The Menzies decision: Progressive discipline must rely on incidents of a similar nature
On November 17, the Federal Public Sector Labour Relations and Employment Board released a decision — Menzies v. Deputy Head (Canada Border Services Agency) — that finally clarifies how progressive discipline is supposed to work at CBSA.
For years, CBSA has been using a “lock-step approach” to progressive discipline. This means that discipline has been imposed with increasing severity regardless of the nature of the infraction. For example, an employee who was issued with a two-day suspension for a negative interaction with travelers was given a five-day suspension for reporting late to work a year later. On its own, being late for a shift wouldn’t attract discipline this severe, but the employer is relying on the existing discipline on file (a two-day suspension) to automatically increase the next quantum of discipline to five days. According to the employer, the fact that the two incidents are entirely unrelated makes no difference.
With this decision, the Labour Board is finally telling CBSA, once and for all, that they’re wrong. A lock-step approach to progressive discipline is inappropriate. The employer must show flexibility, depending on the nature of the infraction, and cannot automatically impose a harsher penalty due to past misconduct. When referring to the CBSA guidelines on discipline, the arbitrator had this to say:
[86] Nothing in these policies and guidelines restricts management’s options for determining the length of a suspension by suggesting that it must always be longer than the last one or that it must increase by specific increments. The policies and guidelines say nothing that suggests a lock-step approach, but even if they did, as the policies of some employers do, it would clearly be an incorrect application of the principle of progressive discipline. The proportionality of a disciplinary action must always be assessed in light of the nature and the specific circumstances surrounding the behaviour that needs to change.
What this means is that our members cannot be harshly punished for a minor infraction just because they were disciplined for a major one in the previous two years. Additionally, if the employer is going to rely on the principle of progressive discipline, the past and present acts of misconduct must be related. Letters of discipline almost always mention that future behaviour “of this nature” could lead to further discipline up to and including termination. The employer can’t rely on past discipline to impose a more severe penalty if the two incidents are entirely unrelated. They must be “of this nature”. Saying that every transgression is related because all acts of misconduct are a violation of the Code of Conduct is not good enough.
Be sure to refer to Menzies when representing members in cases where the employer is applying progressive discipline. If the measure seems unduly harsh and is based on the member’s disciplinary record, make sure that whatever they are being disciplined for is the same act or omission that grounded the last disciplinary measure. If not, remind the employer that they must look at this incident in isolation and impose the appropriate measure for this misconduct alone.
Menzies v. Deputy Head (Canada Border services Agency) 2022 FPSLREB 94
Note: At this time, only the summary of the decision is available on the FPSLREB website. The full decision should be made available shortly.[