Morgan v. Deputy Head (Correctional Service of Canada)

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Summary


Public Service Labour Relations Act

Coat of Arms - Armoiries
  • Date:  20170313
  • File:  566-02-8277
  • Citation:  2017 PSLREB 25

Before an adjudicator


BETWEEN

MARK MORGAN

Grievor

and

DEPUTY HEAD
(Correctional Service of Canada)

Respondent

Indexed as
Morgan v. Deputy Head (Correctional Service of Canada)


In the matter of an individual grievance referred to adjudication


Before:
Michael F. McNamara, adjudicator
For the Grievor:
Andre Legault, bargaining agent advisor
For the Respondent:
Karen Clifford, counsel
Heard at Moncton, New Brunswick,
December 3 and 4, 2014.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        The grievor, Mark Morgan, is a correctional officer (classified CX-2) at Springhill Institution (“the institution”) in Springhill, Nova Scotia. He has been with the Correctional Service of Canada (CSC) since 2000.

2        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) as that Act read immediately before that day.

II. Summary of the evidence

A. First email

3        On September 28, 2011, the grievor sent an email to Warden Jeff Earle, criticizing senior management at the institution. Approximately 100 staff members, including CX-1s, were copied. The email was inappropriate and disrespectful and had been widely distributed.

4        On December 23, 2011, the grievor was counselled about the impropriety of sending mass emails such as the one he had sent on September 28, 2011. 

5        The grievor was contrite. He realized the inappropriateness of the email and accepted responsibility for it. He indicated that he would not do it again.

6        It was agreed that a counselling session would be arranged for the grievor.

B. Second email

7        On June 5, 2012, the grievor sent another mass email criticizing the Warden and management at the institution. The tone of this email was more confrontational than the first. It was directed to 340 staff members — more than double the number who had received the first one. A broad cross section of staff was included, such as administrative and support staff in other bargaining units. It was also copied to the Regional Deputy Commissioner and the Assistant Deputy Commissioner, Correctional Operations, who were the managers to whom the Warden reported.

8        On October 16, 2012, the grievor received a financial penalty equivalent to one day’s pay, as provided for by the “Global Agreement between Correctional Service Canada (CSC) and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN)”.

III. Summary of the arguments

A. For the respondent

9        The CSC operates via a quasi-military model. The chain of command is very important to the integrity of institutions and to the safety and security of staff and inmates.

10        The grievor’s emails were insubordinate, insulting, embarrassing, and inflammatory. In addition, they were sent to CX-1s. As a CX-2, he should have been mentoring and modelling appropriate conduct to junior staff. Both emails were widely distributed; the second one was even copied to staff in other bargaining units. 

11        Sending mass emails was blatantly disrespectful of the chain of command, which presented a danger for an institution of this type. When the chain of command breaks down, bad things happen.

B. For the bargaining agent

12        In his evidence, the grievor indicated that his first email was sent out of frustration and that he was wrong to have sent it. The Warden stated that he had an open-door policy, but it was impossible to see him. The grievor said that he had emailed the Warden directly but that he was told to speak to his manager. His email was a frustrated response to get the Warden’s attention via a different track.

13        The grievor felt that his second email was taken out of context since it had not been meant to be disrespectful or to attack the Warden. There was a lot of tension among the staff, and it was a golden opportunity to extend an olive branch. His intention was to help staff and to make positive suggestions about improving morale in the workplace by having a gym built at the institution.

14        The Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the bargaining agent”) argued on the grievor’s behalf that it was not contesting the discipline, just the amount of the penalty. In its view, the amount of $190.00 was excessive and should be reduced.

IV. Reasons for decision

15        In this case, the bargaining agent and the grievor took no issue with the fact that a disciplinable offence occurred. The only issue grieved was the penalty, which the bargaining agent argued was excessive and should be reduced.

16        In the circumstances of this case, it is my view that the one-day financial penalty, amounting to $190.00, was not excessive.

17        This was not the grievor’s first offence. Nine months earlier, he had sent a mass email that had also been disrespectful to management and that had been widely and inappropriately distributed.

18        The CSC had engaged in progressive discipline. A meeting was held with the grievor. He had been contrite; he clearly knew that he should not have sent the email, and he advised that he would not do it again. A counselling session was arranged.

19        However, nine months later, the grievor sent an even more inflammatory and aggressive email and distributed it even more broadly, beyond correctional officers, to administrative and support staff.

20        Apparently, the CSC’s attempt at progressive discipline had been unsuccessful; the grievor’s second offence was clearly an escalation.

21        The grievor suggested that the second email was not meant to be disrespectful and was sent to help staff morale and to calm tension in the workplace. Such protestations are disingenuous. The email was clearly designed to inflame. That is evident both in its content and by virtue of its inappropriate mass distribution.

22        I have taken into account the grievor’s relatively long service and the CSC’s attempt at counselling.

23        In my view, the one-day financial penalty, amounting to $190.00, was not excessive in the circumstances.

24        For all of the above reasons, I make the following order:

V. Order

25        The grievance is dismissed.

March 13, 2017.

Michael F. McNamara,
adjudicator