Burton v. Treasury Board (Solicitor General Canada - Correctional Service)

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166-2-32675 (2004 PSSRB 74)
Burton v. Treasury Board (Solicitor General Canada - Correctional Service)

Before:  D. Quigley
Appearances: Burton and A. Schroeder, for the Grievor; J. Jaworski, for the Employer
Decision rendered:  June 24, 2004

Termination (Disciplinary) - Correctional Supervisor - Contravention of Standards of Professional Conduct - Criminal Conviction - Off-duty Conduct - Demotion Substituted - the grievor, a correctional supervisor and acting warden, was terminated following a criminal conviction of assault and for failure to adhere to the standards of professional conduct - a mini-riot occurred at the institution - inmates were kept in an exercise yard while clean-up occurred - each inmate was to beescorted back to his cell by 3 guards (3-on-1 protocol) - 2 inmates remained in the yard - derogatory comments regarding the 2 inmates were written across a computer screen visible to the 2 inmates in the yard - the grievor cancelled the 3-on-1 protocol for the two remaining inmates - while removing the 2 inmates, the grievor, another correctional officer and the inmates were injured - the adjudicator found that the grievor incited inmates by permitting derogatory comments on the computer screen - the grievor violated the use of force directive in removing inmates without 3-on-1 protocol and without videotaping them - the grievor's conviction arose from off-duty conduct - there was no evidence that the conduct damaged the employer's reputation, no evidence that employees no longer wished to work with the grievor, no evidence the grievor could not manage his work duties effectively - the adjudicator found that the bond of trust was not irrevocably broken - the grievor demonstrated he had been a valued employee - termination was deemed too severe - the adjudicator found that demotion was an appropriate penalty - the adjudicator rejected the argument that to order a demotion would be contrary to the Public Service Employment Act (PSEA) - the adjudicator found that demotion was not an appointment for the purposes of the PSEA - the grievor could perform duties of a lower level position, but his current supervisory position would not be appropriate - demotion ordered.

Grievance allowed in part.

Cases cited: Alberta Union of Provinicial Employees v. Lethbridge Community College, 2004 S.C.C. 28; Bedirian v. Canada (Attorney General) 2004 CF 566.