Public Service Labour Relations Board
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Wentges v. Deputy Head (Department of Health)

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2010 PSLRB 24
Before: Renaud Paquet
Decision Rendered: February 15, 2010
Original Language: English
Termination – Progressive discipline – Insubordination – Whether employment relationship should be terminated – Presumption in favour of reinstatement – Damages in lieu of reinstatement

The grievor contested a one-day suspension imposed on him for failing to attend a meeting to discuss his personal development plan (PDP) and the employer’s decision to terminate his employment for insubordination – the grievor failed to attend the meeting and advised the employer that his team leader had no authority to discuss the PDP – he also felt that there was a risk that the tone of the meeting would be confrontational – between the 1-day suspension and his termination, the grievor was suspended 3 more times, for 3, 10 and 20 days respectively, but did not grieve the suspensions – with respect to the termination, the employer accused him of performing work that he was not asked to do and of not calling in on time to advise of an absence – the grievor performed the work either because he felt it was necessary as background to performing his assigned task or because he felt that the work was included in his work plan – the grievor admitted to the absence reproached by the employer and to the fact that he had not called in by the specified time – the adjudicator held that, with respect to his refusal to attend the PDP meeting, the grievor had been insubordinate and that the suspension did not constitute a double penalty – with respect to the grievor working on unassigned tasks, the adjudicator found that the employer did not adduce evidence to refute the grievor’s claim that the work was related to or necessary for other tasks that were included in his work plan – the adjudicator held that the grievor had committed an offence by not calling in before the specified time to advise of his absence – the adjudicator was unable to conclude that the employment relationship should be terminated – the grievor had not sufficiently defied management’s authority – the adjudicator substituted a 30-day suspension for the termination – he rejected the employer’s request that damages in lieu of reinstatement be awarded – there is a strong presumption in favour of reinstatement – the adjudicator rejected the grievor’s request that the periods to file grievances against the three suspensions that he received be extended, as he did not have the authority to grant the request.

Grievances allowed in part.