FPSLREB Decisions

Heard at Edmonton, Alberta,
March 15 to 18 and August 17 and 18, 2016.
(Rebuttal argument heard by teleconference on September 1, 2016.)

REASONS FOR DECISION

I. Indiviual grievances before the Board

1        The grievors in these proceedings, Sabrina Sandhu and Alysia Needles
(“the grievors”), were employed with the Correctional Service of Canada (CSC or “the Employer”) as correctional officers at the CX-02 group and level at the Edmonton Institution for Women (“the Institution”) in Edmonton, Alberta. Ms. Needles was hired effective January 8, 2013, and Ms. Sandhu, effective January 23, 2013. The appendix to the grievors’ offer letters have the following provision:

PROBATIONARY PERIOD

In accordance with section 61 of the Public Service Employment Act, employees appointed from outside the public service are subject to a 12 month probationary period, excluding any periods of leave without pay, full-time language training or leave with pay in excess of thirty consecutive days and any off-duty periods in the case of seasonal employees.  Your probationary period will continue with any subsequent appointments or deployments until the probationary period has been completed.

2        As a result of an incident that occurred on the evening shift of October 31 to November 1, 2013, the grievors were suspended with pay from November 1 to December 1, 2013. By memo dated November 29, 2013, they were then suspended without pay effective December 2, 2013. They were advised by a memo dated January 1, 2014, as follows: “As you have been on a period of leave without pay effective December 2, 2013, you remain on probation and your probationary period will be extended by an equivalent length of time.”

3        By memos dated December 23, 2013, and January 13, February 3, and February 24, 2014, the grievors were advised that their suspensions without pay would continue. By letters dated March 5, 2013, they were advised that they still remained on probation and that their employment with the CSC was being terminated during their probationary periods, effective December 2, 2013.

4         Ms. Sandhu’s termination grievances (both were dated March 19, 2014) state in part as follows:

          DETAILS OF GRIEVANCE

I grieve the employer’s decision to terminate my employment on or about March 5, 2014.  I grieve that this disciplinary action is unfounded in facts and law, is excessive and unwarranted.

          CORRECTIVE ACTION REQUESTED

I request that the termination be quashed, reinstatement, retroactive payment of all monies including pension adjustments, CPP that I have lost and will lose and compensation for loss of benefits that I have incur [sic] and will incur as a result of the employer’s decision. I request all other rights that I may have pursuant to legislation and the collective agreement as well as all real, moral or exemplary damages, to be applied retroactively with legal interest without prejudice to other acquired rights.

5         Her grievances were denied. The CSC’s response (dated November 27, 2014) at the final level of the grievance process states in part as follows:

This is in reply to the above referenced grievances received by management on January 7, 2014, February 4, 2014, March 10, 2014, and March 19, 2014 respectively.  According to grievance nos. 51949, 51950, 52071, 52072, 52218,
and 52251, you grieve the suspension without pay imposed on you pending the completion of a disciplinary process. According to grievance no. 52253, you allege that, during a disciplinary hearing with management, on February 6, 2014, you were not provided with all information in advance of the hearing as required under articles 17.07 and 17.08 of the Agreement between the Treasury Board and the Union of Canadian Correctional Officers (the “Collective Agreement”). More specifically, you claim that you were not provided the audio recordings, played for you during the disciplinary hearing, or the transcriptions of same. According to grievance nos. 52254 and 52255, you grieve the Employer’s decision to terminate your employment effective December 2, 2013.

...

A final level grievance hearing was held with you and your union representative on November 13, 2014. I carefully reviewed all information available to me prior to rendering a decision in relation to the above referenced matters.

In relation to grievance nos. 51949, 51950, 52071, 52072, 52218, and 52251, I can advise as follows.  On or about November 1, 2013, a correctional officer, while on shift, was found to be in a condition which rendered him unable to perform his duties and in which the safety and security of the institution was at risk.  You were on duty, as a correctional officer, during relevant time period.

A preliminary review of your involvement in the above referenced incident was completed by management.
As a result of this review, you were placed on an administrative suspension with pay effective November 1, 2013. A formal investigation, into the above referenced events, was convened by management on November 6, 2013.

Following receipt of additional information, a further review of your involvement in the above referenced events was conducted by management.  In light of the information available at the time, management determined that your presence in the workplace presented a risk to the safety and security of the institution.  As such, a decision was made to place you on an administrative suspension without pay, effective December 2, 2013, pending the completion of the disciplinary process pertaining to the above referenced events.

More specifically, during the relevant time period there were concerns that you failed to respond to a significant situation whereby you left another correctional officer in distress and, further, that you made attempts to cover up the incident. These issues caused numerous concerns for management in relation to your presence in the workplace. These concerns included, inter alia, the risk to the security of the institution, the risk to the wellbeing of inmates, and the risk to other staff members. I am advised that management also had significant concerns pertaining to your lack of judgment.

I note that management considered other locations of work for you in order to mitigate the above referenced concerns. However, management was of the view that, given the seriousness of the events and risk associated with same, a position outside of the institution, or within any other institution, was unsuitable.

In addition, I am advised that management carefully reviewed its decision to suspend you on a regular basis, during the period of suspension, to determine whether the risk identified above were still present and the decision to suspend you without pay, pending the completion of the disciplinary process, was still reasonable and appropriate in the circumstances.

In light of the ongoing concerns relating to the risk posed by your presence in the workplace, the decision to suspend you without pay, effective December 2, 2013, pending the completion of the disciplinary process, was an appropriate administrative action.

In relation to grievance nos. 52254 and 52255, wherein you raise concerns pertaining to the termination of your employment, I can advise as follows.

As noted above, on or about November 1, 2013, a correctional officer, while on shift, was in a condition which rendered him unable to perform his duties and in which the safety and security of the institution was at risk. You were on duty during the relevant time period.

An investigation into this incident was convened by management on November 6, 2013. Following the completion of the investigation, it was determined that: i) as the first correctional officer to become aware that the above referenced officer was in some sort of distress, and was no longer able to perform his duties, you failed to take the appropriate steps to ensure either the officer’s safety and wellbeing or the safety and security of the institution; ii) you failed to immediately notify the Correctional Manager that the correctional officer as in some form of distress and was no longer able to perform his duties.  Instead, you chose to involve fellow officers in an attempt to conceal the situation from the attention of the Correctional Manager on duty. As a result, the institution was left one (1) correctional officer short for a period of almost two (2) hours prior to another officer arriving on site to provide the requisite coverage. I note that, in the event there had been an emergency or an incident in need of response, the ability of correctional officers to respond appropriately to the incident would have been compromised. It was further determined that, as a result of the above noted actions, you committed a number of infractions of the Correctional Service of Canada (CSC) Code of Discipline (CD 060), namely, paragraphs 6(g), 6(f), and 10(f).

It is of significant concern that you did not immediately report, to the Correctional Manager on duty, that a fellow officer was in a condition which rendered him unable to perform his duties. Instead, you chose to involve fellow officer to address the situation. As noted above, your actions had a significant impact on the safety and security of institution, staff, and inmates. You placed the protection of a fellow correctional officer, to avoid detection of any issues by management in relation to this officer, ahead of the safety and security of the institution.

The probationary period allows the Employer to assess the suitability of the employee for the position for which he or she has been hired. Management observed that you failed to demonstrate good judgment and integrity in your role as Primary Worker and that you contravened CSC Code of Discipline. Upon considering aggravating and mitigating factors, management concluded that you were no longer suitable for employment and that the bond of trust had been irrevocably broken.

I am advised that your employment was terminated during your probationary period, effective December 2, 2013.
I further notice that you were provided with one (1) month’s salary in lieu of notice in accordance with Section 62 of the Public Service Employment Act.

Given the aforementioned reasons I concur with the decision to terminate your employment during your probationary period.

Finally, according to grievance no. 52253, you allege that, during a disciplinary hearing with management, on February 6, 2014, you were not provided with all information, namely, audio recordings and transcriptions of same, in advance of the hearing as required under articles 17.07 and 17.08 of the Collective Agreement.

I am advised that you received a copy of the Investigation Report, and all associated appendices, including the transcripts of the audio recordings referenced by you above. In addition, I note that the Investigation Report made reference to the audio recordings and that a number of the audio recordings were of conversations that you had with other employees during the relevant time period.
As a participant in these conversations, you would have been aware of the content of same. As such, I am satisfied that, subject to the provisions of the Access to Information and Privacy Act, you were provided access to the information utilised by the employer during the disciplinary investigation and, furthermore, that management did not introduce any document from your file the content of which you were not aware of at the time of filing.

Consequently, your grievances and the requested corrective actions are denied.

[Sic throughout]

6        On March 10, 2014, Ms. Sandhu’s grievances were referred to adjudication.

7        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (PSLREB) to replace the former Public Service Labour Relations Board and the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act
(S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

8        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 PSLREB and the titles of the PSLREBA and the PSLRA 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 (“the FPSLRA”). For ease of reference, “the Board” includes both the Public Service Labour Relations and Employment Board and the Federal Public Sector Labour Relations and Employment Board.

9        By a letter to the Board’s Registry dated March 3, 2016, the CSC objected to the jurisdiction of the Board to hear Ms. Sandhu’s termination grievances, as follows:

The Employer respectfully objects to an adjudicator’s jurisdiction over the above-noted references to adjudication based on the grounds that the matter is not one that meet the criteria for adjudication in accordance with the Public Service Labour Relations Act (PSLRA).

Although Ms. Sandhu is alleging that the grievance pertains to a termination of employment under paragraph 209 (1)(b) of the PSLRA, it is the Employer’s position that the subject matter of the grievance is the employer’s decision to terminate her employment during the probationary period in accordance with subsection 62 (1) of the Public Service Employment Act (PSEA).

Ms. Sandhu was offered an indeterminate position at the
CX-02 group and level by the Correctional Service of Canada (CSC) effective January 23, 2013. The letter of offer for this position (Annex A) clearly indicated that she would be on probation for twelve (12) months from the date of her appointment. Ms. Sandhu was, therefore, still subject to the probationary period where she was informed, in a letter dated March 5, 2014 (Annex B), that she was terminated during the probationary period effective December 2, 2013, based upon the determination that she was not suitable for employment with CSC. This letter clearly indicated that Ms. Sandhu was being terminated during the probationary period due to concerns regarding her ability to adhere to CSC’s Standards of Professional Conduct and the Code of Discipline. It should be noted that Ms. Sandhu was properly provided with one (1) month of remuneration in lieu of notice, in accordance with the Treasury Board Regulations Establishing Periods of Probation and Periods of Notice of Termination of Employment During Probation, pursuant to paragraph 26(1)(c) of the PSEA.

Ms. Sandhu has referred her grievance to adjudication under paragraph 209(1)(b) of the PSLRA for “Disciplinary action resulting in termination, demotion, suspension or financial penalty”. It is the Employer’s position that the grievance does not meet the criteria for referral under this section of the PSLRA as Ms. Sandhu was terminated during the probationary period for employment related reasons, and no discipline was imposed by management. It is respectfully submitted that the referral provisions of paragraph 209(1)(b) are limited by paragraph 211(a) of the PSLRA, which prohibits the referral to adjudication of an individual grievance as it applies to a termination of employment under the PSEA, thus precluding the referral to adjudication of grievances against a termination of employment during the probationary period.

The Employer notes that Adjudicator McKenzie has confirmed, in Tello v Deputy Head (CSC), 2010 PSLRB 134, that the elimination of the words “for cause” in the new PSEA changes the burden of proof requirements for the deputy head. He states that “the deputy head’s burden is now limited to establishing that the employee was on probation, that the probationary period was still in effect at the time of termination, and that notice or pay in lieu of has been provided.” The Employer considers that this burden has been met, and asserts that Ms. Sandhu was terminated during the probationary period in good faith.

Since the employment-related reason for Ms. Sandhu’s termination during the probationary period was related to breaches of the CSC’s Standards of Professional Conduct and the Code of Discipline, it should be noted that in Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), the Federal Court confirmed that misconduct in the workplace can be dealt with either by way of discipline or by termination of employment during the probationary period. Management determined that a termination during the probationary period was appropriate based upon the assessment that Ms. Sandhu was not suitable for the position of Primary Worker at the CX-02 group and level.

It should also be noted that Adjudicator Bédard has confirmed, in Rousseau v Deputy Head (CSC), 2009 PSLRB 91, that the exclusion set out in section 211 of the PSLRA provided that she had no jurisdiction to hear the grievance where there were legitimate reasons for the termination of employment during the probationary period. As well, in Melanson v. Deputy Head (CSC), 2009 PSLRB 33, Adjudicator Mooney confirmed that an adjudicator’s role is limited when considering a termination of employment during the probationary period, as he indicates in this decision that “it is not my role to determine the reasonableness of Mr. Niles’ assessment.  As long as the reason is a legitimate employment-related reason, I cannot intervene”.

For the above reasons, the Employer respectfully request that the adjudicator dismiss this grievance for lack of jurisdiction without a hearing, as provided for in section 41 of the PSLRA.

[Sic throughout]

10        Ms. Needles also filed grievances (six in total) challenging her suspension without pay and the termination of her employment during the probationary period.

11        At the conclusion of its argument, the Employer made a motion for the dismissal of Ms. Needles’s grievances on abandonment grounds. For the reasons set out later in this decision, I allow that motion.

II. Summary of the evidence

A. For the CSC

1. Amanda Holm

12        Amanda Holm has been with the CSC for about 17 years. She is currently a correctional manager (“CM”) at the Institution and has been in that role since October 31, 2013.

13        Ms. Holm testified about the events that took place on the evening shift of October 31 to November 1, 2013. It started at 18:30 on October 31 and ended at 07:00 on November 1. Eight correctional officers were on that shift and were assigned to different posts throughout the Institution. The officers on the EF1 and EF2 posts were responsible for unit supervision (which involves security patrols in the general population). The officer in the Main Command and Control Post (MCCP) was responsible for monitoring the security cameras, radio transmissions, and alarms. The officer assigned to the Secure Unit Control Post (SUCP) was responsible for monitoring alarms and calls from the cells and for observing other officers when they did their patrols. The EF12 and EF13 officers were partnered and were responsible for monitoring the inmates in the Hummingbird Unit, monitoring cell calls and alarms from the 10 inmates on that unit, making rounds, and carrying out counts or required searches. The officer at the EF15 post was responsible for monitoring the principal entrance to the institution and carrying out walks in the Secure Unit at different times on the shift. Finally, the officer assigned to “High Watch” (HW) was responsible for monitoring a specific inmate.

14        Ultimately, this decision does not turn on the specific details of what occurred that night but rather on how the Employer dealt with Ms. Sandhu’s employment afterwards. Therefore, I have opted to state the names only of those who testified at the hearing. I will use pseudonyms for the other individuals who were there that night. On the evening shift of October 31, 2013, the assignments for the officers working were as follows:

Assignment	At 23:00	At 03:00
EF1	Officer A	Nobody
EF2	Ms. Sandhu	Officer B
MCCP	Officer C	Officer C
SUCP	Erin Maxwell	Erin Maxwell
EF12	Officer D	Officer D
EF13	Officer B	Ms. Sandhu
EF15	Ms. Needles	Ms. Needles
HW	Officer E	Officer E

15        Ms. Holm started her shift on October 31, 2013, at 22:30 since she had been on personal leave before then. Nothing unusual occurred until about 04:00, when Officer Erin Maxwell called and asked her to come to the Secure Unit to talk about something very important. When she got there, Officer Maxwell asked her to smell the thermos on the counter belonging to Officer A. She did so, noticing an odour of alcohol. Officer Maxwell then told her, “You could have someone passed out on the shift.” She asked, “Where is he?”, and Officer Maxwell directed her to the duty office bathroom.

16        Ms. Holm went there and saw Officer B in the hallway, who told her that Officer A was in trouble; he said that Officer A had drunk some “syrup” and that he did not sound normal. Ms. Holm then told Officer B that he was on probation and that he had to be very honest with her. He then told her, “[Officer A] is in trouble”.

17        Ms. Holm then went to the bathroom to check on Officer A. She noticed that he was sitting on the floor with his pants undone and that his hair was dishevelled. He was in what is termed a “condition other than normal” or “CON.” She asked him if he needed anything. He just smiled and requested a glass of water. Ms. Holm then returned to her office and called another CM, Janice Marghella, to replace Officer A, since he was unfit to work. Ms. Holm then called Clovis LaPointe, the assistant warden, since she needed guidance as to what to do next.

18        The Institution requires a minimum amount of staff to work every shift. Since Officer A was unable to perform his duties, it was short-staffed. Officer A was supposed to be at the MCCP at 03:00. Since he was not able to, Officer B had no partner when carrying out his walk. Furthermore, the Institution requires a minimum number of employees to respond to a fire, which it did not have because Officer A was unable to work.

19        Once Ms. Marghella arrived, Ms. Holm spoke to all the other staff on shift.
She spoke to Ms. Sandhu; Officer D was a witness. She asked Ms. Sandhu about the coffee she was drinking that evening. Ms. Sandhu stated that she had brought it with her at the start of her shift, at 18:30. She stated that she had not noticed anything different about Officer A that evening and that she did not know him very well. She did not tell Ms. Holm anything else about Officer A.

20        Ms. Holm then met with Ms. Needles, who told her that she had also brought her coffee with her at the start of her shift. She denied having drunk any alcohol that evening. She also stated that Officer A seemed in a happy mood during his shift. Ms. Holm then asked her about Officer A’s thermos, which was no longer on the Secured Unit. Ms. Needles stated that she had put it in Ms. Sandhu’s bag. Ms. Holm then searched Ms. Sandhu’s bag in her presence and removed the thermos, to show it to Mr. LaPointe.

21        Ms. Holm then interviewed other staff, who stated that Officer A had appeared “happy and jokey [sic]” that evening.

22        When Mr. LaPointe arrived, he took Officer A to the warden’s office, and the Chaplain drove Officer A home. Ms. Holm then completed a “Statement/Observation Report” (SOR).

23        Ms. Holm stated that she had had a good working relationship with Ms. Sandhu before October 31, 2013, and that she felt that Ms. Sandhu was doing her job well.

24        Ms. Holm saw Officer A at around 01:00 in the Secure Unit. Nothing about him was abnormal at that time, and she did not suspect that he had been drinking. She heard only one radio transmission before Officer Maxwell called her. In it, Officer A answered a radio call at about 03:00 from Officer C, asking him to relieve her. He replied that he would be there right away. The Duty Office bathroom is close to Ms. Holm’s office, and she did not notice any unusual traffic near it that evening.

25        Ms. Holm stated that in the Correctional Training Program, correctional officers are trained to report any issues to their CMs. Probationary employees should know that, which should not have prevented them from reporting Officer A’s condition to her. Only Officer Maxwell and Officer B told her that Officer A was in the bathroom.

26        Finally, Ms. Holm stated that Ms. Sandhu did not fulfil her correctional officer duties on the shift at issue since Ms. Sandhu failed to report the incident to her.

2. Mr. LaPointe

27        Mr. LaPointe is the deputy warden of the Institution. He has been in that position since August 2015.

28        Mr. LaPointe received a call from Ms. Holm between 04:30 and 05:00 on November 1, 2013. After she briefed him about an employee being in a CON, he advised her to send the employee home. He then went to the Institution. Ms. Holm and Ms. Marghella were there.

29        Mr. LaPointe went to the Duty Office bathroom between 05:15 and 05:30.
He said that he heard Officer A snoring and that on entering the bathroom, he saw that Officer A was “passed out” and lying on the floor. He was curled up in a fetal position, near the toilet. He called Officer A’s name a few times, sat him up, and tried to wake him up. He then picked up Officer A, held him against a wall and called out his name. Officer A opened his eyes but did not seem to understand where he was and what was happening. He asked Officer A, “What is going on? Where are you?” Officer A responded, “I drank too much.” Mr. LaPointe smelled alcohol on his breath when Officer A started to speak.

30        Mr. LaPointe then took him to the warden’s office. Officer A said, “I really screwed up. I messed up.” He was quite embarrassed and asked Mr. LaPointe not to have the Chaplain drive him home.

31        Mr. LaPointe was shown a written statement that he had completed. He was asked about the following wording in it: “As the CM’s [sic] had no knowledge of what was going on it placed [Officer A] in a very dangerous situation.” By that he meant that Officer A could have suffered alcohol poisoning or could have vomited and choked, and there was no support for him. Officer A only came to when Mr. LaPointe picked him up; shaking him had not worked.

32        Ms. Holm then briefed the Warden, Angela Draude, when she arrived at the Institution. Ms. Draude asked Ms. Holm to meet with the rest of the staff on the shift. Ms. Draude also conducted meetings with the staff. Mr. LaPointe was present for some of them.

33        Mr. LaPointe was asked about Institution’s deployment standards. At minimum, seven staff are required for a morning shift. On the morning of November 1, 2013, if Officer A was unable to perform his duties, then the Institution was not operationally safe, since it could not meet the deployment standards. This would have affected the staff’s ability to respond to a fire, a need to open a cell door, or other emergencies. This could also have led to staff making complaints under s. 128 of the Canada Labour Code (R.S.C., 1985, c. L-2) and refusing to work, but that did not happen.

34        Mr. LaPointe had not interacted with Ms. Sandhu before November 1, 2013, and he was not aware of any other disciplinary issues involving her. He agreed that the incident at issue had been “exceptional” and that it was the first time he had had to intervene with an intoxicated employee. CMs carry out performance evaluations for probationary employees at the 6- and 12-month points, but Mr. LaPointe was not aware that any had been done for Ms. Sandhu.

35        Finally, Mr. LaPointe stated that if a correctional officer is not relieved from her or his post, then that officer remains at her or his post. As far as he was aware, the radio transmission system was operating properly on the October 31 to November 1, 2013, shift.

3. Darcy Begrand

36        Darcy Begrand is the manager, assessment and intervention, at the Saskatchewan Penitentiary. He has been in that position since 2011 and has been with the CSC since 2000.

37        A “Disciplinary Board of Investigation” (“BOI”) consisting of Mr. Begrand and Lori Luhela, the associate director of district patrol for Alberta and the Northwest Territories, were assigned to conduct an investigation into the events of the October 31 to November 1, 2013, shift, when Officer A was found in a CON. The BOI was struck pursuant to a convening order that Ms. Draude signed on November 6, 2013. Mr. Begrand signed the completed “Investigation Report” on January 6, 2014, and Ms. Luhela signed it on January 13, 2014. Ms. Draude accepted it on January 13, 2014.

38        As part of its investigation, the BOI reviewed a number of documents, including the following:

• the “Standards of Professional Conduct”;
• “Commissioners Directive 060 - Code of Discipline”;
• post orders for the Institution;
• SORs completed by Officers A, B, C, Sandhu, Needles, and Maxwell, as well as Ms. Holm;
• the written statements of Ms. Draude, Mr. LaPointe, and Ms. Needles;
• supervisory notes of the interviews of officers A, B, C, and Sandhu;
• notes of the interviews of officers A, B, Sandhu, and Needles; and
• audio recordings of radio communications on November 1, 2013.

39        The BOI also interviewed Officers A, B, C, D, E, Sandhu, Needles, and Maxwell, as well as Ms. Holm.

40        In its Investigation Report, the BOI stated the following in terms of Officer A’s conduct on the October 31 to November 1, 2013, shift:

As a result of the review of Statements/Observation Reports, Closed-circuit Television (CCTV footage), MCCP and SUCP telephone recordings, and employee and witness interviews, the following has been determined:

• By his own admission, CXII [Officer A] made a willful and sober decision to purchase alcohol and bring it to the institution (EIFW).
• By his own admission, CXII[Officer A], consumed alcohol before and during his Morning Shift, up until the point he passed out, shortly after 0315 hours (1900-0700 hours) on 2013-10-31.
• By his own admission, CXII [Officer A] brought contraband (alcoholic beverage white wine) into the institution (EIFW).
• By his own admission and corroborated by the information available to the Board of Investigation, between the hours of approximately 0300-0600 hours on 2013-11-01, CXII [Officer A]became incapacitated, and subsequently slept in the staff washroom near the Duty Office at EIFW as a result of severe alcohol intoxication, neglecting his duties as Correctional Officer.

41        As for Ms. Sandhu’s conduct on the shift at issue, the BOI stated as follows in the Investigation Report:

CXII SANDHU indicated in her interview that CXII [Officer A]did not appear to be in any “medical distress” and that he did not appear to be in a Condition Other Than Normal when she and CXII NEEDLES discovered him in the washroom at around 0300 hours. CXII SANDHU also stated that she was “panicked and scared” when she saw CXII [Officer A] in the washroom. This would suggest she had some knowledge or suspicion that CXII [Officer A] was in a Condition Other Than Normal. Moreover, she was aware that CXII NEEDLES had been covering the duties of a second post on the shift in order to cover for CXII [Officer A], which, according to employee interviews, is very much out of the ordinary during a Morning shift which in and of itself should have been immediately reported to the Correctional Manager.
It is the determination of this Board of Investigation, based on an on balance of probabilities, that CXII SANDHU intentionally misled members of the Board in order to suggest she was less culpable for failing to notify the Correctional Manager.

The Board believes that CXII SANDHU recognized that CXII [Officer A] was in some form of distress. While she advised the BOI that she did not believe him to have been under the influence of intoxicants, his behaviour (slurring, mumbling, sleeping on the floor, being only minimally responsive) ought to have suggested that if he wasn’t intoxicated, he was experiencing a medical or psychological episode of some sort. The Board finds that the actions taken by CXII SANDHU were not consistent with what a reasonable person, especially one trained to respond to emergencies, would be expected to do after coming upon a colleague who, for no identifiable reason, presented as CXII [Officer A]is said to have presented in.

The Board also believes that CXII SANDHU participated in attempts to conceal the situation from the Correctional Manager. Over the course of the subsequent 17 minutes (from 0325-0342 hours, according to CCTV footage and information gathered through the interviews), CXII SANDHU, along with CXII NEEDLES, appeared to try to figure out what to do about the situation with CXII [Officer A] in the washroom. In her interview, CXII SANDHU reported being “scared and panicked”, which is not consistent with her assessment that CXII [Officer A]was not in any “immediate medical distress.” In her recorded telephone conversation with CXII [Officer C]at 0403 hours, CXII SANDHU sounded very concerned and agreed with CXII [Officer C]that the issue was that CM Holm had not yet noticed that CXII [Officer A] was passed out in the washroom. This suggests that CXII Sandhu had concerns regarding CXII [Officer A]’s well-being, despite her contention that she assessed him to have not been in any “immediate medical distress.”

Had CXII SANDHU notified the Correctional Manager immediately, she could have assessed and assisted CXII [Officer A], ensured the duties of the post were appropriately reassigned and that adequate coverage was brought in. Instead CXII SANDHU made a decision to involve fellow officers in what can only be described as an attempt to conceal the situation from the Manager’s attention, as suggested by the telephone recordings.
As a result, the site was left one Officer from approximately 0300 hours until approximately 0445 hours, when CM Marghella arrived at the site to provide coverage. The 0300 hours walk, scheduled as per site policy, was missed as remaining Officers scrambled to cover for CXII [Officer A]. Had there been an emergency or an incident in need of response the ability to respond would have been compromised. Although there is no evidence that CXII SANDHU consumed alcohol during her shift, her response to CXII [Officer A]’s condition had the potential to place both CXII [Officer A] and the security of the institution in jeopardy.

...

There is no evidence that CXII SANDHU consumed alcohol while on shift.

...

As a result of the review of Statement/Observation Reports, MCCP and SUCP telephone recordings, and employee and witness interviews, the following has been determined:

• The actions of CXII SANDHU were not consistent with what a reasonable person would do after coming upon a colleague who, for no identifiable reason, was incapacitated in a washroom.  It is expected of an Officer that the Correctional Manager be immediately notified in such a situation.
• The actions of CXII SANDHU were not consistent with a Correctional Officer’s requirement to immediately bring the incident to the attention of the Correctional Manager.
• CXII SANDHU purposely withheld information from her Correctional Manager when questioned regarding the events of the evening, and if she had any knowledge or involvement in the situation.
• CXII SANDHU purposely provided inaccurate information to the Board of Investigation and Institutional Management, in an attempt to absolve any responsibility and accountability for her actions, and inaction, in relation to her leaving CXII [Officer A] in the washroom without notifying the Correctional Manager.

[Sic throughout]

42        The BOI’s findings on Ms. Sandhu’s involvement on the shift at issue are as follows:

Given the above, the Board of Investigation finds that there is sufficient evidence that CXII SANDHU, as the first Officer to have become aware that CXII [Officer A] was in some form of distress, failed to take appropriate steps to ensure the safety of CXII [Officer A] or the security of the Institution. When she assessed that CXII [Officer A]’s condition rendered him unable to perform his duties due to being in a Condition Other Than Normal she failed to immediately notify the Correctional Manager. Instead, CXII SANDHU chose to involve fellow officers in what can only be described as an attempt to conceal the situation from the Manager’s attention. As a result, the site was left one Officer from approximately 0300 hours until approximately 0445 hours, when CM Marghella arrived at the site to provide coverage. As it was, a 0300 hours walk, scheduled as per local practice at EIFW, was missed as remaining Officer scrambled to cover for CXII [Officer A]; had there been an emergency or an incident in need of response the ability to respond would have been compromised. The Board finds that CXII SANDHU’s actions in relation to this incident are inconsistent with the Correctional Service of Canada’s Value Statement and the Values and Ethics Code for public sector. Specifically the value of “Professionalism” is defined as “a commitment to abide by high ethical standards of behaviour as well as relevant group standards, and to develop and apply specialized knowledge for the public good. Professionalism is anchored in a commitment to integrity and requires staff to uphold our values in even the most difficult circumstances”.

Accordingly, CXII SANDHU has committed the following infractions of Code of Discipline (CD060):

6 (g)         “fails to conform to, or to apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his/her duty;”

6 (f)                   “fails to take action or otherwise neglects his/her duty as a peace officer”

10 (f)        “disregards established safety procedures”

[Sic throughout]

43        The BOI concluded in part as follows:

Through the conduct of this investigation and all of the information obtained, it has been demonstrated that the allegation of inappropriate conduct by CXII Sandhu while on duty with respect to an incident whereby CXII[Officer A]was ultimately found to [sic] a Condition Other Than Normal on or about the period of October 31, 2013, to November 1, 2013, is founded.

44        In his testimony, Mr. Begrand reviewed the Investigation Report. Commenting on the BOI’s findings on Ms. Sandhu, he stated that she failed to exercise a basic judgement skill in that she did not report Officer A being in a CON to Ms. Holm. The BOI also considered it an ethical issue with respect to what a reasonable person would do in that situation. Given that Ms. Sandhu saw Officer A sitting on the floor in the washroom and that he was 20 minutes late for his post, a reasonable person in that situation would have gone to Ms. Holm’s office, next door, and would have notified her that the Institution might be short-staffed so that Ms. Holm could have addressed it. Instead, Ms. Sandhu withheld that information from Ms. Holm after she became aware of Officer A’s condition.

45        In addition, Mr. Begrand stated that a correctional officer’s primary duty is preserving life, whether that of an inmate or of someone else. In this case, Officers Sandhu and Needles were aware that Officer A was unable to perform his duties and that the Institution was one officer short. In that situation, they should have immediately notified Ms. Holm. Instead, they chose to involve other correctional officers on duty in an attempt to conceal the situation from Ms. Holm. By doing that, their actions were not consistent with the CSC’s Code of Ethics and its “Commissioner’s Directive 060”, the “Code of Discipline”.

46        Mr. Begrand confirmed that Ms. Sandhu took a cell call after she and Ms. Needles had observed Officer A in the bathroom at 03:31. He stated that it had not been more critical for Ms. Sandhu to respond to the cell call rather than stay with Officer A since such decisions are justified if they are correct ethically. In this case, Ms. Sandhu’s primary duty as a correctional officer was the preservation of life. However, no CSC policy covered the situation that she faced that day, which was complex and isolated.

47        Correctional officers are trained in ethical decision making but not in addressing situations involving other staff. Typically, inmates are found in a CON, not staff members, and it is out of the ordinary for a staff member to be drunk at work.

48        Six out of the eight officers on duty on the October 31 to November 1, 2013, shift had at least some knowledge of the situation with Officer A that they could have provided to Ms. Holm. Although Officer Maxwell informed Ms. Holm of the situation, she did not do it willingly, since she would have been seen as an informant. Ms. Sandhu and the other staff on that shift would have had a similar fear of consequences from their peers for informing Ms. Holm about Officer A’s condition.

49        Mr. Begrand stated that the investigation and the preparation of the Investigation Report were carried out from November 12, 2013, to January 6, 2014. The investigation took longer than usual to complete because the BOI wanted to ensure accuracy and thoroughness without delaying the process.

4. Ms. Maxwell

50        Ms. Maxwell has been a correctional officer with the CSC since October 2010. She has been working at the Institution since March 2013.

51        Ms. Maxwell’s shift on October 31 to November 1, 2013, ran from 23:00 to 07:00. She started on HW (which required her to check on an inmate every 15 minutes) and then went to the SUCP at 01:00. She saw Ms. Needles, Ms. Sandhu, Officer A, and Ms. Holm there. They were talking and were in a good mood. She then noticed Officer A drinking from a silver and black thermos that had his name on it. At one time, he poured some of its contents into two coffee cups. Ms. Maxwell saw Ms. Sandhu and Ms. Needles holding those cups. The liquid that Officer A poured from his thermos was clear, which she found odd. Officer E relieved her from HW.

52        Between 01:30 and 03:00, Ms. Maxwell noticed that Ms. Needles was carrying out all the walks in the secure and general population yards. That was unusual, since two officers normally do it for the general population yard. She asked Ms. Needles where Officer A was; she replied that she did not know.

53        Ms. Sandhu and Ms. Needles then carried out the walks after 03:00. They looked frantic and worried. Ms. Maxwell asked them where Officer A was; they told her that he had taken some cold medication and that he was taking a nap. She told Ms. Sandhu that she needed to let the Duty Office know that he was not well enough to work. Ms. Sandhu told Ms. Maxwell that they would get Officer A. Ms. Maxwell did not think that the situation was too serious.

54        Ms. Maxwell did not see Officer A. However, she saw Ms. Sandhu and Ms. Needles between 03:30 and 04:00. Ms. Sandhu told Ms. Maxwell that Officer A would not open his eyes. Ms. Sandhu then carried out a walk.

55        Officer E arrived and told Ms. Maxwell that they needed to let the Duty Office know what was going on. Officer E did not want to get involved. Ms. Maxwell told Officer E to switch places with her and that she would make the call to the Duty Office since she did not have access to a phone at her post.

56        At around 04:00, Ms. Maxwell went to the SUCP and asked Ms. Holm to come to the Secure Unit. She told her that Officer A had been drinking and that he was passed out in the bathroom. Ms. Holm then smelled the thermos in the SUCP, and Ms. Maxwell went back to HW.

57        Ms. Maxwell stated that she did not tell Officer C that she had called Ms. Holm because she would have been labelled a rat for not having her co-worker’s back. She decided to inform Ms. Holm of the situation with Officer A because the other officers on duty could not work with one officer down, which was a big security issue.

58        Ms. Maxwell stated that after November 1, 2013, things became awkward for her at work and that she received the silent treatment from her co-workers. One correctional officer told her that the inmates were better than she was because at least they stick up for their own. She was aware that this would happen, but she had done the right thing because the correctional officers are obligated to keep the Institution secure and safe.

59        Ms. Maxwell stated that she had a good relationship with Ms. Sandhu and that she has known her since March 2013.

5. Brad Sass

60        Brad Sass is the assistant warden, interventions, at the Institution. He has been in that position since 2007. He started with the CSC in 1995 and has worked in several positions since then. As the assistant warden, he is the second in command
at the Institution.

61        Mr. Sass worked the 08:00 to 16:00 shifts on October 31 and November 1, 2013. He was notified of the incident at issue in the morning of November 1, 2013.
He was informed that one staff member had been unable to perform his duties because of alcohol consumption and had been in a CON and that the other staff had not attended to him. He and Ms. Draude then met with Ms. Sandhu and Ms. Needles.

62        Later that day, he and a Labour Relations Advisor had a telephone discussion with Ms. Sandhu and her Bargaining Agent Representative. In that discussion, her version of the events as she had stated them in her SOR did not change. She was then placed on administrative leave with pay pending the outcome of the investigation. They recommended that she consider accessing the CSC’s Employee Assistance Program (EAP).

63        Mr. Sass, a Labour Relations Representative, and a Bargaining Agent Representative had another telephone conversation with Ms. Sandhu on November 4 or 5, 2013. He again recommended that she access the EAP. He told her that the CSC was launching a disciplinary investigation, which could take a few weeks. She would remain on leave with pay, but that could change. She asked why it was launching an investigation; he replied that it was due in part to the failure to respond to a staff member in distress, along with other allegations. After that, he drafted the convening order for Ms. Draude’s signature.

64        Mr. Sass explained that the criteria set out in Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9, (“the Larson criteria”) apply when the CSC considers imposing a suspension with or without pay. An assessment is made as to whether the employee can be at work or should remain at home with or without pay, or whether he or she should be assigned to other duties or to a different worksite.

65        Mr. Sass stated that if an employee is suspended with or without pay, he or she is not on leave but is suspended. Ms. Sandhu was suspended with pay from November 1 to December 1, 2013, and was then suspended without pay from December 2, 2013. In such a situation, the employee does not have a choice between a suspension with pay or without pay.

66        As for the reasons for suspending Ms. Sandhu without pay, Mr. Sass stated that the Employer looked at the allegations and assessed the risk to the CSC (such as to its reputation), the impact on security at the Institution, the safety of its inmates, and the safety of its staff and visitors. He felt that her judgement on how those things related to performing her duties in terms of her values and professionalism was a risk to the Institution. Furthermore, her conduct at work had to be representative of the values of both the public service and the CSC. Correctional officers are trained to respond to emergencies and are taught professionalism and ethics and how they are applied to work situations.

67        Ms. Sandhu found Officer A in a CON because of either a medical condition or intoxication, and she decided not to alert the CM but rather to involve two staff members. Furthermore, she covered up the incident to conceal Officer A’s situation from the CM. In Mr. Sass’s view, her actions risked the security of the Institution, inmates, and staff.

68        The deployment model that the CSC and the grievors’ bargaining agent, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN), have agreed to requires a minimum number of staff on site for each shift. Being one officer down meant that the Institution could not have responded to emergency situations, fires, or inmate problems such as suicides, self-harmings, etc., and the CM was unable to remedy that situation because Ms. Sandhu did not inform her that Officer A was unable to work.

69        This led him to question whether Ms. Sandhu had made similar judgement calls in the past and whether she would again in the future. Mr. Sass was also concerned that although the Employer later learned that Officer A was intoxicated, it was not known at the relevant time, and he could have been suffering a medical episode. Ms. Sandhu is trained in first aid and CPR and has a personal communication device. Rather than assisting Officer A, she chose to involve other staff and did not resolve the situation. This led Mr. Sass to question how she would act if she came across an inmate or someone else in a similar situation.

70        In terms of Mr. Sass’s concern about the CSC’s reputation being harmed,
he stated that an allegation was made that Ms. Sandhu might have been drinking, and her SOR and recorded conversations did not match. Furthermore, the allegations about what happened on that shift were widely known at the Institution and other correctional facilities, which again caused him concern. He determined that for that reason, Ms. Sandhu could not be temporarily placed at another site (such as the Edmonton Institution) as provided for in the “Global Agreement” between the CSC and the UCCO-SACC-CSN dated June 26, 2006.

71        The Larson criteria require the CSC to review a suspension without pay every three weeks to determine whether any of the allegations made against the employee were incorrect. As such, Mr. Sass sent memos dated December 23, 2013, and January 13, February 3, and February 24, 2014, which informed Ms. Sandhu of his periodic reviews of her suspension without pay status and stated that it would continue.

72        He was also concerned for Institution staff and felt that returning her would damage the CSC’s reputation. In terms of the Larson criteria, Mr. Sass stated that it requires the CSC to examine the employee’s values, ethics, professionalism,
and judgement and to determine whether if that employee is put to work, he or she would jeopardize the safety and security of the Institution, its employees, etc.

73        Mr. Sass stated that he had no choice but to suspend Ms. Sandhu
(and Ms. Needles) without pay as of December 2, 2013. It was not a penalty but an administrative action due to Ms. Sandhu’s conduct and the allegation of wrongdoing that needed to be investigated. He concluded that there was a serious or immediate risk, which justified the change from a suspension with pay to one without pay. Before doing that, he reviewed Ms. Sandhu’s SOR and the recordings of her conversations with other officers on that shift. However, he did not receive any new information between November 29 and December 2, 2013.

74        Mr. Sass stated that from his 26 years of experience, his view is that some correctional officers adhere to the rat culture. However, there is a line that they do not cross, which is when safety is jeopardized. Mr. Sass has never followed that culture. He acknowledged that Ms. Sandhu had a lot to lose and nothing to gain by not reporting Officer A’s condition to the CM. While this might have been due to the rat culture, it would have applied only if she and the other officers believed that Officer A had done something wrong.

6. Ms. Draude

75        Ms. Draude served as the Institution’s warden from February 2012 to December 2014. She started working for the CSC in July 1996 in several capacities. After she left the CSC in December 2014, she was employed as the executive director of the Regional Psychiatric Centre in Saskatoon until September 2015. She is currently the provincial executive director of the Forensic Psychiatry Services Commission in British Columbia. She has been in that position since September 2015.

76        As the warden, Ms. Draude was responsible for its overall management, including staff, security, and assets. Her regular hours of work were from 07:30 to 16:30 or 17:00, and she was on call 24 hours per day, 7 days per week.

77        On November 1, 2013, Mr. LaPointe called Ms. Draude in early. He informed her of Officer A being found in a CON and that there were concerns about what happened during the shift at issue. When she arrived at the Institution, she spoke with him and with Ms. Holm. They briefed her about Officer A and informed her that two other officers, Ms. Sandhu and Ms. Needles, might also have consumed alcohol on the shift.

78        They then interviewed Ms. Sandhu. Ms. Draude felt that she was forthcoming, although she was extremely nervous. She had never met with Ms. Sandhu before. The interview lasted about 10 minutes. After it ended, Ms. Draude felt that she needed to gather more information about what had happened. They then interviewed Ms. Needles. Again, she felt that she needed to investigate further and to gather more information to determine what had happened.

79        Ms. Draude then initiated an investigation and signed a convening order on November 6, 2013, and an amendment to it on November 11, 2013, which required the BOI to investigate Officers A, Sandhu, Needles, B, C, Maxwell, and Ms. Holm for possible inappropriate conduct on the shift at issue.

80        Ms. Draude received the Investigation Report and signed it off on January 13, 2014. She accepted all the BOI’s findings.

81        Following that, Ms. Draude met with Ms. Sandhu and her bargaining agent representative and two labour relations officers on February 6, 2014, for Ms. Sandhu’s response to the BOI’s findings. Ms. Draude felt that the meeting was frustrating because Ms. Sandhu’s answers to questions were contradictory to those given earlier and to the findings in the Investigation Report. Ms. Draude felt that Ms. Sandhu did not accept responsibility because although she said, “I’m sorry”, many times, she followed it with, “but”. Ms. Draude did not feel that Ms. Sandhu was accountable for her actions.

82        Before that meeting, Ms. Sandhu had given Ms. Draude a rebuttal to the BOI’s findings. Ms. Draude felt that there were contradictions between what Ms. Sandhu stated in the rebuttal and the statements from other employees. Although Ms. Sandhu apologized for her actions, it was not unconditional, since it was followed by “but”.

83        Ms. Draude accepted the BOI’s findings that Ms. Sandhu had breached paragraphs 6(g) and (f) and 10(f) of the Code of Discipline since she failed to report Officer A’s condition to the CM when she was aware that he was unable to work and that the Institution was running one staff member short. In addition, Ms. Sandhu was responsible for the Institution’s safety and security, which her actions and inactions had put at risk.

84        Ms. Draude stated that the Employer did not have much choice but to terminate Ms. Sandhu’s employment since Ms. Draude could not trust either her judgement or that she could perform her duties and not put the Institution at risk. The decision to terminate Ms. Sandhu’s employment was not made lightly. Ms. Draude consulted with the CSC’s regional and national headquarters since Ms. Sandhu’s career was at stake, and she stated that she had wanted to “do everything by the book”.

85        That decision affected Ms. Draude personally and professionally. She faced pressure from her colleagues and the Commissioner’s Office to ensure that she had considered everything. She felt pressured to “look the other way”. However, she had to stick to her values and ethics, and she could not condone that behaviour in the Institution.

86        The Investigation Report was issued on January 6, 2013. Ms. Sandhu was kept on suspension without pay. The memo of January 13, 2014, was sent to her. It stated that the suspension would continue (because the BOI’s findings did not change Ms. Draude’s assessment of Ms. Sandhu’s conduct). Ms. Draude then held the disciplinary meeting with Ms. Sandhu on February 6. She received another rebuttal from Ms. Sandhu on February 20. Ms. Draude did not issue the termination letter until March 5, 2014, because she wanted to take her time due to the significance of the decision.

87        Of the eight employees on duty on the October 31 to November 1, 2013, shift, four, Ms. Sandhu, Ms. Needles, and Officers B and E, had been on probation. Other officers on duty on that shift were disciplined as well. Officer A was terminated (which was overturned on appeal), Ms. Needles was rejected on probation, and Officers B, C, and E received financial penalties.

88        Although Ms. Draude received support from the CSC’s commissioner for her decision to discipline the other correctional officers, it was not so with respect to Ms. Sandhu. She felt pressured to treat Ms. Sandhu differently. She received a phone call from a colleague, who was a friend of Ms. Sandhu’s mother, who asked her not to pursue discipline against Ms. Sandhu. In addition, Ms. Sandhu’s mother called Ms. Draude about her daughter’s case. She had not been aware that Ms. Sandhu’s mother was a warden at another institution until the incident at issue took place.

89        In the end, Ms. Draude felt that she could not treat Ms. Sandhu differently and that she had to follow the CSC’s rules and standards and the recommendations and advice she had received from Labour Relations and her colleagues. However, she stated as follows: “It was not a nice time for me.”

90        Ms. Draude stated that she had never faced a situation of a staff member being drunk on duty.

91        Since Ms. Sandhu was hired effective January 23, 2013, her probationary period should have ended on January 22, 2014. Ms. Draude agreed that the November 29, 2013, memo sent to Ms. Sandhu that changed her status from suspension with pay stated that she would be on suspension without pay, not leave. However, by the provisions of the Financial Administration Act (R.S.C., 1985, c. F-11; FAA), a suspension without pay is characterized as leave since, in Ms. Draude’s words, “That is how you get paid.”

92        Ms. Draude confirmed that Ms. Sandhu’s termination was effective December 2, 2013, but stated that she was not aware of why it was effective as of that date.

93        Ms. Draude acknowledged that suspending an employee without pay is not a typical practice and that it was a significant decision. Mr. Sass made it as the assistant warden, and she agreed with his assessment of the Larson criteria and with his decision to suspend Ms. Sandhu without pay. They decided to do that and to not assign her another post since they felt that her judgement and her response had been so poor that they could not trust her not to put the Institution’s safety and security at risk.

94        Ms. Draude issued the memos extending Ms. Sandhu’s suspension without pay every three weeks because she did not receive any additional or new information that would have changed her mind about it. With respect to the Larson criteria, Ms. Draude stated that in terms of the “immediate risk”, the Employer did not trust Ms. Sandhu to make proper judgements to ensure the Institution’s safety and security. And by her actions, she had placed inmates at immediate risk because the Institution was one person short on the night at issue.

95        Ms. Sandhu had also placed Officer A at risk since his condition was not known, and he could have had a medical problem. She admitted that had it been an inmate instead of Officer A, she would have had the CM manage the inmate. Although Ms. Holm had left Officer A alone in the bathroom, she had determined that he was drunk, and she had managed him accordingly.

96        Ms. Draude acknowledged that no performance evaluations were conducted for Ms. Sandhu and that no discipline was noted on her file.

97        Ms. Draude stated that although the report was completed by January 13, 2014, Ms. Sandhu was not rejected on probation until March 5, 2014, because the Investigation Report had to be reviewed by Ms. Sandhu, who provided rebuttal statements to its findings, which Ms. Draude had to consider.

98        Transcripts of the radio conversations of the shift at issue were shared with Ms. Sandhu during the investigation interview. Ms. Draude also played them to her during the disciplinary hearing on February 6, 2014. With respect to the requirements of clause 17.07 of the collective agreement between the Treasury Board and the CSN for the Correctional Services Group (expiry date May 31, 2014) (the “collective agreement”) to provide an employee with access to information used during the disciplinary investigation, Ms. Draude stated that a disciplinary hearing is part of the investigation process. As far as she was concerned, the radio transmissions were shared with Ms. Sandhu. If not, then it could possibly affect the Investigation Report. However, the content of the radio calls was one of the factors that she considered.

99        Ms. Draude confirmed that as a result of the suicide of Ashley Smith, a teenager who died by self-inflicted strangulation in October 2007 while under suicide watch in custody at the Grand Valley Institution for Women, which received national attention,all wardens were reminded that their officers had to respond to inmates.
As such, an officer has to respond to a cell call, without exception, unless another officer has responded for the officer in question. Although Ms. Sandhu left Officer A to respond to a cell call, she saw his condition and did not report it when she knew that something was wrong with him.

100        With respect to the different discipline that was imposed on Officer B versus that on Ms. Sandhu, Ms. Draude stated that Officer B reported that something was wrong. Officer B was suspended with pay from about November 1 to December 9, 2013, and was placed on leave without pay from December 9, 2013, to February 12, 2014. He was not suspended with or without pay for this latter period since he had reported the incident. And Officer B was not rejected on probation because he did not breach paragraphs 6(g) or 10(f) of the Code of Discipline. That was not so for Ms. Sandhu since she could not be trusted to report a similar incident in the future.

101        Finally, Ms. Draude agreed that Ms. Sandhu would likely have passed probation but for the incident at issue and had nothing else occurred.

B. For the grievor Ms. Sandhu

1. Brendon Cheung

102        Mr. Cheung has been employed with the CSC for 17 years. He has been employed at the Institution for 13 years as a CX-02. He also served as the president of the bargaining agent local for five years.

103        Mr. Cheung testified that he has trained over 50 employees since he has been at the Institution, including at least 40 over the last 3 years since turnover is high.

104        As rookies, correctional officers are told to listen, keep their mouths shut,
and not create any waves.

105        In terms of solving problems on the Institution’s floor, the officers are told to involve the least amount of staff and to solve any issues between them. Correctional officers follow the inmates’ “rat” culture, since the officers have to trust each other. Officers seen as rats get a hard time from their co-workers, which results in a tough working environment for them.

106        Mr. Cheung met Ms. Sandhu in January 2013, and she shadowed him on two posts. He showed her the duties and policies for those posts. They were co-workers for eight months. He worked with her for about 40 13-hour shifts. He is aware of the events of November 1, 2013, as he was present for three of the interviews of the officers involved. He stated that he would definitely work with Ms. Sandhu again and that he believes that she was on her way to being a good correctional officer but for the events of the shift at issue. However, he acknowledged that he had not been on duty that shift, had not been involved in the decision-making process, and had not evaluated her performance on that shift.

2. Claudia Ramirez

107        Ms. Ramirez is a correctional officer (CX-02) at the Institution. She has been in that position for about nine years.

108        Ms. Ramirez works the MCCP very often. If the CM is not capable of performing her or his duties, the officer in the MCCP takes control of the Institution. In that role, Ms. Ramirez is in charge of the Institution — she directs the mobile correctional officers on the floor, radios them, and directs them. Issues with radio transmission quality were frequent in 2013. There were some dead zones, for example,
in the Hummingbird Unit and in the new building (which was minimum security).

109        At the beginning of their careers, correctional officers are told to keep their heads down, to shut up, and to do their job, which they do in their first couple of years — they mind their own business, take direction from senior officers, and learn the routines of the Institution.

110        In terms of co-workers solving problems between them, Ms. Ramirez stated that they deal with any such issues themselves. Rats are perceived negatively by their
co-workers, and no one wants to work with them. They are isolated and labelled as not to be trusted. Their co-workers do not want to work with them and will talk about them. However, the security of the Institution takes precedence over ratting out an employee.

111        Ms. Ramirez met Ms. Sandhu when Ms. Sandhu first started working at the Institution. Everyone there was aware that Ms. Sandhu’s mother was a warden at Matsqui Institution. Ms. Ramirez had a very professional relationship with Ms. Sandhu, and they worked together quite often. Ms. Ramirez would not have any issues working with Ms. Sandhu again. In her view, Ms. Sandhu would still be employed at the Institution but for the events of November 1, 2013. However, she did not work the shift at issue and did not evaluate Ms. Sandhu’s performance for it.

3. Ms. Sandhu

112        Ms. Sandhu was employed as a correctional officer (CX-02) at the Institution for just under one year. Before that, she was in the CSC’s Correctional Training Program in Kingston, Ontario, which ran for two-and-a-half months. She was taught
self-defence, how to wear equipment properly, and how to deal with inmates but was taught nothing about how to deal with staff issues.

113        During her time at the course, someone who knew that her mother was a warden spread that information. As a result, when she started working at the Institution, almost everyone there was aware of it, which meant that her coworkers were standoffish with her and did not trust her since she had a family member in management. She felt that she had to prove herself as trustworthy because of that. She had a great working relationship with the officers that she had trained with, but the others were standoffish and did not let her into their circles. She did not see or speak with the management team.

114        On her first day at the Institution, Ms. Sandhu and other correctional officers were told by a senior correctional officer to keep issues to themselves, not to rat on others, resolve conflicts themselves, and to involve management only with big issues. That senior correctional officer told Ms. Sandhu and the other new officers that “blue sticks with blue”; that is, correctional officers stick with correctional officers and not with “light blue”, meaning the CMs.

115        Ms. Sandhu described her experience on the night shift of October 31 to November 1, 2013. She started at 18:30 on October 31. Her first post was EF23 in the Secure Unit, where she was required to carry out population walks and to check on inmates. At 23:00, she took the count slips to the CM. Her partners at that time were Officers E, Maxwell, and Needles.

116        After 23:00, her second post was EF1. Her duties were to look after the general population, carry out walks, and ensure that everyone was safe. Her partner was Officer A. Her third post was at 03:30 in the structured living environment. Her duties there again were to watch the inmates, carryout out counts, and make sure that everyone was safe. She was partnered with Officer D at that post.

117        The other officers on duty that shift were Officers A, B, C, D, E, and Maxwell. Ms. Holm was the CM on duty. Ms. Sandhu had worked with Officer A only about two or three times before then. On that shift, he seemed normal. He was funny and talkative.

118        Since it was Halloween, everyone was excited, and the atmosphere was jovial. Nothing out of the ordinary happened on Ms. Sandhu’s first post between 18:30 and 23:00 on EF23. Around 02:00, she and Officer A did their final walk-through, and everything was fine.

119        Sometime before 02:45, Ms. Sandhu and Officer A went to the staff parking lot. She was fetching a cell-phone charger that Officer B had brought for her. Officer A went to his car. She could not see him. She waited for him, and they re-entered the Institution together. They got back at around 02:45. She told him that she was going to the Secure Unit. He went to the bathroom.

120        Officer C was in the MCCP and she told her that Officer A was in the bathroom. After that, Ms. Sandhu heard a radio call to Officer A, asking where he was, which he answered. Then Control radioed again but did not receive a response from him.
He had been in the bathroom for about 15 minutes. She then decided to check on him there and informed Control of it.

121        Ms. Sandhu went to the bathroom. The door was closed. She knocked and asked, “Are you okay?” Officer A responded, “Yes.” She then returned to the Secure Unit and informed Control that Officer A was still in the bathroom. After Control radioed again, Ms. Sandhu asked Ms. Needles to come with her to check on Officer A. She told Ms. Needles that Officer A was in the bathroom and that he had not taken his control post. They stopped at the MCCP and informed Officer C of what they were doing. Ms. Sandhu said that she did not advise the CM at that time “because there was nothing to tell the CM.”

122        When they got to the bathroom, the door was still shut. Ms. Sandhu knocked loudly and did not receive a response. She slowly opened the door. Officer A was sitting on the floor with his knees up to his chin and his head down. This was at around 03:25 to 03:30. She remained at the door for about 15 to 20 seconds. Ms. Needles entered the bathroom. That was the last time that Ms. Sandhu saw Officer A. Ms. Sandhu thought that he was sick. She then received a cell call from the Secure Unit and left to attend to it.

123        Ms. Sandhu was referred to the Investigation Report and her statement that she had been “panicked and scared”. She explained that she had felt that way because of observing Officer A and having to respond to a cell call in the Secure Unit. She did not report that Officer A was in the bathroom because she did not know that he was unable to report that himself. She chose to respond to the cell call because in her view, an inmate’s safety is a priority, especially those on suicide watch and on HW.

124        Ms. Needles returned to the Secure Unit. She told Ms. Sandhu that Officer A was not happy with her presence; he was irritated and angry at her being there. Ms. Sandhu and Ms. Needles then decided to have a male officer, Officer B, check in on Officer A. Ms. Sandhu said that she did not inform the CM at that time because there was nothing to report, only that Officer A was sick, and she did not know that he could not
self-report. She wanted him to report on his own.

125        Ms. Sandhu then went to Officer B. They traded equipment since her next shift was at the post that he was leaving. She told him about Officer A, and he went to see him. She also told Officer D about Officer A. Officer D told her to try to get him to work at another post rather than Control, where she would work.

126        Ms. Sandhu was asked about her statement on a transcript of her radio transmission with Ms. Needles at 04:43, when she asked Ms. Needles, “Is he still sick?” She felt that Officer A was still sick at that time and concluded that he was intoxicated only when Ms. Holm asked her if she had been drinking.

127        After that radio conversation, Officer D told Ms. Sandhu that if a personal property search were conducted, then she should be there while it was being carried out. Ms. Sandhu was asked why Officer A’s thermos was in her bag. She replied that she had asked Ms. Needles to move her lunch from the Secure Unit to the fridge and that Ms. Needles had put the thermos in her bag. Ms. Holm asked her what was in her coffee cup and whether she had drunk from Officer A’s thermos. She said that she was “scared and panicked” at these questions because Ms. Holm had found an officer in a CON. Ms. Sandhu assumed that Ms. Holm believed that she had also been drinking.

128        Ms. Sandhu then met with Ms. Draude, Mr. Sass, and a bargaining agent representative. They questioned her about whether she had been drinking, whether she had attempted to conceal Officer A’s condition, Officer A being in a CON, and her poor judgement in responding to the cell call after seeing Officer A in the bathroom. She then drove home after her shift ended. She was never offered critical-incident stress management, which is available to employees to help them cope after an incident.

129        Ms. Sandhu was suspended with pay after her November 1, 2013, shift ended. On November 29, 2013, she was advised that her suspension would be without pay. She was not offered a reassignment and was not given any information about the risk that she posed. She received memos every three weeks advising of her the status of her suspension without pay, and that her suspension would continue. She also received a memo dated January 23, 2014, advising her that her probationary period would be extended, which was sent to her a day after her probationary period expired.

130        Ms. Sandhu then attended a disciplinary hearing with Ms. Draude and others on February 6, 2014, which she found very stressful. Before it, she had submitted a rebuttal to the BOI’s findings in the Investigation Report. Ms. Draude did not make any comments about Ms. Sandhu’s rebuttal at the February 6 disciplinary hearing. The only documentation that Ms. Sandhu received before that hearing was a copy of the Investigation Report. After the hearing, Ms. Sandhu submitted additional clarification on the audio recording and its transcripts.

131        Ms. Sandhu was asked how she would react to a situation similar to the one she faced on November 1, 2013. She stated that she would immediately report it to the CM because it would be an extraordinary or unusual situation.

132        Ms. Sandhu reviewed an offer letter that she received from the Warden of Fraser Valley Institution dated October 11, 2013. That offer was for a full-time deployment as a CX-02 (primary worker) there, effective May 12, 2014.She accepted it on October 17, 2013.

133        In cross-examination, Ms. Sandhu confirmed that she started at the Institution on January 23, 2013. She understood that she would serve a probationary period of 12 months. She also agreed to abide by the “Values and Ethics Code for the Public Service” and the CSC’s Code of Discipline and Standards of Professional Conduct referred to in the appendix to her offer letter.

134        Ms. Sandhu was asked to review a work description for the CX-02 position. She agreed that a correctional officer is required to ensure the safety and security of the public, staff, and inmates at his or her Institution. She also agreed that the safety and security of staff, not only inmates, is a priority for a correctional officer.

135        Ms. Sandhu agreed to the following:

• that correctional officers are required to alert a CM if they observe something out of the ordinary, depending on the situation;
• that something out of the ordinary could potentially lead to a dangerous situation;
• that Officer A’s situation was out of the ordinary after his drinking was discovered;
• that the first time that she saw an officer on the floor in a washroom was when she saw Officer A there on November 1, 2013; and
• that she did not report seeing him there to the CM.

136        Ms. Sandhu did not know that Officer A was unable to perform his duties when she saw him in the bathroom because he was still responsive, even though he had not been at his post for at least half an hour and was lying on the floor. She agreed that he had been moaning but that he had also been responsive. She spoke to Officer B instead of the CM about Officer A since Ms. Needles had told her that Officer A had been uncomfortable with her there, and Ms. Sandhu and Ms. Needles felt that a male officer would make her feel better.

137        When Ms. Sandhu saw Officer A in the bathroom, she gave him in her words, a once over, and could see that he was not injured externally and that he had no blood on him. She agreed that if she was aware of a health issue, she was required to report it to the CM. She did not believe that leaving Officer A in the bathroom put him at risk since she left him with Ms. Needles, who also had first-aid training.

138        Ms. Sandhu believed that between 03:10 and when Ms. Holm came to see her, she felt that Officer A was able to self-report or take his next post. Ms. Sandhu agreed that she did not report Officer A’s situation to Ms. Holm and that something was out of the ordinary with him because she felt that he could have reported for himself. In addition, she believed that Ms. Holm knew what was going on because she had been in her office and could hear the radio transmissions.

139        Ms. Sandhu admitted that the reason she stated she saw Officer B (to have him go to the bathroom where Officer A was located since he was a male officer) was not in her SOR or in her rebuttal to the Investigation Report and that it was not mentioned in the disciplinary meeting with Ms. Draude on February 6, 2014. She agreed that she mentioned it only in her examination-in-chief.

140        Ms. Sandhu also admitted that she did not mention in her SOR that she believed that Ms. Holm had been aware that Officer A had not reported to his post and that she did not ask Ms. Holm if she knew that he had not reported, and she did not mention in her two rebuttals that she believed that Ms. Holm had been aware that he had not reported to his post. Ms. Sandhu agreed that since Ms. Needles had been posted to the Secure Unit, it had been her responsibility as the EF1 to respond to cell calls in the Secure Unit. However, Ms. Sandhu responded to one because Ms. Needles was busy with Officer A in the bathroom.

141        Finally, Ms. Sandhu agreed that she did not mention anything about the rat code at the Institution in her SOR, her interviews, her two rebuttals, or at the disciplinary meeting on February 6, 2014. She stated that she was not comfortable talking to the CM or the Warden about it.

III. Summary of the submissions

A. For the CSC

142        The Employer submitted that the evidence established that Ms. Sandhu was rejected on probation for performance-related reasons. In that respect, it did not have to show just cause, only that the rejection was employment related. Furthermore, her suspension without pay and related grievances are moot since her employment was terminated retroactively to the date of the suspension without pay. There was no violation of clause 17.07 of the collective agreement (to provide an employee with access to information used during the disciplinary investigation) or 17.08 of the collective agreement (to not introduce as evidence in a hearing relating to disciplinary action any document from an employee’s file which the employee was not aware of at the time of filing or within a reasonable period after) since the Employer provided reasons to Ms. Sandhu for the rejection on probation.

1. The rejection on probation

143        Sections 61 and 62 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA) provide that a person appointed from outside the public service must serve a probationary period and that his or her employment can be terminated at the end of the probationary period on notice being given. In addition, s. 209(1) of the FPSLRA provides that an employee can grieve only the interpretation or application of a provision of a collective agreement that affects him or her or disciplinary action resulting in a termination, suspension, demotion, or financial penalty to the employee. Furthermore, s. 211 of the FPSLRA states that a grievance cannot be referred to adjudication if it is about a termination of employment under the PSEA. Therefore, I do not have jurisdiction to hear Ms. Sandhu’s termination grievances since it is not permitted under ss. 209 and 211 of the FPSLRA.

144        The case law confirms that an adjudicator has limited jurisdiction to examine a rejection on probation and that he or she cannot examine the merits of the decision to reject the employee on probation if the employer had bona fide dissatisfaction with the employee. Furthermore, an employer does not need to establish just cause for a rejection on probation, only that it was employment related; see Canada (Attorney General) v. Penner, [1989] F.C.J. No. 461 (C.A.)(QL); Canada (Attorney General) v. Leonarduzzi, [2001] F.C.J. No. 802 (QL); and Jacmain v. Canada (Attorney General), [1978] 2 S.C.R. 15.

145        Once an employer establishes that a rejection on probation was done for an employment-related reason, an adjudicator only has jurisdiction to examine if
the termination was done in bad faith or was a camouflage or a sham;
see Voice v. Treasury Board (Department of National Defence), 2004 PSSRB 39; Ducharme v. Deputy Head (Department of Human Resources and Skills Development), 2010 PSLRB 136; Kubinski v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 87; Chaudhry v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 72; Melanson v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 33;
Maqsood v. Treasury Board (Department of Industry), 2009 PSLRB 175; Premakantham v. Deputy Head (Treasury Board), 2012 PSLRB 67; Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134; Rahman v. Deputy Head (Department of Indian Affairs and Northern Development), 2013 PSLRB 6; Ricard v Deputy Heard (Canada Border Services Agency), 2014 PSLRB 72; Dyck v. Deputy Head (Department of Transportation), 2011 PSLRB 108; Kagimbi v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 19; and Stamp v. Deputy Head (Treasury Board), 2012 PSLRB 73.

146        The evidence established that Ms. Sandhu was rejected on probation for the following two reasons:

1. she was not forthright in reporting the incident throughout the whole process; and
2. she failed to report to Ms. Holm that an officer was in a CON.

147        Furthermore, the termination letter states that Ms. Sandhu’s actions risked the safety of the Institution and the health and safety of a fellow officer. Her version of events kept changing, and there were inconsistencies in her story in terms of the time she spent with Officer A. She has shown no remorse or accountability for not reporting his condition to Ms. Holm. The Institution’s minimal staffing needs were not met because of Officer A’s condition, which placed the Institution at risk. Additionally, Ms. Sandhu neglected her duty to ensure the health and safety of inmates and staff. Ms. Draude testified that she could not trust Ms. Sandhu to ensure the safety of staff and the Institution in the future.

148        As a correctional officer and a peace officer, Ms. Sandhu was held to a higher standard of conduct; see McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26. She failed to meet that standard by not reporting that Officer A was down for at least 45 minutes and was unable to report to his post. Under her job description and the Standards of Professional Conduct, she was required to ensure the health and safety of inmates and staff. She failed to do that by not reporting Officer A’s condition to Ms. Holm, which was a sufficient reason to reject her on probation. That was clearly an employment-related decision, and an employer needs to establish only one reason to reject an employee on probation. In such a case, an adjudicator does not have jurisdiction to substitute his or her decision for the employer’s; see Melanson and Bilton v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 39. The grievor did not discharge her burden of establishing that the Employer’s decision to reject her on probation was in bad faith, a sham, or a camouflage.

149        The purpose of probation is to assess the suitability of an employee to perform the duties of a position in a certain environment and to implement standards of conduct. Ms. Sandhu failed to implement the standards of conduct expected of her position. That was sufficient reason to reject her on probation since there is a low threshold for doing that; see Fell v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 2, and Tarasco v. Deputy Head (Department of Citizenship and Immigration), 2009 PSLRB 101. There was no sham, camouflage, or bad faith. Management’s concerns were real, not contrived. Therefore, I do not have the jurisdiction to review the Employer’s decision.

150        Ms. Sandhu’s testimony about a rat code at the Institution has no merit.
It is important to note that it was not mentioned in any of the documents she prepared or in her interviews. Even if one existed, and Ms. Sandhu believed that Officer
A was sick, there was no reason not to report it, and she would have had no reason to be concerned about ratting out Officer A if in fact he was sick.

2. The probationary period

151        Ms. Sandhu’s offer letter states that leave with or without pay is not included in the 12-month probationary period. She was suspended with pay from November 1 to December 1, 2013, and without pay from December 2, 2013, until her employment was terminated on March 5, 2014. She was advised by a memo dated January 23, 2014, as follows: “As you have been on a period of leave without pay effective December 2, 2013, you remain on probation and your probationary period will be extended by an equivalent length of time.”

152        Being on leave means that an employee is not at work. The collective agreement details several types of leave, including sick, bereavement, and leave without pay, which means that an employee on leave is not working.

153        Pursuant to ss. 11 and 11.1 of the FAA, the CSC, as an employer, has broad management rights, including the right to place an employee on leave with or without pay; see Brescia v. Canada (Treasury Board), [2005] F.C.J. No. 106 (C.A.)(QL);
Basra v Deputy Head (Correctional Service of Canada), 2014 PSLRB 28; Hood v. Canadian Food Inspection Agency, 2013 PSLRB 49; Peck v. Parks Canada, 2009 FC 686; and P.S.A.C. v. Canada (Canadian Grain Commission), [1986] F.C.J. No. 498 (T.D.)(QL).

154        It would be absurd if an employer were not able to extend a probationary period after it suspended an employee with or without pay. For example, if an employee is sick and on extended leave, then the employer would be able to extend the probationary period for the duration of the employee’s absence. However, if an employee is being investigated for workplace misconduct and is placed on suspension with or without pay for an extended period, then the employer would not be able to extend the probationary period.

155        The rejection on probation was made retroactive to December 2, 2013, the first day of the suspension without pay, which the Employer is allowed to do pursuant to s. 62(2) of the PSEA. In addition, the grievor did not raise the Employer’s extension of the probationary period in her grievances. Considering this issue would change the nature of the grievances, which is not allowed at adjudication; see Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.); and Shneidman v. Attorney General of Canada, 2007 FCA 192.

3. No violation of the collective agreement

156        Ms. Sandhu was provided with the opportunity to respond to all the allegations before the decision was made to terminate her employment. She was provided with the transcripts of the radio transmission recordings. Ms. Draude did not consider any new evidence before deciding to terminate her employment. Therefore, the Employer did not breach clauses 17.07 and 17.08 of the collective agreement.

4. Indefinite suspension without pay

157        Ms. Sandhu’s grievances about her suspension without pay are moot since her rejection on probation was made retroactive to the date it occurred, December 2, 2013. The authorities support this; see Borowsky v. Canada (Attorney General), [1989] 1 S.C.R. 342; Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62; Leboeuf v. Treasury Board (Department of Transport), 2007 PSLRB 27; Shaver v. Deputy Head (Department of Human Resources and Skills Development), 2011 PSLRB 43; Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107; Braun v. Deputy Head (Royal Canadian Mounted Police), 2010 PSLRB 63; Attorney General of Canada v. Frazee, 2007 FC 1176; Chase v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 9; Hanna v. Deputy Head (Department of Indian Affairs and Northern Development), 2009 PSLRB 94; Larson; Basra; Lapostolle v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 138; Richer v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 10; and Hughes v. Parks Canada Agency, 2015 PSLRB 75.

158        If the termination grievances are allowed on the basis that the rejection on probation was a sham, camouflage, or in bad faith, then the grievor is to be reinstated effective December 2, 2013. Since she was paid to that date, the suspension grievances would be moot. Furthermore, if I find that the suspension without pay was disciplinary, it was reasonable in the circumstances based on Mr. Sass’s evidence that the risk assessment was sufficient for the Employer to suspend Ms. Sandhu without pay.

5. Discriminatory discipline

159        Ms. Draude explained why the officers on the shift at issue were disciplined differently. Officer C did not see Officer A, unlike Ms. Needles and Ms. Sandhu. Officer E knew something was wrong but not the extent of the situation. Officer B did not immediately report the incident to Ms. Holm. However, he was going to inform her, and he was remorseful. Ms. Needles and Ms. Sandhu were treated the same way and received the same penalty. Moreover, there is no need to address this issue because Ms. Sandhu’s rejection on probation was done for an employment-related reason.

6. Motion for dismissal

160        The Employer made a motion to dismiss Ms. Needles’s grievances as abandoned. It submitted that she had been aware of the hearing dates and that she chose not to attend. In addition, she did not provide any reasons for not attending.  Therefore, her grievances should be dismissed due to abandonment. The Employer relied on the following authorities: Boulos v. Canada Revenue Agency, 2014 PSLREB 5; Cardinal v. Deputy Head (Department of Citizenship and Immigration), 2013 PSLRB 137; Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119; Dupont v. Deputy Head (Office of the Director of Public Prosecutions), 2012 PSLRB 82; Fletcher v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 39; Gallan v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 19; Howitt v. Canada Food Inspection Agency, 2013 PSLRB 51; Smid v. Deputy Head (Courts Administration Service), 2014 PSLRB 24; Synowski v. Deputy Head (Department of Health), 2007 PSLRB 63; Tshibangu v. Deputy Head (Canadian Food Inspection Agency), 2011 PSLRB 143; and Villarceau v. Deputy Head (Department of Foreign Affairs and International Trade), 2009 PSLRB 41.

B. For Ms. Sandhu

161        Ms. Sandhu’s bargaining agent submitted that the issues before me are the following:

1. whether Ms. Sandhu was a probationary employee when she was terminated on March 5, 2014;
2. whether a suspension without pay can be characterized as leave without pay;
3. if she was rejected on probation, whether it was a sham, a camouflage, or done in bad faith; and
4. if discipline was warranted due to her misconduct, whether terminating her employment was an excessive penalty and discriminatory based on her family status, and if so, determining the appropriate disciplinary penalty.

1. The probationary period

162        The bargaining agent submitted that either Ms. Sandhu was still on probation or her probationary period had completed. Its position is that she was no longer on probation when her employment was terminated. Pursuant to s. 26(1)(c) of the PSEA, the Treasury Board made the Regulations Establishing Periods of Probation and Periods of Notice of Termination of Employment During Probation (SOR/2005-375; “the Regulations”). Under them, Ms. Sandhu was required to serve a 12-month probationary period that began on January 23, 2013, and that expired on January 22, 2014. Her termination occurred on March 5, 2014, after she had completed her probationary period.

2. A suspension without pay is not leave

163        The Regulations do not define leave. But clause 2.01(l) of the collective agreement does, as follows: “‘leave’ means authorized absence from duty by an employee during his or her regular or normal hours of work ... ” (emphasis in the original). Furthermore, clause 28.04 of the collective agreement states as follows: “An employee is not entitled to leave with pay during periods he or she is on leave without pay or under suspension.”

164        The word “or” in that clause means that leave without pay is not a suspension; an employee may be on one or the other. Furthermore, the clause’s wording means that there are two types of leave: without pay and with pay, which both differ from a suspension. In addition, the definition of “leave” means that it is permission requested by an employee. This language is clear and unambiguous. It is trite to say that an employee cannot seek permission for leave as a form of suspension.

165        The November 29, 2013, memo that changed Ms. Sandhu’s suspension from being with pay to without pay has the subject heading, “Suspension without pay pending Disciplinary Investigation”. The memos of December 12, 2013, and January 13, February 3, and February 24, 2014, all have the subject heading, “Suspension Without Pay”. They do not mention leave. Only in the one dated January 23 did the Employer advise her that its position was that she had been on leave without pay since December 2, 2013, and that her probationary period would be extended.

166        Ms. Draude did not offer any explanation for waiting until January 23, 2014, to extend Ms. Sandhu’s probation, especially since the Employer had received the Investigation Report on January 6, 2014. The Employer also did not offer any explanation for not completing Ms. Sandhu’s performance appraisals at the
three-, six-, and nine-month points.

167        The CSC failed to comply with the Regulations. Ms. Sandhu received the January 23, 2014, letter purporting to extend her probationary period after it had expired, so it could not have been extended. Brown and Beatty, in Canadian Labour Arbitration, 4^th ed., at para. 4:2152, state that a probationary period cannot be extended after it has expired. The CSC failed to comply with the Regulations with respect to probationary periods.

168        The bargaining agent relied on the following authorities: Nova Scotia Community College v. NSGEU (Hannigan), 2012 CarswellNS 1057; Arnould v. Canada (Treasury Board),2004 PSSRB 80; Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134; Cassin v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 37; and Souaker v. Canadian Nuclear Safety Commission, 2009 PSLRB 145.

3. Rejection on probation

169        The Employer’s rejection of Ms. Sandhu on probation was a sham, a camouflage, and in bad faith. It must be noted that all the staff on the floor on the shift at issue failed to immediately report what they knew about Officer A’s condition, including Officer Maxwell. Ms. Sandhu, Ms. Needles, and Officers B, E, Maxwell, and C all struggled with the situation. The more senior officers, not only those on probation, also did not know what to do.

170        The Employer’s position is that it was a rejection on probation. However, the evidence shows that it was in fact disguised discipline. The memos of November 29 and December 23, 2013, and January 13, February 3, and February 24, 2014, all refer to “Suspension without pay”. In addition, the Investigation Report is entitled, “Disciplinary Investigation Report”. Furthermore, the hearing notes of February 6, 2014, are entitled “Disciplinary Hearing - Sabrina Sandhu”. Ms. Sandhu had never been disciplined, and no performance appraisals had been done for her in over nine months. The Employer did not have cause to discipline her.

171        The Employer’s disciplinary sanctions imposed on the officers involved in the incident were discriminatory and in bad faith. The only officers terminated were Mses. Sandhu and Needles, even though all the other officers engaged in similar conduct, and the same mitigating and aggravating factors applied to them. Officers B, C, and E received financial penalties and were not terminated.

172        The BOI concluded that Ms. Sandhu and the other officers on shift that evening had sufficient knowledge to report Officer A’s condition to Ms. Holm. Only Officer Maxwell did so, and Officer B did so only when Ms. Holm confronted him.

173        Officer B received a one-day financial penalty. Officers C and E received four-day financial penalties. In addition, Officer A was initially terminated but then was demoted to CX-01 and deployed to another institution.

174        Ms. Needles and Ms. Sandhu received harsher discipline than the other officers involved, but no valid rationale was provided as to why. The bargaining agent’s position is that Ms. Sandhu was made an example of because her mother is a warden, which was well known in the Institution.

175        Officers Cheung and Ramirez testified about the rat culture at the Institution, which is that employees who rat on other employees are singled out and not trusted by other employees. Ms. Sandhu’s actions and reactions to Officer A’s condition must be viewed in that context; see Mackie v. Canada (Treasury Board), 2004 PSSRB 3. Ms. Sandhu testified that she felt that Officer A could self-report, and she did not go directly to Ms. Holm because of that. Her decision not to report it to Ms. Holm was not a good choice, but it did not warrant termination, especially since other officers on duty delayed reporting it and did not receive the same disciplinary sanction.

176        The Employer discriminated against Ms. Sandhu because of her family status when it terminated her employment. She testified that everyone at the Institution knew that her mother is a warden and that she was targeted at work for being the daughter of one. It is trite that an employer cannot discriminate against an employee because of family status; see B. v. Ontario (Human Rights Commission), 2002 SCC 66.

177        Ms. Sandhu’s reaction to seeing Officer A in his condition must be viewed in that context; she was viewed as the daughter of a warden, was targeted, wanted to fit in, and did not want to be labelled a rat. Her actions possibly warranted discipline but not termination since that is the harshest discipline an employer can impose. The bargaining agent submitted that Ms. Draude wanted to send a message to the staff at the Institution that they could not react that way in the future. She was tougher on Ms. Sandhu because she is the daughter of a warden or did so in reaction to pressure from her colleagues not to terminate Ms. Sandhu’s employment.

178        Ms. Sandhu’s testimony and the rebuttal that she prepared in response to the Investigation Report show that she accepts responsibility and that she acknowledges that she should have reported Officer A’s condition to Ms. Holm.

4. Ms. Sandhu’s suspension was disciplinary

179        Ms. Sandhu’s suspension without pay was disciplinary since it was indefinite and lasted too long. Under the Global Agreement, the Employer can suspend an employee without pay pending the conclusion of an investigation if the employee’s continued presence in the Institution presents “... a serious or immediate risk to staff, inmates, the public, or the reputation of CSC ...”. The onus is on the Employer to prove that the employee posed a “serious or immediate risk”; see Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70.

180        The Employer’s evidence did not support the suspension without pay since it did not show that Ms. Sandhu posed an immediate risk to inmates, staff, or the public. It could have placed her in another position at the Institution without impacting the investigation (for example, on administrative duties), assigned her to another position not involving correctional officer duties, assigned her to a neighbouring institution or workplace, or placed her on the day shift, where she could have been closely supervised. None of these options was discussed with her. It must be noted that finding a co-worker drunk at work was almost unheard of. The termination of her employment due to the one incident was unfair and amounted to a camouflage, bad faith, or a sham.

5. Violation of article 17

181        The bargaining agent submitted that the Employer breached clauses 17.07 and 17.08 of the collective agreement by not providing Ms. Sandhu with the audio recordings of the phone calls and radio transmissions and by not providing her with transcripts of them.

6. Remedy requested

182        The termination grievances should be allowed, and Ms. Sandhu should be reinstated as a CX-02 as of December 2, 2013. She should be fully compensated for her losses of wages, overtime, shift differentials, statutory holiday premiums, and annual and sick leave. In addition, the bargaining agent asks that she be given a fresh start and that she be appointed to the position offered to her at the Fraser Valley Institution.

183        In terms of the suspension-without-pay grievances, the bargaining agent requested that Ms. Sandhu be reimbursed from December 2, 2013, to March 5, 2014, for her wages and that she be paid shift differentials, lost overtime, benefits, pension contributions, leave, and vacation.

C. The CSC’s rebuttal

184        The Employer’s failure to carry out performance reviews for Ms. Sandhu was not grieved, and the bargaining agent could not seek to have that issue addressed at adjudication; see Burchill and Shneidman.

185        Ms. Sandhu was not at work from November 1, 2013, and was not assessed on probation after that date. Thus, she seeks to shorten her probationary period, which is not permitted under the PSEA.

186        The bargaining agent questioned why the Employer’s January 23, 2014, memo was not sent to Ms. Sandhu earlier. There is no evidence that that was done in bad faith. Furthermore, nothing in the collective agreement required it to send that letter (which notified her that her probationary period was being extended). In addition, that issue was not raised in the grievances and could not be raised at adjudication. Her probationary period was frozen and then continued after that for the length of the extension.

187        As for the bargaining agent’s allegation that clauses 17.07 and 17.08 of the collective agreement were breached, Ms. Draude testified that all information was shared with Ms. Sandhu. Furthermore, the Employer did not have any obligation under the collective agreement to share audio recordings and their transcripts with an employee.

188        The Employer’s position was that Ms. Sandhu’s allegation of discrimination based on family status was not grieved and thus could not be raised at adjudication. In addition, there is no evidence that the Institution’s management treated Ms. Sandhu differently because of her mother’s position as a warden.

189        In terms of the suspension-without-pay grievances, if Ms. Sandhu is reinstated to December 2, 2013, then they are moot.

190        Finally, the Employer objected to Ms. Sandhu being reinstated to the position offered to her at Fraser Valley Institution on the basis that I have no jurisdiction to do it. If her termination grievances are allowed, I can reinstate her only to her former position at the Institution.

IV. Reasons

A. Issues

191        The following issues are to be decided in this adjudication:

1. Did Ms. Needles abandon her grievances?
2. Did the Employer terminate Ms. Sandhu’s employment during the probationary period?
3. If Ms. Sandhu was rejected on probation, was it done in bad faith or was it a sham or camouflage?
4. Did the Employer properly suspend Ms. Sandhu without pay?
5. Did the Employer violate clauses 17.07 and 17.08 of the collective agreement?

B. Analysis - Ms. Needles’ grievances

1. The motion to dismiss for abandonment

192        The Employer submitted that Ms. Needles was aware of the hearing dates, chose not to attend the hearing, and did not provide any reasons for not attending. Therefore, her grievances should be dismissed due to abandonment.

193        Ms. Needles filed six grievances challenging the suspension without pay and the termination of her employment during the probationary period. However, by an email and a letter of March 4, 2013, the UCCO-SACC-CSN advised her that it was withdrawing its support for her grievances. It also advised her that the hearing was scheduled for Edmonton on March 15 to 18, 2016, and it provided her with the details of the location, as well as other information. The Board’s registry then sent her a registered letter and an email advising her that the UCCO-SACC-CSN had withdrawn its support, that her grievances were still active, and that she could choose to represent herself, as well as the hearing details.

194        Ms. Needles did not appear at the hearing.

195        Two additional dates (August 17 and 18, 2016) were subsequently scheduled for a continuation of the hearing. The Board’s registry also advised Ms. Needles of those dates and the location details.

196        Ms. Needles did not appear at the continuation.

197        I am satisfied that Ms. Needles was properly advised of the hearing dates and location. It must be presumed that she had no intention of attending or of pursuing her grievances. She has failed to present any evidence in support of her grievances. Therefore, I conclude that her grievances have been abandoned, and they are dismissed for that reason.

C. Analysis - Ms. Sandhu’s grievances

1. Jurisdiction

198        The March 5, 2014, termination letter provided to Ms. Sandhu states that her employment was terminated pursuant to s. 61(1) of the PSEA. Sections 61(1)(a) and 62(1)(a) provide as follows:

Probationary period

61 (1) A person appointed from outside the public service is on probation for a period

(a) established by regulations of the Treasury Board in respect of the class of employees of which that person is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act ...

...

Termination of employment

62 (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

(a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act ...

...

and the employee ceases to be an employee at the end of that notice period.

199        Under s. 61(1) of the PSEA, a person appointed from outside the public service must serve a probation for a period established by the Regulations in respect of the class of employees of which that person is a member and in the case of an organization named in Schedule I or IV of the FAA.

200        Under s. 62(1) of the PSEA, the deputy head of organizations such as the CSC can notify a probationary employee that her or his employment will be terminated at the end of a specified notice period set out in the FAA.

201        Under the Regulations, the FAA sets out a 12-month probationary period for CSC employees and a notice period of 2 weeks if the employee has been employed for 1 year or less and 1 month if the employee has been employed for more than 1 year.Furthermore, s. 2(2) of the Regulations provides that the probationary period referred to in s. 61(1) does not include any of the following periods:

2 (2) ...

(a) of leave without pay;

(b) of full-time language training;

(c) of leave with pay of more than 30 consecutive days; or

(d) during which a seasonal employee is not required to perform the duties of the position because of the seasonal nature of the duties.

202        The Board has no inherent jurisdiction. Rather, its jurisdiction flows from statutes and regulations. The Regulations do not allow an adjudicator (or an employer) to extend a probationary period; one can be extended only as stipulated in s. 2(2) of the Regulations.

203        Ms. Sandhu relied on s. 209(1) of the FPSLRA in the referral of her grievances to adjudication. That section allows the Board to address a grievance referred to adjudication if it is about the interpretation or application of a collective agreement provision in relation to the employee. Section 209(1)(b) gives the Board jurisdiction to address discipline that results in termination, demotion, suspension, or a financial penalty. Under s. 209(1)(c), it has jurisdiction to address a termination made under s. 12(1)(d) of the FAA for unsatisfactory performance or under s. 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct.

204        However, s. 211(a) of the FPSLRA provides as follows:

211 Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

(a) any termination of employment under the Public Service Employment Act ...

205        Therefore, since a grievance about a termination of employment under the PSEA cannot be referred to adjudication, I do not have jurisdiction to address such a termination. Thus, given that Ms. Sandhu was ostensibly terminated under s. 62(1) of the PSEA, I would not have jurisdiction to hear her grievance against her dismissal during probation.

206        That does not end the matter. The Board’s jurisprudence makes it clear that an adjudicator has jurisdiction to determine whether the termination of an employee during a probationary period was in fact made in bad faith or was a sham or camouflage. In such a case, the termination cannot stand.

207        For example, in Tello, the adjudicator stated as follows at paragraphs 105 and 111:

[105] The plain reading of the PSLRA and the new PSEA is that a probationary employee can be terminated with notice for any reason (or no reason) and does not have access to adjudication. Under the new PSEA, the only restriction placed on the deputy head is that the employee must be within his or her probationary period and notice (or pay in lieu) must be provided ...

...

[111] In my view, the change between the former PSEA and the new PSEA, when viewed in the context of the recent jurisprudence of the Supreme Court of Canada on the appropriate approach to public employment, does not significantly alter the substance of the approach that adjudicators should take to grievances involving the termination of a probationary employee. However, the omission of the words “for cause” in section 62 of the new PSEA does change the burden of proof requirements. The burden of proof on the deputy head has been reduced. The deputy head’s burden is now limited to establishing that the employee was on probation, that the probationary period was still in effect at the time of termination and that notice or pay in lieu has been provided. The deputy head no longer has the burden of showing “cause” for the rejection on probation. In other words, the deputy head does not have the burden of establishing, on a balance of probabilities, a legitimate employment-related reason for the termination of employment. However, the Treasury Board Guidelines for Rejection on Probation require that the letter of termination of employment of a probationary employee set out the reason for the decision to terminate employment. The deputy head is still required to tender the letter of termination as an exhibit (normally through a witness) to establish that the statutory requirements of notice and probationary status have been met. That letter will usually state the reason for the decision to terminate the employment of the probationary employee. The burden then shifts to the grievor. The grievor bears the burden of showing that the termination of employment was a contrived reliance on the new PSEA, a sham or a camouflage. If the grievor establishes that there were no legitimate “employment-related reasons” for the termination (in other words, if the decision was not based on a bona fide dissatisfaction as to his suitability for employment: Penner at page 438) then the grievor will have met his burden. Apart from this change to the burden of proof, the previous jurisprudence under the former PSEA is still relevant to a determination of jurisdiction over grievances against a termination of a probationary employee.

[Emphasis added]

208        In summary, from the Board’s reasons in Tello,in an adjudication of a rejection-on-probation grievance, an employer is not required to show that it had a valid employment-related reason for the rejection. Rather, its onus is to show that the grievor was on probation, was terminated within the probationary period, was given a termination letter setting out the reason for the termination, and was given payment in lieu of notice. The onus then shifts to the grievor to show that the employer’s decision to reject her or him on probation was in bad faith, a sham, or a camouflage.

2. Was Ms. Sandhu terminated during the probationary period?

209        With respect to the Employer’s onus, it is undisputed that Ms. Sandhu was on probation, was given a termination letter setting out the reasons for termination, and was given payment in lieu of notice. The only issue remaining is whether she was terminated within her probationary period.

210        The Employer’s position was that Ms. Sandhu was on a leave without pay from December 2, 2013, when it changed her status to a suspension without pay, which continued until March 5, 2014, when she was rejected on probation. Therefore, according to s. 2(2) of the Regulations, her probationary period did not include December 2, 2013, to March 5, 2014; it was extended by that time, and she was terminated during her probationary period.

211        On the other hand, the bargaining agent argued that the language of the collective agreement states that leave without pay is not the same as suspension without pay. Since the Employer placed Ms. Sandhu on suspension without pay, she was not on leave without pay, and s. 2(2) of the Regulations does not apply. Therefore, her probationary period expired on January 22, 2014, 12 months after she started her employment with the CSC. The Employer terminated her employment on March 5, 2014, which means that it did so outside her probationary period, so it was not valid.

212        The success of the Employer’s argument depends on whether a suspension with or without pay is equivalent to leave with or without pay. To determine that issue, it is necessary to examine how the parties treat leave and suspensions under the collective agreement and the Global Agreement. In that respect, it is necessary to read s. 2(2) of the Regulations in the context of the language used in those agreements.

213        The collective agreement does not define “suspension”.

214        Clause 2.01(l) of the collective agreement defines “leave” as follows:“‘leave’ means authorized absence from duty by an employee during his or her regular or normal hours of work ...” (emphasis in the original). In addition, clause 28.04 states as follows: “An employee is not entitled to leave with pay during periods he or she is on leave without pay or under suspension.”

215        Article 29 addresses vacation leave with pay, and article 30 provides for 19 other types of leave with or without pay. In addition, article 31 provides for sick leave with pay, and article 32 provides for education leave without pay and career development leave. Included in the different types of leave under article 30 is leave with or without pay for other reasons, as follows:

          30.18 At its discretion, the Employer may grant:

(a)      leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty. Such leave shall not be unreasonably withheld;

(b)      leave with or without pay for purposes other than those specified in this collective agreement.

216        Some of the leave set out in article 30 involves the Employer granting it or an employee being entitled to it. In addition, some of the provisions in article 30 provide that the leave shall be granted to an employee upon his or her request. For example, clause 30.03 states in part as follows:

          30.03 Maternity Leave Without Pay

(a)      an employee who becomes pregnant shall, upon request, be granted maternity leave without pay....

217        In addition, clause 30.06, “Parental Leave Without Pay”, states that “... the employee shall, upon request, be granted parental leave without pay...”.

218        Reading article 30 as a whole, my view is that the parties contemplated that by using the word “grant” and the phrase “upon request”, they intended the following:

• that an employee shall first make a leave request; and
• that upon receiving a leave request, the Employer may or shall grant it.

219        Furthermore, it is clear from clause 28.04 that the parties intended to differentiate between leave without pay and suspension. Had they wanted leave without pay to have the same meaning as suspension, they could have used language to that effect. For example, they could have framed clause 28.04 as follows: “An employee is not entitled to leave with pay during periods he or she is on leave without pay, including a suspension.” Instead, they deliberately chose to distinguish leave without pay from suspension by using “or” between “leave without pay” and “under suspension”.

220        In addition, it is trite to state that a suspension with or without pay is imposed on an employee by an employer. An employee does not request a suspension with or without pay, and an employer does not grant such a request. The Employer suspended Ms. Sandhu with pay from November 1 to December 1, 2013. It then changed it to a suspension without pay from December 2, 2013. As Mr. Sass testified, when the Employer decided to suspend her without pay, she did not have a choice. He also stated that an employee is not on leave if he or she is suspended with or without pay; he or she is suspended.

221        In addition, the Global Agreement speaks to the status of an employee during an investigation. In that respect, Section III-C states as follows:

III-C Suspension During an Investigation (reference: Article 20)

For purposes of these provisions, CSC will apply the following:

1. When an employee is the subject of an investigation and a decision has been made by local management to remove him or her from his or her post or duties, or to temporarily reassign him or her to another post or work location, the employee is designated as being on administrative duties with pay until such time as the investigation is complete and a decision has been rendered on the status of the employee.
2. However, in circumstances where local management is satisfied that the continued presence of an employee presents a serious or immediate risk to staff, inmates, the public or the reputation of CSC, the employee can be suspended without pay until the conclusion of the investigation and decision has been rendered on the status of the employee.

222        It is significant that the parties did not use the terms “leave with pay” or “leave without pay” in this provision. Rather, they used the heading, “Suspension During an Investigation” and referred to removing an employee from her or his duties pending the completion of an investigation as the employee being “on administrative duties with pay” and “suspended without pay”. Again, it would have been simple for the parties to have used different language had they intended “administrative duties with pay” to mean “leave with pay” or “suspended without pay” to mean “leave without pay”. Therefore, it must be presumed that they intended a suspension with or without pay to be different from leave with or without pay.

223        The Regulations exclude leave without pay and leave with pay of more than 30 consecutive days from a probationary period under s. 61(1)(a) of the PSEA. Ms. Sandhu was advised of this in her offer letter. Given my finding that a suspension with or without pay is not equivalent to leave with or without pay as contemplated by the parties under their collective agreement and the Global Agreement, it stands to reason that Ms. Sandhu’s probationary period was not extended for the time when she was suspended with and without pay. This means that her probationary period would have expired on January 22, 2014. Given that the Employer terminated her employment on March 5, 2014 (effective retroactively to December 2, 2013), it was done outside the probationary period, which renders the termination void. Ms. Sandhu’s termination grievances are allowed.

224        The Employer might well have had cause to discipline Ms. Sandhu and the right to terminate her employment due to her conduct on the October 31 to November 1, 2013, shift. However, it did not pursue that option. Instead, it chose to reject her on probation pursuant to s. 62(1) of the PSEA. It was obliged to do that within the probationary period set out in the Regulations. It failed to do that.

3. Ms. Sandhu’s other grievances

225        Given my findings, it is not necessary to address the bargaining agent’s other arguments. Ms. Sandhu’s grievances about her suspension without pay and the alleged violation of clauses 17.07 and 17.08 of the collective agreement are rendered moot by my finding that the termination of her employment was done outside her probationary period.

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

V. Order

227        Ms. Needles’s grievances (nos. 51947, 51948, 52069, 52070, 52212, and 52219) are dismissed.

228        I have jurisdiction to hear Ms. Sandhu’s grievances.

229        Ms. Sandhu’s termination grievances (nos. 52254 and 52255) are allowed.

230        Ms. Sandhu’s suspension grievances (nos. 51949, 51950, 52218, 52251, 52072, and 52071) are dismissed.

231        Ms. Sandhu’s grievance alleging a violation of clauses 17.07 and 17.08 of the collective agreement (no. 52253) is dismissed.

232        Ms. Sandhu shall be reinstated to a correctional officer position classified at the CX-02 group and level, with pay and without loss of benefits, starting from December 2, 2013.

233        Within 60 days of this decision, the deputy head shall reinstate Ms. Sandhu’s salary at the CX-02 group and level and her benefits starting from December 2, 2013.

234        Within 60 days of this decision, the deputy head shall compensate Ms. Sandhu for her salary at the CX-02 group and level starting from December 2, 2013, less the customary deductions, and less any employment income earned by Ms. Sandhu from December 2, 2013, to the date of her reinstatement.

August 13, 2018.