the warden through the grievance process. Like Mr. Pettis, she was surprised by the severity of the discipline. She had expected a verbal or written reprimand at the most.

III. Summary of the arguments

A. For the employer

41        The questions to be answered are whether discipline was warranted and whether the penalty was appropriate in the circumstances. The grievors’ failure to obey orders violated paragraph 6(h) of the employer’s code of conduct and paragraph 6(1) of the its standards of professional conduct. On October 3, 2012, the grievors were both ordered to bring back P6 when they returned from Halifax on the next day.

42        At the hearing, Ms. Comeau disputed that she had been given an order. Mr. Wallace’s evidence was consistent with that of Mr. Pettis and Ms. Coveyduck that the order had been given. This evidence was not challenged. Just because Ms. Comeau did not remember being given an order does not mean that it did not happen. The fact that she disputed that she was given one cast doubt on her credibility. If no order was given, then why is she remorseful for her actions? When there is inconsistency in an employee’s testimony, the employer’s testimony should be preferred (see Faryna v. Chorny, [1952] 2 D.L.R. 354). The evidence as a whole must be examined, and that which makes the most sense in all the circumstances must be accepted (see International Brotherhood of Boilermakers, Local 128 v. Procor Limited, 2015 CanLII 4906 at 7).

43        In Mr. Pettis’s case, Ms. Coveyduck had given a clear order. Despite it, he went by the daily dispatch sheet, which an employee cannot decide to do. It was clear that the employer had a concern that a secure vehicle be available at the institution that a CX without a specialized licence could drive, which was reasonable, given that the other such vehicle was in use. Ms. Coveyduck knew that transfers were to be conducted on October 4, 2012, which was why she spoke to Mr. Pettis about returning with P6. The order that was given was reasonable and was within the realm of a duty CM’s authority to give during his or her shift.

44        It was not up to the grievors to change these orders. On October 4, Mr. Pettis had the opportunity to advise Ms. Coveyduck that P6 had not been returned, but he did not. Nor did Ms. Comeau. Had they done so, Ms. Coveyduck could have acted accordingly. She would have known earlier and could have prepared in case an emergency arose. The lack of notice resulted in a delay bringing an inmate to a medical appointment; the inmate’s health situation was irrelevant.

45        The essential elements of an order are that it was given, that it was clearly communicated to the employee, and that the person who gave it had the required authority. Some exceptions allow an employee to refuse a direct order; that is, he or she has the right to refuse an order if it would endanger his or her health and safety or require him or her to perform an illegal act (see Nowoselsky v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-02-14229 (19840724), [1984] C.P.S.S.R.B. No. 125 at 9 (QL)).

46        The exceptions listed in Nowoselsky do not apply in this case. There is no evidence of any health and safety concerns. Had the grievors had any concerns with the order they had been given, they should have called Ms. Coveyduck for clarification. There is evidence that a practice was in place of using secure vehicles to transport inmates, but nothing more. The inmate’s threat risk assessment did not indicate that a secure vehicle was required to transport him. The grievors admitted that they did not have the authority to switch vehicles and that they were expected to follow orders.

47        The grievors provided new information at the hearing about the change in the inmate’s circumstances. The employer was not aware of this explanation when the discipline was imposed. Had it been, the outcome of the disciplinary process might have been different. The fact that it was not raised at the first opportunity or at any time through the grievance process makes it circumspect and goes to the grievors’ credibility. The grievors could not benefit from the belated explanation at the hearing.

48        The union raised an issue with the procedural fairness of the disciplinary hearing. According to Hickling v. Canadian Food Inspection Agency, 2007 PSLRB 67, procedural fairness arguments do not relieve a grievor of his or her responsibility to provide facts upon which the employer may make its decision. The employer was not aware of any of the information the grievors provided at the hearing other than that they relied on the dispatch sheet. The reasonableness of a disciplinary penalty is based on what was before the decision maker at the time of the decision; in this case, nothing was before her.

49        The grievors never testified that they should have followed the order; they said only that they should have called to confirm their decision to return without P6. At no point before the hearing did the grievors express remorse; doing so at the hearing was too little, too late (see Murdoch v. Deputy Head (Canada Border Services Agency), 2015 PSLREB 21, and Knihniski v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 72).

50        Ms. Coveyduck was authorized to give her order under paragraphs 2 and 6(k) of the employer’s code of conduct. Nothing prevented her from imposing discipline for the grievors’ failure to abide by the order. Had she had failed to, she would have been in breach of her duties under the code of conduct.

51        It only makes sense that in a 24-hour, 7-day per week operation, any CM on shift can address issues with employees’ conduct as they arise. The employer determines who disciplines whom. Nothing in the evidence showed that Ms. Coveyduck did not have the authority to discipline the grievors. The penalty she imposed was not extreme, based on the information available at the time. Adjudication is not the time at which to argue that a penalty is unreasonable based on new information (see Murdoch). The grievors should not benefit from a belated explanation that would have helped the employer make its decision.

52        CXs are to be examples of good behaviour to inmates (see Dionne v. Treasury Board (Solicitor General of Canada - Correctional Service), 2003 PSSRB 69, and Richer v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 10). A high standard of conduct is expected of CXs (see McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, and Richer). The grievors are a poor example to other CXs. Their insubordination impacted the institution’s operations, and on October 4, their actions had a harmful effect on their colleagues. Penal institutions have strong security and policy reasons to maintain discipline.

53        If the order was legitimate and not unreasonable, the grievors should have obeyed first, then grieved. Insubordination warrants a severe penalty. A one-day financial penalty was not unreasonable in the circumstances given the 40-minute delay transporting an inmate to his medical appointment on October 4. There is no need for progressive discipline; the employer is not obligated to follow that process. It considered mitigating and aggravating factors when reaching its decision. The grievors’ performance reviews were not considered mitigating factors (see Tobin v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 76).

54        The penalty imposed was proper in the circumstances and should not be changed. The adjudicator should not consider the evidence adduced at the hearing since it was not available to the employer when it made its decision (see Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119, Ranu v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 89, and Mercer v. Deputy Head (Department of Human Resources and Skills Development), 2016 PSLREB 11).

B. For the grievors

55        The employer did not meet its burden of proof of showing that the discipline was reasonable and that it was fairly imposed. The employer’s code of conduct does not create the authority to impose discipline, and the employer did not establish Ms. Coveyduck’s authority to impose it in the circumstances. The discipline she imposed was tainted by a breach of procedural fairness. She was not the CM for disciplinary purposes for either grievor. Ms. Comeau reported to Mr. Wallace, and Mr. Pettis reported to Mr. MacLean.

56        In the alternative, based on the facts, discipline of some note was warranted for Mr. Pettis, but a one-day financial penalty was excessive and unreasonable in light of the mitigating circumstances. Discipline should be progressive and corrective; this penalty was neither. On a balance of probabilities, Ms. Comeau was never given a clear order that she then disobeyed. Therefore, in her case, no disciplinary penalty was warranted. Even had she been given a direct order, the penalty imposed was excessive and unreasonable, given the circumstances and mitigating factors.

57        It has been established that a hearing before an adjudicator is a hearing de novo. All parties are allowed to call whatever evidence they deem appropriate, and the adjudicator is entitled to consider it in deliberations. Otherwise, adjudication would serve no purpose, and a grievor would go directly to judicial review. Whether the grievors participated in the disciplinary process is something the adjudicator may take into account in her determination. The employer conceded that had it been known that the circumstances in Halifax had changed, the penalty would not have been so severe.

58        What is known is that on October 3, 2012, the grievors were assigned to an escort shift. It is undisputed that Mr. Pettis was experienced with them. Both grievors had excellent work records, and neither one had a disciplinary record at the time. When they left the institution, the employer had no idea when the inmate in the hospital would be released. In fact, it was anticipated that his stay would be extended, which is why the grievors were given a new warrant to take with them (Exhibit 5). Neither was given an escort briefing, which was required before leaving the institution. Had Ms. Coveyduck fulfilled that obligation, this situation might have been prevented.

59        This situation is a result of poor communication, with information exchanged only in passing or in brief conversations. The vehicle log was clear. It indicated that the grievors were to go to Halifax in P6 and to return in P49. Mr. Pettis admitted that Ms. Coveyduck told him to return in P6, contrary to what had been indicated in the vehicle log, but no clear explanation was provided as to why P6 had to be returned.

60        Mr. Wallace told Ms. Comeau that there was some sort of vehicle issue for her trip to Halifax, but he never clarified it. When they encountered each other in passing outside the institution, she recalled that Mr. Wallace only told her to pick up the envelope in the office. He did not mention the vehicle mix-up. When Ms. Comeau went to retrieve the envelope, Ms. Coveyduck said nothing.

61        On October 4, hospital staff informed the grievors that the inmate was to be released that day. Mr. Pettis considered that a change in circumstances and thought that he could exercise some discretion and leave the secure vehicle in Halifax for his colleagues, who were to return the inmate to the institution later that day, which was reasonable, considering Mr. Pettis’s escort experience and the institution’s practice of using secure vehicles to transport medium-security inmates regardless of whether restraints are used. The grievors thought that they were protecting the safety of everyone involved, that it would be more convenient for the institution, and that it would save the institution money. Both grievors now realize that they should have contacted the CM on duty before leaving P6 in Halifax.

62        The events of October 4, 2012, are unclear. What is known is that an inmate had a medical appointment that was not an emergency for which the institution had not been provided 72 hours’ notice. There was a delay of approximately 40 minutes leaving the institution while a secure vehicle and driver were located. The inmate got to his appointment and back without medical consequences. The CM logbook indicated that the shift had been quiet.

63        Neither grievor mentioned the change of vehicles on their return; they thought that they had made the right decision in the circumstances. Neither knew that a problem existed with their decision until much later. Mr. Pettis found out when he received the notice of the disciplinary hearing. Ms. Comeau found out when Mr. Wallace told her how upset Ms. Coveyduck was with her. The disciplinary process was unfortunate. No one investigated what had happened before the disciplinary hearing was convened. No one spoke to the grievors until they were at the disciplinary hearing in front of a CM who was hopping mad.

64        The grievors’ representative advised them that the disciplinary hearing was not an appropriate means with which to address the situation. Neither participated fully after the union expressed its discontent with the disciplinary process. These procedural fairness concerns were never addressed. Ms. Comeau tried to explain her actions before and after the disciplinary hearing, but the employer was not interested in hearing from her. Ms. Coveyduck’s decision was based on a lack of information.

65        Ms. Coveyduck’s testimony was evasive and inconsistent at times, while the grievors were very clear, straightforward, and consistent. Mr. Wallace’s evidence was very sparse. The employer bore the burden of establishing that discipline was warranted and that it was validly imposed. Discipline tainted by a breach of natural justice is inappropriate (see Kinsey v. Deputy Head (Correctional Service of Canada), 2015 PSLREB 30 at para. 108).

66        In the alternative, and if there has been no breach of natural justice, the employer bore the burden of establishing that conduct occurred that gave rise to discipline, that the discipline imposed was reasonable, and that the penalty was proper.

67        To be successful in this case, the elements of insubordination had to be established; that is, an employee intended to defy management or had a blameworthy state of mind (see Brown and Beatty, Canadian Labour Arbitration, 4th edition, at para. 7:3612). The grievors’ motivation is relevant as is the impact on the employer (see Brown and Beatty at para. 7:4424).

68        The case law establishes that a variety of penalties have been deemed appropriate in cases in which insubordination has been established. Each case must be evaluated on its own facts (see Desjarlais v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 88, Rioux v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 32, and be Platt v. Treasury Board (Solicitor General Canada - Correctional Service), PSSRB File No. 166-02-17210).

69        The employer must consider mitigating factors before imposing discipline. The grievors had clean disciplinary and work records. There was no malice or ill intent; they thought that they were acting in the interests of the institution and the safety of everyone concerned. The severity of the offence and the consequences to the employer were limited to a minor inconvenience. Deterrence is not a consideration since it is unlikely that this situation will occur again. There was no public display of insubordination. Even if disciplinary action is justified, these mitigating factors warrant a minor penalty.

IV. Reasons

70        The questions for me to answer are whether the grievors’ conduct justified discipline, and if so, whether the discipline imposed was appropriate. The employer had the burden of proof, on a balance of probabilities, to demonstrate that the elements of insubordination occurred and that it took into account any mitigating factors. And based on an assessment of all this, that it imposed a penalty that was justified and reasonable. Insubordination requires more than just failing to follow an order.  It requires that the order be clearly communicated to the employee who either refused to acknowledge it or actually refused to comply with the order (Brown & Beatty, Canadian Labour Arbitration, 4th edition, at 7:3612).

71        The explanation provided at the hearing as to why P6 was left in Halifax was uncontradicted by the employer. It demonstrated a clear understanding of the employer’s policies and the threat posed to the public, the employees, and an inmate when transporting the inmate from one location to another. The explanation, which I accept completely, is without any malice. This explains why the grievors were so shocked by the outcome of not returning P6 to the institution on October 4, 2012.

72        Ms. Coveyduck’s reaction to the alleged act of insubordination was disproportionate to any harm done. She clearly took the grievors’ actions as a personal affront and challenge to her authority, which was not their intent. She was not in any way capable of objectively assessing whether discipline was warranted and if so, what amount was appropriate. She was clearly biased by what she perceived was an attack on her authority. Had someone who was not so personally involved conducted the disciplinary hearing, any bias would have been avoided, and any discipline imposed, if warranted, would have been tempered by sober second thought.

73        In my opinion, Ms. Coveyduck was more interested in re-establishing her authority as a CM than in truly assessing the wrong done, the harm done to the institution by that wrong, and the employer’s interests in maintaining a safe, efficient, and cost-effective workplace. The grievors each had a CM to whom they reported for performance and disciplinary issues. They were available and able to conduct an unbiased assessment of the wrong and harm done, thus avoiding any bias, perceived or actual.

74        In light of the requirements of natural justice to avoid bias in the disciplinary process, it was inappropriate for the employer to allow Ms. Coveyduck to discipline the grievors. The employer has identified CMs who are responsible for performance and disciplinary issues with respect to the CXs assigned to them. In the past, the employer has used these CMs to investigate and deal with discipline issues (see Knihniski). No explanation was provided to me as to why this situation should have been dealt with any differently. As a result, the grievors’ concerns about a breach of natural justice were justified. Bias in investigating and evaluating disciplinary infractions is a breach of natural justice.

75        Even if I am wrong, I cannot find any conduct that would have warranted such a severe penalty. The employer did not establish that insubordination occurred. There is no clear, compelling, or cogent evidence that either of the grievors were  given a direct and unequivocal order that P6 was to be returned to the institution on October 4, 2016. Furthermore, there is no clear, compelling, or cogent evidence that the grievors decided to leave P6 in Halifax out of malice or with malicious intent.

76        Had management at the institution asked the grievors why they left P6 in Halifax and returned in P49, rather than pursuing disciplinary action immediately, this entire situation might have been avoided. I accept the grievors’ evidence that they made their choice because they thought it was in the best interests of the institution and their colleagues and of the safety of the public.

77        There was no malice in their intention; nor was there an intention to defy Ms. Coveyduck. In these circumstances, the penalty imposed was clearly excessive, punitive, and wrong. In my opinion, a verbal warning would have been sufficient to address the harm done. The grievors’ action was reasonable, in my assessment, given the change in circumstances and the conflicting information in the threat risk assessment and the vehicle log and the institution’s practice to use secure vehicles to transport inmates.

78        The employer suffered no harm to its operations or to its reputation because P6 was not returned. The CM’s overreaction because things did not go as she would have preferred or as she had anticipated was not sufficient to justify the penalty.

79        Counsel for the employer argued that the new information provided to me at the hearing should not be considered because it was not part of the information the employer knew of when discipline was imposed. As authority, she cited Hickling. Contrary to what counsel argued, Hickling does not stand for the principle that procedural fairness arguments do not relieve a grievor of his or her responsibility to provide facts upon which the employer may make decisions. Rather, it dealt with representational rights at an administrative meeting and whether denying those rights, which was not spelled out in the collective agreement in that case, was a breach of procedural fairness that thus relieved the grievor of the obligation to participate in such a meeting.

80        The case before me is completely different. The employer did not ask the grievors to participate in an administrative fact-finding meeting. Such a meeting would no doubt have precluded everything that came afterward. Instead, the employer allowed Ms. Coveyduck to proceed directly to a disciplinary meeting at which she was not only judge, jury, and executioner; she was also the complainant and primary witness. The employer could not rely at the hearing on its violation of the rules of natural justice to prevent the grievors from putting forward information that would explain or mitigate their actions.

81        Contrary to what counsel for the employer argued, the employer is obligated to administer discipline consistent with the principles of progressive discipline. While that does not mean that a serious first offence would not warrant a severe penalty, it does mean that discipline imposed must be consistent with rehabilitation and not retribution. Even if the discipline imposed in this case had not been tainted by the breach of natural justice, I would have overturned it due to its punitive nature.

82        The grievances are allowed. The financial penalties imposed are set aside. The grievors will be paid $160 each, which was a 1-day financial penalty in 2012, plus simple interest at the rate of 5% per annum consistent with the Nova Scotia Civil Procedure Rules from the date upon which the grievors were notified of the penalty to the date of this decision. In the case of Ms. Comeau, interest will be calculated commencing on December 11, 2012. In Mr. Pettis’s case, interest will be calculated commencing on January 11, 2013. Any record of this disciplinary action will be expunged from the grievors’ personnel files and records immediately if that has not already been done with the passage of time.

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

V. Order

84        The grievance in File No. 566-02-8490 is allowed.

85        The grievance in File No. 566-02-8674 is allowed.

86        I will retain jurisdiction to deal with matters arising out of this order for a period of 90 days from the date of this decision.

May 9, 2017.