Date: 20220817

Files: 566-02-14338, 14339, 14341, 14342, and 14343

 

Citation: 2022 FPSLREB 71

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

 

Natalia Celestino

Grievor

 

and

 

DEPUTY HEAD

(Canada Border Services Agency)

 

Respondent

Indexed as

Celestino v. Deputy Head (Canada Border Services Agency)

In the matter of individual grievances referred to adjudication

Before: Nancy Rosenberg, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Herself

For the Respondent: Christopher Hutchison, counsel

Heard via videoconference,
June 7 and 8, 2022.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1] Natalia Celestino (“the grievor”) first joined the predecessor to the Canada Border Services Agency (“the employer”) in 1993. In 2006, she deployed to a CR-04 administrative clerk position in the trade appeals unit reporting to Peter Wolanski, the manager of trade appeals and litigation.

[2] Mr. Wolanski testified that, at some point, the grievor’s work performance and attitude, which had been acceptable although weak in some areas, became problematic. She refused to accept any constructive criticism to help her improve her work performance, and increasingly conducted herself in an inappropriate and unprofessional manner.

[3] Proactive measures were taken, such as offering the grievor language training to improve her written communication, looking for positions suitable for possible deployment at her request, and, attempting through a facilitated discussion to salvage the deteriorating work relationship with Mr. Wolanski. None of these measures were successful. The grievor refused language training, did nothing to follow up on possible deployments, and seemed to be of the view that she simply had to ask for a deployment to obtain one. She did engage in the facilitated discussion, however, it was not successful.

[4] The grievor was progressively disciplined for insubordination. She received an oral and a written reprimand as well as 2-, 5-, 15-, and 20-day suspensions, following which her employment was terminated. She grieved the suspensions and the termination and referred them to this Board for adjudication under s. 209(1)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2).

[5] The evidence clearly showed that the grievor was frequently insubordinate and that she misconducted herself on a number of occasions, showed no remorse, took no responsibility for her behaviour or its impact on her managers and colleagues, and showed no desire to improve. To the contrary, her testimony showed that she continues to believe that her conduct was justified. It is clear that the behaviour would continue, should she be returned to the workplace; the employment relationship has completely broken down despite the employer’s efforts to salvage it, and therefore, I have denied the grievances.

II. Summary of the evidence

A. The written reprimand

[6] The grievor received a written reprimand for neglecting or refusing to follow several security procedures for the safekeeping and disposal of protected and confidential client information.

[7] Mr. Wolanski noted that this conduct had continued despite him meeting with the grievor to discuss and clearly communicate direct instructions as to what was required. At no time in the discussions did the grievor accept responsibility or undertake to safeguard client information in the future. When advised that disciplinary action would be taken if the security breaches continued, the grievor replied that she did not care.

[8] On June 23, 2015, Mr. Wolanski specifically advised the grievor that leaving confidential information, such as lists of client names and their case numbers, in her recycling bin overnight was an unacceptable breach of security. Nevertheless, the grievor repeated this conduct when she left work on June 24, 2015. On June 25, 2015, she left her drawer unlocked overnight. It contained keys to all of the unit file cabinets and desks which contained protected client information.

[9] In July 2015, at Mr. Wolanski’s suggestion and with the grievor’s agreement, a facilitated discussion was held, with the assistance of a representative of the employer’s informal conflict management system. Mr. Wolanski testified that it was not a productive meeting and that it only showed that the way forward would be difficult.

[10] On August 13, 2015, the grievor was issued a written reprimand. The expected future behaviours were outlined as follows:

…

You are expected to comply with the specific directions that have been provided to you on numerous occasions, specifically:

1. Ensure all client information, including lists with their names, case files, etc., are locked up when you leave your desk at the end of the day.

2. Ensure that all client information, including lists with their names, case files, etc., are disposed of by placing them in our locked ‘Shred-it’ boxes. This information must never be placed in a recycling bin.

3. To follow direction as required

4. Demonstrate respect and professional conduct.

…

 

[11] The grievor expressed no acknowledgement of wrongdoing or understanding of the need to follow security procedures. To the contrary, she said that she would do it again.

B. The 2-day suspension

[12] On October 2, 2015, the grievor met with Mr. Wolanski for a performance appraisal during which she responded with comments such as, “Too bad”, “Bulls**t”, “Who cares about PLP?” before finally pushing the papers aside and walking out of Mr. Wolanski’s office.

[13] When he followed her and explained that she had to return to finish the performance discussion so that she would understand what had to be improved, she refused to return to his office. Mr. Wolanski advised that her refusal to finish the discussion would constitute insubordination. The grievor replied that she understood, but nevertheless refused to return to the meeting.

[14] On October 5, 2015, the grievor was asked to fold the tops of archive boxes by end of day and did not do so. On October 6, she was directed to do this three times and refused. She was advised that failure to do this task would constitute insubordination. She responded by yelling, “No!” at her manager.

[15] Mr. Wolanski advised the grievor by email that they had to meet to discuss her refusal to fold the archive box tops after his clear direction to do so. She responded by forwarding his email to about half her colleagues in the unit, along with an inappropriate and unprofessional note. When her manager advised her that she must not send unprofessional emails, she replied inappropriately and with profanity and indicated that she would continue to send them. She said, “It doesn’t matter; I will send it again to my friends.”

[16] On November 10, 2015, the grievor received a “Notice of Disciplinary Action” for a two-day suspension for this conduct. The notice set out the future behaviours expected of her, as follows:

…

You are expected to comply with the CBSA Code of Conduct and specifically:

1. Follow direction from your manager as required.

2. Complete tasks assigned to you by your manager.

3. You cannot refuse to complete work or tasks assigned to you by your manager.

4. Remain in meetings with your manager until they are finished; i.e. you cannot walk out in the middle of meetings.

5. Act professionally and respectfully at all times.

6. You cannot yell.

7. You cannot be insubordinate.

8. Demonstrate respect and professional conduct.

…

 

C. The 5-day suspension

[17] In response to receiving the two-day suspension on November 10, 2015, the grievor emailed Mr. Wolanski as follows: “Congratulations, How long you’ve been waiting to hand me the disciplinary action letter you prepared. Since you joined Recourse? Is it 6 years ago? Well, you go, I think you deserved it. How much is your reward” [Sic throughout].

[18] When advised that a meeting would be held to address grammatical errors in her work correspondence, the grievor responded by saying, among other things, “I do not have to discuss a spelling mistake with you.” On November 19, 2015, she walked out of a meeting convened to discuss her correspondence, despite many warnings not to do so. When advised that walking out would constitute insubordination, the grievor said, “It doesn’t matter… I asked for a transfer” and “Consider it insubordination.”

[19] On November 20, 2015, a subsequent meeting was held to discuss the grievor’s inappropriate email of November 10 as well as her failure to remain at the November 19 meeting. During the November 20 meeting, she stated that she thought that all her actions had been appropriate and that she did not regret them. According to Mr. Wolanski, she then pointed her middle finger at him and said, “I can walk out again.” The grievor did not dispute any of this except for the middle-finger gesture. She testified that she did not remember pointing her middle finger toward Mr. Wolanski on this occasion but that she had turned her back and maybe he thought that she gave him the finger. She said she had once pointed her middle finger toward the wall of her cubicle in frustration.

[20] On December 15, 2015, the grievor received a five-day suspension for these incidents. The Notice of Disciplinary Action listed the same eight behaviours that would be expected of her in the future.

D. The 15-day suspension

[21] On December 16, 2015, the grievor attended work, despite having been suspended the day before. When Mr. Wolanski advised her that she was not authorized to be at work and had to leave immediately, she responded by yelling this at him: “You leave!”, “I’m charging you with bribery!”, “You’re suspended for accepting bribery!”, and “You want lunch money?” The grievor got up and walked out, kicking a confidential waste container and a workstation baffle on the way.

[22] The grievor was advised that she was not authorized to be at work, that failing to leave immediately would be considered insubordination and would be subject to further discipline, and that the police might be called to remove her from the premises. She responded by picking up a file as if to throw it at Mr. Wolanski and another manager who came to help. She then gave Mr. Wolanski the finger and stated, “You leave!”, “You’re evil”, and “You took bribes!”

[23] The employer held off on calling the police and awaited the arrival of the union president, to see if he could assist. He arrived at 1:30 p.m. and was able to escort the grievor out of the workplace at about 3:00 p.m. The grievor had been at her desk when Mr. Wolanski arrived at 9:00 a.m. and had disrupted the workplace for most of the day before finally leaving six hours later.

[24] The grievor did not dispute any of the important facts of this incident or offer any explanation for the comments she made about her manager. She said that her conduct was justified because she did not agree with the suspension and therefore, came to work.

[25] The employer submitted that terminating the grievor’s employment would have been reasonable at that point, but instead she received a 15-day suspension on February 22, 2016. The notice of disciplinary action listed the same eight expected behaviours.

E. The 20-day suspension

[26] Just as she had ignored the 5-day suspension and had gone to work anyway, so too did the grievor ignore the 15-day suspension she received on February 22, 2016 and attended work on February 23, 2016.

[27] When Mr. Wolanski asked why she had reported to work while suspended, the grievor replied that she had been told only when to return from suspension, but not when the suspension was supposed to begin, so she came to work. She then lifted some papers from her desk to shield her face from Mr. Wolanski and phoned her union representative, to whom she stated, “The f***ker is at my desk! He’s watching me!” The grievor testified that she held up the papers to avoid making eye contact with Mr. Wolanski.

[28] On April 19, 2016, the grievor received a 20-day suspension for this conduct. The notice of disciplinary action listed the same eight expected behaviours.

F. Termination of employment

[29] On August 8, 2016, Jacqueline Chua, business services manager, advised Mr. Wolanski and several other managers that the building commissionaires would no longer sign for couriered packages. This required creating a shared list of employees who could be called on to go downstairs to sign for and retrieve couriered mail. Mr. Wolanski told Ms. Chua to put the grievor on the list, as well as himself, for backup.

[30] The grievor vociferously resisted this change, insisting that it was not her job, that she would not do it, and that business services employees should do it. The grievor’s work description showed that mail pickup was part of her job duties. On August 11, 2016, Mr. Wolanski met with the grievor to discuss several issues, including her resistance to his direction to pick up the couriered packages when called.

[31] On August 15, 2016, Ms. Chua advised Mr. Wolanski that the commissionaires had called the grievor to pick up a package but that the grievor had called Ms. Chua and had asked her to do it instead. Ms. Chua asked Mr. Wolanski to confirm that the grievor would be able to assist with the mail pickup, as had been discussed. Mr. Wolanski advised that he had directed the grievor to respond when called to pick up the mail, but she had not followed his direction. He advised Ms. Chua that he would follow up with the grievor.

[32] The same day Mr. Wolanski provided the grievor with his notes from their August 11, 2016, meeting, which outline, among other things, the discussion on mail pickup, as follows:

Hi Natalia,

Please carefully review my notes below from our meeting on August 11, 2016.

…

- I explained that mail procedures have changed and though they are not final, for the interim period you have been listed as an alternate and if you are phoned you must pick up the mail. Your response was, “No, I’m not picking it up. That’s their job. I’m not doing their job.” I explained that it is a shared responsibility and the matter was not up for debate. You then said, “If I’m not busy. They’re doing their work, I’m doing mine.” I again explained that the matter was not up for debate. You then said, “I won’t pick up the phone.” I explained that I would consider that insubordination. You then said, “No, I’m not doing that, I’m not volunteering.” I explained that I wasn’t asking you to volunteer, I was giving you a direct order. You then said, “If I’m here I’ll pick up the phone.” To be clear: if the phone rings you are expected to answer it, and if you are asked to pick up mail, you shall do so. Failure to follow these clear and direct instructions will be considered insubordination, and will be subject to discipline, up to and including termination.

…

[Emphasis in the original]

 

[33] Mr. Wolanski received complaints of rude and inappropriate behaviour on the part of the grievor, for example, that she had hung up on both Ms. Chua and the commissionaires. The grievor said that she had simply finished what she had to say to Ms. Chua so she hung up the phone and that the commissionaires were old and grumpy.

[34] A fact-finding meeting was held on September 2, 2016, following which the grievor declined a pre-disciplinary meeting, indicating that there was nothing more to discuss.

[35] She also refused to attend the disciplinary meeting scheduled for November 16, 2016, at which the employer planned to deliver her termination letter. However, Mr. Wolanski located her as she was apparently preparing to leave her office and was able to hand her the termination letter by the elevators. Upon reading it, she tried to return to her office, but Mr. Wolanski advised her that she had to leave immediately and that her union representative would collect her personal items. He stood in the doorway so that she could not re-enter. Security was called.

[36] The grievor pushed Mr. Wolanski and raised her hand as if to strike him. Her union representative placed himself between them, persuaded the grievor not to strike Mr. Wolanski and to stand back. Ultimately, with help from another colleague, he was able to escort her out of the workplace.

[37] On November 16, 2016, the grievor’s employment was terminated for breaching the employer’s Code of Conduct and the Values and Ethics Code for the Public Sector, specifically, in the Code of Conduct, part B (Accountability and professional conduct), part D10 (Contact with the people we work with), and part D12 (Neglect of duty).

[38] The termination letter stated that the grievor’s wilful behaviour of failing to follow a direct order and her lack of respect and professionalism in the workplace were unacceptable. It noted that she had been previously warned and counselled for several acts of inappropriate behaviour but that she continued to feel justified in her conduct and continued to demonstrate it.

III. Reasons

[39] To determine the merits of these grievances, I must determine whether there was conduct that warranted disciplinary action and, if so, whether the discipline imposed and the termination of the grievor’s employment was excessive in the circumstances (see William Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 Can. LRBR 1, [1976] B.C.L.R.B.D. No. 98 (QL) and Basra v. Canada (Attorney General), 2010 FCA 24).

[40] The misconduct alleged in each of these grievances is insubordination. To prove insubordination the employer must show that the employee was given a clearly communicated order, by someone who had the authority to give such an order, and that the employee did not comply. (See Chauvin v Deputy Head (Offices of the Information and Privacy Commissioners of Canada), 2012 PSLRB 66, at para. 22 and Samson v. Deputy Head (Department of Justice), 2019 FPSLREB 40, at para. 288).

[41] Threatening, insolent or contemptuous conduct that involves resistance to or defiance of the employer’s authority may also be found to be insubordinate, with or without an explicit refusal to comply with a directive (see Brown and Beatty, Canadian Labour Arbitration, 5th ed., 7:3660 and Madden v. Canada Customs and Revenue Agency, 2000 PSSRB 93 at para. 28).

[42] The evidence was clear that the grievor had engaged in threatening, insolent and contemptuous conduct towards management (and others) and that she had refused or neglected to comply with reasonable directions on multiple occasions. Some of the alleged incidents of insubordination were confirmed by the grievor’s own words recorded in her emails.

[43] She disputed some aspects of a few incidents, but for the most part simply suggested that they were not as serious as alleged or that they had been justified by the actions of Mr. Wolanski or others. For example, she argued that coming to work while suspended was justified because she did not agree with the suspension or had not been told when it was to begin. (The notice of disciplinary action indicated the starting date of the suspension). She sent an inappropriate email only once to her friends because she wanted them to know what was going on. She had no explanation for telling Mr. Wolanski that she would continue to send such emails. Walking out on meetings in which her manager was advising her about grammar or spelling mistakes was justified as she should not have to listen to so many such criticisms. She did not “hang up on” Ms. Chua. She had finished what she had to say to her and therefore simply hung up the phone. As for the commissionaires – they were old and grumpy.

[44] The grievor suggested nothing that could reasonably be considered any kind of justification for her conduct, or even a mitigating circumstance. Her manager asked nothing of her except that she do her job and conduct herself respectfully and professionally in the workplace. Unfortunately, she was unable or unwilling to do that.

[45] The employer showed a good deal of patience and tried to assist the grievor by proposing language training, engaging in conflict resolution and exploring deployment possibilities at her request.

[46] It also engaged in a lengthy series of progressive disciplinary measures in the hope of getting the grievor to understand that her conduct in the workplace could not be tolerated. These measures were entirely unsuccessful, and the employment relationship was clearly beyond repair. It was clear at the hearing that the grievor had learned nothing from the process. She continues to think that all her conduct was justified and seems unaware of its impact on the work that needed to be done, on her manager, and on others in the workplace.

[47] I find that the grievor engaged in a continuous pattern of insubordination that constituted cause for discipline, and that the disciplinary action imposed (2-, 5-, 15- and 20- day suspensions followed by termination of employment) was not excessive in the circumstances.

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

(The Order appears on the next page)

IV. Order

[49] The grievances are denied.

August 17, 2022.

Nancy Rosenberg,

a panel of the Federal Public Sector

Labour Relations and Employment Board