FPSLREB Decisions

[1]      Gary Doucette is an electrician at the Department of National Defence (DND) dockyards at Cape Scott and is classified at the EDW-10 level. On July 5, 2002, his employment was terminated for insubordination, with an effective date of June 28, 2002. He grieved this decision on July 17, 2002, and the final level response is dated October 8, 2002. The grievance was referred to adjudication on October 28, 2002.

[2]      The bargaining agent for the grievor is the Federal Government Dockyard Trades and Labour Council East. There are no discipline provisions in the collective agreement, and the relevant provisions for the discipline process are contained in an employer policy (CPAO 7.06, Exhibit G-2).

[3]      An order excluding witnesses was requested by the employer and was granted.

[4]      Four witnesses testified on behalf of the employer, and the grievor testified on his own behalf.

[5]      At the beginning of the final day of hearing, when the parties were to commence arguments, I was advised that Mr. Doucette had a family medical emergency and would not be able to attend the hearing. His counsel advised that Mr. Doucette had given his consent to proceed with final argument in his absence. Through his counsel, Mr. Doucette also conveyed his apologies to everyone for not being in attendance.

Evidence

[6]      Mr. Doucette was suspended without pay on June 28, 2002, pending a determination on Captain J.S.R. Payne's recommendation for discharge. By letter dated July 5, 2002, Vice-Admiral Bruce MacLean accepted the recommendation and terminated the grievor's employment effective the date of his suspension (Exhibit E-18):

. . .

I have carefully reviewed the facts surrounding your most recent misconduct of refusing a direct order and insubordinate behaviour. I have concluded, based on the evidence, that you are culpable of misconduct.

In reviewing your current disciplinary record, it is apparent that your continued disrespect for management's authority and your failure to correct this behaviour have resulted in an unacceptable situation. Management has lost all trust and confidence in your ability to become a productive team member of FMF Cape Scott.

Based on these considerations, I concur with the recommendation to terminate your employment.

. . .

Background

[7]      Mr. Doucette is 50 years old and has been employed with DND since 1986. He commenced employment with DND as a journeyman electrician. At the time of his discharge, he was working in the Underwater Weapons Shop.

[8]      In 1996, as a result of an internal investigation, Mr. Doucette was restricted from certain areas of the dockyard (Exhibits E-1 and E-2). He was only allowed into restricted areas with the permission of his supervisor. James (Jim) Hughes was Mr. Doucette's supervisor and is a Technical Services Supervisor (TSS). He testified that by the spring of 2000, there was no work available for Mr. Doucette. Mr. Hughes testified that the restricted areas made it difficult to find work for the grievor. In particular, about 80 percent of the work for electricians was in the Above Water Weapons Shop, and Mr. Doucette was restricted from working there. Mr. Hughes made repeated requests to other TSS's for work for Mr. Doucette but he usually got a negative response. Mr. Hughes testified that he was unable to find any work for Mr. Doucette even though there was work available for electricians. He testified that this was because people were "unwilling to employ him." Mr. Hughes agreed in cross-examination that it was fair to say that he would have preferred that Mr. Doucette not be in his workspace.

[9]      During the time leading up to his discharge, Mr. Doucette testified that he spent 75 percent of his time without work, sometimes six months at a time. On those days that he was without assigned work, he initially stayed close to his desk in case people were looking for him to do work. Subsequently, he made his way around the building and talked with employees. He would check with Plant Maintenance for work on a periodic basis. He testified that this lack of assigned work made him feel "kind of useless" and also that he was an unimportant individual.

[10]      When David Conrod took the position of Technical Services Manager (TSM) in the fall of 1998, Mr. Hughes briefed him on Mr. Doucette. In cross-examination, Mr. Hughes testified that he told Mr. Conrod that Mr. Doucette was an administrative problem. Initially, Mr. Conrod wanted to lift the restrictions placed on Mr. Doucette. Mr. Hughes disagreed with this position, and Mr. Conrod eventually agreed with him.

[11]      Mr. Conrod testified that he had authority to order other supervisors to provide work for Mr. Doucette, but he did not do so as he preferred to rely on a voluntary approach.

[12]      In late summer of 2000, Mr. Hughes was able to find work for Mr. Doucette in Ships Cabling. Mr. Doucette told Mr. Hughes that he would do the work. Shortly after this work commitment was made, Mr. Hughes went on holiday. When he returned, he learned that Mr. Doucette had changed his mind and had refused to do the work. The supervisor in Ships Cabling, Chief Petty Officer Dulude, said he would not give back the work, as he had already reassigned it. Mr. Hughes testified that the issue was then dropped. In cross-examination, Mr. Hughes testified that he did not discuss this incident with Mr. Doucette. Mr. Doucette testified that he had tried to obtain blueprints in order to perform the work, but he was not able to do so. The person who had requested the work was not on board the ship. Mr. Doucette stated that as a result, he was unable to perform the work.

[13]      At the end of January 2001, work was found for Mr. Doucette in Plant Maintenance. The TSS was Kevin Yates. Mr. Doucette worked there until June 1, 2001. Mr. Hughes testified that he received no complaints from Mr. Yates about Mr. Doucette's work. However, on June 1, 2001, Mr. Doucette stopped working in Plant Maintenance. He had been on a self-directed work team doing preventive maintenance and had been unwilling to do the repair part of the job. Mr. Hughes testified that Mr. Yates said he would take Mr. Doucette back if Mr. Hughes talked to him about doing the full range of duties. Mr. Hughes testified that Mr. Doucette told him that he was not willing to go back and that if Mr. Hughes ordered him to go back, he would file a harassment charge against him. He then told Mr. Hughes that he was going to file a harassment complaint against Mr. Yates. Mr. Doucette did not recall saying this. Mr. Doucette testified that when he had been doing work for Mr. Yates, Mr. Yates had made a disparaging comment to him about his ability to work hard. He denied saying that he would file a complaint against Mr. Hughes. Mr. Hughes testified that when he told Mr. Yates that Mr. Doucette would file a harassment charge against him if he was ordered to return to Plant Maintenance, Mr. Yates said that he no longer had work for Mr. Doucette. In cross-examination, Mr. Hughes testified that he did not order Mr. Doucette to work there, as Mr. Yates no longer wanted the grievor. Mr. Doucette testified that he did subsequently file a harassment complaint against Mr. Yates, but that the investigation determined that the complaint was not founded.

[14]      Mr. Hughes testified that he recommended that Mr. Doucette no longer receive the Self-Directed Team pay premium in the fall of 2001, some time after he returned from his assignment in Plant Maintenance. He had been on a self-directed team from approximately the end of January 2001 until April 1, 2001. Mr. Doucette was no longer on a team and Mr. Hughes testified that there was no team in which Mr. Doucette fit. Mr. Doucette testified that he sent a letter to the Department about the loss of the pay premium, asking them to tell him what he was doing wrong. He testified that the letter he received in reply was vague, and he did not pursue the matter. He also testified in cross-examination that he missed most team meetings because he was not invited and was not in close contact with the team members.

[15]      Mr. Doucette testified that it was his view that his performance had been improving since 1999. His appraisals for 2000 and 2001 showed that his performance had been improving. His performance appraisal for the period ending April 2000 (Exhibit G-3) rated all his performance factors as "Normal" (level 6), and his performance appraisal ending April 2001 (Exhibit G-4), showed a one-level increase in five of the seven performance factors. In the appraisal ending April 2000, Mr. Hughes noted an improvement in Mr. Doucette's attitude towards supervision and his relationships with fellow workers. In the appraisal for the following year, Mr. Hughes noted that his performance in the routine maintenance of Major Plant Equipment was "fully satisfactory". Mr. Doucette provided no input into his appraisals and did not sign either of them.

[16]      Both Mr. Hughes and Mr. Conrod testified that counselling letters, which are non-disciplinary, were not issued to Mr. Doucette with regard to his performance shortcomings.

Disciplinary Record

[17]      Mr. Doucette's previous disciplinary record was a one-day suspension for an incident on July 10, 2001; a three-day suspension for an incident on July 11, 2001; a ten-day suspension for incidents on four separate dates in June and July of 2001; and a 20-day suspension for an incident on October 11, 2001. None of these disciplinary penalties was grieved by Mr. Doucette. The employer relied on these incidents to support its decision to discharge Mr. Doucette, alleging that the incident with Mr. Doucette's supervisor on April 16, 2002 was the culminating incident.

[18]      Three of the previous disciplinary penalties were as a result of incidents at the security gate to the dockyard. On July 10, 2001, it was alleged that Mr. Doucette removed a roll of paper towels from the dockyard ("Notice of Investigation", Exhibit E-10). The notice of a one-day suspension was issued on December 19, 2001, by Mr. Conrod (Exhibit E-3):

NOTICE OF SUSPENSION

          As a result of my investigation into the incidents surrounding activities at the Centre gate on 10 July 2001, I have determined that you did misconduct yourself in that you refused to co-operate with the commissionaire and interfered with him performing his duties in accordance with the Defence Controlled Access Area Regulations. Your leaving DND property prior to the arrival of the Military Police raises suspicion that the roll of paper towel was actually Government property.

          After careful consideration of all the factors involved, I am awarding you a one-day suspension, to be served on Friday, 21 December 2001. You are advised that a further offence of this nature could result in a more severe penalty, up to and including dismissal from the Public Service.

. . .

[19]      On July 11, 2001, there was another incident at the security gate, in which it was alleged that Mr. Doucette refused to cooperate with the Commissionaire, thereby interfering with his duties under the Defence Controlled Access Regulations (Exhibits E-11 and E-16). The notice of a three-day suspension was issued by Mr. Conrod on December 19, 2001 (Exhibit E-4):

NOTICE OF SUSPENSION

          As a result of my investigation into the incidents surrounding activities at the Centre gate on 11 July 2001, I have determined that you did misconduct yourself in that you refused to co-operate with the commissionaire and were disrespectful of his authority, laughing at his discomfort at the situation you had created.

          After careful consideration of the factors involved, I am awarding you a three-day suspension, to be served on 24, 25 and 26 December 2001.

          An employee of the Corps of Commissionaires is a designated authority for the enforcement of the Defence Controlled Access Area Regulations whose direction must be obeyed and respected. Your belligerent behaviour was unacceptable and harassing. I have enclosed a copy of the Defence Controlled Access Area Regulations for your review and retention and expect that you will confer the dignity and respect due Security Guards.

          You are advised that a further offence of this nature could result in a more severe penalty, up to and including dismissal from the Public Service.

. . .

[20]      Mr. Doucette testified that the incidents of July 10 and July 11 involved the same Commissionaire and that there was an interpersonal conflict between the two of them. He had not tried to remove Base property on July 10 and on July 11; the Commissionaire just "flew" into him.

[21]      Mr. Doucette was given a ten-day suspension for failure to follow attendance requirements over four days in June and July of 2001 (June 15 and July 11, 23 and 24). The notice of investigation (Exhibit E-12) alleged that on these occasions Mr. Doucette was either late arriving at work, or left early from work, without informing his supervisor (Mr. Hughes). The notice of suspension was issued on December 19, 2001, by R.N. Cormier, Service Delivery Manager (Exhibit E-5):

NOTICE OF SUSPENSION

          As a result of a recommendation from your TSM, I have conducted an investigation into your late arrivals/ early departures on 15 June 01, 11 July 01, 23 July 01 and 24 July 2001 and the disrespect shown the Commissionaire who noted the dates and times of these incidents, and have determined that you did misconduct yourself.

          After careful consideration, I am awarding you a ten day suspension, to be served from 27 December 2001 to 09 January 2002 inclusive.

          Fleet Maintenance Facility Cape Scott has relied upon an employee's honesty in regard to attendance requirements. You have breached this trust, and you will be provided with a letter outlining your attendance reporting requirement.

. . .

[22]      Mr. Doucette testified that after receiving this discipline, he made strong efforts to follow the attendance policy and meet the attendance requirements.

[23]      On October 11, 2001, Mr. Doucette was alleged to have refused to cooperate with the Commissionaire and the Military Guard during a bomb threat at the Rainbow Gate (Exhibit E-13). Mr. Doucette testified that he was concerned about anthrax and wanted to leave the dockyard but was prevented from doing so. He left a message with Mr. Hughes that he was leaving and taking annual leave. When the Military Police were called, Mr. Doucette told them that if they would not let him leave, they could escort him to a cell off-site. He testified that this was his first bomb scare and that he was quite anxious to leave. It was the policy of the employer that no one was to leave or enter the dockyard until the threat had been assessed.

[24]      Captain Payne issued a notice of suspension of 20 days on December 19, 2001 (Exhibit E-6). He concluded that Mr. Doucette had refused to cooperate with the Commissionaire and the Military Guard stationed at the Rainbow Gate. The notice also warned that further acts of misconduct would not be condoned, and would result in more severe disciplinary action up to and including termination for cause for disciplinary reasons.

[25]      Mr. Doucette refused to acknowledge receipt of any of the notices of investigation or notices of suspension. In each case, there is a notation at the signature block: "Employee did not want to sign."

[26]      Mr. Conrod testified that all the disciplinary penalties were imposed on December 19, 2001, because there had been problems in scheduling investigation meetings with Mr. Doucette. For three or four scheduled meetings, Mr. Doucette's union representative showed up, but Mr. Doucette did not. Mr. Doucette testified that the interview dates coincided with leave periods in some cases. He also testified that the required 24-hour notice was not always given.

April 16, 2002 Incident

[27]      Mr. Doucette returned to work in February of 2002, after serving his days of suspension without pay (34 days in total). Mr. Conrod, the TSM, found work for Mr. Doucette in the Heavy Electrical Shop repairing signal lights. Although it was normal for an electrician to go to the work area where the work needed to be done, in this case the signal lights were brought to Mr. Doucette's work area. There were about seven or eight signal lights to be repaired. By April 16, 2002, the work on some of the signal lights had been completed.

[28]      On April 16, 2002, Mr. Hughes learned that Bill McKinnon, the TSS for the Heavy Electrical Shop, had spoken to Mr. Doucette about a signal light that had been returned for painting, without having been disassembled. Mr. McKinnon told Mr. Hughes that Mr. Doucette had agreed to retrieve the signal light and disassemble it. When Mr. Hughes spoke to Mr. Doucette on the shop floor, Mr. Doucette was upset and felt that the signal light did not need to be disassembled. He continued to argue with Mr. Hughes. Mr. Doucette testified that he was not upset, but that Mr. Hughes appeared to be agitated. Mr. Hughes told him that he was to do the work for the Heavy Electrical Shop according to its specifications. Mr. Hughes testified that Mr. Doucette then demanded to know if the signal light needed to go for sanding. Mr. Hughes did not know and told Mr. Doucette to check with the Heavy Electrical Shop. Mr. Hughes testified that he was concerned that the signal lights would be damaged if they were sent for sandblasting without the approval of the Heavy Electrical Shop. Mr. Hughes testified that Mr. Doucette refused and said that he would send the signal lights to be sandblasted. Mr. Hughes said: "I am ordering you" to check with the Heavy Electrical Shop before sandblasting. Mr. Doucette told Mr. Hughes that he could not because he was "busy". Mr. Hughes testified that the conversation with Mr. Doucette was heated and that Mr. Doucette was agitated.

[29]      Mr. Doucette does not recall any discussion about sandblasting. He recalled that the discussion related to whether the signal light needed painting. He testified that sometime before April 16, Mr. Hughes asked if one light needed painting. Mr. Doucette told him that Mr. McKinnon, the TSS for Heavy Mechanical, had not "Okayed" it for painting. Mr. Hughes told him to check with Mr. McKinnon immediately. Mr. Hughes was agitated. Mr. Doucette then went to see Mr. McKinnon who said it could be painted. Mr. Doucette asked him to call Mr. Hughes right away, and Mr. McKinnon did. Mr. Doucette testified that on April 16, Mr. Hughes asked him how things were going, and whether the light needed paint. Mr. Doucette could not understand why he was asking and thought it related to the earlier request. Mr. Doucette testified that he said sarcastically that he was not a painter and did not have the facilities to paint the light. Mr. Hughes then said: "If they want you to have the lights painted, you will do it." Mr. Doucette testified that he sarcastically replied, "No?", as all the previous lights had been painted. Mr. Doucette testified in cross-examination that he regarded Mr. Hughes' words about painting as more like an instruction and not an order.

[30]      Mr. Hughes testified that he did not want to continue the discussion on the shop floor, as people were within earshot. He told Mr. Doucette to get a union steward and meet him upstairs in his office. Mr. Doucette said in a mocking tone that he could not meet him in his office, because Mr. Hughes did not have an office. Mr. Hughes then told him to meet him at his desk. Mr. Doucette met with Mr. Hughes upstairs and had a union representative with him. Mr. Hughes asked Chief Petty Officer Conner to attend to take minutes of the meeting in an upstairs conference room.

[31]      Mr. Hughes testified that it was his intention to explain to Mr. Doucette that he could not find work for him and that it was necessary to do the work to the specifications of the Heavy Electrical Shop. Before he could complete his statement, Mr. Doucette interrupted and said that it was not his fault that Mr. Hughes could not get him work. Mr. Doucette continued to talk over Mr. Hughes. Mr. Hughes ordered him to be quiet so he could speak. In cross-examination, Chief Petty Officer Conner testified that it might have been difficult for Mr. Doucette to hear this order because of the interruptions he was making. Chief Petty Officer Conner testified that Mr. Doucette put his fingers in his ears, stomped his feet, made babbling noises ("la-la-la-la-la") and said that he could not hear Mr. Hughes but could see his lips moving. At this point, Mr. Hughes got up and started to leave. Mr. Doucette then said he should come back and they could discuss it. Mr. Hughes continued with the meeting but Mr. Doucette continued to interrupt and talk over him every time he tried to say something. Mr. Hughes then ended the meeting. According to the minutes of the meeting prepared by Chief Petty Officer Conner (Exhibit E-9), the whole meeting lasted only four minutes. Chief Petty Officer Conner also testified that Mr. Hughes was a little short-tempered in the meeting and was being stern in order to get his point across.

[32]      Mr. Doucette testified that Mr. Hughes told him that this was the only work that he could get for Mr. Doucette. Mr. Doucette was concerned that someone had expressed concern about his work and asked Mr. Hughes whether anyone had complained about his work. Mr. Doucette also testified that Mr. Hughes started flicking a pen in Mr. Doucette's face. Mr. Doucette testified that he put his fingers in his ears when Mr. Hughes said he did not want to hear another word out of him. Mr. Doucette admitted that his behaviour was inappropriate, but that he was concerned about losing his job and just "shut down". Mr. Doucette also testified that he was not under the impression that he had been given a direct order from Mr. Hughes. He testified that Mr. Hughes would usually preface any direct order with the phrase: "I am ordering you to". When asked by his counsel whether he accepted any blame for the misunderstanding between him and his supervisor, Mr. Doucette said that he did, but at the time he felt he could lose his job at any moment (he was "on the edge") and also thought that he was performing to everyone's satisfaction.

[33]      In cross-examination, Mr. Hughes denied that he had been critical of Mr. Doucette on the shop floor. Mr. Hughes testified that he felt that since this was not the first signal light that he had worked on, Mr. Doucette would know whether they needed to be sandblasted or not.

[34]      Mr. Hughes immediately wrote down his account of the meeting (Exhibit E-7) and took the note to the head of human resources to discuss what recourse or disciplinary action was possible. In cross-examination, Mr. Hughes testified that his intention in having a meeting in the conference room was to resolve the matter and that he felt that he had no choice but to recommend a disciplinary investigation at the end of the meeting.

[35]      On April 16, 2002, Mr. Conrod issued the notice of investigation. The notice alleged that Mr. Doucette misconducted himself by refusing a direct order from his supervisor, Mr. Hughes (Exhibit G-5). Mr. Conrod conducted the investigation.

[36]      On April 29, 2002, Mr. Conrod convened a meeting with Mr. Doucette as part of the investigation of the incident (Exhibit G-6). Mr. Doucette's union representative, Tom Denault, attended this meeting with him. Also in attendance was Michel LeBlanc, Human Resources Officer. At the meeting, Mr. Doucette told Mr. Conrod that Mr. Hughes had not given him a direct order. He also told Mr. Conrod that Mr. Hughes did not know what he was doing. Mr. Conrod testified that Mr. Doucette was not remorseful, but was "laid back and really didn't care."

[37]      In notes prepared by Mr. Conrod after the meeting, Mr. Conrod set out the basis for his recommendation on discipline (Exhibit E-14):

. . .

Note:

Mr. Doucette did not give any information freely and what information he gave made little or no sense. Mr. Doucette was very nonchalant about the whole interview process and continually tried to confuse the members of the review team.

December 2001-January 2002 Mr. Doucette was given a thirty-four (34) day suspension for simpler (sic) misconducts. Mr. Doucette for the past number of years has been an administrative problem. Mr. Doucette has been removed from SFT and the 3% team pay. Mr. Jim Hughes is the ONLY TSS that is willing to supervise Mr. Doucette.

After conducting an investigation into the alleged misconduct of Mr. Doucette on April 16, 2002, and reviewing the facts presented to me I find Mr. Doucette guilty of refusing a Direct Order and recommend he be released from his position as an EEW-10 Electrician.

[38]      The results of Mr. Conrod's investigation were communicated to Mr. Doucette on May 3, 2002 (Exhibit G-7). Mr. Conrod concluded that Mr. Doucette was insubordinate to his supervisor. With regard to the disciplinary penalty, he wrote:

. . .

As a result of your misconduct over the past year I am not in a position to authorize the recommended penalty for refusing a direct order. Thus I am passing your file on to the delegated authority of the Disciplinary Procedure for revisions and determining the corrective measures.

. . .

[39]      Mr. Conrod testified that in his view the order that Mr. Doucette refused to obey was the order relating to the signal lights. In cross-examination, Mr. Conrod stated that he took some of Mr. Doucette's past problems into account. He testified that over two to three years, Mr. Doucette had "built a track record". He testified that he did not personally bring these problems (other than the matters for which he had received discipline) to Mr. Doucette's attention and that he was aware that there should have been more documentation of these problems.

[40]      Mr. Conrod referred the matter to his supervisor, Mr. Cormier. Mr. Cormier sent a memorandum to Captain Payne on May 28, 2002, requesting that a recommendation be made to Vice-Admiral Commander MacLean that Mr. Doucette be discharged (Exhibit G-8). The memorandum also stated:

Re: Disciplinary investigation file. (attached)

1.	Results of the disciplinary process supported at ref a have determined that Mr. Doucette committed two acts of misconduct on 16 April 2002 I.E. insubordination and refusing a direct order from his supervisor. The Investigating officer, Mr. Dave Conrod, has referred the disposition of appropriate corrective action to higher authority.
2.	Based on Mr. Doucette's record, Mr. Conrod has recommended release for cause. It is noted that Mr. Doucette has recently completed serving suspensions of one, three, ten and twenty days for four previous misconducts within the past two years, and has been, for the majority of his service, an administrative burden to his managers and a very disruptive influence on SRU(A) and FMFCS overall. His disruptive, intimidating behaviour has even been experienced at the Base level on more than one occasion.

. . .

[41]      Captain Payne wrote a letter to Mr. Doucette on June 28, 2002, suspending him from duty without pay, pending a decision on his recommendation of termination for cause for disciplinary reasons (Exhibit E-17):

I have reviewed the facts pertaining to your alleged misconduct in that you disobeyed a direct order and were insubordinate during a meeting with your supervisor to discuss your alleged misconduct. A review of your disciplinary record reveals that your four previous and current acts of misconduct relate to your lack of respect for authority and established regulations and procedures.

Management has attempted to support your continued employment within the extensive restrictions placed upon you because of your unsatisfactory interpersonal relationships. Your supervisor, Mr. Hughes, has been your biggest supporter over the years. He is not delegated to make recommendations on disciplinary matters. This responsibility rests with senior management.

Your conduct is of your own making and has been unacceptable. I am recommending that you be terminated for cause for disciplinary reasons. Therefore, you are hereby suspended from duty without pay effective 1000 hours this date pending a determination of my recommendation. You are restricted from access to any DND establishment and your Identification Card and Car Pass are forfeited.

You are not to initiate any contact, other than with union personnel, with any employee, supervisor or manager of FMF Cape Scott at their place of work or their private residences. Should any such contact be undertaken, the matter will be turned over to criminal authorities. Any administrative meetings that are necessary will be arranged through your union representative.

[42]      Captain Payne testified that his rationale for the recommendation was that Mr. Doucette continued to act against all expectations and was a very large administrative burden. He also relied on Mr. Doucette's inability to work on a self-directed team. He explained Mr. Doucette's generally favourable performance appraisals as reflecting the unique circumstances that he was working alone, "inside a bubble". Captain Payne also testified that prior to the April 16 incident, there was no plan to reintegrate Mr. Doucette into the workplace.

[43]      Captain Payne was scheduled to meet with Mr. Doucette to deliver the letter, but Mr. Doucette failed to show up for the meeting. Due to Captain Payne's absence from the office later in the week, Mr. Cormier delivered it on his behalf. Mr. Doucette refused to sign the acknowledgement of receipt of the letter.

[44]      On July 5, 2002, Vice-Admiral MacLean sent Mr. Doucette a letter discharging him, effective June 28, 2002 (see paragraph 6, above).

[45]      Mr. Hughes testified that it would be very difficult to reintegrate Mr. Doucette into the workplace, as he has alienated many people and was an administrative burden to supervise. Morale would suffer as a result of his return. In cross-examination, Mr. Hughes said that Mr. Doucette's negative attitude and his intimidating behaviour made reintegration difficult. He also testified that he would refuse to supervise Mr. Doucette if he was reinstated. Mr. Conrod testified that the grievor was an administrative burden and problem and that reinstatement would be contrary to his obligation to provide a safe and friendly work environment. Mr. Doucette testified that if he were reinstated, he would work as he had on the signal lights -- efficiently and as well as he could. He testified that he appreciated Mr. Hughes as a boss and that there had been a misunderstanding between them. He was willing to work for his supervisors (Messrs. Hughes and Conrod) if they were willing to take him back.

ARGUMENTS

For the Employer

[46]      This is a termination under the Financial Administration Act (FAA). The task of an adjudicator is first to determine whether the alleged actions of the grievor occurred. The second task is to determine if the penalty (in this case, discharge) is justified. The ultimate penalty of discharge is appropriate if the employment relationship is damaged beyond repair.

[47]      There are four elements to proving insubordination that have been identified in arbitral jurisprudence. First, it must be shown that an order was given. Second, it must be demonstrated that the order was clearly communicated. Third, the order must have been communicated by someone with the necessary authority over the grievor. Fourth, it must be shown that the grievor refused to comply with the order. Insubordination strikes at the very heart of the employment relationship. Mr. Fader referred me to Canadian Labour Arbitration (Third Edition), by Messrs. Brown and Beatty, at 7.3612, and Re Hunter Rose Co. Ltd and Graphic Arts International Union, Local 28-B (1980), 27 L.A.C. (2d) 338.

[48]      In assessing whether there was insubordination, the credibility of the witnesses is very important. The recollection of the employer's witnesses, in particular that of Mr. Hughes, was totally at odds with the recollection of the grievor. In this case, an adjudicator should look at the preponderance of probabilities. Mr. Fader referred me to Faryna v. Chorny, [1952] 2 D.L.R. 354.

[49]      Turning to the facts of this case, it is clear that an order was given. The recollections of Messrs. Hughes and Doucette were irreconcilable. The determination of whether there was an order given or not is central to this case. If no order was given, then reinstatement should follow. If there was an order given, then discharge is appropriate because a bond of trust cannot be rebuilt on a foundation of lies. In terms of deciding who is telling the truth, it is important to look at motives. Mr. Hughes did not have a personal vendetta against Mr. Doucette, and on the stand did not strike one as being a vindictive man. In fact, on the stand Mr. Hughes was frank and open. Mr. Hughes also made notes contemporaneously with the events that clearly indicate that an order was given.

[50]      The grievor has a very clear motivation to lie - to get his job back. His testimony was vague and hard to understand. He was confused about the chronology of events and drew blanks on a number of questions.

[51]      The grievor's behaviour on April 16, 2001, both on the shop floor and in the conference room, came two and one-half months after 34 days of discipline and showed a similar lack of respect for authority and a refusal to cooperate. The grievor did admit to putting his fingers in his ears and saying: "I can see your lips move, but I cannot hear you." Putting all this together, on a balance of probabilities, the evidence established that an order was given.

[52]      The second question is whether the order was clearly communicated. If there is a finding that an order was given, there is no evidence to suggest that it was not clearly communicated. Mr. Hughes testified that he used the word "order" twice. It is not open to the grievor to allege that he could not hear the order because he had his fingers in his ears. It is not open to the grievor to create circumstances by which he cannot hear a clearly communicated order.

[53]      There was no issue on the third element - that Mr. Hughes had the proper authority to issue an order. The grievor testified that he knew that Mr. Hughes had the authority and that he had followed orders in the past.

[54]      The fourth element is the refusal to comply. The testimony of Mr. Hughes is to be preferred in this regard, and Mr. Doucette refused both on the shop floor and in the conference room.

[55]      The behaviour of the grievor on April 16, 2002, was clearly insubordinate. The evidence has established that the grievor refused a direct order and engaged in insubordinate behaviour.

[56]      In terms of whether discharge is the appropriate penalty, the jurisprudence holds that insubordination is an extremely serious matter. Mr. Fader referred me to Hunter and Rose (supra) and Re British Columbia Railway and Canadian Union of Transportation Employees, Local 6 (1982), 8 L.A.C. (3d) 233. When a witness lies, as this grievor has, he loses the opportunity to rely on the defence that he now understands that he made a mistake and is remorseful. There was testimony from Messrs. Conrod and Hughes that employees would not like Mr. Doucette back in the workplace. It was difficult for these witnesses to say this in front of the grievor. The grievor did not call any witnesses who could testify that they would not mind having him back in the workplace.

[57]      It is open to an adjudicator to look at other non-disciplinary evidence in assessing rehabilitative potential. Mr. Fader referred me to Re Corporation of the City of St. Catharines and Canadian Union of Public Employees (1982), 6 L.A.C. (3d) 13. The incidents with Chief Petty Officer Dulude and with Mr. Yates, following on the heels of discipline for similar actions, do not suggest someone who is going to rehabilitate himself.

[58]      The other incidents for which Mr. Doucette was disciplined were very similar in nature - there is a thread connecting them. The common thread is a lack of respect for authority and a failure to follow orders. Mr. Fader referred me to Dearnaley (Board files 166-2-15008 and 15009 and 166-2-15154 and 15155).

[59]      The bond of trust cannot be rebuilt on the foundation of lies told by the grievor. The grievor has shown no understanding or remorse for his actions. His return to the workplace would be damaging for morale. The employer has met its burden of proof and the grievance should be dismissed.

[60]      Mr. Fader argued that, in the alternative, if I should find that discharge was not appropriate, I should not reinstate the grievor but award compensation in lieu of reinstatement in the six-month range. Mr. Fader referred me to Champagne v. Canada (Public Service Staff Relations Board), [1987] F.C.J. No. 906, and Gannon (Board files 166-2-30351 and 30352).

For the Grievor

[61]      This grievance is a serious matter, involving discharge, which has been called the "capital punishment" of labour relations. We must also consider the precarious situation faced by the grievor. He has 16 years of service with the DND and is 50 years old. It will be difficult for him to find a new job at his age.

[62]      There is not much dispute on the test for insubordination. Mr. Mombourquette referred me to Re Nanaimo Collating Inc. and Graphic Communications International Union, Local 525 (1998), 74 L.A.C. (4th) 251. The absence of a subjective intent to defy management and the lack of a blameworthy state of mind of the grievor are also an important factor in this case (Canadian Labour Arbitration (supra), at 7:36132).

[63]      With regard to the events of April 16, 2002, it is conceded that the grievor's recollection is less than certain. He could not recall if his conversation with Mr. McKinnon was that day or on another occasion. The grievor is not a man of clarity, nor does he have a clear memory. He is easily confused and easily rattled. He did not have a lot of independent recollection of events.

[64]      He questioned his supervisor on April 16 because he knew the seriousness of the situation and he wanted some answers. He was frustrated by Mr. Hughes' response and when Mr. Hughes started to be forceful with him, he panicked and, in his words, "shut down". He admitted that his actions were inappropriate. The grievor would have taken an order as an order, but he testified that he did not recall an order being given.

[65]      Mr. Hughes' notes of the April 16 events (Exhibit E-7) state that he said to the grievor that he should do as Mr. McKinnon requested. Mr. Hughes also testified that he did not take the discussion on the shop floor as a refusal, but as an argument. In the past, there had been arguments that had not been treated as disciplinary, such as the incident with Mr. Yates and with Chief Petty Officer Dulude. There was a pattern established whereby Mr. Doucette was allowed to get away with that kind of behaviour. There was a certain degree of latitude given in the past. The relationship between Messrs. Hughes and Doucette was not a military relationship but was much less stringent.

[66]      Mr. Doucette answered Mr. Hughes sarcastically when he said "No" to a request from Mr. Hughes. There was clearly a lack of subjective intent to defy management. Although in hindsight he realized that he should not have said this, he was certainly not intending to defy an order. The final response of Mr. Doucette to Mr. Hughes was to say, "I'm busy". Mr. Hughes admitted that Mr. Doucette had not refused but had said that he was busy. At that point, Mr. Hughes testified that he thought that things could be cleared up at a meeting upstairs. At that point, he was not considering it a disciplinary matter. However, the shop floor incident is the one relied on to justify the decision to terminate Mr. Doucette's employment (Exhibit E-14). Mr. Hughes testified that the direct order that was refused was the refusal to be quiet. Mr. Conrod knew nothing about that and did not rely on that alleged refusal to support his finding. There was no finding with regard to insubordination at the meeting in the conference room. The two acts of misconduct that were relied on in Exhibit G-8 was not the finding of Mr. Conrod. Captain Payne also relied on the conduct at the meeting, even though Mr. Conrod made no finding in his investigation on this meeting. There was a clear gap in the decision-making process. A decision was made on facts that were clearly not consistent. The person who gave the order (Mr. Hughes) admits that it was not a refusal. There was no finding by the investigating officer as to insubordination. It is the basis of natural justice that one comply with a disciplinary process. An employer should not be permitted to impose discipline when the findings of the investigating officer do not support the discipline imposed.

[67]      The adjudicator can make a finding that the discipline was not warranted without assessing credibility. The grievor's counsel stated that he was not going to accuse Mr. Hughes of lying. Mr. Doucette was clearly confused and there was a misunderstanding on his part. He admitted that he could have been more helpful. His behaviour in the meeting was admittedly not appropriate.

[68]      Mr. Mombourquette argued that, in the alternative, if I did find that the employer could rely on the conduct in the meeting to support its conclusion on insubordination, the actions of the grievor, given his long service, were not sufficient to culminate in dismissal.

[69]      Mr. Mombourquette noted that the employer relied on Mr. Doucette's prior record in justifying its decision that discharge was the proper penalty. The prior record can also have some impact with regard to mitigation. If you look at the work record of the grievor, outside of the situations involving the commissionaires, his performance had been improving, as evidenced by his performance appraisals. No concerns were raised with him and there was no documentation provided to him with regard to his behaviour. It was the responsibility of the employer to get the word to the grievor if there were concerns about his behaviour. The employer, if it had concerns, should have better managed his performance.

[70]      The prior incidents with Chief Petty Officer Dulude and Mr. Yates are stale charges and it cannot be open to the employer to treat these incidents as culpable matters to justify its decision. Mr. Mombourquette referred me to Re SKF Manufacturing of Canada Ltd and International Association of Machinists, Local 101 (1975), 9 L.A.C. (2d) 139.

[71]      It is difficult to pull apart the decision-making process for this termination decision. It is clear that Mr. Doucette was a tainted individual, regarded as an administrative burden by the employer. The employer clearly took his prior record into account in coming to this decision, and it should not have. How do we know what the decision would have been without its taking this into account? Mr. Mombourquette referred me to Re Canadian Lukens Ltd and United Steelworkers of America (1976), 12 L.A.C. (2d) 439.

[72]      Once an adjudicator looks at the threshold question of whether discipline is warranted, the examination then focuses on mitigating factors (Re United Steelworkers of America, Local 3257 and the Steel Equipment Co. Ltd (1964), 14 L.A.C. 356). Mr. Doucette is a long-service employee of 16 years. The incident in question is an isolated incident. The previous incidents, for which discipline was imposed with regard to the commissionaires, were more of an interpersonal conflict and not part of a pattern. The incident on April 16 was not premeditated, but was a result of a very stressful situation for the grievor. The economic hardship to the grievor is significant by reason of his age alone. It will be difficult for him to find another job. Mr. Doucette did not have the subjective intent to disobey. There was not an appropriate opportunity, prior to this hearing, for Mr. Doucette to apologize for his behaviour. In fact, his notice of suspension specifically prevented him from contacting anyone.

[73]      There was condonation by the employer of Mr. Doucette's behaviour as well, which goes to the mitigation of the discipline imposed. Arguing and bickering was the way that Messrs. Hughes and Doucette related to each other. There was an expectation that this was the ordinary discourse between the two of them. This was the type of behaviour that had occurred before in the workplace, and nothing had been done either to discipline or to counsel Mr. Doucette. Mr. Mombourquette referred me to Anten (Board files 166-2-25442, 166-2-25873 to 75 and 166-2-25971). In that case, a 10-month suspension was substituted. Mr. Mombourquette submitted that if I conclude that the employer's decision was correct, there are sufficient and compelling reasons to reinstate this employee. Those reasons include the long service of the grievor, the economic hardship that would result from discharge, and the condonation of the employer. The grievor should be given a last chance to rehabilitate.

[74]      Mr. Mombourquette submitted that the facts in Re Corporation of the City of St. Catharines (supra) relied on by the employer were significantly different from the facts in this case and for that reason could be distinguished.

[75]      With regard to the employer's alternative argument on compensation in lieu of reinstatement, Mr. Mombourquette submitted that it was clearly an extraordinary remedy and that the ordinary remedy was to reinstate. It was much more preferable to allow conditional reinstatement.

[76]      In the alternative, he submitted that six months' compensation in lieu of reinstatement as suggested by the employer was much too limited. A more appropriate award of 18 months was given in Hebert (Board files 166-2-21575 and 166-2-21666).

[77]      The employer raised issues about the amount of disruption that would be caused by the grievor's reinstatement. The views of management were the only ones put before the Board. Management does have motivation to keep him out of the workplace because it views him as an administrative burden. Ordinarily, if the employer were attacking the overall character of the grievor, it would have been incumbent on the employer to call non-management employees to testify.

[78]      In conclusion, the discipline should be overturned because there was not sufficient evidence to support a finding of a refusal. The investigating officer did not find the charge of insubordination, and superiors should not have made their own findings without an investigation. If there is a finding of culpable conduct, a lesser penalty should be imposed with regard to mitigating circumstances.

Rebuttal

[79]      The fact that the grievor does not recall events should not shield him from the natural consequences of his actions.

[80]      One should not equate Mr. Hughes' testimony that he had not considered the shop floor incident to be disciplinary at the time that he left the shop floor with a finding that there had not been a refusal. He did not go up to his desk to prepare a charge, but to discuss the issue further with Mr. Doucette. This does not alter the fact that an order was given on the shop floor.

[81]      With regard to issues of procedural fairness, the decision of the Federal Court in Tipple v. Canada (Treasury Board) (1985), F.C.J. No. 818 (C.A.), holds that this is a hearing de novo and cures procedural defects in the disciplinary process.

[82]      The decision-makers had all the relevant documents and various statements with regard to the events of April 16, 2002, and they based their decision on all the events of that day.

[83]      On condonation, it was the grievor's testimony that when an order was given he always followed it. In the situation involving Mr. Yates, there was no order given. There was no condonation of disobeyed orders.

[84]      The employer was not attacking the character of the grievor with regard to reinstatement. The witnesses were clear on the impact of his reinstatement on the work environment.

REASONS FOR DECISION

[85]      The potential issues in this grievance are as follows:

1. Was the incident of April 16, 2002, an act of insubordination by the grievor?
2. If so, was discharge an appropriate disciplinary penalty, given all the circumstances?
3. If discharge was not appropriate, what is the appropriate discipline?
4. If discharge is not appropriate, is reinstatement appropriate in all the circumstances of this case?

Insubordination

[86]      The jurisprudence sets out three key requirements for a finding of insubordination:

1. there was a clear order, which the grievor understood;
2. the order was given by a person in authority; and
3. the grievor disobeyed the order.
[Canadian Labour Arbitration, (supra), and Re Nanaimo Collating Inc. (supra)]

[87]      The dialogue between Messrs. Hughes and Doucette was heated, both on the shop floor and in the conference room. Counsel for the grievor argued that there was no insubordination on the shop floor, according to the testimony of Mr. Hughes. In Mr. Hughes' view, the insubordination occurred in the conference room. However, Mr. Mombourquette noted Mr. Conrod testified that he concluded from his investigation that the insubordination occurred on the shop floor when Mr. Doucette refused to ask Mr. McKinnon about the sandblasting. In my view, Mr. Hughes' views are not determinative, as he was not the decision-maker on the imposition of discipline. Furthermore, Mr. Hughes testified that he thought he could explain to Mr. Doucette the importance of following his instructions. In other words, he did not regard the matter as closed on the shop floor. That does not change the fact that an order was given. In my view, Mr. Hughes was simply giving Mr. Doucette an opportunity to comply with the order. The order was not complicated and was a straightforward task. It is reasonable to conclude that Mr. Doucette understood the order and chose to be flippant with his supervisor about the order.

[88]      Even if no direct order had been given, Mr. Doucette's behaviour on the shop floor, and in particular in the conference room, demonstrated insolence and contempt towards his supervisor, which would also meet the criteria for insubordination (Canadian Labour Arbitration (supra), 7:3660).

[89]      There is no dispute that Mr. Hughes was Mr. Doucette's supervisor and had the requisite authority to give an order.

[90]      Mr. Doucette clearly disobeyed the order, both on the shop floor and in the conference room. The meeting in the conference room quickly degenerated, and Mr. Doucette was insolent and uncooperative with his supervisor. His constant interruptions and blocking his ears were childish and demonstrated that he had no intention of obeying his supervisor's order.

[91]      Although his supervisor and others in the workplace gave Mr. Doucette considerable latitude with regard to his attitude in the workplace on previous occasions, the behaviour on April 16 was clearly different from those occasions. There was no evidence that this high level of insubordination was ever condoned by the employer.

[92]      In conclusion, I find that the behaviour of Mr. Doucette on April 16, 2001, was insubordinate. The conversation on the shop floor and its continuation in the conference room is one continuous act of insubordination and is the proper subject of discipline.

Appropriateness of Discipline

[93]      The employer's position is that the April 16, 2002, incident was a culminating incident justifying discharge. The doctrine of culminating incidents sets out those circumstances where the employer can consider the grievor's past record of discipline in determining the appropriate amount of discipline. This doctrine is simply the necessary outcome of the principle of progressive discipline. If the employer can show that progressive discipline is not having the intended effect of correcting improper behaviour, then a culminating incident that would otherwise not result in discharge can be used to justify discharge.

[94]      The use of a culminating incident to justify discharge requires the following elements:

(1)	the culminating incident must be an incident that is subject to discipline;
(2)	the prior record that the employer relies on must have been brought to the employee's attention at, or close to, the time of occurrence. Frequently, arbitrators have ruled that the employer cannot rely on incidents for which no disciplinary action was imposed at the time;
(3)	the prior record must be substantially related to the culminating incident (not all arbitrators have agreed with this element: see Canadian Labour Arbitration, (supra) 7:4314).

[95]      I have already concluded that the April 16 incident was an incident that was subject to discipline. This was not a trivial incident, but I agree with the employer that by itself it does not warrant discharge.

[96]      At the hearing, counsel for the employer introduced evidence of two occasions whereby the grievor allegedly refused to perform work. Mr. Doucette was not disciplined for either of those incidents. Counsel for the employer submitted that non-disciplinary matters could be used as part of the prior record, while counsel for the grievor submitted that such evidence could not be considered. There is no consensus view on the appropriateness of using non-disciplinary incidents as part of a prior record (see Canadian Labour Arbitration (supra)). DND's Discipline Policy (Exhibit G-2) contemplates that only disciplinary misconduct will be considered in assessing the culminating incident:

PROGRESSIVE DISCIPLINE

29.      . However, in order to apply progressive discipline, certain conditions must be met: a new act of misconduct must be proven (in the case of discharge, this would be known as the culminating incident); it must be clear that management considered the past record when determining the disciplinary measure; and the employee must have been aware of the discipline awarded for each previous act of misconduct. (Emphasis added)

[97]      I am not convinced that non-disciplinary matters should always be excluded from the prior record. However, there are some factors associated with the non-disciplinary incidents in this case that lead to the conclusion that they should not be included. There was no evidence that these incidents were brought to Mr. Doucette's attention through counselling letters or performance appraisals. The incident involving Chief Petty Officer Dulude was not even discussed with Mr. Doucette. Also, all the managers involved (specifically, Chief Petty Officer Dulude and Mr. Yates) were not called as witnesses and therefore were not subject to cross-examination. Since these incidents relied on by the employer were not the subject of discipline, Mr. Doucette never had an opportunity to challenge the conclusions drawn by the employer related to these incidents. Mr. Doucette did not grieve the prior discipline imposed by the employer and thereby waived his right to challenge the conclusions reached by the employer. Obviously, he was never given an opportunity to grieve the non-disciplinary incidents and therefore cannot be said to have waived his right to challenge the employer's conclusions on the non-disciplinary incidents. If the employer wants to rely on these incidents, it should call the managers who can testify, and be cross-examined, on the events relied on.

[98]      For the above reasons, these non-disciplinary incidents cannot be considered as part of his prior record.

[99]      The employer's position is that the culminating incident shares a common thread with the earlier discipline imposed. I agree that the incidents at the gate with the Commissionaire and the Military Police are related, as they all involved a failure to obey orders or generally to respect the authority of the Commissionaire, who has certain delegated authority over employees ("Defence Controlled Access Area Regulations", Exhibit E-16) and the authority of the Military Police. The discipline imposed for late arrivals and early departures (the 10-day suspension) is different, however. The notice of disciplinary investigation refers only to attendance issues, and the main focus of the disciplinary letter is the obligation of Mr. Doucette to respect the attendance policy. The grievor testified that he recognized the importance of respecting the attendance policy and that he had been making every effort to respect the hours of work requirement. There was no evidence that attendance was a problem subsequent to the imposition of discipline. In this case, the discipline imposed resulted in the necessary correction in the grievor's attendance. Given that the discipline imposed had the intended corrective effect, the employer cannot then rely on it to justify discharge.

[100]      The disciplinary suspensions imposed for the incidents at the gate, although they related to separate incidents, were all imposed at the same time - December 19, 2001. For the July incidents, this represents a delay in discipline of over five months. It seriously undermines the purpose of progressive discipline to impose discipline all at once for a series of offences that take place over an extended period of time. However, Mr. Doucette was aware that discipline was being considered, and some of the delay is directly attributable to his missing disciplinary interviews.

[101]      Based on the above considerations, I conclude that the April 16, 2002 incident does not qualify as a culminating incident justifying discharge. The incident was, however, a serious matter and given the earlier disciplinary offences, one that deserves significant discipline. Taking into consideration the earlier disciplinary offences relating to his confrontations at the gate, as well as the spontaneous nature of the insubordination, a lengthy suspension of eight months would have been appropriate discipline. In coming to this conclusion, I have also considered the fact that problems with workplace relationships were not identified in Mr. Doucette's performance appraisals or in any counselling letters. In fact, his performance appraisal for the period ending April 2000 (Exhibit G-3) noted an improvement in his attitude toward supervision.

Is Reinstatement Appropriate?

[102]      The employer argued, in the alternative, that if I did find that discharge was not justified, I should not award reinstatement but should order compensation in lieu of reinstatement. Counsel for the grievor argued reinstatement should be the norm and compensation in lieu should be awarded only in exceptional circumstances.

[103]      If an adjudicator finds that discharge is not justified, the presumption is in favour of reinstatement unless there are grounds for determining that it is not appropriate. The Federal Court reviewed the jurisdiction of the Board to award compensation in lieu of reinstatement most recently in Bellavance v. Canada, [2000] F.C.J. No. 1284. In that case, the Court did not interfere with the adjudicator's decision to order compensation in lieu of reinstatement. In its reasons, the Court referred to the reasons of Justice Létourneau in the Federal Court of Appeal decision of Atomic Energy of Canada v. Sheikholeslami, [1998] 3 F.C. 349:

It is true that reinstatement is not a right even after a finding of unjust dismissal, but, as I. Christie et al. properly point out, the exception to reinstatement should be applied very cautiously otherwise the risk exists that an unjustly dismissed employee will be penalized by losing his job... . Indeed, a finding of unjust dismissal is a finding that the work relationship should not have been severed in the first place. In such cases, the presumption is, in my view, clearly in favour of reinstatement unless there is clear evidence to the contrary.

[104]      The test that has been articulated by adjudicators is whether the bond of trust has been irretrievably or irrevocably broken (for example, see McIntyre (Board file 166-2-25417) and Amarteifio (Board file 166-2-25829).

[105]      Although I have not considered evidence related to non-disciplinary matters as part of the grievor's prior record for disciplinary purposes, it is evidence that can be considered when assessing whether the bond of trust between the grievor and the employer, which has most definitely been broken by his acts of insubordination, can be repaired. In this case, there was evidence of the difficulties faced by the employer in finding work for Mr. Doucette. The reasons for this difficulty were not fully before me, as some of the reasons arose out of events that happened in 1996 or before. There was also evidence of the difficulties that the employer had in managing Mr. Doucette, and also difficulties in putting him on a self-directed team. His supervisors, in particular Mr. Hughes, testified that reintegration would be difficult and that morale in the workplace would suffer if Mr. Doucette were to be reinstated.

[106]      Mr. Doucette's behaviour on April 16, 2002, as well as his previous discipline, shows that he has a quick temper, uses sarcasm too freely, and can be very difficult to supervise. The incident involving Mr. Doucette's refusal to return to work in Plant Maintenance for Mr. Yates because of some perceived slight also demonstrates that Mr. Doucette is a difficult employee to manage. In light of the difficulty in obtaining work, and his frequent periods without meaningful work, his refusal to return to Plant Maintenance is difficult to understand.

[107]      It is indeed unfortunate that the Department did not make a concerted effort to address performance issues earlier with Mr. Doucette. Allowing an employee to remain significantly under-employed for so long is harmful to the employee, to other employees in the workplace, and to management. The events that led to this adjudication, although perhaps not inevitable, were certainly not surprising, given Mr. Doucette's employment situation over the past few years.

[108]      The re-introduction of Mr. Doucette back into the workplace, with all the surrounding circumstances of his behaviour problems and the difficulty in finding meaningful work for him, is a recipe for further conflict and tension within the workplace that is not in anyone's interests, including the grievor's. Mr. Doucette's explanation for his insubordination on April 16, 2002, also supports a conclusion that reinstatement is not appropriate. He explained his behaviour by saying that he felt that his "job was on the line", causing him to "shut down". If he were reinstated, his job would remain "on the line" and, as is demonstrated by his behaviour, he cannot cope with this level of stress.

[109]      Taking into account Mr. Doucette's age and length of service, 12 months' salary at the rate of pay for his classification and level on the date of this decision is appropriate.

[110]      Accordingly, the grievance is allowed, to the extent indicated above. I will remain seized of this grievance for 60 days from the date of this decision in the event that the parties encounter any difficulties in its implementation.

Ian R. Mackenzie,
Board Member

OTTAWA, July 31, 2003.