FPSLREB Decisions

Heard at Abbotsford, British Columbia,
August 9 and 10 and December 5, 2017.

REASONS FOR DECISION

I. Complaint before the Board

1        The complainant, Nubia Vanegas, filed a complaint under s. 133 of the Canada Labour Code (R.S.C., 1985, c. L-2; CLC) alleging that the respondent, the Correctional Service of Canada (CSC), violated s. 147 by taking retaliatory action against her related to the exercise of her rights under s. 128 when she refused to perform unsafe work on October 31, 2014. The complainant alleged that as a reprisal for that exercise of her rights, the respondent cancelled her annual leave, without notice.

2        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) and the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act.

II. Summary of the evidence

3        On October 31, 2014, the staff of the day shift at Mountain Institution in Agassiz, British Columbia (“the institution”), exercised their right to refuse unsafe work when the institution’s management refused to order a cell search following the discovery that a restricted tool, thread snips, had gone missing from the CORCAN upholstery shop the day before. Thread snips are a hinged tool that when fully opened may be used by inmates as a weapon in a slicing or stabbing fashion. Once the thread snips were discovered missing from the upholstery shop, it was searched, and the institution was locked down. Despite this, they were still missing on October 31.

4        In October 2014, the institution had its highest number of weapons seized in five years. The acting Warden at the time, Shawn Huish, reopened the living units to the normal daily routine, even though the thread snips had not been found. This precipitated filing the work refusals. The elevated risks to the correctional officers (CXs) on duty posed by the inmates’ behaviour and the missing thread snips led to the work refusal.

5        The work refusal occurred near the end of the day shift. When the day crew had completed the handover to the evening crew, management representatives told them that if they supported the work refusal, they would not be allowed to leave the institution at the end of their shift. The complainant alleges that the correctional managers (CMs) on duty told the CXs that if they removed their names from the s. 128 work refusal, they could go home. According to the complainant, the respondent’s act of making those CXs who supported the work refusal stay after their shift was a reprisal for invoking their rights under the CLC. The CXs were kept from celebrating Halloween with their families, and as for the complainant, her preapproved vacation was delayed by 45 minutes.

6        The respondent tried to place blame for its actions in part on changes to the CLC that became effective on October 31, 2014, because of its unfamiliarity with the procedures that became effective on that day despite the fact that it had received plenty of notice of the impending changes and that the managers at the institution had received training on the implications of the changes.

7        Mr. Huish testified that the institution is at medium security and that it has a population of 400 to 450 inmates. It is made up of four living units around one central eating area. The population has a very active First Nations component; it is a very busy place.

8        At approximately 15:00 on October 30, 2014, the thread snips were discovered missing in the CORCAN upholstery shop. The work supervisor called the inmates back to the shop to be interviewed and searched. The shops were searched, but the snips were not found. The last time they had been accounted for was at 13:00 that day.

9        Mr. Huish ordered that the institution be put into lockdown for a further search. The routine was modified to mitigate for the loss of the tool and to facilitate the search. The modified routine remained in place until 22:45 that day, and it was resumed on October 31, 2014.

10        Information had been received that an inmate had hidden the tool to provoke a lockdown because he was in debt to another inmate and wanted time to pay it off. The inmate had deliberately hidden the tool somewhere in the CORCAN shop, and it had not been taken into a living unit. Based on this information, Mr. Huish ordered that the normal routine be resumed.

11        Mr. Huish testified that he met with the CMs and that he explained the reason for his decision to resume the normal institutional routine at 12:00 on October 31, 2014. When the CMs relayed this information to the CXs, the officers invoked their right to refuse unsafe work under s. 128 of the CLC. Once this happened, CMs Cheryl Arsenault, Mark Fuson, and Roger Sehra met with Mr. Huish to discuss what needed to be done and the process that needed to be followed and its impact on the institution’s operational requirements. Since it was locked down when the CXs exercised their right to refuse to work, this added to an already very tense environment.

12        According to Mr. Huish, between 13:00 and 15:00 on October 31, 2014, everything came to a head. Since the institution was still locked down despite his decision to revert to the normal routine, the inmates were in their cells, without school or other programs, visits, movement within the institution, or recreation. The operational realities were that he had to ensure that everyone was safe, which meant that rounds could be done, that inmates were fed, that their human needs were met, and that they had access to healthcare. While the work refusal was underway, everything else was put on hold. A work refusal throws the institution into a state of uncertainty.

13        During a regular lockdown, the institution can operate with less staff, unless a search is underway, which requires additional staff. A search under s. 53 of the Corrections and Conditional Release Act (S.C. 1992, c. 20; CCRA) always involves overtime. CXs identify their willingness to work overtime in the respondent’s scheduling and deployment system, which produces a list of whom to contact and in what order, when their services are required. The CMs use this list to order overtime; they may instead cold-call CXs who are off work. If there is not enough staff to cover the institution’s overtime needs, the CMs canvass for availability among those CXs who are about to end their shifts. Failing this, a CM may have to order a CX to remain on shift. On October 31, 2014, according to his testimony, rather than follow this normal process for overtime, Mr. Huish asked for everybody finishing a shift to stay until the overtime needs could be determined because of the unique circumstances.

14        The unique circumstances were the new changes to the CLC. Mr. Huish did not know what was required for the investigation into the work refusal, and the institutional routine was not settled, so he did not know how many CXs were required. Mr. Huish testified that he was aware that the CLC changes had come into effect on October 31, 2014, and that he had received training on what was required. He asked the acting Deputy Warden to contact Employment and Social Development Canada to establish the process he was to follow. Eventually, they received word to follow the new process, which involved having one representative for all the CXs, which took until 15:45. The day shift had ended at 15:00. Mr. Sehra had been dispatched to advise the CXs to remain after their shift until they were notified that they could leave.

15        On cross-examination, Mr. Huish testified that the decision to keep the day shift on-site was made once the afternoon shift was in place. He did not know if all the posts were covered, but it would have been one of the factors he considered when he made the decision to keep the day shift on hand. He denied that he advised the day shift or that he had them advised that they were to stay, to assist with searches. Any searches conducted on the night shift would have been done not in the cells but in the CORCAN shops.

16        Carole Chen testified that she was the acting Deputy Warden at the institution at the time of the work refusal. She reported directly to Mr. Huish. She was involved in key discussions with him on October 31 about how to proceed. According to her, they had exhausted all their options other than a search under s. 53 of the CCRA. She, the acting Warden, and the Correctional Manager, Operations (CMO), assessed the risk posed by the missing tool and considered options to mitigate and manage it. A meeting was held in the Visits and Correspondence area of the institution with all staff and managers at which the options were discussed, following which the CXs met on their own. They were not confident with the acting Warden’s risk assessment and therefore chose to exercise their rights under s. 128 of the CLC. Ms. Chen was not sure how many of the CXs on the day shift were involved in the work refusal.

17        Ms. Chen testified that the Deputy Warden is not involved in a work refusal process but is focused on institutional operations. At the end of the day shift, the institution was moving into the dinner routine; the inmates had to be fed. When the work refusal happened, a decision had to be made as to how this would be done. Everything depended on how the work refusal was dealt with. Had the institution been locked down and searched, the inmates would have been fed in the units, and the shower routine would have been cancelled. From Ms. Chen’s perspective, the key operational requirement at the time was how the institutional routine would change. To manage this, the work refusal had to be resolved, as did the question of whether all the CXs needed to remain or whether one CX could speak for all of them.

18        The CXs going off-shift were expected to stay until the situation was resolved and were paid overtime for the time they remained after the end of their normal shift, in accordance with the National Direction – Policy of the Management of Overtime for Correctional Officers (Human Resources Management Labour Relations Bulletin 2013-06, Exhibit 1, tab 17). On cross-examination, Ms. Chen testified that she did not know whether the CXs were ordered or asked to stay after their shift ended. According to her, they did not follow the regular overtime rules as the situation was outside the institution’s normal operations. They were in the world of emergency measures for labour disruptions. The staff that remained were accounted for by Mr. Sehra and the other CMs, who entered the overtime into the scheduling and deployment system so that the CXs were paid at the appropriate rate for the time they were required to remain at work.

19        Gwen Bradley was the CM of scheduling and deployment at the institution at the time in question. She was on sick leave on October 31, 2014, and testified that her only involvement with the work refusal was on November 3, 2014, when she entered the overtime for the CXs who were required to stay past the end of their shift. She did not record any overtime for the complainant as the time in question was part of her regular shift, which she had booked off as vacation leave.

20        The complainant’s vacation leave was to start at 15:15. Ms. Bradley changed this in the scheduling and deployment system to show that it started at 16:00. Between 15:15 and 16:00, the complainant received her regular pay. With that change, Ms. Bradley added a comment that the complainant had been ordered to work from 15:15 to 16:00. For the CXs who were paid overtime, she noted on their records that it was “due to 128”.

21        Mr. Sehra testified that he was the CMO at the time in question and that he was responsible for the institution’s safety as a whole. After the acting Warden briefed the staff and advised them that there was no danger and that the institution was resuming its normal routine, the CXs invoked their rights under s. 128 of the CLC. He testified that he was in his office in the Operations Building when the work refusal occurred. He went to the operations desk to sort out the routine with CM Arsenault and CM Fuson. The institution was to be on a reduced staffing level as the weekend was approaching.

22        CM Sehra was ordered to coordinate the resolution of this question through the CMO’s office by the acting Assistant Warden of Operations (AWO), Kevin Kooistra. Mr. Sehra was to advise the CXs on the day shift that they were to remain until management figured out how it would deal with the work refusal. The type of work refusal has a direct impact on the institution’s operations. This one was institution-wide, so it had much broader implications than most.

23        When asked on cross-examination if Mr. Kooistra had been angry with the work refusal, Mr. Sehra testified that his impression was that Mr. Kooistra thought that the needs of the institution took precedent over the needs of the CXs. Mr. Sehra admitted that Mr. Kooistra might have told the CXs that the CCRA was paramount to the CLC. Mr. Sehra did not recall the CXs being told that if they took their names off the list of work refusal supporters, they could leave.

24        The acting AWO, the CMs, the acting Deputy Warden, and the acting Warden were all involved in determining the routine, according to Mr. Sehra’s testimony. As the day-shift staff were about to leave, the decision was made to hold them until it was determined how many were needed for the evening. As they were leaving, Mr. Sehra asked them to stay in the muster room, where he met with them. He told them that he needed to sort out the work refusal and the routine before he could allow them to leave.

25        Mr. Sehra testified that he asked the assembled CXs to stay as long as they were needed. A number of the CXs present voiced concerns, to which he responded that they would be released as soon as possible. According to Mr. Sehra’s evidence, he advised those assembled that they would be paid overtime. One of the CXs asked if he was ordering them to stay; he responded that he was. There was no conversation at any time about discipline or the possibility of discipline for anyone’s involvement in the work refusal. Mr. Sehra denies telling any of the CXs that if they left, they would be disciplined. He also denied telling any of them that if they withdrew their support for the work refusal, they would not have to stay or report to the muster room. CMs Arsenault and Fuson directed the CXs to report to the muster room before leaving. Mr. Sehra met the CXs there.

26        According to Mr. Sehra, it is very unusual for an officer to be ordered to stay after his or her shift. In his opinion, it was appropriate in the circumstances because the respondent was not sure what the routine would be and consequently did not know what the staff levels needed to be to meet the work refusal concerns. A solid routine fosters officer safety. After Mr. Sehra communicated the order to stay, and once he was satisfied that he had sufficient personnel to meet the institution’s operational needs, he told those assembled that they could leave. In total, the officers were held up for 30 to 45 minutes, for which they were paid at the overtime rate.

27        According to Mr. Sehra, things were strange at the time because the CLC was undergoing changes. The institution’s management needed to determine which version of the CLC applied as they were on the cusp of the effective date of the changes. In addition, the inmates had been locked up all the previous night and throughout the day. Management needed to ensure that sufficient CX staff were on hand to meet the increased demands of the lockdown if the decision were made to not revert to the normal routine for the night shift as a result of the work refusal.

28        The complainant testified that when she reported to work on October 31, 2014, the institution was on a modified routine, which had been started the previous evening. She did not attend the briefing in Visits and Correspondence with the other CXs because of the post to which she had been assigned. She did eventually find out that a work refusal had been invoked because of the acting Warden’s decision to return to the normal routine rather than to continue to search for the missing thread snips.

29        That day, she worked a 12-hour shift that was to finish at 19:15, but she had taken annual leave from 15:15 to 19:15. She was relieved early on October 31, 2014, and went to the CM office to sign out. When she arrived, CMs Fuson and Arsenault told her that other CXs had invoked their rights under s. 128 of the CLC because of the missing thread snips. She was also told that CM Fuson was leaving for the day. She was not told that she could not leave as scheduled. CM Arsenault asked her if she supported the work refusal. When the complainant replied in the affirmative, CM Arsenault recorded her name on a sheet of paper with the names of the other CXs who supported it. She was then told that she could not leave because she supported the work refusal and that her annual leave was cancelled.

30        The complainant had booked the annual leave for a doctor’s appointment. When she told that to CM Arsenault, she was told that she could go to the appointment if she took her name off the list of those who supported the work refusal. CM Sehra was standing nearby and gave the complainant a direct order to go to the muster room and to wait for further direction. When the complainant arrived there, only those on the list of work refusal supporters were present.

31        CM Sehra entered the room and tried to be nice. He told those present that he did not want to do this but that there had been changes to the CLC, and they all had to wait until Labour Canada made a decision on the work refusal. He said that they had to stay because they might need to be questioned. CX Grossman asked him if he would be disciplined if he left, and CM Sehra told him that he would. The only way anyone could leave the room was if they removed their name from the list of work refusal supporters. According to the complainant, no mention was made of the institutional routine, an emergency, or a crisis. They were being forced to stay because they supported the work refusal.

32        Not all CXs who supported the work refusal were present, only those who report to the CMO’s office before leaving. Those who worked on mobile patrol or in the count board office and officers from the principal entrance and sally port were not there. Neither were officers from the Visits and Correspondence area. The complainant was very upset about being ordered to stay. She had a very important doctor’s appointment scheduled. She felt intimidated because she had exercised her rights under s. 128 of the CLC. What happened in the muster room had nothing to do with the institutional routine or carrying out a search. In her opinion, those assembled were being punished for supporting the work refusal.

33        Ryan Jensen testified that he was the co-chairperson of the Regional Joint Occupational Health and Safety Committee when the changes to the CLC were introduced in 2014. According to him, the key change was to the definition of “danger”. The changes to Part II of the CLC became effective on October 31, 2014; however, no changes were made to ss. 128(11) and (12). According to Mr. Jensen, that meant that the respondent could have proceeded to investigate whether the danger existed, that it could have written its Phase I report without the CXs, and that the CXs could have designated one of them as their representative. Again according to him, nothing in the CLC required the respondent to keep the CXs on-site after the end of their shift merely because they had exercised their right under s. 128 of the CLC. He testified that he has seen the respondent do this only a couple of times, when at the end of a shift, the institution was short-staffed.

34        Mr. Kooistra testified in rebuttal. On October 31, 2014, he was the acting AWO at the institution and was responsible for its operational requirements, including security, movement routines, and managing the correctional workforce. He testified that he, the acting Warden, and the acting Deputy Warden consulted all the unions about moving forward with reverting to the normal institutional routine. The acting Warden had decided either that the thread snips were in the CORCAN shops or that if they had made their way into the compound, their presence was a regular condition of employment for CXs, who are exposed to threats from inmates. The unions were advised that the institution was returning to its open and regular routine.

35        When this was shared with the unions, a CX invoked his right under s. 128 of the CLC just before the day shift ended. According to Mr. Kooistra, this posed a significant impact to the operational routine, so the CM on the CMO desk, with Mr. Kooistra’s support, decided that the day shift would be ordered to remain in the institution. The first reason for this decision was to ensure institutional safety and security, including the requirement for further searching. The move to a modified routine meant that the inmates would be fed in their cells, which required additional staff. The second reason was to ensure compliance with the changes to the CLC, which became effective on October 31, 2014.

36        Mr. Kooistra denied saying that the inmates’ rights were more important than the CXs’ rights. According to him, that was an oversimplification of what was said. He did say that conflicts can arise between an employee’s rights and those of an inmate. The respondent could not order a search under the CCRA, as the CXs were demanding, because the thread snips did not meet the definition of “contraband” under the CCRA. Cell searches are authorized only when contraband exists. The respondent was required to balance the right to refuse unsafe work with the rights of the inmates. The CXs took the position that the only way to ameliorate the danger that day was a search under s. 53 of the CCRA, which the respondent did not have the authority to carry out.

37        In cross-examination, Mr. Kooistra disagreed that the thread snips, which were a restricted tool, could be considered a weapon as they were not created for that purpose and do not meet the definition of “weapon” in s. 4(b) of the CCRA. He also testified that anything can be a weapon, depending on the intent of the person holding it. He testified that he did not know why wardens would have ordered illegal searches in cases in which things such as thread snips went missing but maintained that he did not have the authority to do that and would not have done it. According to his evidence, a CX job comes with inherent risk, of which this situation was just a part.

38        Mr. Kooistra did not know why the CMs on duty the day of the work refusal kept a list of those involved but posited that it was a common practice of accounting for the whereabouts of personnel. Allowing CXs to leave or stay depending on whether their names were on the list was not the issue the respondent was trying to address. The critical issue was that the institutional routine had changed, which required sufficient staff to meet the inmates’ needs. According to Mr. Kooistra, the day-shift CXs were first asked to stay and then were directed to stay, even though, according to his evidence, he was not present when the CXs were initially requested to stay.

39        Mr. Kooistra described the CXs as having been in a highly emotional state while he described himself as having been calm. According to his testimony, he did not threaten any CXs with discipline, although he did tell the CMs that if the CXs did not follow orders to stay, they were to be disciplined. They were required to stay as part of mustering resources, not because they had invoked their rights under s. 128.

III. Summary of the arguments

A. For the respondent

40        The respondent did not penalize or discipline the grievor for invoking her rights under s. 128 of the CLC. The respondent’s evidence establishes that management’s actions on October 31, 2014, were purely administrative. The respondent has met the burden of proof.

41        To succeed, a complaint under s. 133 of the CLC must meet the following test, from Vallée v. Treasury Board (Royal Canadian Mounted Police), 2007 PSLRB 52 at para. 64:

1. the complainant must have exercised his or her rights under s. 128 of the CLC;
2. he or she must have suffered reprisals (ss. 133 and 147);
3. the reprisals were of a disciplinary nature, as defined in s. 147; and
4. there is a nexus between his or her exercise of his or her rights under s. 128 and the actions taken against him or her.

42        The Board’s role in such hearings is to focus on the reprisals and not on the question of the danger. The question it must determine is whether the respondent’s actions amounted to a reprisal prohibited under s. 147 of the CLC (see Nash v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 4 at para. 72; and LeClair v. Treasury Board (Correctional Service of Canada), 2010 PSLRB 49 at paras. 134 and 136 to 161). Under s. 147, the respondent may not dismiss, suspend, lay off, demote, impose a financial or other penalty, or discipline or threaten to discipline an employee because he or she exercised the right to refuse unsafe work.

43        In this case, the respondent’s actions were not disciplinary. Whether an employee has been disciplined is purely a question of fact (see Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40 at para. 34; and Nash, at para. 86). The facts of this situation are that Mr. Sehra gave an order to the CXs, who invoked their right to refuse unsafe work with respect to remaining beyond the end of their shift. The respondent concedes that it was an order and not a request and that a breach of an order draws disciplinary action.

44        The rationale for this order was that the number of staff involved in the work refusal meant that an assessment of the institution’s operational needs was required. The respondent was required to meet the inmates’ human entitlements while carrying out the search and to ensure their safety and security and that of the staff. The CXs were kept after their shift while the respondent assessed its needs because at that point, it did not know how the night shift would react if the institutional routine did not return to normal. And overtime is expected in a correctional environment.

45        Changes to the CLC, which were effective October 31, 2014, required discussions between the institution’s management, the respondent’s regional and national headquarters, and Employment and Social Development Canada to determine the impact of the changes. The changes were not trivial or clerical in nature; they changed the definition of “danger” (see Correctional Service of Canada v. Ketcheson, 2016 OHSTC 19 at paras. 159, 170, and 171). The respondent took the time to seek advice, and it paid the CXs overtime to wait. Being made to wait 30 minutes cannot be considered discipline.

46        A reprisal is an action taken with the intention to cause harm. A penalty is a punishment imposed to ensure that an action is performed (see Tanguay v. Statistical Survey Operations, 2005 PSLRB 43 at paras. 19 and 20). There is absolutely no evidence of either in this case. A penalty is defined in Gaskin v. Canada Revenue Agency, 2008 PSLRB 96 at para. 75, as a punishment imposed for a breach of a law, rule, or contract. Since no law or rule has been broken or contract violated, no penalty has been imposed. The CXs’ exercise of their rights under s. 128 was lawful, as was the respondent’s order to hang tight while the routine was settled. An imposition on employees’ time compensated at a premium rate is not a penalty. Ordering them to stay was authorized under the Financial Administration Act (R.S.C., 1985, c. F-11).

47        To determine whether the respondent’s actions were disciplinary, the Board must look at the respondent’s intentions, which were prioritizing the concerns with the institutional routine and meeting its obligations under the CLC. Not every action taken by an employer that adversely affects an employee is discipline. Administrative action does not convert to discipline. If the employee’s behaviour is culpable and the employer’s intent is to correct it, then the action is disciplinary. If the behaviour is not culpable and there is no intent to correct it, then the employer’s action is not disciplinary.

48        The complainant had booked annual leave but did not raise it with Mr. Sehra at the time. The impact on her was negligible. The respondent reacted to the situation responsibly, and the impact of its actions was negligible on the CXs. This cannot be converted to a penalty because the CXs were unhappy with having to stay after their shift.

B. For the complainant

49        The presumption of the CLC is that without a rebuttal from the respondent, a complaint must be upheld. The complainant’s evidence was not challenged. She told CMs Arsenault and Fuson that she had to leave. They told her that if she wanted to leave, she had to take her name off the list of those supporting the work refusal. This is clearly set out in the complaint.

50        The list of work-refusal supporters (Exhibit 1, tab 3) was entered into evidence and is determinative of why they were forced to stay after the end of their shift on October 31, 2014. CM Sehra ordered them to go to the muster room and to stay there until they were told they could leave. They were ordered to stay against their will on the pretext of operational requirements, which was a sham or camouflage for making the CXs named on the list stay beyond the end of their shift. Changes to operational routines, modified routines, and lockdowns are all normal parts of daily life in institutions. The inmates’ needs are always met.

51        The evening shift had a full complement of staff that was ready to meet the institution’s operational needs. Why did the respondent think it needed a complement of 200% of its staff that night? Overtime is common in the institution, but it is voluntary. The blanket statement the CMs made, which was that if the CXs supported the work refusal, they had to stay, is consistent with the allegations in the complaint and the complainant’s testimony.

52        The penalty does not need to be disciplinary in nature (see Martin-Ivie, at para. 73). As long as it is connected to the exercise of rights under s. 128, there is an infraction. Nor does the penalty have to be financial in nature (see Chaves v. Treasury Board (Correctional Service Canada), 2005 PSLRB 45 at para. 69). Contrary to the respondent’s argument, only those CXs who exercised their rights under s. 128 were required to stay after their shift. How is it acceptable to plead ignorance to excuse its adversarial actions? Institutional management was aware that changes had been made to the CLC; it had received training in advance of the effective date of the changes. It is clear that Mr. Kooistra was of the opinion that exercising rights under s. 128 of the CLC violates the CCRA. The complainant’s evidence fits with the rest of the evidence and is more credible than Mr. Kooistra’s.

53        The overtime paid to those who were required to stay was paid only as an afterthought. The complainant had her leave credited, which is not relevant. The point is that the respondent ordered those CXs whose names appeared on the list to stay behind as a means of intimidation. The length of time they were detained is not the issue. The issue is the reasonableness of the order. The respondent had 2.5 hours before the end of the shift to figure out what it needed to do for the evening shift. The reasons it presented for its actions do not withstand scrutiny.

54        The only possible reason that remains for the respondent’s actions at the end of the day shift on October 31, 2014, was to threaten the assembled CXs with discipline. The only reason a CX can be recalled from annual leave is in an emergency. According to Ms. Chen, this was not an emergency. The complainant asks that the Board draw an adverse inference from the lack of testimony from Ms. Arsenault and Mr. Fuson.

55        In Beaudoin v. Treasury Board (National Defence), PSSRB File Nos. 160-02-19 to 23 (19880608), [1988] C.P.S.S.R.B. No. 154 (QL), the former Public Service Staff Relations Board determined that the respondent violated the CLC when the complainants were threatened with disciplinary action if they did not return to their workplace. A threat may be veiled or made by intimidation (see Ladouceur v. Treasury Board, PSSRB File No. 160-02-43, [1992] C.P.S.S.R.B. No. 109 (QL). A threat of discipline does not have to be explicit. The onus was on the respondent to prove that it never intended to discipline the employees (see Correctional Service of Canada v. Laycock, 2017 OHSTC 21).

IV. Reasons

56        The Board having reviewed exhibit 9 has determined that it should be sealed because it contains information related to inmates incarcerated in the institution. In order to determine whether restrictions such as this should be placed on the open court principle, an evaluation of the circumstances against the test set out in R. v. Mentuck, 2001 SCC 76, known commonly as the Dagenais/Mentuck test, is required.

57        The Dagenais/Mentuck test is generally cited as a two part test. The test requires the decision maker first to determine if an order limiting the open court principle is necessary in the context of the litigation to prevent a serious risk to an important interest and second to determine whether the salutary effects of the order would outweigh its deleterious effects on the public’s right to open and accessible adjudication proceedings.

58        The report in questions identifies people who are not party to this complaint and who have the right to their privacy. Allowing their identity to become part of the record serves no public or judicial interest and would be a serious risk to their privacy interests and for this reason I order exhibit 9 sealed.

59        The parties summarized my role in a case such as this, and that role has been stated many times in other cases. My role is not to determine whether the work that the complainant refused was a danger. It is to determine whether any acts of reprisal occurred and, if so, whether they occurred as a direct consequence of exercising her right to refuse unsafe work, which would have violated the CLC.

60        The relevant sections of the CLC are ss. 133 and 147. Section 133(1) provides as follows:

133 (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.

61        Section 147 of the CLC states as follows:

147 No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

1. has testified or is about to testify in a proceeding taken or an inquiry held under this Part;
2. has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or
3. has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

[Emphasis added]

62        Section 133(6) of the CLC is also relevant because it provides that once an employee has established that he or she filed a complaint under s. 133(1) in respect of the exercise of the right to refuse to perform work under ss. 128 or 129, the burden of proof shifts to the respondent to show that s. 147 was not contravened. Section 133(6) reads as follows:

133 (6) A complaint made under this section in respect of the exercise of a right under section 128 or 129 is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party.

63        It is uncontested that the complainant filed a complaint pursuant to s. 133(1) of the CLC within the applicable time limits, so theoretically, her initial burden has been met, and it was up to the respondent to show that s. 147 was not contravened.

64        From the types of reprisals listed in s. 147 of the CLC, the complainant really only alleged that she had been disciplined or threatened with discipline for having exercised her right to refuse work. The nature of the threat was that if she proceeded to leave on her vacation after having been told to stay, she would have been disciplined.

65        The complainant argued that the respondent acted out of reprisal manner to allow the complainant to proceed on leave as previously scheduled. The sole reason for this action according to the complainant’s argument was retribution for the complainant exercising her rights under section 128 of the CLC. To determine that a reprisal occurred, there must be a link between the exercise of the complainant’s rights under Part II of the CLC and the action taken by the respondent (see Vallée, at para. 64). The complainant’s argued that in light of her own testimony, this case is open and shut.

66        The complainant also alleged that the respondent’s actions of taking time to determine the appropriate process to follow and the institution’s routine, which delayed her annual leave by 45 minutes, were reprisals for her support of the exercise of s. 128 rights by CXs at the institution, which included her. Section 147 of the CLC does not require that a reprisal be disciplinary in nature; it could be but does not have to be.

67        Retaliatory action must however be inextricably linked to the complainant’s exercise of her rights under section 128 of the CLC (see Tanguay at para 14; and Martin-Ivie). There is no evidence whatsoever before me that the complainant was the subject of retaliatory action by the employer for invoking her rights. Furthermore, there is no evidence that the respondent threatened her in any way as a result of exercising her rights. The question then is whether the respondent’s actions in assessing whether or not the complainant’s presence was required due to the changes in the CLC that came into effect the day of the refusal action and in assessing what its operational requirements were at the end of the shift the day of the refusal were a form of retaliation?

68        The presentation of this entire case focused on the fact that the CXs involved in the work refusal on the day shift of October 31, 2014, were not allowed to leave the institution at the end of their shift. They were ordered to remain in the muster room while the respondent determined its operational needs and its obligations under the recent changes to the CLC. The complainant’s situation was coincidental to the entire situation; however, only her situation was before me, not that of the entire group of CXs involved. Her shift would not have ended except for the leave she had booked, unlike all the other officers who stayed on-site.

69        I find as a matter of fact that the complainant had booked annual leave and had expected that her shift would end at 15:15 on October 31, 2014, to attend a doctor’s appointment. Instead, she was detained for 45 minutes with other CXs as a result of her involvement in the work refusal. Until CM Arsenault advised the complainant about the work refusal and asked her if she supported it, the complainant was unaware that it had happened. In response to CM Arsenault’s question, she indicated that she supported it. At that point, she was advised that she was not to leave the institution. Her leave was cancelled before she left; it was not a case of being recalled from leave.

70        The complainant’s opinion of the events in the muster room is that what happened there had nothing to do with institutional routines but rather that keeping them there was a means of punishing those assembled. To determine whether the respondent’s actions were reprisal, the Board must examine the respondent’s intent behind taking the impugned actions. The onus was on the respondent to prove that it never intended to be retaliatory (see Laycock).

71        Many people representing the respondent were involved in this situation. The CMs were the face of management, but the acting Warden, acting Deputy Warden, and acting AWO were the respondent’s directing mind and will. I have no doubt that the work refusal exercised that day sent the institution into further turmoil after a day spent searching for the missing tool. This caused frustration, particularly to Mr. Kooistra, who seemed particularly concerned with the competing rights of the inmates and the CXs. This frustration might have been evident to those who interacted with him, as described in his evidence, but frustration does not equate to an intention to discipline nor is it proof of retaliation.

72        Mr. Huish, as the acting Warden and the institution’s chief directing mind, did not have discipline or retaliation as his purpose when he agreed that the CXs should be kept on-site. His purpose was to clarify the respondent’s obligations under the changes to the CLC and to ensure that the institution’s operational requirements were met. But the fact that he felt that he needed to keep so many of his CXs on-site after their shift is puzzling since as Mr. Jensen testified, the sections of the CLC involved had not changed. However, that does not impute malice into Mr. Huish’s decision.

73        Brown and Beatty, in Canadian Labour Arbitration, 4th edition, discuss the nature of disciplinary sanctions at paragraph 7:4210. When deciding whether an employee has been disciplined, a decision maker must consider both the purpose and the effect of the respondent’s actions. The essential characteristic of disciplinary action is the intention to correct bad behaviour. A respondent’s assurance that it did not intend its actions to be disciplinary often, but not always, settles that question. The respondent is entitled to ask for clarification in the course of an employee’s work refusal, to determine what exactly are the obligations of the respective parties. However, the respondent is also obliged to know its obligations under the legislation regardless of when they come into force. Using this ignorance as an excuse to delay the CXs at the end of their shift might have been bad labour management, but I cannot find that it was retaliatory in nature.

74        A respondent is entitled to maintain its operations even in the face of a work refusal. In the case of a penitentiary, the CCRA mandates that certain service levels be maintained for the health, safety, and security of the institution, the inmates, the staff, and the public. The respondent was within its rights to examine the impact of the work refusal on the institution’s routine and in light of the potential for a search under s. 53 of the CCRA, to delay the day shift’s departure, including delaying the complainant’s departure on leave, to ensure that it had sufficient staff to meet these needs. Once the appropriate staffing levels were determined, the day shift was released and was compensated appropriately for overtime, and the complainant was allowed to proceed on her leave. However, this complaint is not about those CXs who were detained after their shift, even though much was made of it throughout the hearing.

75        This complaint is about the complainant, who was scheduled to work and had expected to be on annual leave. Then, as a result of her involvement in a work refusal, 45 minutes of her annual leave was revoked. I have determined that this was not retaliatory in nature. The cancellation of 45 minutes of her vacation might have violated her collective agreement, but I cannot find that there was any link to the prohibited grounds listed in section 147 of the CLC as a result of exercising her rights under s. 128 of the CLC, or that it was an act of reprisal. The respondent sought to ensure that the institution’s operational needs were met before allowing her to proceed on leave, which it is entitled to do.

76        The obvious conflict between Mr. Sehra and the complainant, about whether he was present when CM Arsenault advised her to report to the muster room rather than leave the institution, cannot be resolved as the only people who could possibly confirm whether Mr. Sehra was present at the time did not testify.

77        Whether Mr. Sehra encountered the complainant in the CM office before the meeting or in the muster room is of little significance. The point is that the respondent’s actions were without malice and were necessary for institutional safety and in my opinion did not carry the necessary nexus between the exercise of the complainant’s right to refuse under section 128 and the actions taken by the respondent. Regardless of whether or not an employee has exercised their rights under the CLC, the employer retains the right to direct and manage its workplace.

78        For all of the above reasons, the Board makes the following order:

V. Order

79        I order Exhibit 9 sealed.

80        The complaint is dismissed.

July 25, 2018.