FPSLREB Decisions

Heard at Ottawa, Ontario,
May 21, 2019.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1         The grievor, Brian St-Hilaire, grieved the fraudulent and malicious imposition of disciplinary action against him by the employer, the Canada Revenue Agency (CRA), in the form of a 10-day suspension without pay, which he alleged was based on false information. He also alleged that the employer did not consider the mitigating factors he presented during the disciplinary hearing process when determining the quantum of discipline to be imposed.

2         He seeks reimbursement of the 10 days of pay and the removal of all records of the disciplinary action from his personal record. At the hearing, he also sought damages as were awarded in the Doro v. Canada Revenue Agency, 2019 FPSLREB 6, decision for treatment costs arising from harassment in the amounts of $20 000 in compensation for pain and suffering under s. 53(2)(e) of the Canadian Human Rights Act (R.S.C., 1985, c. H-6) and $20 000 in special compensation under s. 53(3) of that Act even though these claims were not previously raised at any of the grievance levels nor was any claim of disability made at the hearing.

3         Counsel for the employer objected to the addition of these claims at the hearing on the basis of the principle in Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.). For his part, the grievor argued that the damages formed part of his claim to be made whole. The employer’s application under Burchill need not be decided as for reasons set out below, the grievance is denied and therefore the grievor’s various damages under this heading need not be considered.

II. Summary of the evidence

4         The grievor was disciplined for the second time in September 2015 after what the employer described as a continuing pattern of refusing to follow his team leader’s directions with respect to completing his work. His team leader (TL) had to ask him to correct errors in his work several times during the period in which he worked as an
SP-02 in the Document Preparation Section at the Imaging Technology Centre (ITC) in Ottawa, Ontario.

5         The grievor’s job was to prepare documents for scanning by disassembling them and providing the scanners and the reassemblers with directions as to the quality of the documents to be scanned and how they were to be reassembled once the scanning process was completed. The documents in question had been seized by CRA investigators and members of the Royal Canadian Mounted Police and were to be used as evidence in upcoming court cases. The work required strict adherence to the employer’s procedures guide and keen attention to detail.

6         Marianne Beasleigh was the grievor’s TL for the entire time he worked in the document preparation area. She was one of two TLs there. She described the difficulties she encountered managing him and the deficiencies demonstrated in his work. According to her evidence, there was an ongoing pattern of errors, which he denied existed, and of him refusing to correct the errors such that others had to be assigned to correct them. The errors that he would describe as trivial or stupid, such as flagging incorrect documents or putting documents out of order, could have resulted in a court case being dismissed, according to Ms. Beasleigh, so what he thought was trivial or stupid had significant consequences.

7         As the pattern of refusing to take her directions continued, Ms. Beasleigh found it necessary to warn the grievor that should he continue to refuse to follow her directions and refuse to correct his errors, his actions would be considered insubordination. Despite this, he continued to make errors and continued to refuse to correct them when asked.

8         The number of errors in any one box of documents that the grievor would make ranged from 3 to 10 or more. That was an unusual number for someone not in training. When employees join the team in the document preparation area, they receive one to two weeks of training followed by a one-month period during which their boxes are reviewed for errors. By January 2015, the grievor had had his work reviewed for at least three months. By the time he left the area in November 2015, his work was still under review for errors.

9         After the grievor refused to correct his errors on January 26, 2015, Ms. Beasleigh met with him and Bill Mahoney, the manager of the ITC and to whom she reported, to discuss the grievor’s work-related issues and behaviour, which the employer believed had reached the point of insubordination.

10        The purpose of the meeting was to emphasize to the grievor that the employer’s policies and procedures related to the performance of his work and his conduct in the workplace were to be followed and to emphasize to him that his current behaviour could be considered insubordination, which brought with it the potential for disciplinary action. At the same time, he was given another copy of the document preparation procedures guide to be followed in doing his job.

11        Then on March 26, 2015, a box was returned to the grievor. It contained documents with many errors to be corrected. When he returned it and claimed that all the necessary corrections had been made, the reviewers discovered that it still contained errors. When it was sent to him the second time, to make the corrections, he became angry, according to Ms. Beasleigh. He refused, banged on the desk, and shouted at her, saying, “Don’t you get that through your head you idiot!” He said that he would not make any further changes to the documents in the box.

12        For that insubordination, the grievor received a three-day suspension without pay, which he did not grieve. For a while after that, his behaviour was less aggressive, according to Ms. Beasleigh, but it did not really improve. He continued to refuse to make corrections as directed, and she reminded him that refusing to follow her directions was insubordination.

13        On September 9, 2015, another box prepared by the grievor that was unusable for scanning was returned to him with a note of the errors he had to correct. He became angry and in an agitated and loud voice advised Ms. Beasleigh that what she thought were errors were not errors, that the box was fine, and that he would not redo anything. She testified that she then again informed him that his refusal was insubordination, at which point he rose and walked away from her. She reported the incident immediately to her manager, Mr. Mahoney, who promptly convened a disciplinary hearing that resulted in the 10-day suspension that was the subject of this adjudication.

14        Ms. Beasleigh described the impact of the grievor’s conduct on the other employees in the document preparation area and on her. The other employees had to take on the extra workload caused by his refusal to correct his errors. One employee had to be taken off the document-preparation process to review the grievor’s documents full-time, meaning that the extra workload was distributed elsewhere as was the workload associated with performing the corrections that he refused to do.

15        According to Ms. Beasleigh, the workload of the employees in the area was not the only thing affected. The grievor’s co-workers who worked near him and experienced his outbursts reported to her that they were afraid of him. They reported being afraid to approach him, particularly to discuss errors that he had made. She found it difficult to deal with as she was also scared of him. According to her, he was angry and volatile in the workplace.

16        Mr. Mahoney was responsible for imposing the disciplinary action against the grievor. He testified that over the time the grievor was in the document preparation area, he had many interactions and meetings with the grievor. He described the grievor’s performance as poor despite his attempts to elicit feedback from the grievor on why he was not meeting the employer’s performance expectations. Mr. Mahoney’s attempts to identify options to improve the grievor’s performance and to adjust the grievor’s behaviour in the workplace were unsuccessful despite meeting with him every month. Ms. Beasleigh and the file reviewers met with the grievor daily and weekly to review his work, and nothing improved. The instances of unacceptable behaviour escalated, such as aggressiveness, argumentativeness, and hostility in the face of feedback.

17        According to Mr. Mahoney, the grievor was in denial about his errors. He claimed that others were fabricating errors and blaming them on him. At one point, only TLs were assigned to review his work so that he could not blame his co-workers for tampering with his boxes. Despite that step, he adamantly contended that others in the workplace, including management, were tampering with his work and fabricating errors or alternately that the errors were figments of management’s imagination and did not exist. Regardless of the reason, the bottom line was that he firmly asserted that he was not responsible for any errors found in his work and that he would not correct them.

18        In addition to the workload strains that the grievor’s actions put on the document preparation area, his behaviour escalated. He became more vocal when refusing to do his work. He yelled at his TL. He called her an idiot and in general made the workplace unpleasant for those around him. Every time he refused to make the corrections required, the TL reminded him of the consequences of being insubordinate, and every time he was warned about being insubordinate, he acknowledged that he was aware that he was being insubordinate and that he recognized the consequences it brought.

19        On September 9, 2015, Ms. Beasleigh went to see Mr. Mahoney. She advised him that she had another box to deliver to the grievor, that she was uneasy with delivering it to him, and that in fact she was afraid of how he would react, given the number of errors it contained.

20        Mr. Mahoney testified that he listened in on the interaction between Ms. Beasleigh and the grievor when the box was delivered from his office, which was close to the grievor’s cubicle. He heard, as did others in the vicinity, the grievor aggressively refusing to do the work that Ms. Beasleigh was assigning to him.

21        In the company of Ms. Beasleigh, Mr. Mahoney met with the grievor the next day to discuss the events of September 9, 2015, and to allow the grievor to explain his actions. The grievor became visibly angry with her. He maintained that there were no errors and that even if there were some, they had been fabricated by someone else and were not his errors. He was visibly agitated; he banged his fists on the desk. Mr. Mahoney questioned him about similar behaviour that had been demonstrated at his previous work location, which he also denied.

22        The grievor contended that what were identified as errors in his work were not errors. For instance, there was no need to insert blank pages at the beginning and end of documents to show where they started and where they ended. The blank pages made no difference to the scanning process, according to him. While that may be true, according to Mr. Mahoney, the grievor could not or would not accept that the blank pages were required for the reassembly process.

23        It did not matter whether the grievor agreed with the employer’s process; he was told how to carry out his work, and he was to do as directed. He was told several times of the consequences of failing to carry out his assigned work as directed, which he acknowledged to the employer as many times. Regardless, he refused to perform the work according to the employer’s standards, repeatedly refused to follow the TL’s orders, and was repeatedly loud, aggressive, and physically threatening. For those behaviours and for refusing to do as he was ordered on September 9, 2015, the employer imposed a 10-day suspension without pay on him in the hope of finally getting the message across.

24        It was clear to Mr. Mahoney that the grievor got tired of his workload quickly. He was bored and disinterested in the workplace. He went on sick leave on September 19, 2015, and did not return to the workplace until October 13, which is why the delivery of the letter of discipline was delayed.

25        The reason Mr. Mahoney felt that a 10-day suspension without pay was appropriate, not a lesser penalty, was the need to deliver a strong message to the grievor. His insubordinate and unacceptable behaviour had to change. The conduct he demonstrated violated the values of openness, honesty, fairness, and respectfulness that are enshrined in the employer’s “Code of Values and Ethics”. His actions did not protect the employer’s reputation. He embarrassed the employer and the section where he worked and risked the success of investigations. In the workplace, he created an unhealthy and poisoned environment in which his co-workers were afraid of him and wanted him removed.

26        Frank Davoudi was the assistant director of revenue technology operations, which included the ITC, where the grievor worked. He signed the disciplinary letters imposing the 3- and 10-day suspensions without pay on the grievor for insubordination. He attended the disciplinary hearings held in advance of the disciplinary action being imposed. According to him, at those hearings, the grievor was asked to explain his behaviour and to offer any mitigating circumstances that would help his explanation. He offered none. The errors were not his fault; someone had fabricated them to make him look bad so that he would be forced into the disciplinary situation he found himself in.

27        The events that gave rise to the 10-day suspension without pay in September 2015 were a carbon copy of those from March 2015 that had led to the 3-day suspension without pay. Between those incidents, the grievor had many times received and acknowledged warnings about the consequences of his continued actions, which amounted to insubordination.

28        The grievor was treated no differently than was any other employee. He had to meet a specific error rate in his work. When he made errors, he was required to fix them. The difference between him and the other employees was he did not meet the objectives of his position and did not recognize that he was doing anything wrong. It was always someone else’s fabrication or wrongdoing. Although he was initially intrigued by the idea of the work done in the document preparation area, according to Mr. Davoudi, he soured on it quickly. It bored him. He did not see the importance of the work he did in the judicial process.

29        The grievor did not cross-examine any of the employer’s witnesses. He called no witnesses and did not challenge the employer’s evidence in any way. He provided a lengthy, unwieldy, and often incomprehensible manifesto under oath, which will be summarized where relevant in this decision.

30        The gist of the grievor’s message was that through a conspiracy of CRA managers, including Ms. Beasleigh, Mr. Mahoney, Mr. Davoudi, and David Wyman, the employer used illegal, fraudulent, and other malicious actions in an attempt to have him removed from the workplace and to keep him from exposing what he knew about the CRA and what he knew was fake work.

31        From the minute the grievor walked into the document preparation section, these managers contrived, fraudulently and maliciously, together and separately, to misrepresent his actions, so as to justify imposing discipline on him. Their goal was to have him removed from the workplace. The conspiracy extended into the community to prevent his attendance at the hearing, and it resulted in the untimely death of a cyclist the week before the hearing.

32        The grievor testified that he had worked previously in another section of the CRA on the fifth floor of the same building as the document preparation section, where payments were verified. In 2014, he was accused of calling a woman on the fifth floor a “f***ing bitch”. He denied doing so then and again on the stand at the hearing. Judy Thompson, the assistant director of the section on the fifth floor, suspended him. He was off work until he saw a psychiatrist, a psychotherapist, a psychologist, and a general practitioner. Once he completed a fitness-to-work evaluation, the employer was satisfied that he was fit to return to work.

33        In July 2014, the grievor, with his union representative, met with Ms. Thompson and Mr. Wyman to discuss his return to the fifth floor. Mr. Wyman proposed that he return to a job on the second floor in the document preparation section, where he could do police evidence work. The grievor testified that he was not really interested in it but that he agreed to it when Ms. Thompson assured him that if it did not work out, he could return to his position on the fifth floor at any time.

34        Within one week of starting work, it became clear to the grievor that it was not real work and that it was very boring. People would come and go, and no one seemed to be doing anything of any real consequence. At the same time, the errors in his work started to appear. According to him, people started “messing with [his] work.” Someone unknown to him and at the direction of one or all of the conspirators, most likely Mr. Mahoney or Ms. Beasleigh at his behest, was changing his work by moving and removing tags he had placed on documents, adding or deleting things from his worksheets, removing divider sheets, etc.

35        All this was clearly evident to the grievor, who examined against a bright light the sheets he had prepared listing each document and the instructions to the scanners for each one. He could see the alterations that the anonymous person or persons had made. That person or those people tipped their hands to him about how they had altered his work when Ms. Beasleigh returned one box to him containing 35 to 40 mistakes, which was impossible, since never in his life had he made that many errors. He held the list of instructions to the scanners up to a bright light, examined it, and saw the alterations that had been made.

36        The grievor testified that he had a keen eye for detail, having worked for years verifying cheques and processing payments. It was easy for him to detect the conspirators’ attempts to alter his work, which they did not consider when they altered his documents.

37        When he was asked why anyone would want to alter his work, the grievor testified that his problems started shortly after his arrival in the document preparation area, when he started commenting on the work ethics of his co-workers. Things escalated when he filed a complaint about the promotion of one of his colleagues to the MG-01 level. He also testified that the employer was afraid that he would spread his knowledge of the fake work that was being done in the area. The files that were being worked on were very old and were unlikely to result in convictions, so he knew that they would never go to court. So did the conspirators who needed it kept quiet, to protect their employment.

38        The conspirators tried to portray the grievor as in his words, “a lunatic, an animal, and incompetent”. He was not any of that, as doctors had proven, but the employer would not accept this from those professionals, so it sent him to a general practitioner to be assessed. When the doctors would not certify the grievor as in his words, “a lunatic”, the conspirators did their best to drive him insane. They repeatedly brought him the same boxes to work on even though he knew that he had corrected the mistakes. He remembered working on the same box three times in four months.

39        That box was held in a vault during the four-month period. The grievor testified that each day, one of the conspirators, who were the only ones who had access to the vault where the boxes were held, would go into the boxes and create mistakes. Some of the mistakes were as petty as moving a tag 2 mm. Then when it came time for the grievor’s performance review, it was found that he was no longer meeting the standards, and he had become an animal because he had stood up for himself. He testified that changes were made to his boxes not only in the vault; the conspirators had hired a homeless woman, who wandered around the complex saying “Yuck”, to make changes to his boxes.

40        The grievor was adamant that in no way could people have been afraid of him unless they had been coached to be afraid. Obviously, they had been threatened with the same treatment he was under if they did not agree to say that they were afraid of him. The truth was that his co-workers were afraid of management and not him. The management team had a reputation for lying and torturing employees.

41        When in cross-examination, he was asked why he simply did not correct the document errors that the employer brought to his attention, the grievor responded by asking why he should have corrected documents that did not need correcting. The employer repeatedly insisted that he correct documents that did not need correcting, just to drive him out of the building. The conspirators tried to get him to set himself up for a performance improvement plan, a demotion, and the termination of his employment. They had it set up so that their hands would be clean. It would appear to be all his fault.

42        The grievor acknowledged that the employer warned him repeatedly about the consequences of his actions and the repeated incidents of insubordination. However, according to him, in the military, one can refuse an order if it will cause harm to someone, so he asserted his right to refuse the employer’s repeated orders to correct his errors because they would have caused him harm.

43        When he was asked if he had received training on the employer’s Code of Values and Ethics, the grievor responded that he had after it was clearly shown to him on his training record, although he testified that he did not recall its content. He then testified that it was not professional or ethical of his managers to perpetuate a fraud to have him put out of his position. He maintained that he was professional at all times, even when he called Ms. Beasleigh an idiot in the heat of the moment. Even though earlier, he had denied calling her an idiot in March or September, he admitted that he did call her that in November 2015, at a time when his judgement was affected by anger at his situation and when he was under stress.

44        The grievor acknowledged that he knew refusing the direct order to correct the errors in his boxes was insubordination. However, that would have been only in a normal situation. The situation created by the conspirators was not a normal one. From the first week of his employment in the document preparation area, the four managers made demands of him for the sole purpose of driving him out of the workplace. He did exactly what they wanted done, how they wanted it done, and when they wanted it done, no matter how ridiculous it was. He resisted their efforts to drive him out. He was a fighter for what was right, for which he was disciplined.

III. Summary of the arguments

A. For the employer

45        Two questions are to be answered. Was there misconduct? If so, was the penalty imposed unreasonable?

46        There is no doubt that the grievor refused to follow the employer’s direct order. Failing to follow an order from a person in authority is insubordination (see Noel v. Treasury Board (Human Resources Development Canada), 2002 PSSRB 26). His failure to perform his work in the manner directed by the employer was also insubordination (see Doucette v. Treasury Board (Department of National Defence), 2003 PSSRB 66).

47        The test for determining whether an employee has committed insubordination is set out in Brown and Beatty, Canadian Labour Arbitration, 5th edition, at sections 7:3610, 7:3630, and 7:3660 as well as in Focker v. Canada Revenue Agency, 2008 PSLRB 7 at para. 75. It is (1) that the order was clearly communicated to the grievor, (2) that the person giving the order had the proper authority to give it, and (3) that the grievor refused to acknowledge the order or to comply with it.

48        All three elements were established through the employer’s uncontested evidence. The grievor was approached by his TL, Ms. Beasleigh, on September 9, 2015. She asked him to correct the errors in his work. He refused, following which she clarified that refusing to perform the work as directed constituted insubordination. He acknowledged that he understood it, and then he walked away.

49        That incident was not an isolated case of insubordination; it was part of a repeated pattern. The grievor had been warned about the consequences of acts of insubordination at a meeting with Mr. Mahoney and Ms. Beasleigh in January 2015 and had been reminded repeatedly since then of that meeting. Mr. Mahoney testified that he held that meeting to make sure that the grievor knew what insubordination was and its consequences.

50        Rather than discipline the grievor after the January 2015 incident, the employer chose to warn him about the potential consequences of his acts of insubordination. He did not take heed, and his behaviour escalated, resulting in the three-day suspension without pay in March 2015. When he was faced with disciplinary action in September 2015, after a period of several cautions and reminders and after the three-day suspension, the employer concluded that a much more serious penalty was required to convey its message concerning the lack of tolerance it had for his acts of insubordination. For that reason, it concluded that a 10-day suspension without pay was reasonable and required to send the message to him and to others that acts of insubordination would not be tolerated in the workplace.

51        The onus was on the grievor to convince the Federal Public Sector Labour Relations and Employment Board (“the Board”) that the penalty imposed was not reasonable (see Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119; and Ranu v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 89). Determining what is reasonable is an art, not a science, and an adjudicator should reduce the penalty only when it is clearly unreasonable or wrong (see Noel). Progressive discipline does not require following a specific pattern or progress by preordained penalty steps (see King v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 125).

52        In this case, many aggravating factors called for a more severe penalty. The grievor had received a three-day suspension without pay for the same infraction within six months and had been warned at least three times to perform his work as directed or he would face discipline for insubordination. He did not and does not accept responsibility for his misconduct; nor did he or does he show any remorse for his actions. At the hearing, he again blamed his situation on his managers. No mitigating factors justify substituting a lesser penalty.

53        The grievor understood what he was directed to do and preferred not to do it. A lesser penalty would not have conveyed the message to him that the employer needed to convey that disregarding its directions would not be tolerated.

B. For the grievor

54        All the employer’s representatives involved in this case committed major misconduct. This is not a normal case of insubordination, and the normal rules do not apply. In fact, this is a precedent-setting case in which the grievor’s wrongdoing is to be found correct and the employer is to be found to have acted wrongly. Insubordination did not apply to him when everyone involved except him was guilty of misconduct. The employer’s case is a complete and utter fabrication. The only way to make things right is to rule in his favour and not only reimburse the 10 days of pay but also compensate him for mental and emotional distress.

IV. Reasons

55        The facts of this case are essentially undisputed. The grievor admitted that he was insubordinate when he refused to perform his duties as directed by the employer and that he called his TL an inappropriate name. He also admitted to his disciplinary record and to the numerous warnings he received about the consequences of insubordination.

56        In his testimony and argument, the grievor admitted to being disrespectful to management, although not necessarily on the dates the employer claimed that it happened.

57        When a conflict in the evidence arises, I must accept that which is most consistent with the overall version of the facts before me and the documentary evidence entered into evidence. I must also rely on my assessment of the credibility of the witnesses who testified (see Faryna v. Chorney, [1952] 2 D.L.R. 354). Ms. Beasleigh’s evidence was unemotional, organized, and supported by the exhibits, while the grievor’s was rambling, incoherent, and supported by nothing except his statements. In my opinion, the better evidence is that of Ms. Beasleigh. For that reason, I accept her statement that the grievor was disrespectful to her on September 9, 2015.

58        The employer was correct in that the onus was on the grievor to convince the Board that the penalty imposed was not reasonable. He relied on his assertions that the four CRA management employees conspired and acted in a fraudulent, malicious, and illegal manner to remove him from the workplace. Yet, he provided no evidence to support any of his spurious allegations.

59        Establishing that a conspiracy exists requires evidence of an agreement between two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective and action or conduct that furthers that agreement. Likewise, an allegation of fraud requires evidence that there has been a knowing misrepresentation of the truth or concealment of a material fact to induce another person to act to his or her detriment. The grievor provided no evidence of either a conspiracy or a fraud. Merely because he said that such things exist does not make them facts. In the absence of any supporting evidence to his assertions, his case amounts to nothing more than scurrilous rumours and comments that cannot be taken seriously.

60        I agree with the employer’s counsel that the disciplinary action imposed, given the aggravating and mitigating factors, including the repetitive nature of the offences and the defiance demonstrated by the grievor throughout the process, was within the realm of reasonable discipline and should not be tinkered with.

61        The employer’s Code of Values and Ethics requires employees to treat all people with respect and to perform their duties professionally. Clearly, the evidence of both the employer and the grievor established that he did not meet these obligations. The disrespect he demonstrated by calling his TL an idiot and by describing the work assigned to him as fake is irrefutable. His refusal to perform the duties assigned to him as identified by the employer constituted insubordination and violated the requirement that he act at all times with integrity and in a manner that would bear the closest public scrutiny.

62        As to the grievor’s right to refuse unsafe work, which he raised in the context of a member of the military refusing an order that could render that member harm, the grievor did have a right to refuse to perform unsafe work. It is found in s. 128 of Part II of the Canada Labour Code (R.S.C., 1985, c. L-2). There is no evidence that he ever exercised such right. I can conclude nothing other than that he was deliberately, wilfully, and knowingly insubordinate.

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

V. Order

64        The grievance is dismissed.

June 18, 2019.