FPSLREB Decisions

File: 166-2-26460 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ANNE P. JOHNSTON Grievor and TREASURY BOARD (Human Resources Development Canada)

Employer

Before: J. Barry Turner, Board Member For the Grievor: Barry Done, Public Service Alliance of Canada For the Employer: Robert Jaworski, Counsel Heard at Sarnia, Ontario, June 7, 1996

Decision Page 1 DECISION Anne Johnston a Reception and Enquiries Clerk, CR-3 classification level, Unemployment Insurance Section, Employment and Immigration Canada (now called Human Resources Development Canada), Sarnia, Ontario, is grieving a one-day suspension without pay imposed by the employer in October, 1993.

Her grievance which was referred to the first level of the grievance procedure on November 4, 1993, reads: I grieve the one day's suspension I served on Nov 3/93. Also I grieve the letter on my file which reflects managements reasons for giving me the one day's suspension.

This grievance was referred to adjudication on April 20, 1995. The letter of suspension dated October 28, 1993 and signed by Tim Gleason, Manager, reads: I am writing today with regards to an incident that took place in the Claims Preparation Unit on October 22, 1993 between yourself and Mrs. Donna Rockwood.

After carefully and completely investigating this incident I find that your behaviour and comments were rude and unprofessional. This is contrary to the Code of Conduct for Commission Staff (section 4:070) and the Employers harassment policy. Employees are expected to be cooperative and civil in their dealings with other Commission staff. The use of insults, disrespect and rudeness directed towards other staff is inappropriate and unacceptable.

I would refer you to a letter of reprimand given to you dated April 6, 1992 that clearly states "...that further such behaviour on your part could result in further and perhaps more serious disciplinary action...". I find this is very similar behaviour and I have noted that you have failed to display any recognition or remorse.

Based upon your passed disciplinary record for a similar infraction and the absence of recognition or remorse on your part I have concluded that a one day suspension is necessary in order to correct your behaviour. Your Supervisor will inform you of the exact date that your suspension is to be served.

You are expected to conduct yourself professionally and appropriately in dealing with all staff and failure to do so could result in more serious disciplinary action.

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Decision Page 2 Ms. Johnston is requesting the following corrective action: To reimburse, in full my wages lost for Nov 3/93 To remove the letter of suspension off my file.

It should be noted that the time frame of two years for the letter of suspension to be on her file has passed. I was advised that the letter has now been removed from her file.

I am being asked to decide if the employer's action was justified under the circumstances.

A request for the exclusion of witnesses was made and granted. The hearing lasted one-half day; three witnesses testified and five exhibits were submitted into evidence.

SUMMARY OF EVIDENCE 1. Donna Rockwood, a seventeen year Employment and Immigration Canada employee, began her career in the Claims Preparation department. She won a competition near the end of 1992 to become a Supervisor, Claims Preparation. By October 1993 she had been the grievor's supervisor for ten months. They had been good friends for a long time. The grievor had applied to the same competition but was screened out.

On October 22, 1993, Ms. Rockwood testified that she put an envelope with some voting information from the Public Service Alliance of Canada (PSAC) on the grievor's desk early in the morning. The envelope went back and forth between the two of them. Ms. Rockwood said the grievor told her that she did not have time to deal with the information and that someone else should be delegated to deal with it. The grievor yelled at Ms. Rockwood and "whipped the envelope into the garbage". Ms. Rockwood said that she had written a note on the envelope saying she was no longer on the Local 00579 executive and that the grievor should not have used a departmental envelope to return the original contents to her. The witness added that later on during the day while she was doing some computer data input for

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Decision Page 3 unemployment insurance claims because the office had five persons absent, the grievor came to see her in the Claims Preparation area (Exhibit E-4) and said: "I need to speak to you right now". The witness said she told the grievor that she was too busy and added that if it was about union business they could not discuss this on work time. A working colleague, Marcella Day, was nearby. Ms. Rockwood added that the grievor was angry, began to scream, and accused Ms. Rockwood of stealing union money; the grievor called Ms. Rockwood a liar, a thief, and an embezzler. She asked the grievor to put these accusations in writing because the issue regarding union money was all a misunderstanding. She added that the grievor had been angry for the last two days because she did not like a job reference that Ms. Rockwood had given for her. When the grievor said she would "get" Ms. Rockwood during this exchange, Ms. Rockwood testified that she responded by saying "the truth hurts". The witness regretted saying this and had previously apologized to the grievor for it. She added that she asked Ms. Johnston to return to her work place; Ms. Rockwood then went to see her supervisor, Mr. Gleason, about the incident and he said he would speak to the grievor.

The witness identified her handwritten notes regarding the incident (Exhibit E-2) that she believed she wrote the next day upon the advice of her supervisor.

She added the sequence of events on Exhibit E-2 was a little different from her testimony during the hearing because she was now nervous and the events took place almost three years ago. She said there never were any charges of embezzlement laid against her.

During cross-examination, Ms. Rockwood said, regarding the job reference she gave for the grievor, that she gave her a good assessment for her work but indicated that she was uncomfortable with her ability to work within a team concept and that she judged her as fair regarding her level of commitment. She denied that the grievor had ever previously asked her if she had been contacted for a reference.

The witness said that, before she became the grievor's supervisor, she had held various executive positions many years ago (Treasurer and Secretary) on Local 00579 of the Canada Employment and Immigration Union (CEIU), and when reminded by

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Decision Page 4 Mr. Done, remembered she had resigned as Vice-President in May, 1993. Her husband was President of Local 00579 on October 22, 1993 and asked her to deliver an envelope that day with some voting information to Ms. Johnston.

She reiterated that the envelope came back to her around noon on October 22 with a note from the grievor saying she should delegate this task to someone else. Ms. Rockwood returned it to the grievor's desk because she was told to give it to Ms. Johnston. Ms. Rockwood added that later in the day, when the grievor came to see her and the yelling incident began, she did not want to argue with her about a union issue on work time. She added that she was "not there to take someone into a private room to be screamed at and I am a bit afraid of Ms. Johnston". She added that she remained calm and told the grievor that they would meet at a later date. She described the grievor's mood as "very angry, very loud, very upset". Ms. Rockwood believed that she (Ms. Rockwood) left for home after the incident.

Regarding the misunderstanding of the use of union funds, Ms. Rockwood said she paid some of it back because she was "sick and tired of Anne Johnston talking about it" and after the Local 00579 had a meeting that decided she should pay some back.

2. Tim Gleason, Manager of the Sarnia Canada Employment Centre (CEC) since 1977, said that Ms. Rockwood came to see him on October 22 about the incident. He testified that Ms. Rockwood told him it started over an envelope going back and forth with union information in it; that she told the grievor she was no longer a union representative; that the grievor threw the envelope into the garbage and Ms. Rockwood told her she would have to make an appointment to see Ms. Rockwood. He added Ms. Rockwood told him Ms. Johnston was not happy about the personal reference she had given her; that she had said to the grievor the truth hurts; that the grievor had called her a thief, and an embezzler; and that Marcella Day had overheard the incident.

Mr. Gleason reviewed the incident with the grievor and her union representative. He said she told him it started as a union issue, that Ms. Rockwood ordered her back to her desk, that she was upset about the poor personal reference, and that she responded with the union embezzlement reference because

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Decision Page 5 Ms. Rockwood should have known better regarding how to spend union funds. He said she told him they both spoke loudly.

Mr. Gleason said that there had been another incident involving insubordinate behaviour by the grievor in April 1992 and he had issued a written reprimand (Exhibit E-3) to her.

He added he told the grievor that she had a right to her feelings, but that she should not be rude or unprofessional on the work floor. He said the grievor's union representative felt Ms. Rockwood should have taken the incident off the floor. Mr. Gleason said that it took place so fast, and the fact that they had been friends, compounded the situation.

Mr. Gleason also interviewed Marcella Day in the presence of her union representative. He then analyzed his interviews and was thinking of imposing a three-day suspension but, after discussing the situation with his staff relations officer in Toronto, decided on a one-day suspension.

During cross-examination he said that Ms. Rockwood first approached him late in the morning on October 22, and that he spoke to the grievor and Marcella Day in the afternoon of October 22. He added that he asked Ms. Rockwood why she had not got the incident off the floor to which she responded that she told the grievor to go back to her workplace. He said that Ms. Rockwood told him her own voice had been loud and that she said the truth hurts in a "huffy" tone.

3. Anne Johnston began to work at the Sarnia CEC in 1977 and became a Reception and Enquiries clerk in the fall of 1993. At the time she was Treasurer of Local 00579. She had previously served as President, Vice-President and Secretary. She said that the Treasurer can issue funds according to the Local 00579 by-laws.

She and Ms. Rockwood were friends, but by the fall of 1993 their relationship was tense.

Ms. Johnston explained that in June 1993 she had failed to make the list to be considered for a CR-4 Assessor position even though she had performance appraisals that said she could perform such a job. She did a post board interview and appealed the decision not to consider her. She added that she had asked Donna Rockwood over Public Service Staff Relations Board

Decision Page 6 coffee if she had given her a reference for the Assessor position and was told that she had but that she had said nothing bad about the grievor.

The grievor added she was aware that Ms. Rockwood once gave herself a national rate of reimbursement for some union business and not the Local 00579 Sarnia rate of reimbursement.

She added that the envelope placed on her desk on October 22 was a package of voting information for PSAC delegates; she presumed that Ms. Rockwood put it there since her husband's name was on the envelope as local President at the time. She admitted that she returned it to Ms. Rockwood's desk with a note saying to give it to someone else. After the grievor returned from lunch on October 22, the envelope was back on her desk with a note from Ms. Rockwood; she went to see Ms. Rockwood right away to speak to her but was ordered back to the front desk. Their voices rose as she was ordered again to return to her work station. Ms. Johnston told Ms. Rockwood that she had received her written comments regarding the job reference and was upset since Ms. Rockwood told her she had not made any bad comments about her. Ms. Johnston felt they were bad, were not helpful, and she was shocked by the comments. When Ms. Rockwood replied that the truth hurts, the grievor responded with her comment regarding embezzling union funds. She then wrote a two-way memorandum to Ms. Rockwood who responded saying Mr. Gleason would be seeing her.

Ms. Johnston denied calling Ms. Rockwood a thief and a liar but admitted she called her an embezzler. She did not threaten to get Ms. Rockwood. Their exchange took less than a minute but should have been in a quiet area or Ms. Rockwood should have said she would talk to her later rather than ordering her to the front desk.

Under the strong objection of Mr. Jaworski, I allowed Mr. Done to enter into evidence a copy of handwritten notes of a Local 00579 Executive Meeting as Exhibit G-1 attended by the grievor on June 16, 1993. These notes very briefly discussed the union expense claim by Ms. Rockwood. I said that I would weigh the overall relevance of this evidence accordingly.

Ms. Johnston added that Ms. Rockwood resigned from the Executive on May 27, 1993.

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Decision Page 7 During cross-examination, Ms. Johnston agreed that there was a need for professionalism in the office and agreed that she in fact interrupted Ms. Rockwood in an open work area on October 22; she added that she attempted to meet with Ms. Rockwood privately to talk about the envelope issue. She could not talk to her during lunch since Ms. Johnston goes home at noon to help her handicapped child. She said she did not put the envelope in the garbage.

Ms. Johnston said that during the incident one thing led to another, that Ms. Rockwood provoked her, and that she gave an honest response to Ms. Rockwood during the incident.

ARGUMENT FOR THE EMPLOYER Mr. Jaworski argued that there has been an admission by the grievor that there was an incident in the workplace between herself and Ms. Rockwood on the employer's time while discussing a union matter and that their voices were raised. He said the grievor is a long serving experienced employee who should have known better then to call her supervisor an embezzler. He reminded me that there had been a previous incident in April 1992 (Exhibit E-3) as a result of which the grievor had been reprimanded. He argued that, even though the grievor's evidence and that of Ms. Rockwood were similar, their memories of the incident were foggy since it took place so long ago. He argued however that Mr. Gleason was very collected when he testified and gave me a measured, tempered assessment of the incident that he was detached from. He said that Mr. Gleason wrote his letter of discipline six days after the incident and initially wanted to impose a three-day suspension.

He argued that the one-day suspension is not unduly harsh, that Ms. Johnston has shown no remorse for the serious allegation of embezzlement which she made against Ms. Rockwood, and that the incident itself is well beyond profanity or rough language.

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Decision Page 8 ARGUMENT FOR THE GRIEVOR Mr. Done argued that what is before me is really not a matter of a subordinate/supervisor conflict, but an incident between two friends who were union activists that just happened to have occurred at work.

He argued that the supervisor did a favor for her husband, the President of Local 00579 at the time, by dropping an envelope on the desk of the grievor who at the time was Treasurer of Local 00579. He argued that Ms. Rockwood's comment "the truth hurts" provoked the grievor who responded by calling Ms. Rockwood an embezzler. He said that Ms. Johnston was already angry because Ms. Rockwood had told the grievor one thing about the job reference she gave her but wrote another regarding the Assessor competition. He concluded that, if the supervisor had not dropped the envelope on the grievor's desk in the first place, the incident would not have occurred.

He argued that, as a trained supervisor who had been on the job for ten months, the onus was on Ms. Rockwood to have calmed the situation.

Mr. Done said that I should prefer the grievor's testimony because of the confusion regarding the concern about reimbursement of union money and when this was first brought up. He referred me to Exhibit G-1, minutes of the Executive Meeting where this issue was discussed with Ms. Rockwood in attendance. He argued that Ms. Rockwood testified that the grievor said she would get her (meaning Ms. Rockwood), but by use of the best evidence rule, this alleged statement is not referred to in Ms. Rockwood's handwritten notes made a day or so after the incident. He reminded me Ms. Rockwood testified she was calm during the incident, but Mr. Gleason said Ms. Rockwood told him her voice went up. Mr. Done added that Ms. Rockwood thought she went home that afternoon and could therefore not have been very cool about the whole matter. He also said that, when he asked Ms. Rockwood what union positions she had held, she initially forgot to mention that in May 1993 she was Vice-President.

He concluded that the entire incident was initiated, provoked, and not well managed by Supervisor Rockwood and that it was all blown out of proportion. He felt a written reprimand at most would have been sufficient.

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Decision Page 9 During rebuttal argument, Mr. Jaworski argued that I should not accept that Ms. Rockwood and Ms. Johnston were just friends and union activists, since the incident was at the workplace and that provocation is not an exculpatory factor for me to consider. He also argued that Exhibit G-1, the Executive Meeting notes, does not talk about embezzlement, nor did Mr. Done cross-examine Ms. Rockwood on this matter.

He concluded that the only crucial period for me to consider is what actually happened on October 22 and he asked me to deny the grievance.

DECISION The issue before me is whether or not the grievor made rude and unprofessional comments to her supervisor in the workplace. It has nothing to do with the proper or improper use of Local 00579 funds by Ms. Rockwood. I have therefore given little weight to the handwritten notes of the June 16, 1993, Local 00579 Executive Meeting (Exhibit G-1) that barely address this matter in any event.

After reviewing all of the evidence and testimony, I have concluded that the innocent delivery to the grievor by Ms. Rockwood of an envelope on October 22, 1993 with some voting information inside precipitated the explosion of some pent-up feelings by the grievor.

I have also concluded that there is some confusion and lack of clear recollection on the part of both witnesses Rockwood and Johnston as to who said or did what leading up to the day in question and what actually happened on October 22 itself. It is clear however that there was an incident in the workplace that resulted in an investigation followed by the imposition of a one-day suspension on the grievor.

Ms. Rockwood, who at the time was a relatively inexperienced supervisor, did not help matters by saying to the grievor the truth hurts. She has apologized for saying so. It would also have been difficult to remove the discussion to another more private area since it happened so quickly and did not last longer than a minute. It

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Decision Page 10 would probably have been helpful if Ms. Rockwood had agreed to meet later with the grievor rather than telling her to return to work.

The grievor admitted calling her supervisor an embezzler and she did not demonstrate to me that she had any remorse for doing so. Even though she may have felt betrayed by Ms. Rockwood regarding the Assessor job competition, and did not want to be responsible for handling the envelope, her rude behaviour to her supervisor was serious and warrants discipline. She had been reprimanded in April 1992 (Exhibit E-3) for insubordination. I believe that the penalty of a one-day suspension imposed on the grievor is reasonable under the circumstances.

For the above reasons therefore I have concluded that the grievance should be denied.

J. Barry Turner, Board Member.

OTTAWA, July 2, 1996.

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