FPSLREB Decisions
Decision Information
Termination (non-disciplinary) - Refusal to report for work - grievor, who was employed in Revenue Collections, had a physical altercation at the workplace with another employee on March 1, 1993 - as a result employer temporarily assigned grievor to the Audit Division - two years later employer instructed grievor to return to work in Revenue Collections as there was a shortage of staff there - grievor refused to do so citing his fear of the other employee as his reason - employer offered him alternate locations, one of which was at a considerable distance from where this employee worked, but grievor was adamant in his refusal to return to work in Revenue Collections - ultimately employer instructed grievor by letter dated September 28, 1995, to report for work in Revenue Collections by October 10, 1995 - employer also advised grievor that his employment would be terminated if he failed to comply - when grievor failed to report for work as instructed, his employment was terminated pursuant to paragraph 11(2)(g) of the Financial Administration Act effective October 13, 1995 - adjudicator concluded that grievor had no valid reason to refuse to comply with employer's order that he report to work at one of the locations specified - grievor had been advised by employer of the temporary nature of his assignment to the Audit Division - furthermore he had no reasonable grounds to fear for his safety if he returned to work in Revenue Collections at either of the locations proposed by the employer. Grievance denied.
Decision Content
File: 166-2-27120 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN STEPHEN KWAN Grievor and TREASURY BOARD (Revenue Canada - Taxation)
Employer
Before: Muriel Korngold Wexler, Deputy Chairperson For the Grievor: Himself For the Employer: Roger Lafrenière, Counsel Heard at Toronto, Ontario, July 30, 1996.
Decision Page 1 DECISION On November 22, 1995, Mr. Stephen Kwan presented a grievance contesting the employer's decision to terminate his employment effective at the close of the business day on October 13, 1995. He indicated that he was seeking the following corrective action: 1. I be reinstated as an employee of the Public Service in Canada other than Revenue Canada Taxation
2. That all pay and benefits including all loss of pay be reinstated and paid to myself
3. and appropriate compensations. The employer alleged that Mr. Kwan chose not to comply with an order to report for work by October 10, 1995. This grievance was duly referred to adjudication and received by the Board on March 29, 1996. The matter was heard on July 30, 1996.
It is worthy of note that Mr. Kwan had been represented by his bargaining agent, the Public Service Alliance of Canada (P.S.A.C.), until July 18, 1996, when Mr. Kwan informed the Public Service Staff Relations Board that he no longer wished to be represented by them. Mr. Kwan represented himself at the adjudication hearing.
During the hearing, he was twice offered by this adjudicator the opportunity to seek assistance and representation in light of the evidence presented by the employer. Mr. Kwan replied that he knew his case best and he adamantly refused to consider any assistance in the presentation of his case.
Mr. Roger Lafrenière, counsel for the employer, called Mrs. Gloria Reid and Mr. Cecil Williamson to testify and presented 54 exhibits. Mr. Kwan testified on his own behalf and submitted seven exhibits.
THE EVIDENCE Mr. Stephen Kwan joined Revenue Canada on November 13, 1984 as a term CR-4. On September 1, 1988, Mr. Kwan was appointed to a PM-1, Collections Contact Officer position, Collections Division, Revenue Collections. This position has been Mr. Kwan's substantive position all along his work history since 1988.
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Decision Page 2 On March 29, 1993, and as a result of a scuffle Mr. Kwan had with R.W., a co- worker, the employer temporarily reassigned the grievor to the Identification and Compliance Section, Verification or Enforcement Division also called Audit Division (Exhibit 7). Mr. Kwan's work location prior to this reassignment was at 36 Adelaide Street East, Toronto. The reassignment relocated him to 438 University Avenue, Toronto.
Mr. Kwan and R.W. had been co-workers for a number of years. However, as of September 1992, a situation of conflict arose between them. On September 21, 1992, they had a first incident and the employer concluded that “they had simply had an altercation and an exchange of information and no further action was required”. Mr. Kwan had alleged that "an assault" had occurred (Exhibits 3 and 4). However, the conflict between these two employees continued and escalated to the point where on March 1, 1993, Mr. Kwan and R.W. had a physical altercation. R.W. grabbed Mr. Kwan by his necktie and Mr. Kwan somehow ended up with a surface abrasion on his head. However, there was no confirmation by witnesses that R.W. hit Mr. Kwan with a stapler (Exhibits 5 and 6) as alleged by Mr. Kwan. As a result, Mr. Kwan was temporarily reassigned to the Audit Division.
It is interesting to note that Ms. Gail E. Taylor, Director, Taxation, had scheduled a meeting with Mr. Kwan for 10:00 a.m. on March 29, 1993 to discuss the situation and his reassignment. However, Mr. Kwan did not show up for the scheduled meeting and the employer sent him a letter informing him of his reassignment as of April 1, 1993 (Exhibit 7). On April 2, 1993, Mr. Pierre St-Laurent, Assistant Director, Audit, wrote that he agreed to accept Mr. Kwan on a rotational assignment of up to one year (Exhibit 8). On March 15, 1994, Mr. St-Laurent requested that Mr. Kwan be returned to Revenue Collections (Exhibit 15). This reassignment was extended for a further one year to expire in May 1995. On April 2, 1993, Mr. Kwan wrote that he “accepted work” in the Field Examiner Section (Exhibit 9). However, the employer turned him down on April 5, 1993 (Exhibit 11). On April 5, 1993, Mr. R.J. Atkins, Manager, Development Team, Special Investigations, wrote to the grievor as follows: Your memorandum of April 2, 1993 to P. St. Laurent, Assistant Director of Audit has been referred to me for reply.
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Decision Page 3 You have been assigned on a rotational basis to the Identification & Compliance Section at the PM1 level for a period of up to one year.
PM2 Field Examiner jobs in Audit are commonly used to develop staff towards AU or auditor qualifications. Employees actively pursuing accounting studies who have reached at least the intermediate level towards professional qualifications are most suitable.
Your request to work in the Field Examiner Section cannot be accommodated as this workload is rated at the PM2 level.
We encourage you to have your academic qualifications towards the AU basics evaluated by Personnel and to register for evening accounting classes, which should enable you to eventually reach the standards required for a Field Examiner's position.
I regret very much that I cannot provide you with a more positive answer.
Furthermore, we would greatly appreciate your cooperation in respecting the line of authority and to deal directly with your immediate supervisor on any issue which could be of concern to you. This practice is commonly respected in Audit.
Your cooperation would be greatly appreciated. (underline added) (Exhibit 11) On April 2, 1993, Mr. Kwan wrote also to Mr. Ken McLean, Assistant Deputy Minister, requesting the opportunity to work for the Corporate Development Branch which was not accepted on May 5, 1993 (Exhibit 13). In addition, Mr. Kwan tried unsuccessfully to compete for PM-2 positions (Exhibit 10). It is worthy of note that on February 28, 1994, Mr. Kwan accused a Unit Head of having a hidden agenda so as to jeopardize his opportunity for advancement. The tone of Mr. Kwan's letters submitted in evidence is consistent. He is confrontational and is quite liberal in his threats and accusations against management representatives (Exhibit 10, letter of February 28, 1994 to Mr. R. Conquer; Exhibit 31 two faxes dated August 25, 1995 addressed to Mrs. Reid; and Exhibit 42 amongst other exhibits).
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Decision Page 4 Then, on June 30, 1995, Mr. St-Laurent wrote again to Mr. Grant Vandervoort, Assistant Director, Revenue Collections, Toronto Centre Tax Services, requesting that Mr. Kwan be returned to the Collections Division (Exhibit 16).
In mid-June 1995, Mrs. Gloria Reid took over the position as Director, Toronto Centre Tax Services (Exhibit 3) replacing Ms. Gail Taylor. During the third week of July 1995, Mr. Kwan telephoned Mrs. Reid. She did not know who he was when he called her. There were three levels of management between Mr. Kwan and herself. The telephone conversation lasted one half hour. Mr. Kwan had been advised that his secondment to the Audit Division was being terminated because he was needed in the Revenue Collections Division. Mr. Kwan was under the impression (and he testified to that effect at this adjudication) that he had been transferred to the Audit Division permanently. Mr. Kwan added that he had never seen Ms. Taylor's memorandum to him dated May 5, 1993 (Exhibit 13) before the adjudication hearing. He declared that he has never reviewed his personnel file because "the employer alters and falsifies documents". He told Mrs. Reid that under no circumstances would he return to Revenue Collections. He accused "management" of Revenue Collections of incompetence and racism. He did not want to work in the same building as R.W. Mr. Kwan added that he “would fight any steps to return him to Revenue Collections” (Exhibit 8). Mr. Kwan kept his word; he did write and send numerous faxes to the Deputy Minister and the Minister but he was not successful (Exhibits 25, 29, 30, 42 and 45).
The employer was very well aware of the conflict situation between Messrs. Kwan and R.W. Consequently, on August 1, 1995, Mr. Vandervoort wrote to Mrs. Reid the following: I am proposing to return Mr. Kwan to his substantive position as a PM-1 Collections Contact Officer. Mr. Kwan has been on loan to Verification and Enforcement Division since April 1, 1993. With the increasing workload within this division and reducing staff levels, it is necessary that all trained staff be returned immediately.
We intend to have Mr. Kwan return to the same workload (CINDAC/CORPAC) that he worked on before he went to the V & E Division. He will be reporting to Ted Kennedy and located on 7 East. Mr. Kennedy and Mr. Kwan do not know
Public Service Staff Relations Board
Decision Page 5 each other so this should allow for a clean start. [R.W.] is located on 7 West.
I intend to meet with Mr. Kwan and [R.W.] separately and advise them of the following conditions:
1) neither individual is to enter the wing (East or West) occupied by the other individual without prior authorization from their immediate supervisor or other senior management.
2) if any situation presents itself where the two (2) individuals meet they are to immediately remove themselves from that situation.
3) if any altercation occurs they are to immediately bring it to the attention of their immediate supervisor.
4) neither individual is to converse either verbally or in any other manner with the other individual.
5) any actions taken or caused to be taken that are not acceptable will be immediately addressed by management.
These conditions will be given to them in writing at the scheduled meeting.
I would suggest a return date of August 21, 1995 for Mr. Kwan as this will allow us sufficient time to brief the Managers involved and also allow Mr. Kwan to resolve his current inventory.
May I have your concurrence in this matter. (Exhibit 17) Mrs. Reid declared that, at the time, Revenue Collections Division was very understaffed. The employer did a review of all employees loaned to other Divisions who could be returned to the Revenue Collections Division. The Audit Division was fully staffed and the workload did not require all loaned employees. Furthermore, the workload in the Audit Division was not as demanding as in the Revenue Collections Division. It was therefore imperative that Mr. Kwan return to Revenue Collections. The employer was not going to train new people to do this work when it had experienced employees available. Thus, Mr. Vandervoort demanded that Mr. Kwan be returned immediately to the Revenue Collections Division. Mrs. Reid explained that
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Decision Page 6 36 Adelaide Street East is comprised of two towers connected by a lobby and elevators. These are two separate buildings. It was proposed that Mr. Kwan and R.W. work in separate buildings so as to keep them separate.
Exhibit 54 indicates that the assault charge laid by Mr. Kwan against R.W. was withdrawn and a peace bond for one year was issued on July 30, 1993. R.W. undertook to keep the peace, be of good behaviour and have no contact directly or indirectly with Mr. Kwan. The evidence is to the effect that since the incident of March, 1993, there had been no more incidents or problems between Messrs. R.W. and Kwan.
On August 22, 1995, Mrs. Reid telephoned Ms. Mary Fenney, President, Union of Taxation Employees, in light of Mr. Kwan's adamant answer that he would not return to the Revenue Collections Division. Messrs. Kwan and R.W. were both members of the same union. Mrs. Reid briefed Ms. Fenney concerning Mr. Kwan's case and his refusal to report to work. On that same day, Mr. Kwan telephoned Mrs. Reid again. He provided her with further information concerning the incident with R.W. Mr. Kwan asked her what would happen if he did not report to work. She replied that he would want to give this serious consideration and that, although it was his decision to make, his uppermost concern should be to maintain his employment and salary. Mr. Kwan accused Mrs. Reid of being personally responsible for all his hardship and problems and he stated that he was not going to report to the Revenue Collections Division anywhere. Mrs. Reid offered him the option of reporting to the Toronto North Centre, Revenue Collections Division. However, Mr. Kwan refused this offer and stated that "it was unacceptable because that situation would be as bad as 36 Adelaide Street East because all collections workplaces were the same for [him]". Mr. Kwan indicated that he would be suing Mrs. Reid personally for this situation (Exhibit 20). Mrs. Reid explained to Mr. Kwan that he had the option to report to the Toronto North Office at 5001 Yonge Street. This location is north of Highway 401 on the subway line. Mrs. Reid had spoken to Mr. Gerry Troy who had a number of vacancies in Revenue Collections at that location. Mr. Kwan refused the offer. Mrs. Reid declared that during this telephone conversation Mr. Kwan was very argumentative, aggressive, demanding and interrupted her constantly.
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Decision Page 7 Mr. Kwan's refusal to report to work in Revenue Collections Division never altered. Even at the adjudication stage, Mr. Kwan maintained this refusal.
On August 22, 1995 and further to their telephone conversation, Mrs. Reid wrote the following letter to the grievor: Further to our recent telephone conversation concerning your return to the Revenue Collections Division. As I explained during that conversation, there exists an operational need for you to return to your substantive position within that division.
I note from your file that your assignment to the Identification & Compliance Section of the Verification & Enforcement Division was initially prompted by allegations of harassment against a co-worker. In compliance with the departmental harassment policy, and your own request, this assignment was initially established for a period of one year which was extended by a further period of one year expiring on March 31, 1995. These arrangements were communicated to you in a letter from the Director dated March 29, 1993 and in a memorandum from Mr. Atkins, the Section Manager, dated April 5, 1993.
Since I am not prepared to further extend your on-loan assignment to the Identification & Compliance Section, I am directing that you report to either Mr. Don Collins in our North York District Office, telephone 512-4005 or Mr. Grant Vandervoort, Toronto Centre Tax Services, telephone 973-3709 effective on Wednesday morning, August 23, 1995 to assume the duties and responsibilities of your substantive position within the Revenue Collections Division.
Concerns which you expressed to me regarding your personal safety have been addressed by management and will be communicated to you upon your arrival.
(Exhibit 21) On August 23, 1995, Mr. Kwan submitted a number of requests for various types of leave to cover his absences until September 22, 1995 (Exhibit 22). It is important to note that throughout this period, July to October 13, 1995, the employer could only communicate with Mr. Kwan by letter to a P.O. Box number in Toronto or by FAX. Mr. Kwan was the one who initiated the telephone calls and his telephone was connected to his FAX machine.
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Decision Page 8 Mr. Kwan was extremely and obsessively concerned that no one except Mrs. Reid communicate with him. He did not want any supervisor or management representative to telephone him or write to him except Mrs. Reid. He did not want anyone to have his address. On May 17, 1994, he even accused Mr. Cecil Williamson, Staff Relations Officer, of giving out his home address. This was the only contact Mr. Williamson ever had with Mr. Kwan and he kept a note of it because of the uniqueness of their telephone conversation (Exhibit 60). Mr. Kwan accused Mr. Williamson of "being out to get him" and that the latter had been sending the former threatening letters at his home. Mr. Williamson replied that this was preposterous and he was not even aware of where Mr. Kwan lived. They had never even met each other (Exhibit 60). Mr. Williamson noticed that Mr. Kwan was irritated. He had been unsuccessful in a competition and had lodged an appeal with the Public Service Commission.
During his testimony, Mr. Kwan accused Mr. Williamson of saying to him that he could not win his appeal because "they are management; they can do what they want; they choose whomever they want to be promoted". Mr. Kwan declared that these were Mr. Williamson's exact words. Mr. Kwan added that he asked him whether "he was abusing his power" and in reply Mr. Williamson laughed.
Mr. Kwan declared that he could not remember the year when this conversation took place. During his examination in chief, he testified that when he spoke to Mr. Williamson, he had not yet filed his appeal but in cross-examination he recognized that he had already lodged the appeal. Mr. Kwan alleged that Mr. Williamson tried to intimidate him so as to stop him from filing the appeal. Mr. Kwan never retracted this accusation even after being confronted by Mr. Lafrenière with the fact that this conversation took place after he had appealed the results of the competition. Mr. Williamson adamantly denied Mr. Kwan's declarations. Mr. Williamson had no involvement in staffing and the appeal in question. He has been the Staff Relations Officer. However, the Staffing Officer did report to him. Mr. Kwan declared further that "someone cancelled [his] appeal without [his] knowledge". However, he did not produce the alleged letter cancelling the appeal. Mr. Kwan added that he does not trust “management in Toronto and the Public Service Commission”. Thus, he did not pursue the appeal.
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Decision Page 9 Mr. Williamson testified that during this telephone conversation, Mr. Kwan was very irritated. The alleged statements could not have been made by Mr. Williamson because these are not the type of statements he would make to an employee. He does not make threats or suggestions to employees. In his experience, Mr. Williamson had never had another telephone conversation like the one he had with Mr. Kwan on May 17, 1994. Mr. Williamson's role is to advise management on labour relations.
In addition, on that same day, August 22, 1995, Messrs. Eli Drakich and Richard Conquer, managers responsible for the Identification and Compliance Section, Audit Division, requested in writing that Mr. Kwan return his access card to 438 University Avenue before leaving at the end of the day because he was to report to Revenue Collections the next day (Exhibit 24). Mr. Kwan complied.
On August 23, 1995, Mr. Kwan sent a FAX to Mr. Pierre Gravelle, Deputy Minister, National Revenue, asking that he contact him (Exhibit 25). In turn, Mr. Gravelle asked Mrs. Reid to prepare a reply. On August 25, 1995, the following letter was sent to Mr. Kwan under Mr. Gravelle's signature: This is in response to your FAX transmission of yesterday asking that I contact you. I understand that you have been requested and directed by the Director, Toronto Centre Tax Services to report to your substantive position in the Revenue Collections Division.
The reasons for your return to your substantive position have been explained to you and, following a review of the facts, I am not prepared to change the directives you were given by local management.
Accordingly, you are advised to report to work as directed. Any disagreements you may have with management will have to be dealt with through local management, represented by Mr. Grant Vandervoort, Assistant Director, Revenue Collections Division, who can be contacted at 973-3709.
You have the right to be represented or accompanied by a representative of the Union of Taxation Employees when meeting with management to resolve your differences.
Failure to report to work as directed and/or to justify to management's satisfaction your unauthorized absence may lead to administrative and disciplinary measures.
Public Service Staff Relations Board
(Exhibit 28)
Decision Page 10 On August 25, 1995, Mr. Kwan sent to Mrs. Reid the following memorandum: Further to our telephone conversation, and RTM date Aug. 22, 1995 to Eli Drakich, copy cc faxed to you todate, this is to confirm that I had worked 8.5 hours each on August 21 mon. & 22 tues 1995 totaling 17 hours that week in Identification and Compliance Section before Eli Drakich requested the return of my door card key to him, also I had provided employee Eli Drakich my time sheet for week ending August 25, 1995 to September 22, 1995, before I leave the office on August 22, 1995 tues. around 5pm. The Lock Out of Office begin.
Due to the fact that the employee [R.W.] who had assaulted me two times in the office 36 Adelaide E. Toronto, which had been reported to Security, Personnel Section, Director and the Assistant Deputy Minister at that time, [R.W.] was charged signed a Bond in Court to stay away from me. Some time ago, prior to attacking me, [R.W.] had assaulted another Food Service Staff in the same building. Up to this point I have not received any compensation from the Department for my injury, pain and suffering from this ordeal. Now you pressure me to transfer back to that building to work with him and/or his associate is UNACCEPTABLE. I would like to question your INTENTION. Your action indicated to be demoralizing.
As result of my over 10 years seniority with the Department, why don't you consider OTHER CANDIDATE who would like to gain collection working experience in that area.
In reference to Departmental Policy and Labour Law, you are required to process and provide me compensation, and protection from such assailant.
(reproduced exactly as written) (Exhibit 29) A copy of this memorandum was also faxed to Mr. Gravelle. That same day, August 25, 1995, Mr. Kwan sent Mrs. Reid two further faxes, one is addressed to Mr. Gravelle. These memoranda read as follows: Further to my fax Letter dated August 25, 1995 to you todate, attached please find a copy of my fax Letter to Pierre Gravelle, Deputy Minister dated August 24, 1995, it is self explanatory.
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Decision Page 11 I requested you to process the compensation and benefit which I entitle to receive as employee of the Department in reference to the injury from the assault by [R.W.], and harassment over the years. And I requested you to inform me of all my right and entitlement in writing.
Since you are demanding me to work in the area where you aware of the assault and harassment took place, and the assailant and the associates are in the building, you knowingly intentionally affecting my well being, endangering my Health and Safety, you violated the Departmental Policy, and Canada Labour Code. As a result, you are held personally responsible for such negligence, and not fulfilling your duty as Director.
--- Further to my FAX Letter to you yesterday, I would like to inform you that, due to the Threatening Letter was received at my previous home address last year during my appeal process for the Identification & Compliance PM2 competition, I have been very cautious in giving out my address and tel#. I had reported the instance to Personnel Section in Toronto District Office and Public Service Commission Staff who were handling my Appeal at that time. As a result, I would like you to maintain the CONFIDENTIALITY of my Mailing Address and Tel/Fax#.
I work VERY WELL with the majority of staff who are kind, sincere, and honest, only a SMALL number of employee who have been given me difficulty, These few salary person are Misrepresented our Management Team and/or the Department. I sincerely hope that your Leadership can correct the situation.
I have been doing the Management Research for number of years, I would like to offer you my service and discuss with you further in this matters.
Please kindly contact me at Tel/Fax (416) 260-8891. (reproduced exactly as written) (Exhibit 31) Mrs. Reid testified that she has never seen the alleged "threatening letter". When Mr. Kwan testified, this adjudicator asked about this letter and Mr. Kwan replied that he had no intention of producing it at the adjudication; he merely indicated that it was an "anonymous letter". Mrs. Reid declared that she has no knowledge of the
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Decision Page 12 incident alleged by Mr. Kwan concerning a "threatening letter about the 1994 appeal process".
On August 31, 1995, Mrs. Reid wrote to Mr. Kwan: ... Turning now to the second issue which you raise in this letter, specifically, your well being following my direction to return to your substantive position in Revenue Collections. I addressed this issue in my letter to you dated August 22, 1995 however, I will stress again to you that management has taken the necessary steps to ensure that you have a safe and secure work environment. The details of these steps will be communicated to you on your return to work.
I am aware that your new supervisor, Mr. Ted Kennedy, has written to you concerning your leave requests and I would encourage you to contact him if you have questions. It appears likely, should you receive your next salary cheque dated September 6, 1995, that a salary overpayment will result based on your leave requests to date.
I hope you will be returning to work shortly and urge you to contact your supervisor, Mr. Kennedy, to make the necessary arrangements to do so.
(Exhibit 32) On September 28, 1995, Mr. Grant Vandervoort, Assistant Director, Revenue Collections Division, wrote to Mr. Kwan the following letter: On August 22, 1995 you were given written instructions, signed by Gloria Reid, Director, Toronto Centre Tax Services, that you were being returned to your substantive position, that of a Collection Contact Officer, within the Revenue Collections Division effective August 23, 1995. It is also worth noting that that letter gave you a choice of work locations, those being our North York office or returning to this location at 36 Adelaide Street East.
Also on August 22, 1995 you insisted on leaving five leave applications on Mr. Eli Drakich's desk covering a five-week period expiring on September 22, 1995 even though you had been informed by Mr. Drakich that any such requests should be directed to me. These leave applications were forwarded to your new supervisor, Mr. Ted Kennedy, who responded to
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Decision Page 13 them in writing dated August 24, 1995 and sent to you by FAX on the same day and mailed to your home address. Mr. Kennedy informed you that, with the exception of the following vacation leave days, September 8, September 11 to 15 and September 18 to 20, 1995 the other leave requested was being denied and he urged you to contact him regarding this matter but to-date he has had no communication from you. For the period starting on Thursday, August 24, 1995 and ending on Friday, September 29, 1995, with the exception of the above noted vacation days, you are deemed to be on unauthorized absence.
On nine different occasions, covering the period between August 30, 1995 and September 11, 1995, I attempted to reach you by telephone. This failed to establish contact because your recorded message automatically flips to a fax machine. On September 12, 1995 I sent you a letter by registered mail, and by fax on the same day, requesting that you contact me which you obviously ignored. On September 21, 1995 I, in the company of one of my Section Managers, visited your last known home address on Pape Avenue in an attempt to establish contact with you. This too failed in its objective.
I am therefore directing you to report to work no later than Tuesday, October 10, 1995, Monday of that week being a statutory holiday. If you fail to do so, or if you fail to justify to management's satisfaction why you have not or will not report to work as directed, you will leave me no other alternative but to recommend to the Director that your employment with Revenue Canada be terminated.
(Exhibit 34) On that same day (September 28), Mr. Kwan wrote to Mrs. Reid concerning administrative matters (time sheets) and insisting that his telephone/FAX number and mailing address not be given to her staff (Exhibit 35). In addition, Mrs. Reid returned Mr. Kwan's call. Mr. Kwan told her that he was angry with her and he wanted her to stop calls from any manager. Mr. Kwan acknowledged to her that he had received Mr. Vandervoort's letter directing him to report to work no later than October 10, 1995 (Exhibit 34) and he added that "he did not care; he had already told her that he could not return to Revenue Collections". He told her that "she would do what she had to do and he would do likewise".
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Decision Page 14 On October 5, 1995, Mr. Kwan and Mrs. Reid had a telephone conversation during which he said to her that she was incompetent and that she was doing this to make his life miserable and she was just trying to force him to work with someone who had assaulted him and to work in a dangerous building. Mr. Kwan was agitated. According to Mr. Williamson's testimony, on May 17, 1994, Mr. Kwan had accused the Staffing Officer of incompetence. In cross-examination, Mr. Kwan recognized that he may have accused Mrs. Reid and the Staffing Officer of incompetence. He stated that this is a word in the dictionary but he could not recall if it is part of his vocabulary. He did not want to admit that he did accuse Mrs. Reid of incompetence. Mrs. Reid testified that in her experience she has never been called incompetent by anyone else.
On October 6, 1995, Mr. Kwan sent Mrs. Reid seven documents concerning the incidents of 1992 and 1993 with R.W. and made no mention of the direct order to report for work by October 10, 1995 (Exhibit 38). On October 12, 1995, Mr. Kwan sent a further FAX to Mrs. Reid where he writes: You faxed a letter to me yesterday October 11, 1995, which is dated October 6, 1995, declined my request for compensation for the assault and injury. Could you provide me a detail explanation base on what ground and fact that you take such action.
Your management has been demonstrated that, covering up the case and twisted the fact to deny your responsibility. By doing that, you have encouraged the Assailant [R.W.] to assault me and other staff time and time again. "[R.W.] assaulted Stephen Kwan and get an encouragement from the management.", what kind of Policy is that?
Yours so called investigation has been vague and bias. If your management is not honest and sincere, you cannot earn the trust from your staff.
(reproduced exactly as written) (Exhibit 40) Finally, on October 13, 1995, Mrs. Reid sent by registered mail to the grievor the letter terminating his employment: On September 28, 1995, and by fax on the same day, Mr. Grant Vandervoort, Assistant Director, Revenue Collections, informed you that if you did not report for work
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Decision Page 15 by Tuesday, October 10, 1995, or provide a plausible and acceptable reason to management for not doing so, he would recommend that your employment in Revenue Canada be terminated.
On the afternoon of September 28, 1995, in acknowledgment of receipt of that letter, you contacted me by telephone and that conversation ended with you saying that I would do what I had to do and you would do the same. This was in response to my suggestion that you comply with the provisions of Mr. Vandervoort's letter. At that time you gave me no indication that you intended to return to work, in fact it was my distinct feeling from that conversation that you had no intention of returning to work, nor did you provide me with any acceptable reason for your continued unauthorized absence from work. You contacted me again by phone on October 5, 1995, primarily to complain that you had not received your salary cheque, and again you refused to discuss your return to work.
You have chosen not to comply with the conditions noted in Mr. Vandervoort's letter. Specifically, you did not report for work by October 10, 1995 as instructed, nor did you provide any acceptable reason for not doing so.
Accordingly, and by the authority delegated to me by the Deputy Minister, I am herewith providing you with notice of my decision to terminate your employment pursuant to the provisions of Section 11 (2) (g) of the Financial Administration Act effective at the close of the business day on October 13, 1995.
... (Exhibit 2) On October 18, 1995, Mr. Kwan wrote to Mr. David Anderson, the then Minister of Revenue Canada, the following letter with 15 attachments: Your employee [R.W.] had assaulted and threatened me first on Sept. 21, 1992, and second on March 1, 1993 in the subject office (see Exh. 1, & 2), and two witnesses written statements (Exh. 3 & 4) that [R.W.] had physically threaten my life by grabbing my neck tie suffocating me, and he also cutted my head with a stapler (Exh. 5) the assailant [R.W.] had kicked and punched me. Prior to the above assault, [R.W.] had assaulted another food service staff in the same building, the case was heard in court.
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Decision Page 16 After the above assault, I requested to transfer to different building to avoid the assailant [R.W.]. I took him to Court on the second assault, he signed the Bond in Court to stay away from me.
Compensation was requested on March 31, 1993 for my emotional, physical pain and suffering through Assistant Deputy Minister's office (Exh. 6).
On Aug. 22, 1995, I was locked out from the office (Exh. 7) and Director Gloria Reid demanded me to transfer back to Collections where the assailant and his associates were located. I questioned Gloria Reid's intention, and I find her action is demoralizing, UNPRODUCTIVE and inconsiderate, since I have over 10 years seniority with the Department, I suggested her to consider other candidate who would like to gain experience in that area, and reminded Gloria Reid on the Departmental Policy and Labour Law that she should provide compensation for my injury, and protection from the assailant (Exh. 9, 10, 11, 12). Gloria Reid requested me to work in the area where she aware of the assault and harassment took place, she knowingly intentionally violated the Health and Safety Regulation, Departmental Policy and Canada Labour Code.
The last payroll deposite was dated Sept 20, 1995, since then Gloria Reid has been withholding my payroll deposite and my employment as hostage to force me to work in an area where Health and Safety is a concern (Exh. 13, 14) and failed to send pay statements, time sheets and related documents to me despite my numerous request (Exh. 8, 13, 14).
Gloria Reid refused to process my request for compensation, and she failed to provide me a detail explanation, based on what ground and fact that she took such action (Exh. 15).
Toronto Centre Tax Office has been demonstrated that, covering up the case and twisted the fact to deny their responsibility. By doing that Gloria Reid and her associates have encouraged the Assailant [R.W.] to assault me and other staff time and time again, their so called investigation has been vague and bias.
On October 17, 1995 Gloria Reid send a letter to me terminated my employment without compensation, nor answere my questions. Her action is incorrect, inappropriate and unproductive.
It appears that Gloria Reid and her team does not care about Moral, Health and Safety Issues. They are incapable to provide positive alternative, solutions, incapable to correct
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Decision Page 17 the assailant [R.W.]'s violent behavior, unable to earn staff's trust. Failed to provide Staff Developement, Departmental Policy says one thing, Gloria Reid and her team does the other. I would like the Minister also look into Toronto's Competition (promotions) Practice, especially the one in Identification and Compliance during 1993 and 1994, the result of that competition was questionable (Exh. 10).
Gloria Reid and her team targeted me, terminated my employment has demonstrated an unjust treatment.
Toronto Centre Tax Office needs a care enough, honest, sincere Team Leader who could increase the productivity.
I work very well with those who are sincere and honest, only a few staff who are giving me difficulties.
Looking forward to hear from you to correct Gloria Reid and her team's actions, and provide a positive solution to these matters.
(reproduced exactly as written) (Exhibit 41) On October 19, 1995, Mr. Kwan wrote again to Mrs. Reid requesting information. He ended his letter as follows: "Please remember, you are just an employee, don't try too hard to give me difficulties" (Exhibit 42). On October 26 and November 1, 1995, Mr. Kwan wrote further to Mrs. Reid requesting "eight weeks notice with full pay, eight weeks full pay and benefits and severance pay (11 weeks) pursuant to the provisions of the Canada Labour Code” (Exhibits 42, 43 and 45). On October 31, 1995, Mrs. Reid replied to Mr. Kwan addressing the health concerns. She reminded him that he was given a choice of work locations.
On November 6, 1995, Mrs. Reid replied to Mr. Kwan's request for compensation under the Canada Labour Code. She explained to him that the Code did not apply and urged him again to contact Pay and Benefits concerning his entitlements (Exhibit 46).
Mrs. Reid declared that she did not accept Mr. Kwan's explanations that he feared R.W. and this is the reason why he refused to report to work as directed. In her opinion, this explanation was not reasonable because the employer offered him alternatives in the form of work locations.
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Decision Page 18 In October 1995, Mr. Kwan spoke to Mrs. Reid of potentially filing a complaint with Labour Canada. Mr. Lafrenière informed this adjudicator that Mr. Kwan did so after his employment was terminated. Labour Canada investigated and dismissed the complaint. Mr. Kwan did not submit to this adjudicator any evidence in this regard.
On November 22, 1995, Mr. Kwan presented the grievance which is the subject of this adjudication decision. By virtue of this grievance, Mr. Kwan alleges that "Mrs. Reid violated the Health and Safety standard of the Canada Labour Code in transferring him back to work with [R.W.]". He requests that he be reinstated as an employee of the Public Service of Canada other than Revenue Canada, all pay and benefits and "appropriate compensations".
On November 24, 1995, Mr. Pierre Gravelle replied on behalf of the Minister to Mr. Kwan's letter dated October 18, 1995. In this letter of November 24, 1995, Mr. Gravelle explains that: ... On August 25, 1995, in response to your facsimile transmission of August 24, 1995, I advised you that you should report to work as directed by Ms. Gloria Reid, Director of Toronto Centre Tax Services. Previously, you had been notified by the Director that your assignment to the Identification & Compliance Section of the Verification & Enforcement Division was being terminated. You were directed to report to either the Toronto North Tax Services office or the Toronto Centre Tax Services office to assume the duties and responsibilities of your substantive position within the Revenue Collections Division.
I understand that you repeatedly refused to report to work as directed, even when you were cautioned that if you failed to justify your unauthorized absence or to report to work as directed, management would recommend that your employment be terminated.
As you did not comply with the request to report to work or provide justification for your absence, I have to confirm that the Director was justified in terminating your employment with the Department. In her letter of October 13, 1995, informing you of your termination, Ms. Reid advised you of your right to present a grievance against management's decision. The grievance procedure is the appropriate redress mechanism to resolve employee disputes with the Department.
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Decision Page 19 With regard to the issue of benefits as a result of your termination, I understand that on October 13, 1995, you were advised to communicate with a departmental Pay and Benefits Specialist. I am also informed that the Compensation Section wrote a detailed letter to you on October 23, 1995, concerning your salary and benefits entitlements.
I have also noted your concerns about the staffing issue. I understand that you were a candidate on a competition, that you were one of the candidates found qualified, and that you had a right to file an appeal against the selection process. I am further informed that there were a number of appeals filed against that specific staffing process and that a Public Service Commission Appeal Board rejected the various appeals and confirmed the proposed appointments.
On the issue of the alleged assaults in September 1992 and March 1993, these incidents were investigated and the Department was unable to substantiate your claims.
... (Exhibit 48) Mrs. Reid identified three anonymous letters of similar style and type addressed to three managers (Exhibits 49, 50 and 51) received in early December, 1995. Exhibit 49 accuses Mr. Williamson of certain actions; Exhibit 50 is addressed to Mr. Vandervoort and mentions Mrs. Reid and Mr. Jenkins, a manager who reports to Mr. Vandervoort, and Exhibit 51 is addressed to Mr. Gravelle and refers again to Mrs. Reid. Mrs. Reid explained that the only common denominator and file to these managers is Mr. Kwan. Mr. Kwan declared that he was not involved in drafting and he did not know who prepared these three letters.
Mrs. Reid testified that the employer had no alternative but to terminate Mr. Kwan's employment since he refused to report to work as directed. They had exhausted all their options and Mr. Kwan made it clear to them that returning to work in Revenue Collections was not something he was prepared to do. To the best of her ability, she tried to find solutions to his concerns. This is the reason why he was offered another work location than 36 Adelaide Street East.
In cross-examination by Mr. Kwan, Mrs. Reid declared that she had never met him before this adjudication hearing. Mr. Kwan insisted in questioning her about her
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Decision Page 20 work history and professional training. He asked her whether she saw bias on the part of Mr. Williamson, the Assistant Deputy Minister, and Mr. Gravelle. He asked her whether she was being compensated for her day at the adjudication hearing and about her leadership capabilities. Mr. Kwan asked her various questions concerning contacts between employees and senior managers, Deputy Minister and Minister. Mrs. Reid explained that staff had the right to contact the Minister and senior managers. However, she encourages staff to contact their supervisor in matters relating to employment.
Mr. Kwan questioned Mrs. Reid concerning Ministers of the Crown and politicians encouraging employees to contact them directly. Mrs. Reid replied that she was not aware of any politician or Minister of the Crown who encourages employees to contact them. Mrs. Reid encourages her staff to work out their problems with their manager. Mr. Kwan asked Mrs. Reid whether she understood Article M-35 of the Master Agreement between the Public Service Alliance of Canada and the Treasury Board to which she replied that she did.
Article M-35 provides: Health and Safety M-35.01 The Employer shall make reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the Alliance, and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury.
In addition, Mr. Kwan asked Mrs. Reid to review Exhibits 7, 29, 40, 54 and 57. In his examination in chief, Mr. Kwan alleged that R.W. had made various allegations concerning "management". R.W. was not called to testify and "management" was not identified. In addition, Mr. Kwan identified Messrs. Williamson and Jenkins as the authors of his problems. Mr. Jenkins was not clearly identified by the parties. Mr. Kwan provided no information concerning Mr. Jenkins and his involvement in this case. Mr. Williamson denied Mr. Kwan's allegations against him. The only incident involving Messrs. Kwan and Williamson was the telephone conversation of May 17, 1994 with respect to the appeal under the
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Decision Page 21 Public Service Employment Act. With reference to the allegations against Mr. Jenkins, they concerned the workload at Revenue Collections which, according to Mr. Kwan, was mentally and physically draining him.
Mr. Kwan declared that he mistrusts "management". He found the Revenue Collection work "extremely easy" but "management" created the stress and pressure. He blamed Mr. Jenkins and the then Chief of Collections (Mr. Kwan could not remember his name) for creating the stress because they assigned the "high workload" to him.
Mr. Kwan alluded to the 1994 anonymous "threatening letter" which he received after the R.W. incident and before his reassignment to the Audit Division. He declared that he would not show me and Mr. Lafrenière the letter because he "feared for his safety".
Mr. Kwan testified that he did not accept to go to the Toronto North Office because he did not trust Mrs. Reid. He explained that Mrs. Reid was "insensitive" to him and "[his] feelings". He decided to exercise his rights under the Canada Labour Code and, in this respect, he referred to the memorandum of August 25, 1995 (Exhibit 31) wherein he accuses Mrs. Reid of violating the Canada Labour Code when she ordered him to return to Revenue Collections. In this letter, the return to work with R.W. was the danger which Mr. Kwan feared. He also referred to his letter to the Minister of October 18, 1995 (Exhibit 41).
However, in his testimony, Mr. Kwan also referred to a memorandum dated May 31, 1994, to all staff signed by Ms. Mary Fenney and Mr. Randy Jenkins, Co-Chair, Health and Safety Committee, concerning the award of a contract to remove asbestos from 36 Adelaide Street (Exhibit 59). He declared that he did not want to work there because "it was dirty, polluted with cancer causing substances" but he never told Mrs. Reid about this concern. Mr. Kwan testified that he would work in Revenue Collections "if the people were friendly". He added that he was not given "equal opportunity for advancement".
Mr. Kwan declared that he never attended at the Toronto North Office to verify the work environment because "he had no business to go there". In his view, Messrs. Jenkins and Williamson and Mrs. Reid have problems with him. Mr. Kwan was
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Decision Page 22 cross-examined concerning his conflicts at work. He never recognized that he was partially responsible for the R.W. incident and any other problems he had with co- workers and management. Mr. Kwan acknowledged that when he received Mr. Vandervoort's letter of September 28, 1995 (Exhibit 34) he knew the consequences of refusing to report to work as directed.
Mr. Kwan explained that he did not approach his union for assistance before the termination of his employment. He declared that he could not have reported to work to the Toronto North District Office and then presented a grievance because there was no "confirmation" from the Toronto North District Office and he did not believe Mrs. Reid. Mr. Jenkins worked at 36 Adelaide Street East. Mr. Kwan would not have reported to Mr. Jenkins had he reported to work at the Toronto North District Office. Concerning the alleged exchange with Mr. Williamson, Mr. Kwan testified that he did not file a complaint in this regard against Mr. Williamson but he was "prepared to present it at the appeal".
In cross-examination of Mr. Williamson, Mr. Kwan asked him whether he liked "giving a hard time to people" in light of the fact that he advises management on labour relations matters. Mr. Williamson explained to Mr. Kwan his role as Staff Relations Officer and the fact that he likes the work. He deals with facts and his personal feelings do not come into play when he discharges his duties as Labour Relations Officer. Mr. Williamson agreed with Mrs. Reid's decision to terminate Mr. Kwan's employment. In answer to one of Mr. Kwan's questions, Mr. Williamson explained to him that Ms. Taylor and Messrs. Danbar and Pollock had left Revenue Canada to pursue other interests and careers and their leaving the Department was unrelated to Mr. Kwan’s case. They all left voluntarily.
During the hearing, Mr. Kwan indicated at various times that this was the evidence he was submitting "at this time". This adjudicator explained to him that this adjudication hearing was the time to present all the evidence in support of his case.
ARGUMENTS Mr. Roger Lafrenière, counsel for the employer, submitted that this is a well documented case of termination. He highlighted a number of exhibits. Mr. Lafrenière pointed out that in 1992 and 1993, there were two incidents involving Mr. Kwan and a
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Decision Page 23 co-worker. As a result, Mr. Kwan was reassigned to the Audit Division for one year. This secondment was extended for one more year. In 1995, the employer found that the Revenue Collections Division required Collection Officers. It was not feasible to train other people when Revenue Canada had a fully qualified and experienced employee on loan. Thus, management attempted to return Mr. Kwan to Revenue Collections Division. Mr. Kwan refused all along. As early as July, 1995, Mr. Kwan had taken a strong position and had decided not to return to the Revenue Collections Division whatever the cost (Exhibit 18). Even on the day of the adjudication hearing, Mr. Kwan did not move from this position. He clearly indicated that he will not return to the Revenue Collections Division. Mr. Kwan did not even accept Mrs. Reid's offer to report to the Toronto North District Office. Mr. Kwan never visited that office and there is no evidence that there was any impediment for him to work there. Mr. Kwan offered very little explanation as to the reason why he would not work there. R.W. did not work there and he had not exhibited any sign of behavioural problems towards Mr. Kwan for over two years.
Mr. Lafrenière added that Mr. Kwan was dissatisfied with Mrs. Reid's decision to return him to the Revenue Collections Division and decided to contest it. The end result of this is the September 28, 1995 letter from Mr. Grant Vandervoort, Assistant Director, directing him to return to work by October 10, 1995 (Exhibit 34). Mr. Lafrenière added that Mr. Kwan had already received on August 25, 1995, a warning from Mr. Pierre Gravelle, Deputy Minister, explaining that failure to report to work would result in the termination of his employment (Exhibit 28). Mr. Kwan received the letter of September 28, 1995 and told Mrs. Reid that he did not care because he had decided not to return to Revenue Collections (Exhibit 36). Mr. Kwan never altered that position. Mr. Lafrenière added that it is interesting to note that Mr. Kwan only presented his grievance on November 22, 1995 and by waiting he showed his intention not to return to work. He took no steps to try to regularize his situation. In support of his arguments, Mr. Lafrenière cited page 13 of the Weiten decision (Board file 166-2-24748): The grievor knew that his more than two-year leave of absence due to disability ended on July 18, 1992. However, he took no steps to communicate with his employer to make arrangements for his return to work or for continued absence. He had a duty to do so. When ordered to return to work, Mr. Weiten had a choice. He could have returned and
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Decision Page 24 continued to address his concerns through the avenues provided. He could also have communicated with his employer and made some suggestions about the manner of returning to work. He elected to do neither. To respond to the letter of October 14 by indicating he would not return to work until unresolved issues were resolved does not satisfy that duty.
Mr. Lafrenière referred also to pages 19 and 20 of the Budgel decision (Board file 166-2-25555): In conclusion, let me say that the grievor said it himself in his letter to Mr. Campbell (Exhibit G-11), which reads in part "...contingent upon the position of Chief Negotiator having a job description and classification approved that was acceptable to me". The Chief Negotiator position was classified at the PM-06 level, a level that the grievor said would have been acceptable to him, and a job description was approved. There is no evidence before me to demonstrate that the job description was not acceptable to Mr. Budgel.
In my opinion, the grievor simply decided that he did not wish to return to B.C. and provided a variety of excuses not to go back there. He was aware of the consequences of not reporting to B.C. and I believe that his employer bent over backwards to assist him.
Mr. Budgel should have obeyed his employer, returned to B.C., submitted a grievance from there, and continued to try to find a way to obtain employment back in Ottawa while in B.C. The grievor had a choice. In my opinion, he made the wrong one. I believe that Mr. Budgel was primarily concerned with pursuing his own personal and financial interests over and above those of his accommodating and patient employer.
Mr. Lafrenière argued that I must also look at Mr. Kwan's credibility. Mr. Kwan appears to have a problem with a number of people and he has closed the door to every opportunity to return to work. Even at the adjudication hearing, Mr. Kwan was not willing to move an inch.
Mr. Kwan argued that each case must be decided on its own merits. Thus, the decisions cited by Mr. Lafrenière are distinguishable. He pointed out that he has been defending himself since July, 1995. He referred to the incidents with R.W. and that his life was put in jeopardy. He wrote and complained all the way to the Minister but no one cared. He even researched management practices.
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Decision Page 25 Mr. Kwan submitted that he cared about his job and he even "considered wasting his time sitting with people in the hearing room". "They" continuously cover the case. "They" are close minded and biased. Revenue Canada put his life in jeopardy and "they" do not care. Management does not understand how people work in an office. In his correspondence, he reminded management of his disagreement that for safety reasons he could not return to the Revenue Collections Division. Management did not accept this reason and terminated his employment.
Mr. Kwan referred to paragraph 19.9 of the Occupational Safety and Health Manual, which he introduced at this stage in evidence (Exhibit 60): 19.9 General prohibition 19.9.1 No department shall discharge, suspend, lay off or demote an employee or impose any financial or other penalty on an employee or refuse to pay the employee remuneration in respect of any period of time that the employee, but for the exercise of his or her rights under this directive, would have worked, or take any disciplinary action against, or threaten to take such action against an employee because that employee:
(a) has testified or is about to testify in any proceeding taken or inquiry;
(b) has provided information to a person engaged in the performance of duties regarding the conditions of work affecting the safety or health of that employee or any of his or her fellow employees; or
(c) has acted in accordance with this directive or has sought the enforcement of any of the provisions of this directive.
Mr. Kwan argued that he exercised his rights under the Canada Labour Code and the Canadian Charter of Rights and Freedoms. He requested compensation for lost wages, benefits, pain and suffering. He wants "early retirement compensation".
Mr. Lafrenière replied that the fact that Mr. Kwan continued writing to the employer after his termination of employment does not excuse his behaviour. Mr. Kwan created the situation and it is not an appropriate case to award the "Early Departure Incentive" or any other compensation.
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Decision Page 26 DETERMINATION The evidence has demonstrated that since July 1995, Mr. Kwan decided not to comply with the employer's direct order that he report to work at the Revenue Collections Division. His explanation that he refused to return to Revenue Collections because of his fear of R.W. has no merit. R.W. has had no contact with Mr. Kwan since the incident of March 1, 1993. There has been no behavioural problems between Messrs. R.W. and Kwan since that date.
On the evidence, I am satisfied that Mr. Kwan was advised by the employer of the temporary nature of the assignment to the Identification and Compliance Section, Audit Division. In this regard, I refer to Mr. Atkins' letter of April 5, 1993 (Exhibit 11).
At first, it was proposed to return Mr. Kwan to 36 Adelaide Street East but to a different tower than the one he worked at before his reassignment. This would have ensured that Messrs. R.W. and Kwan were to work in two different towers. When Mr. Kwan refused to return to 36 Adelaide Street East invoking his fear of R.W., on August 22, 1995, Mrs. Reid clearly explained orally and in writing that he had the option to report to the Toronto North District Office (Exhibits 20 and 21). Mr. Kwan refused and maintained his refusal to return to work at Revenue Collections even at this adjudication. The Toronto North District Office is located at 5001 Yonge Street and Mr. Kwan had no valid reason to fear R.W. at that location. Furthermore, no evidence was adduced that would substantiate Mr. Kwan's allegations in relation to Mr. Jenkins.
Mr. Kwan tried to use the March 1, 1993 incident with R.W. to convince the employer to let him stay in the Audit Division and, when this failed, he tried to have the employer transfer him to another department in the Public Service. This is what he requested in his grievance. At the adjudication hearing, he even asked for monetary compensation instead.
Mr. Kwan maintained his refusal to return to work in Revenue Collections and attacked personally Mr. Williamson and Mrs. Reid. He tried to embarrass Mrs. Reid with his questions to her. Mr. Kwan could not understand that as an employee his first obligation was to report to work as instructed. He could have then requested a transfer to another department. He had no valid grounds to refuse a direct and legal
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Decision Page 27 order. His safety was not in jeopardy at 5001 Yonge Street. If he felt safe working in Audit at 438 University Avenue, he should have felt as safe or even safer going to work at a greater distance from 36 Adelaide Street East.
Furthermore, his argument that he refused to return to 36 Adelaide Street East because of the asbestos has also no merit. First of all, he never told Mr. Reid that he refused to return to work on that ground. He raised that excuse at the adjudication hearing as an afterthought. At any rate, the asbestos issue dated back to May, 1994 and Mrs. Reid had given him the choice to report to the Toronto North District Office which would have resolved this problem.
The employer showed great patience in dealing with Mr. Kwan. Mrs. Reid should be commended for her handling of this very difficult situation. At no time did Mrs. Reid lose her patience even when Mr. Kwan threatened to sue her personally and this professionalism was demonstrated during her cross-examination by Mr. Kwan.
In the circumstances of this case, the employer had valid grounds to terminate Mr. Kwan's employment. There is a very well known principle in labour law which requires employees to "obey first and grieve later".
Authors Donald J.M. Brown and David M. Beatty stated clearly at paragraph 7:3610, pages 7-132.1 and 7-133, of their text Canadian Labour Arbitration, Third Edition, that: One of the most basic and widely accepted rules of arbitral jurisprudence holds that employees who dispute the propriety of their employer's orders must, subject to the considerations which follow, comply with those orders and only subsequently, through the grievance procedure, challenge their validity...
The rationale for this general principle is said to lie in the employer's need to be able to direct and control the productive process of his operations, to ensure that they continue uninterrupted and unimpeded even when controversy may arise, and in its concomitant authority to maintain such discipline as may be required to ensure the efficient operation of the plant. Arbitrators have taken the position that their recognition of the employer's right to maintain production and to preserve its symbolic authority is neither inconsistent with, nor prejudicial to, the legitimate contractual rights of the employees because in the vast
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Decision Page 28 majority of circumstances they can secure adequate redress for any abuse of authority by the employer through the grievance and arbitration process...
Fear for one's safety can be a reason to refuse to obey an order. However, this fear must be objectively assessed. The employee must have a reasonable belief that the assignment or transfer to another location, such as in the case of Mr. Kwan, was unsafe.
In Pharand et al. v. Inco Metals Co. (1980) OLRBR 980, it was decided that: The requirement that an employee have "reasonable cause to believe" that there is danger imposes an objective standard by which to test the employee's action. The Act does not, by the use of the words "reasonable cause", legislate different standards of protection for the squeamish and the intrepid. Different employees within the same work place may have different views of what constitutes an acceptable risk. Likewise, strangers to a particular trade or industry might view with alarm situations that are not seen as hazardous by the people who work in that field on an every day basis. On a complaint such as this, therefore, in considering whether an employee has reasonable cause to refuse to work in a given situation, this Board must ask itself whether the average employee at the work place, having regard to his general training and experience, would, exercising normal and honest judgment, have reason to believe that the circumstances presented an unacceptable degree of hazard to himself or to another employee.
The ability of an employee to invoke the right to refuse work does not depend on whether there is in fact any danger. The question is whether at the time an employee refuses to perform his work he has reasonable cause to believe that it is unsafe to do so. The fact that it may later be shown that there was no real danger at the time an employee refused to work doesn't mean that the employee was wrong in exercising his right under the Act. The events must be assessed in the light of knowledge available at the time that the employee refused to work.
On the evidence, I do not believe that Mr. Kwan had reasonable grounds to fear for his safety if he returned to work in Revenue Collections at either of the locations proposed by the employer. Mr. Kwan should have reported to work and he would have had the right to continue with his complaints from a stronger position. He would have maintained his employment.
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Decision Page 29 I am of the opinion that the employer's evidence is overwhelming in support of the decision to terminate Mr. Kwan's employment. Even though I have a lot of sympathy for an employee such as Mr. Kwan who finds himself unemployed in these hard and difficult times, he left me little choice but to dismiss his grievance. Mr. Kwan presented very little evidence to oppose the employer's evidence in support of its decision. In the circumstances, I see no reason to rescind the termination of his employment. Moreover, Mr. Kwan is adamant in his refusal to return to work in Revenue Collections. Even if Mr. Kwan had succeeded in his grievance, I have no jurisdiction to reinstate him in a position other than his substantive position which is as Collections Contact Officer, Revenue Collections Division, Revenue Canada.
For all these reasons, the grievance presented by Mr. Kwan is hereby dismissed.
Muriel Korngold Wexler, Deputy Chairperson
OTTAWA, August 30, 1996.
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