FPSLREB Decisions

File: 166-2-26613 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN GÉRALD THIBAULT Grievor and TREASURY BOARD (Solicitor General of Canada - Correctional Service)

Employer Before: Marguerite-Marie Galipeau, Board Member For the Grievor: Alfred La Bissonnière, Public Service Alliance of Canada For the Employer: Marie-Claude Couture, Counsel Heard at Montreal, Quebec May 31, 1996.

Decision Page 1 DECISION This decision follows upon the adjudication of a grievance filed by Gérald Thibault (CX-02), a member of the CX Group bargaining unit. Mr. Thibault works in the Department of the Solicitor General, at the La Macaza penitentiary.

Gérald Thibault’s grievance reads as follows: On October 5, 1994, my employer informed me that the acting position of CX3 I had occupied since February 1994 at La Macaza was to be terminated the same day, and that, as a result, I was to return to my CX2 duties as of the following morning. The reason cited by my employer was as follows:

It had been told I was bringing alcohol into the penitentiary and consuming it during working hours. This was ridiculous, false and unfounded.

By this unjustified act and these insulting remarks, my employer engaged in a form of harassment as defined by the CXC’s harassment policy; “Any reprehensible remark, act or display that humiliates, disparages or embarrasses an employee, whether this occurs just once or on a continuous basis, constitutes harassment.”

The remedial action requested is as follows: (Translation) That my employer take into account the investigation report filed subsequent to my harassment complaint of October 5, 1994, and:

a) that I receive a verbal and written apology, and that this be recorded in my personal file;

b) that I be reinstated as an acting CX3; c) that the salary for that position lost since October 5, 1994 be accordance with the collective agreement;

d) that I be reimbursed for the statutory holiday of October 10, 1994, which I was scheduled to work as a CX3 (see Appendix B);

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paid retroactively, in

Decision Page 2 e) that I be reimbursed for the sick days I had to take as a result of the serious emotional stress I experienced following these events (Appendix C);

f) that I be present and accompanied by my union representative at all levels of the grievance hearing;

AND that, if the case goes to adjudication, all witnesses be called to appear before the adjudicator; and

furthermore, that this grievance be submitted regardless of any other proceedings that may be undertaken.

The referral to adjudication (Form 14) and a letter dated July 5, 1995 from Thomas Dinan, Acting Director, Collective Bargaining Branch, Public Service Alliance of Canada indicate that the grievance dealt with a “financial penalty” as well as the interpretation and implementation of sections M-16 (Elimination of Discrimination) and M-27 (Pay Administration) of the master agreement concluded between Treasury Board and the Public Service Alliance of Canada (Exhibit E-1).

On May 6, 1996, counsel for the Employer sent the Board a letter in which the Employer raised two preliminary objections. First, the Employer maintained that the grievance was not adjudicable because it dealt with a decision to terminate Gérald Thibault’s acting appointment. According to the Employer, this was not disciplinary action, but rather a decision made in accordance with the Public Service Employment Act and the Public Service Employment Regulations. Consequently, the grievance could not be referred to adjudication under the terms of paragraph 92(1)(b) of the Public Service Staff Relations Act.

Second, the Employer also maintained that the grievance could not be referred to adjudication under the terms of paragraph 92(1)(b) of the Public Service Staff Relations Act because the harassment policies adopted by Treasury Board and the Correctional Service had not been integrated into the collective agreement (Exhibit E-1) cited by Gérald Thibault.

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Decision Page 3 At the hearing, the Employer supported these objections with the following arguments.

The harassment policies adopted by Treasury Board and the Department in question have not been integrated into the collective agreement (Exhibit E-1). They are not mentioned in section 37.03 of the said agreement (Exhibit E-1). The role of the adjudicator is to interpret the provisions of the collective agreement. The adjudicator may not base his or her decisions on a policy that is not part of the collective agreement (The Attorney General of Canada v. Pierre André Lachapelle and The Public Service Staff Relations Board and Jean-Paul Baril, [1979] 1 F.C. 377, pp. 380-81).

Furthermore, Gérald Thibault cited section M-16 of the collective agreement (Exhibit E-1) only once the case had been referred to adjudication: he did not mention this section in his grievance. It is too late to bring this section into play. The Employer did not deal with the applicability of section M-16 at the various levels of the grievance procedure because this section was not mentioned in the grievance. Allowing Gérald Thibault to use it now that the case has gone to adjudication would amount to permitting him to amend his grievance. James Francis Burchill v. the Attorney General of Canada, [1981] 1 F.C. 109 is clear in this regard: during adjudication, a complainant may not submit a new or different grievance, or change that grievance. Moreover, none of the definitions of discrimination set forth in section M-16 exists in this case. Lastly, in matters of discrimination, section M-38.02 operates to oblige a grievor to seek redress before the Canadian Commission on Human Rights or the Public Service Commission of Canada.

To these arguments Gérald Thibault’s representative replied that, despite the fact that section M-16 was mentioned in the referral-to-adjudication form, his client was not basing his position on that section. Rather, he maintained that the termination of the acting appointment, given the circumstances in question, constituted disciplinary action resulting in a financial penalty under the terms of paragraph 92(1)(b) of the Public Service Staff Relations Act. The Employer terminated Gérald Thibault’s acting appointment because the latter was suspected of bringing alcohol into the penitentiary and consuming it there. The decision was therefore disciplinary in nature.

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Decision The decision in Joseph Valadares Files 166-2-19596 and 19597) applies to the circumstances of the present case.

In reply, counsel for the Employer added the following. The grievance cites “harassment” only. Gérald Thibault does not claim “disciplinary action” was taken; neither does he claim there was any bad faith on the part of the Employer, or that the latter concealed the reason for its decision. The detail of grievance does not indicate that disciplinary action resulting in a financial penalty was taken, nor does it state that the decision was made under paragraphs 11(2)(f) and (g) of the Financial Administration Act. In keeping with the Burchill (supra) and Baril (supra) decisions, it is too late in the adjudication process to claim that this case involved disciplinary action resulting in a financial penalty.

In addition, the decision to remove Gérald Thibault from the acting position he occupied was an administrative decision made under the terms of the Public Service Employment Act. According to paragraph 24(1)(a) of the Interpretation Act, the power to appoint a “public officer” includes the authority to terminate an acting appointment. Appointment and staffing issues cannot be referred to adjudication.

Certain conduct on the part of an employee may result in a variety of decisions by the Employer. Gérald Thibault was removed from his position for bringing alcohol into the penitentiary. It is not up to an adjudicator to decide if that reason was valid (The Attorney General of Canada v. Judith Penner, [1989] 3 F.C. 429).

If a decision is valid and made in good faith, it cannot be revised by an adjudicator (Roland Jacmain and the Attorney General of Canada and the Public Service Staff Relations Board, [1978] 2 S.C.R. 15). “Good faith” means there were valid reasons for terminating Gérald Thibault’s acting appointment. “Good faith” is the opposite of “bad faith”. The latter exists when the true reason for a decision is concealed. If an employee is aware of the grounds that underlay a decision, he cannot claim bad faith.

Gérald Thibault’s representative replied as follows. Public Service Staff Relations Board

Page 4 and Treasury Board (Board

Decision Page 5 The Penner case (supra) differs from the one before us in that the former involved a termination of employment during a probationary period under former section 28 of the Public Service Employment Act. In the case at hand, the Employer’s decision was aimed at imposing a disciplinary penalty on Gérald Thibault. This penalty was expressed through the removal of Mr. Thibault from his acting position. As a result, Gérald Thibault lost his reputation and a certain amount of compensation. He was punished on the basis of an accusation that was not only anonymous, but false.

Counsel for the Employer added the following. Even if Gérald Thibault’s grievance has merit, the decision in question did not necessarily constitute disciplinary action. Any remedy that might exist is perhaps civil in nature, or to be sought at the Federal Court level.

I reserved judgment on the Employer’s preliminary objections, and heard the substantive evidence.

EVIDENCE The Employer produced two witnesses. Further to their testimony, the grievor’s representative indicated that he had no evidence to present.

Following is a summary of the testimony I heard. Robert Poirier At the time the aforementioned events took place, Robert Poirier was unit manager (AS05) of La Macaza’s B unit. He headed up the operations bureau for correctional supervisors (CX-03), who work various shifts: six supervisors reported to him.

During the day — that is, from 8:30 a.m. to 4:30 p.m. — the warden is in charge of the penitentiary. During the other shifts, a correctional supervisor (CX-03) is responsible. The six correctional supervisors are rotated: there are 21 shifts, with the warden assuming responsibility for the five day shifts, and the correctional supervisors taking over for the other 16.

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Decision Page 6 At the time in question, Gérald Thibault was acting correctional supervisor (CX-03) in the A unit (Exhibit E-2).

Gérald Thibault had acquired considerable experience in several penitentiaries. Robert Poirier participated in the decision to appoint him acting correctional supervisor (CX-03). Factors contributing to that decision were Mr. Thibault’s experience, management capabilities, and decision-making skills. Gérald Thibault held three successive acting appointments (Exhibit E-3): from February 14 to June 30, 1994, from June 30 to September 30, 1994, and from September 30 to December 31, 1994.

Gérald Thibault was removed from his acting position in early October 1994 because he was suspected of having consumed alcohol during working hours.

Gérald Thibault’s representative challenged Robert Poirier’s evidence on the grounds that it was hearsay and that, as the witness refused to identify his sources, the latter could not be cross-examined to verify their credibility. Gérald Thibault’s representative insisted that the witness name his sources so the latter could be called to testify and he could question them. The Employer’s witness, Robert Poirier, as well as counsel for the Employer, replied that the eyewitnesses whose existence was alleged by Robert Poirier would not testify or sign any statement, because, according to Robert Poirier, they were afraid of reprisals.

I reserved judgment on these objections, and allowed Robert Poirier to complete his testimony. Having heard what he wished to say, however, I concluded that the objections of Gérald Thibault’s representative were valid, and gave no credence to the following part of Robert Poirier’s testimony. Indeed, it is with considerable hesitation that I relate that testimony, as it is nothing but gossip.

According to Robert Poirier, in July 1994 an “employee” had told him that Gérald Thibault was consuming alcohol during his shift. Subsequently, “other people” said it was “possible” that Gérald Thibault had consumed alcohol at work.

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Decision Page 7 During a daily meeting at the end of August 1994 attended by the warden, associate warden, and institutional preventive security officer, Robert Poirier conveyed these rumors to warden Maurice Jacques, who asked him to determine if they were based on fact.

Robert Poirier met with three people to whom, at their request, he promised confidentiality. One individual employed at La Macaza apparently said he had seen Gérald Thibault in uniform at the “Airport Bar” at about 1:15 a.m. on the night of July 8 and 9, 1994, and that the latter was talking to a waiter who put four bottles of beer in a bag and gave the bag to Gérald Thibault, who then left the bar. On a different occasion, another person posted at the penitentiary gate said he saw Gérald Thibault leave the work place, saying he had to go to the grocery store. A third person apparently told Robert Poirier that when Gérald Thibault held the position of correctional officer (CX-02), he would put alcohol in people’s coffee, and in fact had put some in his.

On the basis of these statements, it was decided to terminate Gérald Thibault’s acting appointment.

Gérald Thibault’s representative said he would not cross-examine Robert Poirier.

Alain Jacques Alain Jacques has been associate warden at La Macaza since July 1994. Robert Poirier told him about the rumors concerning Gérald Thibault. Alain Jacques, the warden, and the institutional preventive security officer all took these rumors seriously.

Alain Jacques spoke to an “employee” who had been at the Airport Bar on his day off. This individual apparently had seen Gérald Thibault purchase four beers and then leave in a Department vehicle. Another person told Alain Jacques that, when Gérald Thibault was a correctional officer (CX-02), he had put alcohol in his coffee.

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Decision Page 8 Alain Jacques stated that, if these two people had been willing to testify, “the disciplinary process would have been launched”, and “disciplinary action would have been taken.”

According to Alain Jacques, the two individuals in question said they were afraid of testifying. No reasons were given for these fears.

Alain Jacques emphasized that the correctional supervisor is in charge of the penitentiary, and that, during his shift, serious incidents such as murder and hostage-taking may occur. As a result, these employees must be completely trustworthy. Accordingly, he decided to remove Gérald Thibault from his acting position.

On October 5, 1994, the day that Gérald Thibault was removed from his acting position (Exhibit E-4), Alain Jacques met with Gérald Thibault. The latter was told why he was being removed from his position. Gérald Thibault was surprised; he did not understand. He wanted to know who Alain Jacques’ sources were, but the latter said he could not reveal them. Alain Jacques did not ask Gérald Thibault if it was true he had consumed alcohol at work. And, while Alain Jacques realized that it was perhaps illogical not to have obtained the employee’s version of the events in question, he stated that the decision to remove Gérald Thibault from his position had been made before the meeting of October 5, 1994, during which the latter was informed of that decision.

Gérald Thibault has 24 years of service and has never once been the subject of disciplinary measures.

ARGUMENTS The arguments of counsel for the Employer may be summarized as follows.

The decision to terminate Gérald Thibault’s acting appointment was an administrative decision that can be examined only by the Federal Court as part of a judicial review. It was not disciplinary action, and, furthermore, the decision in the Burchill (supra) case prevents the grievance from being amended.

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Decision Page 9 The position occupied by Gérald Thibault was one of trust. Management lost confidence in Mr. Thibault subsequent to obtaining specific, objective information provided in good faith by individuals whose credibility could not be questioned. These people had no reason to pass on this information unless it was based on fact.

The security of the penitentiary was in jeopardy, and a decision had to be made.

There is undisputed evidence that this decision was valid and made in good faith. It is not bad faith to wish to protect witnesses who are afraid. Rather, bad faith would be to camouflage the true reasons for the decision. The manager chose to believe the version of the people who came to him: is that bad faith?

If it is determined that the action was in fact disciplinary in nature, then it is true there was not enough evidence to justify it. That being said, however, the evidence shows that the decision was made in good faith under the terms of the Public Service Employment Act.

The arguments of Gérald Thibault’s representative may be summarized as follows.

Under the circumstances, was it good faith to accuse Gérald Thibault of having consumed alcohol on hearsay evidence? Steps could have been taken to establish the truth of that evidence. The individuals who reported Gérald Thibault may have been involved. We cannot say, because we do not know who they are. Gérald Thibault has had a clean record for 24 years. The Employer should have conducted an investigation — questioned the waiter at the Airport Bar, for example.

This case is based solely on the word of informants. The Employer, by its attitude, encouraged those informants. This constitutes bad faith. Someone’s reputation was tarnished on the basis of “pseudo-evidence”. It takes years to establish credibility and a reputation. Gérald Thibault spent 24 years of his life doing just that. Then, from one day to the next, he was told he was no longer trustworthy.

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Decision Page 10 Gérald Thibault was not questioned about the alleged facts; no one tried to obtain his version of the matter. At the hearing, the Employer did not present any witnesses who could testify to Gérald Thibault’s alleged actions. This is an untenable situation. The Employer made a mistake and should assume responsibility for the consequences.

“Bad faith” should not be given such a limited definition as that proposed by the Employer.

By way of redress, Gérald Thibault is asking that an apology be made, and that he be reinstated. He also wishes to be reimbursed for the salary he lost following the decision to remove him from his acting position.

In rebuttal, counsel for the Employer added the following. The hearsay evidence submitted before the undersigned adjudicator went undisputed, as Gérald Thibault did not testify. Encouraging informants is not equivalent to bad faith. Informants are sometimes necessary in the administration of justice. Certain types of conduct may give rise to both disciplinary action and administrative decisions.

If the grievance is allowed and the Employer is obliged to reimburse Gérald Thibault, the amount of that reimbursement should be limited to the loss in the difference of salary (between a CX-02 and a CX-03) for the period from October 5 to December 31, 1994. It cannot be assumed that the acting appointment would have been renewed.

REASONS FOR DECISION As I stated at the beginning of this decision, the Employer claimed that the grievance was not adjudicable because it alleges harassment on the part of the Employer, and the collective agreement does not comprise the Employer’s policies on harassment. Gérald Thibault’s representative, on the other hand, said his client was not pleading the collective agreement provisions. Consequently, I need not interpret the collective agreement, as the grievor is no longer basing his grievance on these provisions thereof.

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Decision Page 11 Gérald Thibault’s position is that he was subjected to disciplinary action resulting in a financial penalty, and that he is entitled, under the terms of paragraph 92(1)(b) of the Public Service Staff Relations Act, to have that decision examined by an adjudicator. Here again, the Employer opposed the adjudicability of the grievance, this time arguing that the decision was not disciplinary action resulting in a financial penalty within the meaning of the Public Service Staff Relations Act, but rather the removal of Gérald Thibault from an interim appointment under the terms of the Public Service Employment Act. I must dispose of this matter prior to addressing this grievance on its merits, if necessary.

An additional objection was made to the effect that the grievance does not mention the words “disciplinary measure resulting in a financial penalty”, and that, as a result, the grievor cannot claim before the undersigned adjudicator that the decision in question was a “disciplinary measure resulting in a financial penalty” unless he is allowed to amend his grievance during adjudication, which would be prohibited according to Burchill (supra) and Baril (supra).

My remarks concerning this last objection are as follows. The grievor clearly states in his grievance that he is opposing the Employer’s decision of October 5, 1994 to remove him from his acting position. Furthermore, a reading of the remedial action requested clearly shows that the grievor wishes to return to the position he occupied before that decision was made, and to be reimbursed for the attendant losses in salary. The Employer’s response to the grievance leaves no doubt that the latter understands perfectly well what decision is in dispute and what redress is being sought. Moreover, the Employer’s response at the first level of the grievance procedure demonstrates clearly that the Employer justified its decision by citing (alcohol- related) misconduct on the part of the grievor. I, therefore, feel it is not without reason that the grievor believed himself to be the subject of disciplinary action, even though he did not use the term “disciplinary measure” in his grievance. It is also manifest that the Employer has neither been taken off guard nor suffered any prejudice because of the fact that the grievor neglected to use the phrase “disciplinary measure resulting in a

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Decision Page 12 financial penalty” found in paragraph 92(1)(a) of the Act. The grievance is sufficiently clear for the Employer to understand that the grievor is contesting the merits of the decision and the veracity of the grounds cited by the Employer. Furthermore, the evidence presented by the Employer during adjudication confirmed that at no time has the latter been in the dark as to the decision being disputed or the redress being sought. Neither did the Employer present any evidence that the omission of the magic words “disciplinary measure resulting in a financial penalty” from the grievance had caused it any prejudice. In addition, the Employer knew from the notice of referral to adjudication that the employee would plead that the decision constituted disciplinary action. Between referral to adjudication and the date of the hearing, there was time for the Employer to prepare its case accordingly. Lastly, regardless of the term applied to the Employer’s decision, the consequence was the same: the Employer knew that the employee wished to have the decision overturned, and to be reimbursed for the losses he had incurred.