FPSLREB Decisions

[1]      Robert Clare has worked at the Leclerc Institution for over 20 years. On April 29, 2002, an incident occurred prior to the start of his shift scheduled for 4:00 p.m.

[2]      Given the circumstances, a disciplinary measure was imposed on Mr. Clare that was the equivalent of one day's work.

[3]      On June 6, 2002, Mr. Clare submitted a grievance contesting the employer's decision to impose a "one-day suspension" on him.

[4]      The grievance was sent to adjudication on November 26, 2002, and the hearing was held on May 22, 2003.

The Facts

[5]      Alain Bullett has 26 years of seniority, including 13 years as a correctional supervisor. He testified concerning the events of April 29, 2002, and submitted the observation report that he prepared on April 30, 2002 (Exhibit E-1).

[6]      The witness explained that work schedules are prepared in advance but that they can be amended on the day to address absences and to fill certain positions in the event of an emergency. On the afternoon of April 29, he helped a colleague, Mr. Gauthier, the supervisor in charge, complete the schedule for the night shift beginning at 4:00 p.m.

[7]      On the official schedule, Mr. Clare appeared in position 52, inmate search for the Wednesday and Thursday visits. Since April 29 was a Monday, the person in this position was available to be assigned as a replacement.

[8]      Generally, the person in position 52 is assigned as a replacement in another position in the Leclerc Institution. However, he can be assigned elsewhere, as was the case on April 29.

[9]      Since the Leclerc Institution also serves the region for the purposes of inmate placement in a hospital, two positions are provided at the Hôpital Cité de la santé. A special secure room has been set up in that location. Other rooms may be used depending on need and officers are assigned there.

[10]      Mr. Bullett prepared the assignments and Mr. Gauthier made the telephone calls to the replacements between 1:00 p.m. and 2:00 p.m. Since the practice was to use position 52 as the last replacement, Mr. Clare was assigned on April 29 to the Hôpital Cité de la santé and Mr. Gauthier called him to ask him to report there for 4:00 p.m.

[11]      Despite this call, Mr. Clare arrived at Leclerc Institution around 3:00 p.m. and asked Supervisor Bullett to provide him with a vehicle to go to Cité de la santé or to pay his transportation costs (kilometrage).

[12]      Mr. Bullett checked on the car and told Mr. Clare that he was not required to provide transportation or to pay him kilometrage given that Cité de la santé was within his headquarters area. He pointed out that Mr. Clare was notified in advance and that it was his responsibility to arrive at his workplace for 4:00 p.m.

[13]      It was 3:40 p.m. when Mr. Bullett asked Mr. Clare to report to Cité de la santé. Mr. Clare indicated that he would not leave Leclerc Institution until 4:00 p.m. in order to go to Cité de la santé.

[14]      Mr. Bullett ordered Mr. Clare to go to his workstation at Cité de la santé, otherwise he would be suspended. The latter apparently retorted that it would be better to suspend him because he was not leaving until 4:00 p.m. to go to Cité de la santé.

[15]      Around 3:55 p.m., Mr. Clare changed his mind and told Mr. Bullett that he would be going to Cité de la santé. Mr. Bullett told him that it was too late since someone else had been asked to replace him and that, in any event, it was 3:55 p.m. and he could not be at his post at Cité de la santé by 4:00 p.m.

[16]      Louise Maillette is currently the unit manager at Leclerc Institution but she has held this position on an acting basis since October 2000. Informed of the incident on April 29, 2002, she reviewed the observation report from Supervisor Alain Bullett and met with Mr. Clare on May 6 to obtain his version of the incident.

[17]      Mr. Clare told her that since his shift started at 4:00 p.m, he did not have to listen to orders before then.

[18]      In making her decision, Ms. Maillette referred to the Code of Discipline (Exhibit E-4) and pointed out that an employee who reports late for work is committing an offence (section 5b). She believed that Mr. Clare's primary responsibility was to report on time for work and then to file a grievance if he objected to the policy on the reimbursement of travel expenses.

[19]      Since the employer had to replace Mr. Clare for his shift at Cité de la santé, Ms. Maillette felt that a $125 penalty was fully justified. This penalty was subsequently reduced to $62.50. Consideration must also be given to the fact that Mr. Clare was paid for his shift on April 29 although he was sent home by the supervisor. The penalty was imposed for his refusal to obey an order and to compensate for the wrong that he caused the employer in requiring him to obtain a replacement.

[20]      For his part, Mr. Clare stated that, in the past, the employer has reimbursed for travel expenses when an employee is assigned to Cité de la santé. However, for the past several years, the employer has been calling replacements or other available employees on the phone to tell them their work location.

[21]      Mr. Clare does not deny the facts. However, he claims that he is surprised that he can be suspended or given orders between 3:00 p.m. and 3:50 p.m. when his shift starts at 4:00 p.m.

[22]      He submitted in evidence the work schedule, "roll call" (Exhibit F-1), to show that he was actually assigned to position 52, inmate search, at Leclerc Institution.

[23]      He agreed that on days other than Wednesdays and Thursdays, the employer assigns him as a replacement for other positions in the facility. That is why employees on the 4:00 p.m. shift generally arrive at Leclerc Institution around 3:30 p.m. to check the schedule and talk among themselves in the lounge. On April 29, however, he was told by telephone to report to Cité de la santé for his shift.

[24]      He pointed out that the Travel Directive (Exhibit F-3) is not clear on the reimbursement of travel expenses.

[25]      In conclusion, he explained that he changed his mind around 3:55 p.m. after calling his union representative who advised him to go to work. Mr. Clare admitted taking a few minutes before accepting the union representative's suggestion.

[26]      Michel Blondin is a CX-01 and has more than 30 years of service. He testified that the travel time between Leclerc Institution and Cité de la santé is about 10 minutes.

[27]      He testified that he had previously been reimbursed his travel expenses to report to Cité de la santé. As for the incident on April 29, 2002, he recalled that around 3:20 p.m. his colleague, Mr. Clare, and a supervisor were discussing the issue of transportation. Around 3:40 p.m., Mr. Clare returned to the lounge and stated that he had been suspended even though he was not even on duty.

[28]      Ronald Plante has been an officer at Leclerc Institution since 1998. Previously, he worked at Donnaconna and Sept-Îles. He reported that everywhere except Leclerc, and especially at Sept-Îles, he was reimbursed for his travel. He confirmed the facts regarding the April 29 incident and mentioned that it was he who advised Mr. Clare to call his union representative. According to Mr. Plante, the travel time from Leclerc Institution to Cité de la santé is 15 minutes.

Arguments

[29]      According to the employer, Mr. Clare received a clear order to report to work at Cité de la santé for 4:00 p.m. and refused to obey it by stating that he would not leave Leclerc Institution before 4:00 p.m.

[30]      Mr. Clare was fully aware that he had to work at Cité de la santé and it was important that he report there for the start of the shift.

[31]      If Mr. Clare wants to challenge the policy on travel expenses, he can ask the union to pose the question to the National Joint Council.

[32]      For her part, Mr. Clare's representative argues that it is important to determine whether an order can be given to an employee when he has not started his shift. She points out that, in the end, around 3:55 p.m., Mr. Clare agreed to report to Cité de la santé and that accordingly, the penalty imposed by the employer, if there was reason for any at all, was too severe.

Reasons for decision

[33]      Mr. Clare's grievance relates to the disciplinary penalty imposed on him. I therefore do not need to examine the question of travel expenses, which are not the subject of the grievance.

[34]      The question to be decided is whether Mr. Clare committed any wrongdoing and whether the employer could give him orders prior to his shift.

[35]      In my view, consideration must be given to the fact that Mr. Clare was informed around 2:00 p.m. that he was to report to Cité de la santé. Despite this, he decided to report to Leclerc Institution around 3:10 p.m. and to have a discussion with a supervisor regarding transportation.

[36]      The evidence showed that, in general, correctional officers report to the Institution before their shift, check the amended schedule and chat among themselves. If there are discussions between an officer and a supervisor, they must be handled respectfully so as not to disrupt the work environment.

[37]      It was Mr. Clare who initiated the discussions and an observation is warranted. Mr. Clare was going to wait until 4:00 p.m. to leave Leclerc Institution and go to Cité de la santé.

[38]      At that time, around 3:40 p.m., Supervisor Bullett indicated to Mr. Clare that he needed to think about leaving earlier if he wanted to arrive on time at Cité de la santé. There is nothing inappropriate about this comment as it was a reminder to Mr. Clare that, under the Code of Discipline, an employee must report to his workstation on time.

[39]      In the scenario where an employee arrives in the lounge in civilian dress 10 minutes before the start of his shift, it would be normal for a supervisor to comment to him that if he remains dressed in that manner he will not work his shift.

[40]      According to the facts, the supervisor informed Mr. Clare that if he maintained his position of not leaving until 4:00 p.m. and thus voluntarily arriving late to his shift at Cité de la santé, he would be replaced by someone else to ensure that the service started on time.

[41]      Mr. Clare may not invoke his own turpitude. He placed himself in a difficult position for the sake of a few dollars in transportation costs. By so doing, he wronged the employer by indicating his intention to disrupt service and arrive late at Cité de la santé.

[42]      In the end, Mr. Clare returned home on April 29 with no cut in pay.

[43]      It was later that a disciplinary penalty was imposed on him equivalent to one day's pay. This penalty was reduced to $62.50. Considered from another angle, Mr. Clare could be said to have received $62.50 although he did not work the night of April 29, 2002.

[44]      The general rule to obey and to file a grievance afterwards was totally appropriate in this case and I believe that the disciplinary penalty is justified. I therefore dismiss the grievance.

Jean-Pierre Tessier
Board Member

OTTAWA, July 11, 2003

P.S.S.R.B. Translation