Date: 20211015

Files: 566-34-14252 and 14253

 

Citation: 2021 FPSLREB 113

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Jeff Yuan

Grievor

 

and

 

CAnada Revenue Agency

 

Respondent

Indexed as

Yuan v. Canada Revenue Agency

In the matter of individual grievances referred to adjudication

Before: Bryan R. Gray, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Himself

For the Respondent: Veronique Newman, counsel

Heard via videoconference,

September 30 and October 1, 2020.

REASONS FOR DECISION

I. Summary

[1] Jeff Yuan, PhD (“the grievor”), worked as a research and technology advisor (CO-02) in the Scientific Research & Experimental Development Division (SR&ED), Fraser Valley & Northern Tax Services Office, of the Canada Revenue Agency (CRA or “the employer”) in Surrey, British Columbia. He grieves his twice being suspended without pay for two days due to insubordination.

[2] Mr. Yuan is a self-described “new Canadian”. He explained that his heartfelt virtue and diligence of trying to avoid any taxpayer dollars being wasted through his office’s programs arose the duty of service that he felt he owed to Canada. He testified that he tried all available internal means within his organization to expose problems that he perceived in tax-credit programs that he thought were wasting money. He said did so as a matter of conscience.

[3] However, as his efforts became frustrated, his tone and his communications became pointed in their criticism of some of his superiors. His many emails to this effect reached as far as his director general and the CRA commissioner.

[4] He stated emphatically that throughout the times relevant to these grievances and through to the hearing, he harboured no ill will to any one person and meant no disrespect to anyone, but he felt that it was his duty to point out problems.

[5] After many discussions and written warnings, including a communications protocol directing him to seek the resolution of his concerns within his immediate office and manager, he continued expressing his concerns and making pointed criticisms of his manager, Amy Siu, through many levels of senior management.

[6] The first grievance, against the first two-day suspension, is allowed, as the grievor, had a reasonably held belief that a reply email from the CRA’s commissioner (who was responsible for approximately 40,000 employees) condoned his communications thus rendering the discipline as not having just and reasonable cause.

[7] However, after the first suspension, it should have been very clear to him that continuing such writing was unacceptable. But he continued, and he received the second two-day suspension. I find this discipline to have been based upon just and reasonable causes and not to have been an excessive response in all the circumstances which are analyzed later in this decision. Accordingly, the second grievance is denied.

II. Evidence

[8] The evidence presented at the hearing that related to the discipline and the responses underlying the two grievances is documented in writing and was not contested.

[9] Rather, the grievor submits that his honourable intentions, the truth he spoke, and in one case, the apparent condonation of one of his communications to a senior manager, should mitigate the discipline.

[10] The grievor received two letters of discipline, each imposing a two-day suspension on him. The letters read as follows:

[Letter of discipline dated April 1, 2016]

...

The purpose of this letter is to inform you of my decision with regards to your violation of the expected standards of conduct as per the Canada Revenue Agency (CRA) Code of integrity and professional conduct (The Code) including the Values and Ethics Code for the Public Sector (VECPS).

Management has conducted a review of your actions involving emails you wrote directly to senior officials at the CRA concerning local operational matters. Your actions were contrary to instructions from CRA management directing you to respect the chain of command concerning operational matters and to utilize established protocols for reporting serious wrongdoing you believe has taken place.

The investigation concluded that you contravened the Code and the VECPS when you failed to follow verbal and written instructions given and wrote to the Commissioner concerning local management and the administration of the SR&ED program.

On March 18, 2016, you were provided with a copy of the investigation report and given notice of the requirement to attend a disciplinary hearing on March 30, 2016. In this hearing you were informed that your action of failing to follow management instructions represents insubordination and you were provided with an opportunity to respond to these findings.

The Code specifies the expectations for employees to maintain a professional image which includes an expectation that “our interactions must project professionalism, courtesy, and respect, both with the public, and each other [including] all written internal and external communications.”...

In making my decision, I have considered mitigating factors such as your length of service with the CRA and no previous incidences [sic] of discipline. Although you state that your motivation is positive, this does not mitigate the behaviour of escalating local issues outside of the existing organization structure to raise your concerns. I have considered your lack of remorse as an aggravating factor.

In order to impress upon you the seriousness of your actions and to encourage you to correct your behaviour, I hereby suspend you without pay from the workplace for two days (15 hours). This decision is made under the authority delegated to me by the Commissioner under Section 51 (1) (f) of the Canada Revenue Agency Act. This suspension will be served from April 5 to April 6, 2016 (15 hours). During the period of your suspension you are prohibited from entering the worksite unless granted permission by management.

I fully expect that failure to follow management’s instructions will not recur, but please be advised that should there be any further acts of misconduct, more severe disciplinary action may be taken, up to and including termination of your employment with the Agency.

...

[Letter of discipline dated June 10, 2016:]

Dear Mr. Yuan:

The purpose of this letter is to inform you of my decision with regards to your violation of the expected standards of conduct as per the Canada Revenue Agency (CRA) Code of integrity and professional conduct (The Code).

Management has conducted a review of your actions involving emails that you wrote directly to senior officials at the CRA concerning local operational matters on March 17 and 18, 2016. These actions occurred after the March 16, 2016 fact finding meeting relating to previous emails that were sent to senior officials in clear disregard to instructions from local management. Despite the ongoing investigation and management’s verbal and written instructions, you proceeded to send emails to senior officials in violation of established communication protocol.

On March 30, 2016 disciplinary action was rendered for your previous actions in the form of a two (2) day suspension without pay.

On April 20, 2016 a fact finding meeting was held to address your emails of March 17 and 18, 2016. Management concluded that you contravened the Code when you wrote to senior officials making disparaging remarks about the administration of the SR&ED program. A report was provided to you on May 3, 2016 and you were given notice of the requirement to attend a disciplinary hearing on May 6, 2016. In this hearing, you were informed that your actions represent insubordination and were provided with an opportunity to respond.

The Code specifies the expectations for employees to maintain a professional image which includes an expectation that "our interactions must project professionalism, courtesy, and respect, both with the public, and with each other [including] all written internal and external communications." You acknowledged that you were aware of your responsibilities in adhering to the Code.

In my deliberations, I have considered as mitigating factors your long service with the Agency, that you acknowledge your mistake, that it was an emotional time for you, and that you demonstrated contrition. As aggravating factors, I have considered that you had previously been advised of management’s expectation around established communication protocol, that you had been given verbal and written instruction not to send further emails, and that previous misconduct of the same nature was being reviewed at the time you sent the March 17 and 18, 2016 emails.

In order to impress upon you the seriousness of your actions and to encourage you to correct your behaviour, I hereby suspend you without pay from the workplace for two (2) days (15 hours). This decision is made under the authority delegated to me by the Commissioner under Section 51 (1) (f) of the Canada Revenue Agency Act This suspension will be served from June 20 to June 21, 2016. During the period of your suspension you are prohibited from entering the worksite unless granted permission by management.

I fully expect that such incidents will not recur, but please be advised that should there be any further acts of misconduct, more severe disciplinary action may be taken, up to and including termination of your employment with the Agency.

In accordance with Article 36.07 of your Collective Agreement, a copy of this letter will be placed in your personnel file for a period of up to two (2) years, provided no further disciplinary action is recorded during this period.

...

 

[11] The employer adduced uncontradicted documentary exhibits demonstrating that for many months before the two letters of discipline were written, the grievor was warned verbally and in writing about his unacceptable behaviour of criticizing his superiors and about the risk that it would result in disciplinary action against him. (See Ms. Siu’s March 9 and July 31, 2015, emails.)

[12] The many communications to the grievor to this effect were summed up in an email from Ms. Siu to other managers dated February 22, 2016, in which she notes the following:

...

Jeff has a history of writing to the top every opportunity he gets. His messages are biased, disrespectful, anti-authority and anti-management. Previous AD had discussions with him. I, too, have given him verbal and written instructions on following proper channel when presenting his concerns.

...

 

[13] The letter notes several examples of the grievor being directed verbally to stop such criticism of management and instead being offered other avenues of communication to share ideas and concerns about CRA programs.

[14] On July 31, 2015, Ms. Siu emailed the grievor with a detailed “communication protocol” directing him to share his many concerns with CRA programs within the “existing organization structure” and “local managers” instead of the director general or regional senior managers.

[15] In one of the many emails from management examined in testimony, Ms. Siu, the grievor’s supervisor, notes that after speaking with him about the proper channels of communication for him to express his concerns, “[h]e seemed a little angry, if not defiant.” She added the following: “I don’t believe he thought about or understood the impact to the office & to the program by discrediting me or the Directorate in the eyes of the people he wrote to” (see her March 9, 2015, email to Mike Quebec).

[16] In his testimony, the grievor did not deny or contest any of the evidence of his communications that his management had deemed unacceptable.

[17] In fact, his email of February 11, 2016, to CRA Commissioner Andrew Treusch, the grievor acknowledges that he had been told to resolve his concerns at the lowest level of his management.

[18] Rather, the grievor provided passionate and heartfelt justification for what he saw as ineffective tax-credit programs and poor or indifferent management that was unwilling to listen to his expert opinion on how to improve things.

[19] The grievor testified about a colleague who became distressed by these perceived problems to the point of becoming ill and then dying due in part, the grievor said, to the terrible stress of the job.

[20] The grievor readily acknowledged engaging several levels of management when he went over his immediate supervisor’s head to express his opinion that she and other managers were incompetent.

[21] The grievor testified that he marked these emails as confidential and that they should not have been shared with those he criticized. I don’t accept that his emails should not have been shared between his managers.

[22] The grievor relied upon an exchange of emails with Commissioner Treusch, as follows:

...

From: Yuan, Jeff
Sent: February 3, 2015 7:17 PM
To: Treusch, Andrew
Subject: FW: Message from the Commissioner - Blueprint 2020 webinar summary / Message du commissaire - sommaire du webinaire sur Objectif 2020

Dear Andrew,

As a decade-old CRA employee in the SR&ED division, I would like to express my deep appreciation to your accomplishment in the Blueprint 2020 project. I am also highly inspired by your vision of the Agency’s future directions, especially the ones stating “We make it easy for those who want to comply and difficult for those who do not,” and “We encourage new ideas and move quickly with those that work.” I truly feel that your insight has not only brought inspiration to ail CRA employees, but will also likely bring a new life to the SR&ED program.

Since the inception of SR&ED, although this program is tremendously important to the well-being of R&D in Canada, this program has been fraught with integrity problems under the administration/oversight of CRA. For instance, according to Wikipedia:

1944-1986 - traditional tax deductions for R&D, introduced R&D tax credits

1987-1993 - mitigated abuses and simplified administration

In 2011, the Globe and Mail published the following investigative report:

http://www.theglobeandmail.com/report-on-business/flawed-rd-scheme-costs-taxpayers-billions/article577870/?page=all

Although the current SR&ED HQ staffs are working very hard trying to improve the integrity of this program, I am truly worried that patchwork fixes may not be able to solve the fundamental problems that have plagued the program for so long and are stemmed from the ill-conceived/flawed program administrative structures, policies and review methodologies by incompetent CRA employees in the outset of the program. In order to really meet the administrative duty of CRA, it seems a thorough and speedy internal review of the SR&ED program by a team mainly consists of impartial external R&D experts such as university professors (instead of accountants), who has no self-interest in maintaining the current status quo, might have the chance of bringing real meaningful changes to this program.

Thank you for your time.

Jeff Yuan, Ph.D.

Research and Technology Advisor

...

From: Treusch, Andrew
Sent: Friday, February 13, 2015 08:11 AM
To: Yuan, Jeff
Cc: Phelan, Maureen; Galllvan, Ted
Subject: RE: Message from the Commissioner - Blueprint 2020 webinar summary / Message du commissaire - sommaire du webinaire sur Objectif 2020

Dear Jeff,

Thank you for your kind words in respect of the work that is being done on the Blueprint 2020 project. It is with the help and suggestions of all employees like you that we have been able to accomplish so much and that we continue to take steps to realize our goals.

I note, from the article that you referenced, that your concern with integrity is in relation to potentially non-compliant SR&ED submissions. Your suggestion that an internal review of the SR&ED program be done is appreciated.

As you know, it is important for businesses to receive their entitlements under the program, to maximize the investment benefits of SR&ED incentives, and for the Agency to minimize the costs of compliance and administration. Likewise, applying the legislation correctly, consistently and fairly is vital for the long term fiscal integrity of this program. So, I very much appreciate your suggestion and in fact, I have passed it on to Ted Gallivan, Deputy Assistant Commissioner of the Compliance Programs Branch. Ted is relatively new to Compliance Programs and has significant experience in internal audit, so he is well placed to carefully review your comments and take action as required.

Thank you again for your enthusiasm for Blueprint 2020.

Best regards,

Andrew Treusch

...

From: Yuan, Jeff ...
Sent: Friday, March 18, 2016 12:35 PM
To: Treusch, Andrew
Subject: FW: Some concerns

Dear Andrew,

This is the latest development. I thought you might find it interesting too.

Lucie mentioned that “It is in your interest to work with your manager and assistant director to resolve your concerns,” However, actually, I am not so interested in protecting/advancing my own interest. The interest of the taxpayer, and the integrity and the reputation of this organization is and will always be my first priority. I believe this also true for every public servant who takes pride in their service to this country.

Have a great day.

Best Regards,

Jeff

...

From: Yuan, Jeff
Sent: February 11, 2016 1:55 PM
To: Treusch, Andrew
Subject: FW: Some concerns

Dear Andrew,

Sorry to bug you again.

I just phoned my director’s office again and was told by his assistant that every complaint should be resolved at the lowest level, that’s why I need to talk to my AD regardless of the nature of the matters.

It is very sad that in order to alarm the agency of severe potential wrong doings, an employee has to be forced to confront his supervisor, the perpetrator of potential wrong doings, directly. This kind of insensitive and bureaucratic practice is a big hurdle and is also extremely harmful to the successful realization of Blueprint 2020. Essentially, it is almost impossible that any employee would risk his future career by challenging the wrong doings of his supervisors under such a condition and atmosphere.

This kind of mentality, attitude and practice probably is very common in this organization and is probably the most fundamental problem that is responsible to the matters described in the Canadians for Tax Fairness (CTF) report published earlier.

...

[Emphasis added and in the original]

[Sic throughout]

 

[23] The grievor testified about and pointed to internal office emails in which he and colleagues criticized office decisions and client projects. It was very important to him to establish that his professional concerns were based upon sound science and an effort to vigorously enforce program guidance, to safeguard taxpayer monies.

[24] Documents involving third party taxpayer records were sought to be adduced as exhibits before the hearing for the purpose of outlining and possibly justifying concerns that the grievor had about what he viewed as poor decisions of his superiors in administering their tax credit programs. These communications included other third-party business consultants in addition to the identity and business information of taxpayer entities.

[25] All of these documents are confidential. None of these documents are relevant to what is at issue in the hearing of these two grievances. As such, all the documents containing the identity and any information regarding third parties and taxpayer corporations and their project applications are rejected as exhibits and will not form part of the record of this hearing and will not exist on the record of this matter within the Board registry.

[26] The grievor also sought to adduce a harassment-investigation report as evidence in support of his strained office relationship with his manager, Ms. Siu, presumably to impugn her testimony about his many office transgressions. I allowed the report to be presented as an exhibit over the objection of respondent counsel and indicated that I would be very cautious as to what if any weight to place upon the evidentiary value of its contents.

[27] I carefully reviewed the report, and I place no weight upon it, its investigatory findings, or its conclusions. The allegations against the grievor were well-documented by managers other than Ms. Siu. And more importantly, the grievor does not contest writing the impugned emails. Rather, he claims moral justification for their contents and criticisms of management. As such, the report is not relevant to what is at issue in this decision.

III. Analysis and conclusion

[28] The case law before the Board governing discipline is well established and traces back to the case of Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1976] B.C.L.R.B.D. No. 98 (QL) (“Scott”).

[29] I summarized this authority as follows in my decision in Braich v. Deputy Head (Correctional Service of Canada), 2017 FPSLREB 47:

...

15 The Board frequently cites the decision in ... Scott ..., as authority for determining whether there was just and reasonable cause for a termination. Scott finds that for a dismissal for cause to be considered just, firstly, the employer must consider whether the employee has given it just and reasonable cause for some form of discipline. Secondly, it must be determined whether the decision to dismiss the employee was an excessive response in all the circumstances. And thirdly, if the adjudicator considers that the dismissal was excessive, then he or she must determine the measures that should be substituted as just and equitable (see Scott, at para. 13).

16 For the first two elements, Scott considers the seriousness of the offence, whether it was premeditated or spontaneous, whether the employee had a long-standing and good record of service, whether progressive discipline was attempted, and finally, whether the discharge was consistent with the employer’s established policies or whether the employee was singled out for harsh treatment (see paragraph 14).

...

 

[30] Recently, the Federal Public Sector Labour Relations and Employment Board (“the Board”; note that “Board” refers to the current Board and any of its predecessors, in this decision) canvassed the jurisprudence in the area of insubordination. The key aspects of the law in this area are well-captured in Kenny v. Deputy Head (Department of National Defence), 2021 FPSLREB 91, which states as follows:

...

[234] As a general rule, to establish that an employee has been insubordinate, an employer must establish the following three things (see Mitchnick and Etherington, Labour Arbitration in Canada, at page 351):

1) a clear order was given, which the employee understood;
2) a person in authority gave the order; and
3) the employee disobeyed the order.

 

[235] The essence of insubordination is the challenge to authority. As stated in Lortie v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 108 at para. 168, “Conduct that displays a contemptuous attitude and/or defiance of authority also falls under that category.” So, for example, insubordination may be found even when an order is followed, as when an employee loudly and repeatedly questions the rationality or fairness of the order; see Volvo Canada Ltd. v. C.A.W., Loc. 720, [1990] N.S.L.A.A. No. 12 (QL).

[236] An employee may also contest an employer’s authority by challenging management’s abilities or the rationality of its operational decisions. This is particularly true if the challenge is done in front of other employees or in an email copied to co-workers, supervisors, and upper management. This is not to say that every question or request for an explanation from management amounts to insubordination. But questions or emails copied to multiple recipients that are worded in such a way as to suggest that a supervisor is stupid, incompetent, or does not know what he or she is doing may be found insubordinate; see Schuberg v. Treasury Board (Employment & Immigration Canada), PSSRB File Nos. 166-02-15123, 15159, 15350, and 15424 (19860318), [1986] C.P.S.S.R.B. No. 83 (QL) and Crossley Carpet Mills Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Local 4612, [2003] N.S.L.A.A. No. 22 (QL).

...

 

[31] The employer noted that under similar circumstances, the Board has found that a CRA employee who may not agree with a policy does not have the right to “take justice into [his or] her own hands.” (See Bétournay v. Canada Revenue Agency, 2012 PSLRB 128 at para. 33.)

[32] The Board has also considered the important matter of the respect required by the codes of conduct in place throughout the federal public service and stated as follows in Charinos v. Deputy Head (Statistics Canada), 2016 PSLREB 74:

...

119 The code of conduct requires employees to treat all people with respect and dignity and to refrain from making personal remarks or comments about the organization, its staff, or the federal government (Exhibit 1, tab 33). Clearly, the evidence of both the respondent and the grievor has established that he has not met this obligation. The disrespect he demonstrated in writing and in his description of his coworkers is irrefutable. His behaviour also clearly violated expected behaviours identified in the Values and Ethics Code for the Public Sector (Exhibit 1, tab 34), in particular, treating every person with respect and fairness and working together in a spirit of openness, honesty, and transparency that encourages engagement, collaboration, and respectful communication....

...

 

[33] I note the fact that the employer’s book of authorities also included a Board decision that noted the importance of the statement that “... insubordination is perceived as a subjective evaluation of the attitude of an employee.” (See Enniss v. Treasury Board (Indian and Northern Affairs), PSSRB File Nos. 166-02-17727 to 17732 and 17849 (19890228), [1989] C.P.S.S.R.B. No. 52 (QL) at 23, citing Varzeliotis v. Treasury Board (Environment Canada), PSSRB File Nos. 166-02-9721 to 9723, 10273, and 10879 (19831011), [1983] C.P.S.S.R.B. No. 108 (QL), which was upheld by the Federal Court of Appeal in Court File No. A-1482-83, Varzeliotis v. Canada (Public Service Staff Relations Board, Adjudicator) (F.C.A.), [1984] F.C.J. No. 400 (QL).)

[34] I note that more recently, the Board also addressed the issue of condonation, which is relevant, as the grievor points to an email exchange with senior management and states that it left him with the impression that his candid communications were welcome. The Board stated as follows in Michaud v. Canada Revenue Agency, 2018 FPSLREB 87, at para. 63:

63 The grievor referred to the following passage from Chopra v. Canada (Attorney General), 2014 FC 246, to argue that the employer could not punish conduct that had been condoned for a long time:

...

[109] ... Briefly stated, the principle of condonation requires an employer to decide whether or not to discipline an employee when it becomes aware of undesirable employee conduct. The failure of the employer to do so in a timely manner can constitute condonation of the employee misconduct.

[110] That is, a long delay in imposing discipline may entitle an employee to assume that their conduct has been condoned by their employer where no other warning or notice is given. Once behaviour has been condoned, the employer may not then rely on that same conduct to justify discipline. Allowing employees to believe that their behaviour has been tolerated, thereby lulling them into a false sense of security, only to punish them later is unfair to employees: McIntyre v. Hockin, [1889] O.J. No. 36 (C.A.), at paras. 13 and 16, Miller v. Treasury Board (Department of National Defence), [1983] C.P.S.S.R.B. No. 22, at p. 13.

[Emphasis added)]

 

[35] The grievor provided a brief and very succinct closing submission in which he did not cite any jurisprudence but rather relied upon the evidence of what he believed was the welcoming response he received from senior management when he emailed to express his concerns. He believed this invitation to share communications with senior management extended to justify his communications that continued after his first two-day suspension and accordingly should cause me to allow his second grievance challenging his second two-day suspension as well.

[36] The first grievance is allowed. The employer has failed on the first stage of the Scott test to establish that it had just and reasonable cause to discipline the grievor due to it condoning his communication to senior management.

[37] Despite the fact that the grievor denounced his superior, I accept his submission that the email he received from Mr. Treusch led to believe that he was welcome to speak out and to communicate directly with him.

[38] I note with emphasis the following excerpt from the February 13, 2015 Treusch email in this regard:

...

Thank you for your kind words in respect of the work that is being done on the Blueprint 2020 project. It is with the help and suggestions of all employees like you that we have been able to accomplish so much and that we continue to take steps to realize our goals.

...

... So, I very much appreciate your suggestion and in fact, I have passed it on to Ted Gallivan, Deputy Assistant Commissioner of the Compliance Programs Branch. Ted is relatively new to Compliance Programs and has significant experience in internal audit, so he is well placed to carefully review your comments and take action as required.

...

[Emphasis added]

 

[39] The grievor presented himself as a self-described “new Canadian”. It is well-understood in our modern, international world that different societies often have different norms guiding interpersonal communication, especially in a professional office milieu.

[40] It is possible that the subtle, nuanced, and at times understated manner in which Canadian Federal Public Service office communications are conducted could be taken in a literal manner by someone who may be less familiar with them.

[41] Taken subjectively, as noted in Enniss, specific to the grievor’s circumstances and on the evidence before me, I accept his explanation that he felt empowered and emboldened by the positive and engaging email reply that he received from Mr. Treusch and that he took it as a signal that Mr. Treusch welcomed additional direct and very candid communications.

[42] In his own words, the grievor testified that, “this (Treusch) email did not say that my emails were rude and I was pleased that the Commissioner took me seriously as I felt my input had value ... So I kept writing.”

[43] The Treusch communication can reasonably be considered as having left the grievor with the impression that his communication was condoned.

[44] However, by the second incident, the grievor could not reasonably assert any misunderstanding as to a possible condonation of his negative and accusatory communications denouncing his superior’s conduct. He had been warned verbally and in writing and had already been disciplined with a two-day suspension.

[45] As set out in Kenny, (1) a clear order was given to the grievor, many times, which he acknowledged in writing that he understood; (2) his immediate supervisor, Ms. Siu, who was in authority, gave the order; and (3) he disobeyed the order by continuing his harsh written criticism of his management even after being disciplined for his earlier communications, as addressed in the other grievance before me.

[46] Given my conclusion that the grievor could not reasonably assert his continued communications after the first suspension was condoned, the employer has made out the first step of the Scott test. That being the grievor gave it just and reasonable cause for some form of discipline.

[47] The second step in the Scott analysis requires me to determine whether the decision to discipline the employee was an excessive response in all the circumstances. And further, Scott states that I consider the seriousness of the offence, whether it was premeditated or spontaneous, whether the employee had a long-standing and good record of service, whether progressive discipline was attempted, and finally, whether the discharge was consistent with the employer’s established policies or whether the employee was singled out for harsh treatment.

[48] The employer noted in submissions on this matter that it relied upon the grievor’s length of service in excess of ten years with the CRA, that he acknowledged his mistake, demonstrated contrition and that it was an emotional time for him and that he had no previous discipline other than the previous two-day suspension that has just been examined in this decision. They also noted the fact that he thought his criticisms of his managers was to be kept confidential from them.

[49] The employer also noted the following aggravating factors were relied upon in deciding on a two day suspension in the second matter: he had previously been advised of management’s expectation around established communication protocol as ordered in writing July 31, 2015, he had been given verbal and written instruction not to send further emails, previous misconduct of the same nature was being reviewed at the time he sent the March 17 and 18, 2016 emails, the many communications were not provoked and not a spur of the moment occurrence.

[50] They also noted the grievor’s lack of remorse for his actions as he was adamant that his communications were justified and in the best interests of the CRA and the country. However, the letter of discipline did note that the grievor expressed remorse for any offense taken by his manager and sought to clarify that he did not mean any criticism in a personal manner against her.

[51] The employer also presented its Code of integrity and professional conduct (the “Code”) and the Values and Ethics Code for the Public Sector which stresses the need for courtesy and respect to others in all personal conduct. The grievor was found to have failed to follow verbal and written instructions given and wrote to the Commissioner concerning local management which constituted insubordination. And also that the Code specifies the expectations for employees to maintain a professional image which includes an expectation that "... our interactions must project professionalism, courtesy, and respect, both with the public, and each other [including] all written internal and external communications."

[52] In her testimony, Ms. Siu explained the rationale behind the quantum of discipline that was meted out. She referenced an assessment provided in the investigatory report into the first incident and noted that it found his many repeated warnings and directions to direct his thoughts and concerns to his immediate supervisor and cease speaking of his superiors in a disrespectful way to senior management was insubordination.

[53] She noted that this was seen as a very serious matter as it risked trust within the organization given the very serious accusations being made. She then said that despite this she did not want to be harsh as she knew in his own heart, the grievor meant well. For these reasons as well as all the mitigating and aggravating factors noted in this decision, she said a decision was made to go at the lighter end of the range of discipline set out for a group 2 violation of the Code as outlined in the CRA human resource policy book. That group 2 ranged from a written reprimand to a 10-day suspension.

[54] Ms. Siu added that when the second incident arose resulting in the second discipline, the first discipline had not yet been delivered to the grievor therefore causing her not to escalate the quantum on the second matter.

[55] The employer submitted in closing argument that a two-day suspension was not an excessive response under the circumstances and that the grievor was not singled out for harsh treatment.

[56] In my consideration of whether a two-day suspension is excessive or not and in that regard, whether the principle of progressive discipline would suggest the grievor receive a lesser quantum of perhaps a written reprimand or one-day suspension, I am guided by my belief that this Board should be hesitant to intervene and risk usurping the role of management in determining effective means to deliver corrective measures meant to avoid the repeat of unacceptable behaviour.

[57] In my recent decision of Cwikowski v. Treasury Board (Canada Border Services Agency), 2021 FPSLREB 7, I noted:

...

[52] Counsel for the employer noted the arbitral decision in Purolator Courier Ltd. v. Public Service Alliance of Canada, [2005] C.L.A.D. No. 368 (QL) at paras. 48 and 49 (“Purolator”), as authority for the proposition that an arbitrator should refrain from second-guessing a disciplinary response by an employer to an employee’s proven misconduct unless the response was clearly excessive and was outside the range of reasonable disciplinary responses.

[53] Counsel noted that the Purolator decision had recently been cited with approval for its admonishment to arbitrators about substituting a penalty by Arbitrator Beattie in Union of Calgary Co-operative Employees v. Calgary Cooperative Association Limited, 2017 CanLII 11097 (AB GAA) (“Co-op”).

...

[57] In general, I am of the view that adjudicators should proceed cautiously before concluding that a given penalty is excessive.

[58] I might have been persuaded to follow the Purolator and Co-op cases if there were no other mitigating factors being argued by the grievor that make my intervention necessary.

[59] However, when an intervening matter makes the quantum of discipline clearly unjust, such as the grievor argued, the adjudicator’s role of finding the penalty excessive and substituting a fair quantum of discipline is engaged.

...

 

[58] On the evidence before me, I do not conclude that the two-day suspension in the second matter is excessive. Despite my allowing the grievance challenging the first two-day suspension due to his actions being condoned, the grievor clearly had received many verbal and written directions and cautions not to continue criticizing his superiors in his verbal and written communications to many levels of management.

[59] The first disciplinary process should have left no doubt in the grievor’s mind that his actions were not acceptable. His criticisms of his managers were harsh and unacceptable and his ignoring the very clear direction of his superiors did indeed amount to insubordination.

[60] The grievor is honourable in his motivations to serve his “new country” (as he put it) with diligence and vigour. He testified from his heart about his grave concerns over poor management at the CRA, which in his opinion wasted vast amounts of taxpayer dollars on projects not worthy of public support.

[61] However, his passion for excellence in his work led to a zealousness that became insubordinate with the repeated harsh criticisms of his manager suggesting that she was incompetent.

[62] As such, the second grievance is rejected.

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

(The Order appears on the next page)

IV. Order

[64] The grievance in Board File No. 566-02-14252 is allowed.

[65] The grievor is entitled to the reimbursement of his salary and to the pension calculated for the two days, which will be returned to him. Simple interest calculated yearly at the applicable Canada Savings Bond rate must be added to the salary payable for the period from April 1, 2016, to the date of this decision.

[66] The grievance in Board File No. 566-02-14253 is denied.

October 15, 2021.

Bryan R. Gray,

a panel of the Federal Public Sector

Labour Relations and Employment Board