FPSLREB Decisions
Decision Information
Termination (disciplinary) - Suspension (indefinite) - Criminal offences of theft and possession - Grievance procedure - the grievor, a correctional officer, was suspended indefinitely after the employer learned that criminal charges had been laid against him for theft and possession of items exceeding $1,000 in value - the items included explosive material - the grievor subsequently pleaded guilty to both charges - the reasons for the charges against the grievor were reported in the local press - the grievor challenged the severity of the penalties imposed by the employer on the basis that he had a perfect disciplinary record and was a good employee - the grievor also emphasized his activities with the local militia - the evidence showed that the items stolen and in the grievor's possession were from the Department of National Defence - the grievor also argued that the employer had not given him a chance to explain his actions before terminating his employment - the adjudicator found that in this case, in the absence of a conclusion on this last allegation, it did not matter that the grievor had not had a chance to explain - the adjudicator found that even without the publicity, and notwithstanding the grievor's perfect disciplinary record, the grievor's criminal offences were totally incompatible with his duties, especially in a prison environment where the employer must ensure that its staff and inmates are safe. Grievances denied. Cases cited: Skibicki (166-2-20723); Tipple v. Canada (Treasury Board), Federal Court File No. A-66-85.
Decision Content
Files: 166-2-25435 166-2-26200
Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ROGER BOISVERT Grievor and TREASURY BOARD (Solicitor General-Correctional Service Canada)
Employer Before: Richard Labelle, Board Member For the Grievor: Jacques Dupont, Public Service Alliance of Canada For the Employer: Roger Lafrenière, Counsel Heard at Montreal, Quebec, September 13, 1995, and March 20, 1996.
Decision Page 1 DECISION This decision follows the hearing of two grievances referred to adjudication by Mr. Roger Boisvert, who worked at the Department of the Solicitor General, Correctional Service Canada, as a security escort (CX-COF-02) at Archambault Institution, in Sainte-Anne des Plaines, Quebec. The grievances concern his suspension for an indefinite period and the termination of his employment.
In a letter dated October 16, 1992, the warden of Archambault Institution, Mr. Jacques Dyotte, informed the grievor of the reasons for the suspension (Exhibit E-1): (Translation) Further to information obtained from the Terrebonne municipal police and Canadian Forces officials, you will be charged with theft and possession of stolen military equipment from the Canadian Formes [sic].
In the circumstances, and while awaiting the decision of Canadian Forces officials, you are suspended without pay from your duties for an indefinite period, effective immediately.
Mr. Cloutier, the assistant warden, confirmed this decision to you by telephone today at about 9:30 a.m.
Yours truly,
In a letter dated May 13, 1994, Mr. Dyotte informed the grievor of the reasons for the termination of his employment (Exhibit E-9): (Translation) On May 3, 1994, you were found guilty of criminal offences. This situation cannot be tolerated by the employer, and is wholly incompatible with your role as a peace officer with the Correctional Service of Canada. Your conduct damages the overall reputation of the Department and cannot be tolerated by the employer.
Consequently, in accordance with section 11 of the Financial Administration Act and the powers vested in me, I have no choice but to terminate your employment effective May 13, 1994.
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Decision Page 2 Should you wish to dispute this decision, you may file a grievance at the final stage of the grievance procedure.
With regrets, Counsel for the employer, Mr. Roger Lafrenière, called Mr. Jacques Dyotte to testify, and counsel for the grievor, Mr. Jacques Dupont, called Captain Michel Chabot, Mr. Michel Charbonneau, and the grievor, Mr. Roger Boisvert.
The grievor’s representative filed Exhibit P-1, the collective agreement between Treasury Board and the Public Service Alliance of Canada, and Exhibit E-2, the collective agreement of the Correctional Group (supervisory and non-supervisory).
Counsel for the employer asked that the two grievances be heard concurrently. He filed Exhibit E-1, the letter of suspension, and Exhibit E-2, a summary report prepared for the employer. This document does not reflect the evidence, but shows what was conveyed to the employer. He also filed exhibits E-3, E-4, E-5, E-6 and E-7. Exhibits E-4, E-6 and E-7 were filed with the consent of the parties.
The grievor’s representative also filed Exhibit P-3, a modification of the Probation Order (Exhibit E-7).
The Evidence The evidence may be summarized as follows. At the time of the events in question, the employer’s witness, Mr. Jacques Dyotte, was warden of the Regional Reception Centre at the Sainte-Anne des Plaines facility, Correctional Service Canada. He had previously been warden of Archambault Institution from December 1991 to July 1995.
Mr. Dyotte testified that the grievor was a correctional officer. Counsel for the employer filed Exhibit E-10, the job description, which states (translation), “The status of the incumbent of this position is that of peace officer”. He then filed Exhibit E-12, “Powers, Authority, Protection and Privileges of Peace Officers.”
The witness stated that he received a summary report of the facts of the incident involving the grievor. This summary report (Exhibit E-2) was prepared by Mr.
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Decision Page 3 Yvon Laporte, a preventive security officer at Archambault Institution. During the week of October 13, 1992, Officer Michel Racine, an investigator with the Terrebonne municipal police, contacted Mr. Laporte to inform him that the grievor was under investigation for illegal possession of goods stolen from the Department of National Defence. According to investigator Racine, the Saint-Hubert military police, assisted by the Terrebonne and Mascouche municipal police, were preparing to seize property from the grievor’s home. Apparently, the grievor and another individual were in possession of military equipment stolen from the Saint-Jérome armoury. In his report, Mr. Laporte stated that the assistant warden was notified, and on October 15, 1992, the warden was notified by the Terrebonne police that property had been seized from the homes of the grievor and the other individual, and that the value of the seized property exceeded $100,000. That same day, the regional administration was informed of these events, and the following day the grievor was suspended without pay (see Exhibit E-1, letter of suspension).
The witness maintained that these events affected the grievor as well as the other Correctional Service employees. Moreover, the pride of correctional officers was compromised and the correctional officers felt uneasy because of what had happened. Also, the inmates would be able to use this against the other correctional officers.
Counsel for the employer referred to Exhibit E-13, the Code of Discipline for Correctional Service Canada, and to page 5, paragraphs 19(i) and (j), which state:
19. An employee has committed a major infraction, normally warranting a suspension without pay or discharge, if he/she:
i. acts while on or off duty in a manner likely to discredit the Service;
j. commits an indictable offence or an offence punishable on summary conviction under any statute of Canada or any Province or Territory which may bring discredit to the Service, or affect one’s continued performance with the Service;
Mr. Dyotte testified that he asked Officer Laporte to contact the grievor. He met with the grievor in about January 1993, and the grievor told him at that time that he
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Decision Page 4 did not wish to resign. The witness warned him of the possibility of termination, but said he would wait for the case to be heard in criminal court. The interval between the suspension and the termination is owing to the fact that no specific date had been set for the grievor’s trial. Counsel for the employer referred to Exhibit E-6, the transcript of the trial held in St-Jérome on May 3, 1994, and to Exhibit E-9, the letter of termination.
The witness stated that when considering termination, the employer had taken the mitigating circumstances into account: the grievor had 15 years of service; he was a good employee; and he was a member of the facility’s emergency team. Other factors, however, worked against him: the theft of property whose value exceeded $1,000; possession of stolen property whose value exceeded $1,000; the seriousness of the offences; and the newspaper publicity (Exhibit E-3). The employer had lost trust in the grievor. He also mentioned the risks to security at the institution, which could be detrimental to the management of operations. Also, the Probation Order (Exhibit E-7) prohibited the grievor from possessing firearms. The witness was also concerned about the risks presented owing to the fact that the grievor associated with individuals such as the person arrested with him. Counsel for the employer referred to page 5, paragraph 19. e., of the Code of Discipline (Exhibit E-13):
19. An employee has committed a major infraction, normally warranting a suspension without pay or discharge, if he/she:
e. enters into a relationship not in the line of duty or not approved by one’s authorized superior with an offender, ex-offender or the offender’s friends or relatives;
The witness stated that reliability status is needed for the position held by the grievor.
On cross-examination, the grievor’s representative referred the witness to Exhibit E-10, the job description. The witness acknowledged that he had known the grievor since September 1991, that he had described him as a trouble-free employee and, as far as he could remember, that the grievor had no disciplinary record.
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Decision Page 5 The grievor’s representative referred the witness to Exhibit E-7, the Probation Order, and to Exhibit P-3, the modified Probation Order. The modification, dated February 9, 1995, was as follows:
(Translation) DELETE the condition: Prohibited from having in his possession firearms, ammunition and explosives.
This modification was made after the grievor’s trial held on May 3, 1994 (Exhibit E-6). To the question put by the grievor’s representative as to whether Mr. Boisvert could now perform the duties defined in his job description (Exhibit E-10), the witness answered that no, he could not work, there was a lack of trust, and furthermore, the security of the institution was threatened.
The grievor’s representative referred the witness to Exhibit E-3, an article published in Le Journal de Montréal, and asked him whether this had tarnished the reputation of the Correctional Service. The witness said that was a factor. He said that at the time, he did not check what had been published in the newspapers, or whether the reports were true. The grievor’s representative asked the witness whether he had determined that the weapons were stolen. The witness answered that the military police had said the grievor was under investigation. In the end, no stolen weapons had been found in the grievor’s home; the weapons found were not stolen. The witness admitted that the heading of the article may have been incorrect. He also said that at the time of the incident he did not know that the grievor was a serviceman; he only learned this after the fact. The witness acknowledged that other correctional officers may have police records.
The grievor’s representative referred to section 334 of the Criminal Code (Exhibit E-5): 334. Except where otherwise provided by law, every one who commits theft
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary
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Decision Page 6 instrument or where the value of what is stolen exceeds one thousand dollars;
(b) is guilty(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,where the value of what is stolen does not exceed one thousand dollars.
The grievor’s representative also referred to paragraph 6 on page 2 of Exhibit E-2, the summary report prepared by Officer Laporte on December 16, 1992: (Translation) The investigator Godin added that among the items seized were 2999 .223 calibre bullets ready to be shot and 1354 shells of the same calibre. He also informed me that the employee Roger Boisvert told him that this ammunition came from the Correctional Service of Canada and had been given to him by those heading the emergency team at the time, Messrs J.R. Roussel, Gilles Plouffe and Daniel Charbonneau, the leader and two deputy leaders of the team, respectively.
The witness Dyotte testified that neither the Department of National Defence nor Correctional Service Canada wanted the bullets in question; they were returned to the grievor after Officer Laporte filed his report (Exhibit E-2).
Mr. Dyotte testified that he suspended the grievor on October 16, 1992. He met with military officers a week and a half after the seizure and learned that the charges would be criminal in nature. He testified that he met with a detective sergeant of the Terrebonne police on October 16 or 17, 1992, and twice with the investigator in question, Corporal Godin. There was no meeting about the grievor after December 1992. The witness assigned the case to Officer Laporte. Officer Laporte’s summary report (Exhibit E-2) is part of the file on the grievor’s suspension and termination of employment.
The witness repeated that in mid-January 1993, he offered the grievor a chance to resign, which the grievor refused. The witness was referred to Exhibit E-4, an Information/Summons dated December 23, 1992. The grievor’s representative questioned the witness’ memory. The witness repeated that he met with the grievor a
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Decision Page 7 few days after January 6, 1993, on January 25 and 26, and they discussed the case, his suspension, resignation (rejected by Mr. Boisvert), the termination pay if he resigned, and the fact that if he refused, there would be no termination pay. The witness said that the employer postponed the date of termination of employment and offered the grievor a chance to resign voluntarily, the choice was his. He said that the decision to terminate the grievor's employment was not firm on January 25 and 26. He also testified that Exhibit E-4 (Termination Payments - Voluntary Resignation/Dismissal) had been prepared at his request. The lay-off was scheduled for February 1, 1993. This exhibit (E-4) is a working document which compares the amounts the grievor would receive if he resigned voluntarily with those he would receive if he were terminated. It was for discussion purposes only; the witness had not yet decided to terminate the grievor.
The witness said he did not wait for the Court’s verdict in Mr. Boisvert’s trial. He made him an offer and waited until May 13, 1994, before terminating him (Exhibit E-9). The witness said that he had not read the synopsis of the trial (Exhibit E-6) before terminating the grievor's employment. Nor had he considered the fact that the grievor was a member of the Armed Forces and carried weapons in the Forces. He considered only his employment with Correctional Service Canada, not his status as a Reservist with the Department of National Defence.
Mr. Dyotte testified that he read Exhibit E-3, the article published in the newspaper, two or three weeks before the hearing, that is, in early September 1995. He also said that Mr. Boisvert had a police record, even if the modification of the Probation Order (Exhibit P-3) were taken into account.
The grievor’s representative referred to exhibits E-11 (Designation of peace officers) and E-12.
The witness stated that the grievor is no longer a peace officer. He admitted there are probably other Correctional Service Canada employees with police records, but that all depends on the offence the individual has committed.
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Decision Page 8 On re-examination, counsel for the employer filed Exhibit E-14, a description of the property seized from the grievor’s home. I allowed this document without prejudice, and took note of the objection raised by the grievor’s representative.
(The hearing was adjourned at this point and resumed March 20, 1996. A request for the exclusion of witnesses was made and granted.)
The first witness called for the grievor, Captain Michel Chabot, stated that he has been in the army since 1974 but was inactive from 1984 to 1990. He belongs to the unit Reserve of the 4th Battalion, Royal 22e Régiment.
The witness has been a police science instructor at a college since 1982. He said that members of the unit Reserve are required to be armed; they may use their weapons in accordance with certain criteria. He has known the grievor as a member of the 4th Battalion, Royal 22e Régiment, since 1990. The grievor’s rank is Sergeant (Reserve). He testified that the grievor was still a serving member, he is the section commander and instructor of the members of his unit. The grievor’s representative filed Exhibit P-6, a form letter sent to all unit Reserve members who are absent for three months, after which time they are classified as inactive. Counsel for the employer objected to the admissibility of this exhibit as it concerned events which took place after the termination, and filed Exhibit E-8, the Board decision in Funnell (Board file 166-2-25762). The witness stated that he had read Exhibit P-6 in his capacity as assisting officer for the grievor. He was assigned by the then commander as assisting officer. The grievor’s representative filed Exhibit P-7, a letter confirming the grievor’s reinstatement as section commander. Counsel for the employer raised the same objection.
The witness, Captain Chabot, testified that, during the period of the events, he advised the grievor not to report to the unit from October 21, 1992, to May 16, 1995, the period of the investigation into the charges against him. The witness read Exhibit P-6 when he sent Exhibit P-7. He had the proceedings stayed on May 16, 1995. He testified that he advised the grievor not to report to the unit on October 27, 1992.
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Decision Page 9 He testified that to this day, the grievor can be called to serve in uniform if he volunteers for missions outside the country, and can carry weapons at that time.
Captain Chabot testified that he was aware that the grievor was being investigated for theft of arms and military ammunition. He said that on October 20, 1992, five days after the grievor’s arrest, his commander appointed him assisting officer and asked him to follow the grievor’s case. His investigation revealed a complex case, a big police operation. On that date, the extent of the theft was so great that he spoke to an investigator to find out whether there was a problem of national security. At the time, it was said that property valued at $100,000 had been seized from the grievor’s home. The witness stated that on December 22, 1992, there was a final ruling that there would be no military legal proceeding and the files would be turned over to the Crown prosecutor; this was a open criminal law trial, not a military trial.
The witness stated that several items seized from the grievor’s home were items the grievor needed as a member of a militia unit. They were items that soldiers need to carry out their duty. He was aware of the outcome of the criminal trial. The grievor had pleaded guilty to two counts: possession of stolen property, and theft. The witness was not present during the seizures.
The witness said that in March 1994, he met with the grievor and his lawyer, Mr. Pierre Dubé. The grievor’s lawyer wanted to negotiate an agreement, but the grievor did not. The witness said that the purpose of the meeting was to plea bargain. Counsel for the employer raised an objection; the grievor had pleaded guilty, and his guilt should not be minimized. I said that I would make note of the objection.
The witness said that he had suggested to the grievor that he see the matter through (no plea bargaining). There ought not to be further proceedings against him as the grievor was still a serviceman. The witness stated that there is currently no blot on the grievor’s record, even with the hearing taking place today.
On cross-examination, counsel for the employer confirmed with the witness that the grievor had pleaded guilty to theft from the Department of National Defence, and that the witness had stated that the grievor’s military personnel record did not reflect these events. Counsel for the employer asked the witness whether these events should
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Decision Page 10 not appear in the grievor’s military personnel record, and the witness said they should. Counsel for the employer referred to paragraph 6 on page 3 of Exhibit E-2: (Translation) Mr. Boisvert held the position of Quarter Master in the Reserve at the Saint-Jérome detachment and was responsible for the supply and distribution of equipment.
The witness said that the status of militiaman in military law is not the same as in civilian law. The grievor’s trial was a civilian one. When counsel for the employer asked whether there were currently any military or other proceedings against the grievor, the witness answered that there had been no formal assurance that further proceedings would not be taken against the grievor. Initially, the military was awaiting the decision of the civilian court. There had subsequently been no proceedings under military law.
On re-examination, the grievor’s representative referred the witness to paragraph 6 of Exhibit E-2, mentioned earlier. The witness stated that the grievor held these positions following a restructuring.
The second witness for the grievor was Mr. Michel Charbonneau. The grievor’s representative filed Exhibit P-8, Standard governing the safety of personnel.
The witness stated that he had been a correctional officer (CX) from 1967 to 1985. He was a union officer, president of the local section, from 1978 to 1985, at the Regional Reception Centre of Archambault Institution, in Sainte-Anne des Plaines.
The witness stated that he has known, and knows, correctional officers who, during their period of employment, had gone to criminal trial and been sentenced (disciplined by the employer), but had kept their jobs as correctional officers after the Court ruling.
The witness has been a member of the Union of Solicitor General Employees since 1985. Moreover, he was responsible for guiding the grievor’s grievance cases through to the final stage of the grievance procedure. He said that from his knowledge
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Decision Page 11 of the records, the grievor has not lost his security rating, the rating granted to correctional officers of Correctional Service Canada. He referred to Exhibit P-8.
There was no cross-examination by the employer’s counsel. The grievor, Mr. Roger Boisvert, testified that aside from this case, he had had no other brushes with the law. The grievor’s representative filed Exhibit E-9, Modification of a condition of the probation order. Counsel for the employer raised the same objection as it raised to the filing of exhibits P-6 and P-7. I made note of the objection.
Mr. Boisvert testified that he was suspended on October 16, 1992, and terminated on May 13, 1994. He had worked at Correctional Service Canada from 1981 to 1992 as a correctional officer, or prison guard (CX-01; CX-02). No disciplinary action had been taken against him prior to this incident. He was a member of the emergency team, and of the dog and handler team, when it existed. He was in the reserve militia. He was a marksman (revolvers; rifles; shotguns) and gun collector. He testified that he had got along well with his co-workers and superiors. He has been a serviceman since February 9, 1977. He started out as a Private, and rose to Corporal, Master Corporal, and finally, Sergeant. He was responsible for his platoon. He had access to all basic equipment for soldiers in the field. The grievor’s representative referred to Exhibit E-3.
The grievor said that he has known Mr. Carol Desrosiers for about twelve years. Mr. Desrosiers was implicated in the charges of theft and possession of stolen goods against the grievor. The grievor said he did not know the Warriors and Hell’s Angels. He testified that he gave Mr. Desrosiers military equipment in 1991 and 1992: batteries, three boxes of rations, a box of “lites,” a box of “overhead cover,” and water and gasoline jerry cans.
Mr. Boisvert testified that his home had been searched and equipment seized. The military police arrested him and took him to the Terrebonne police station. He was questioned and spent the day in a cell. The police returned to him much of the equipment seized from his home, but the military police did not, at that time, return the personal military equipment that had been seized. All the military equipment that had been in boxes was taken to his home.
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Decision Page 12 He testified that he pleaded guilty because the fuss made no sense. He had no right to give equipment to Mr. Desrosiers and that is why he pleaded guilty, even though there was pressure to plea bargain. He did not want to waste his time, and money he did not even have, defending himself. He testified that he had not lied.
Mr. Boisvert testified that the day after his arrest, the employer informed him that he was suspended without pay. He received the letter of suspension (Exhibit E-1) one week after October 16, 1992. He said that the warden’s secretary called him in January 1993 to arrange an appointment. He testified he had had no contact with his employer between October 16, 1992, and January 1993. Mr. Boisvert said that the preventive security officer, Mr. Laporte, called him to arrange a meeting outside Archambault Institution, at a Dunkin’ Donuts in Bois-des-Filions. Mr. Boisvert agreed to meet him, but wanted his union representative to be present. Mr. Laporte did not agree to this; he wanted to see Mr. Boisvert alone. There is no mention of this in Officer Laporte’s report (Exhibit E-2).
The grievor testified that the only contact he had had with management was with the assistant warden, Mr. Cloutier, about his suspension; with Officer Laporte, during the above-mentioned meeting; and with the warden, Mr. Dyotte, about the termination. He did not meet with the employer between January 1993 and May 1994.
With regard to Exhibit E-9, the letter of termination dated May 13, 1994, he testified that he has not been able to explain his case before today. He repeated that the employer never asked him for an explanation. He argued that he was capable of resuming his duties. He was sorry for the trouble this matter had caused the employer. This was the first time this had happened, and he wanted to return to his job. The grievor’s representative filed exhibits P-10 and P-11.
With regard to the firearms found during the search, he referred the undersigned to Exhibit E-7, the Probation Order. In 1992, there had been an amnesty, and Mr. Boisvert had turned in some weapons at that time. The grievor’s representative filed Exhibit P-12. He filed the Information/Summons included in Exhibit E-4 and stating “acquitted” in the second paragraph.
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Decision Page 13 The grievor’s representative referred to the last page of Exhibit E-14, the description of the seized property. This exhibit was admitted without prejudice at the time it was filed by the employer’s counsel.
Mr. Boisvert testified that his deputy head had asked him to pick up the grenades referred to in Exhibit E-14. He took them to him to be destroyed later. He acknowledged that this was a bad decision, that the grenades had not been destroyed.
The grievor’s representative filed exhibits P-13 and P-14, a list of equipment returned to the grievor on November 18, 1992, by the military police. The employer apparently never knew of this and never asked him. The representative also filed Exhibit P-15, and Exhibit P-16 (in a bundle).
On cross-examination, the grievor stated that he knew the amount to which he was pleading guilty and referred to the property he had stolen and given to Mr. Desrosiers. The value of the property was $1,100. The amount was initially reported as $100,000, but later as $1,100. He pleaded guilty to stealing the property he gave to Mr. Desrosiers. He stated he had asked to remove the equipment in question, but had not signed the necessary authorizations. That is why he decided to plead guilty.
The grievor was asked why he had not given any explanation at the time of his termination, on May 13, 1994, instead of waiting until this hearing to do so.
Mr. Boisvert acknowledged that he probably said nothing during his meeting with the warden, Mr. Dyotte; he wanted to wait for the end of his criminal case. He said that Captain Chabot had advised him not to say anything to the employer. Mr. Boisvert testified that he knew the employer was awaiting the outcome of his criminal trial before taking a decision. He repeated that yes, he was aware of the consequences of a guilty plea. In his view, however, the employer should not have suspended him before the criminal investigation. He admitted that what he had done was serious.
On re-examination, Mr. Boisvert maintained that the employer should not have suspended him; there were no charges against him at that time. When asked about the offer to resign or be terminated, the grievor said he felt he was “being bought” and that the warden had not asked him for an explanation.
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Decision Page 14 Arguments For the Employer At the start of his argument, counsel for the employer, Mr. Roger Lafrenière, cited the Skibicki decision (Board file 166-2-20723). He promised to provide me and the grievor’s representative, in a letter, with the quotation for this decision. This letter of March 23, 1996, reads as follows:
(Translation) .. The relevant excerpts from the decision I wanted to point out to Mr. Labelle are on pages 12 to 14 inclusive. In the Skibicki case, as in Mr. Boisvert’s case, the grievor admitted that at his disciplinary inquiry and throughout the grievance procedure, he had at his disposal all of the mitigating circumstances which he placed in evidence before the adjudicator. However, he chose to withhold these facts from the employer. In his testimony, Mr. Boisvert stated that the employer never asked him for his version. This claim should not be accepted.
It has continually been shown before this Board that the burden of proving mitigating factors rests with the employee, not the employer. It is not up to the employer to know of the existence of mitigating factors. In his testimony, the warden, Jacques Dyotte, clearly listed and explained all the factors he had taken into account in imposing the dismissal. These were the only factors that had been brought to his attention.
I respectfully request that Mr. Labelle reject the explanations the employee gave in his testimony, for the following reasons. Firstly, the employer never had the opportunity to take them into account in its decision to impose the dismissal (see Skibicki and Funnell; PSSRB file 166-2-25762). Secondly, Mr. Boisvert’s explanations were improbable. The employer is not in a position during a grievance hearing to refute facts which it has never known.
Finally, we would remind you that this case dates back to October 1992. The employee could easily have provided these explanations to the employer in the three and a half years between his suspension and his adjudication testimony. His failure to do so has never been properly explained.
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Decision Page 15 Counsel for the employer stated that points should be raised during the grievance procedure, not at the last minute, as at this hearing. I should not accept the mitigating factors I have heard today. There were two counts for serious crimes, as well as the newspaper publicity (Exhibit E-3). Mr. Boisvert pleaded guilty and therefore became a security risk. Mr. Dyotte has testified he no longer trusts the grievor and cannot reinstate him in his position. The testimony showed that the employer did not act unreasonably, but rather reasonably.
The judge imposed a $1,500 fine. This is not considered minimal. Mr. Boisvert testified that he made a mistake in giving equipment to Mr. Desrosiers. Counsel for the employer said it was not a mistake, and that Mr. Boisvert has not shown remorse, and therefore asked that the grievance be dismissed.
Mr. Lafrenière also cited the following decisions: Flewwelling (Board file 166-2-14236); Wilson (Board file 166-2-25841); Fleming (Board files 166-2-13488 and 89); Dell, Philipchuk and Sweeny (Board files 166-2-25124 to 26 and 166-2-25189 to 91); and Town of Shediac and Canadian Union of Public Employees, Local 2585 (1991), 22 L.A.C. (4th) 379.
For the Grievor To Mr. Lafrenière’s letter concerning the Skibicki decision (supra), the grievor’s representative, Mr. Jacques Dupont, in a letter dated April 11, 1996, responded in these words: (Translation)
... We are writing to draw the adjudicator’s attention to the following observations in response to the position of the employer’s counsel.
(a) We do not wish to review the arguments in these cases (this would be unfair to the parties, and especially to Mr. Labelle). This has already been done.
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Decision Page 16 (b) Mr. Lafrenière alleges that Mr. Roger Boisvert “acknowledged that at his disciplinary inquiry and throughout the grievance procedure, he had at his disposal all of the mitigating circumstances which he placed in evidence before the adjudicator. However, he chose to withhold these facts from the employer. In his testimony, Mr. Boisvert stated that the employer never asked him for his version.” We very respectfully submit to you that this position of Mr. Lafrenière does not reflect the factors placed in evidence in these cases, and we refer you to, among other things, Mr. Boisvert’s testimony to the effect that “I wanted to tell my employer what had happened . . . and after I was told that the person handling the grievance case was Ms. Sylvie Dion. I called her to give her the latest information about the status of my case; she coldly said “That’s fine,” and nothing more . . . .”
(c) We have shown the sequence of events in this case, from the search, the arrest, the one-day incarceration, the cooperation with police and his employer (against the advice of military and/or civilian counsel). We have shown that at the disciplinary meeting, the employer had already given Mr. Boisvert a choice (Exhibit P-4, in a bundle) to either resign; or be dismissed, even before he was able to say anything. We have shown that the only time Mr. Boisvert may not have co-operated was when he refused to meet with the preventive security officer of the IPSO (to discuss how the criminal case was going) at a Dunkin’ Donuts, when Mr. Boisvert was represented in the criminal proceedings by a member of the Quebec bar.
(d) We have identified and shown different sides of Mr. Boisvert: collector, husband, father, long-time correctional officer with an impeccable record, highly regarded by his co-workers, a ranking and responsible militiaman. We have shown Mr. Boisvert, as a witness, to be stable, credible, proud to wear the uniform of the Correctional Service and the military, spontaneous and respectful of all authority. He testifies that this is the first time he has been asked to tell his story to someone in authority (to the adjudication hearing). We have drawn a profile of Mr. Boisvert showing both his good and bad sides, but never one such as Mr. Lafrenière describes to you in citing the Larry Skibicki decision (166-2-20723).
(e) Page 12 of Mr. Kwavnick’s decision in Skibicki (supra) sets out the evidence presented in this case. Adjudicator David Kwavnick recalls that “[t]he grievor, in his testimony, admitted that at the disciplinary meeting . . . he had at his disposal all of the facts which he placed in evidence before me. However, he chose to withhold these facts from the
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Decision Page 17 employer because he was angry at his supervisor.” This is not so in Mr. Boisvert’s cases. Mr. Boisvert did not have at his disposal all of the facts; there is no evidence that he was angry at his supervisor.
(f) Page 12 of this same decision reveals that “[i]t is my finding that the grievor acted vindictively in withholding the facts from the employer. His purpose was to inveigle Messrs. Boals and Klippenstein for the purpose of showing them up later . . . This was to be his vengeance against two men . . . .” In your opinion, is this how Mr. Boisvert acted, and was he or did he show the same thoughts of vengeance? In your opinion, is Mr. Boisvert from the same mould described in this situation? We submit to you, and the evidence shows, that he is not.
(g) Page 12 of Mr. Kwavnick’s decision states that “[t]his is what the grievor set out to do when he deliberately chose to withhold important information from the employer on 6 December 1989. In my view, it amounts to an unacceptable abuse of process.” In your opinion, did Mr. Boisvert deliberately choose to withhold information? The evidence presented in Mr. Boisvert’s cases shows he did not. Mr. Boisvert co-operated as much as he could, and when allowed to do so. In your opinion, is Mr. Boisvert guilty of abuse of process? We submit to you that there is absolutely no evidence of this.
(h) On page 14 of this decision we learn that “[h]ere, the grievor withheld information with malicious intent.” In your opinion, did Mr. Boisvert withhold information? We submit he did not. The employer knew the factors of Mr. Boisvert’s situation, since the IPSO had informed the warden in a report. We submit to you that the factors necessary to apply the “Kwavnick opinion” stated in the Skibicki decision are not present in Mr. Boisvert’s cases.
The foregoing notwithstanding, we draw your attention to a rule of law, or of procedure, whereby “the burden of proof rests with the party making the allegation.” In the case of concern to us here, we understand that the employer is alleging that Mr. Boisvert did not disclose all the facts to his employer before his suspension (the evidence shows, that the employer suspended Mr. Boisvert on the spot), before dismissal, during the grievance procedure, and even before adjudication. The employer offers no evidence to this effect. We called an important witness to the hearing of these grievances, namely, Mr. Michel Charbonneau, who identifies himself as a service officer for the Alliance and for the Union of Solicitor General Employees. He testified that he represented Mr. Boisvert in this capacity before the Commissioner at the final stage of the grievance procedure (for the indefinite suspension and
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Decision Page 18 dismissal). Mr. Lafrenière had an opportunity to cross-examine Mr. Charbonneau about his testimony.
We submit to you that in his argument, Mr. Lafrenière had a taste of what was to come, and if he wanted to invoke what he is invoking now, he had the right and/or ideal opportunity to do so, and the responsibility and burden of clarifying whether or not Mr. Boisvert provided his version of events placed in evidence at the adjudication. He did not do so, and has not discharged his burden, and it is now too late to do so. If you accept the employer’s position at this stage, we submit to you that Mr. Boisvert will have been seriously wronged, as he will not have had an opportunity to respond to the position the employer is now adopting.
We have placed Mr. Boisvert’s reason in evidence and supported our positions concerning our mitigating circumstances, unlike the employer, who has not proven the mitigating circumstances it now argues.
Mr. Dupont stated that it is necessary to unearth the facts, hear the parties and weigh the evidence. I must render a decision, but am not to reconsider what happened at the criminal trial. I must not take a decision based on the fact that the grievor may lose his security rating. Nor am I to base my decision on the reliability status of Correctional Service Canada.
The grievor’s representative referred to Exhibit E-5, sections 334 and 335 of the Criminal Code.
The representative stated that the judge imposed a $750 fine for each of the two counts, for a total of $1,500 (Exhibit E-9). The judge did not deliver the maximum sentence, while the employer decided to deliver the death penalty (Exhibit E-9).
There should have been no termination of employment in this case; the grievor did not give his version of events. Mr. Boisvert was advised by Captain Chabot not to say anything. Other correctional officers have been found guilty in criminal court and been reinstated. The publicity in the newspapers was based on hearsay; it was not true (Exhibit E-3).
The representative also mentioned the help the grievor received from his co-workers, who sent him money and letters of congratulations. I am to disregard the
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Decision Page 19 articles published in the newspapers (Exhibit E-3). The representative mentioned Exhibit E-5. What are the mitigating and aggravating factors in this case? The representative also mentioned that the employer did not in any way exercise its discretionary authority. At the time the letter of suspension was delivered, the trial had not begun; no trial had taken place. After January 1993, there had been no further evidence. It is the warden, Mr. Dyotte, who decided to terminate Mr. Boisvert's employment. The grievor’s representative referred me to Exhibit P-4, and to page 6 of the Wilson decision (supra). He stated that, based on the evidence, I must overturn the termination. The grievor represents Canada as a member of the Armed Forces and could even serve outside Canada. He can also wear the uniform of a CX.
Mr. Dupont stated that there are mitigating circumstances to be considered. Mr. Dyotte testified that Mr. Boisvert cannot carry weapons in his job as a correctional officer. The grievor had no prior disciplinary record. Other decisions have reinstated employees. I must consider the evidence and Mr. Boisvert’s career. The employer’s evidence is weak. I should not approve or allow the termination. There is no evidence to show that the grievor is not welcome at Archambault Institution. He can return to his position, and wants to do so. He is entitled to a chance to be reinstated in his position. The employer will be well served by the grievor. The Code of Discipline is lenient. I must reinstate Mr. Boisvert, after a period of suspension. He should be sentenced for his actions, but I must uphold the grievances in this regard.
Mr. Dupont cited the following decisions: Butcher (Board file 166-2-13507) and Armstrong (Board file 166-2-9402).
Rebuttal Address Counsel for the employer acknowledged that some employees of Correctional Service Canada have police records and work in penitentiaries. But this applies only to cases of impaired driving.
He argued that the crimes here are serious. The grievor was given a chance to either resign or be terminated. He pleaded guilty. The burden of proof still rests with the grievor.
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Decision Page 20 Mr. Lafrenière referred me to Exhibit E-8, the Funnell decision (supra), and asked me to take into account the seriousness of the crime.
Reasons for decision The grievor claims that the employer did not give him a chance to explain himself and is attempting to make a distinction between his case and the Skibicki case (supra) on this basis, among others. In my opinion, it should also be noted that in Skibicki, the grievor could have fully exonerated himself had he not withheld information at his disposal from his supervisor. In the present case, the discussion would have concerned mitigating factors only.
However, in the specific context of this case, it matters little that the grievor had no chance to explain himself. This is not to say that I accept the grievor’s version. I make no finding in that regard since, in my opinion, it is of no importance in the present context. In any event, any procedural error would be corrected by the de novo hearing before me: Tipple v. Canada (Treasury Board), Federal Court case A-66-85.
The grievor pleaded and was found guilty of theft and possession of stolen goods belonging to the Department of National Defence, including explosives. This is quite incompatible with his duties as a correctional officer, even had there been no publicity and despite his clean disciplinary record. Reinstating the grievor in a prison setting, where the employer must ensure the security of employees and inmates, is unthinkable. Furthermore, it was quite reasonable and responsible of the employer to suspend the grievor while he was awaiting his trial. For these reasons, Mr. Boisvert's two grievances are dismissed.
Richard Labelle, Board Member OTTAWA, April 10, 1997.
Certified true translation
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Decision Page 21 Serge Lareau
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