An underwater archaeologist with Parks Canada who was involved in the exploration of the historic and infamous Franklin expedition shipwrecks HMS Erebus and HMS Terror — lost during the search for the Northwest Passage in the mid-1800s — has been awarded his job back after being fired for insubordination over his repeated raising of safety concerns.
The worker, FR, was terminated from his role as a Dive Safety Officer (DSO) following a prolonged disagreement with management over the allocation of resources to projects related to the shipwrecks. He took issue with his supervisor’s decision to assign him to projects not related to the Arctic dive sites.
He expressed his disagreement with his boss on several occasions and was ultimately found to have committed workplace harassment, which resulted in his suspension and termination.
Diver reassigned to Ontario project
FR was part of the Underwater Archaeology Team (UAT), a “very small, highly specialized team of archaeologists who are also among the best divers in the world. At any given time, the team only consists of 8 to 12 members,” the ruling from the Federal Public Sector Labour Relations and Employment Board.
As the DSO, FR felt his presence at the Arctic dive sites was necessary. But his supervisor reassigned him to a project on the Trent-Severn Waterway in Ontario. FR did not take this news well, and considered his absence from the Franklin dive sites to be a “serious safety issue,” the Board said.
FR challenged the ruling in a variety of ways in July and August 2017, including:
- During a phone conversation on July 11, 2017, where his supervisor observed the FR’s voice becoming increasingly agitated;
- In a meeting on July 31, 2017, the grievor, emphasizing his role as the DSO, insisted on the necessity of his presence at Arctic dive sites. With arms crossed, he warned his supervisor, “If you don’t change your mind, I will take this to the next level,” implying escalation to the Director of Archaeology and History. The supervisor took this as a veiled threat;
- In an early August 2017 discussion with the Director;
- During an August 15, 2017, call regarding Arctic site security, the grievor lamented being left out of earlier discussions; and
- At an August 22, 2017, session where the grievor, sitting across from his supervisor, challenged the impartiality of Parks Canada’s occupational health and safety committee. Facing his supervisor directly, hands on the desk, he asked, “What do you think about this?”
On Aug. 23, the supervisor filed a harassment complaint with the director — who started an independent investigation. On that same day, FR launched his own complaint about workplace safety issues under the Canada Labour Code (CLC).
FR felt the UAT was operating in an unsafe work environment, and occupational health and safety personnel launched investigations. Both the supervisor and the director testified to their concerns about the effect the investigations had on the UAT, and their fear that they might jeopardize the UAT’s projects.
The harassment investigation issued its preliminary report in early 2018 and concluded the allegations against FR were founded.
In April 2018, FR shared a passage about dive safety with the UAT which contained information from a barometric specialist associated with the UAT. The employer viewed this action as an attempt by FR to undermine his supervisor’s managerial authority.
Suspension without pay, termination
FR was suspended without pay on May 18, 2018, on the basis of the harassment investigation report. He was terminated on Sept. 28, 2018. FR grieved both the suspension and the termination.
The Board said, on their own, none of the interactions between FR and supervisor could be characterized as harassment.
“However, when all of the interactions are considered together, the grievor’s behaviour amounted to a mild form of insubordination bordering on harassment, so it warranted a disciplinary response,” it said.
FR simply could not take no for an answer, and “would not let matters drop,” it said. A penalty was warranted, but the Board said a written reprimand would have sufficed — which “falls far short of a lengthy period of unpaid suspension and much farther short of dismissal.”
Reinstatement
It ordered him to be reinstated to his former UAT position, noting that FR argued that reinstatement was the “only viable option.”
“His life work is as an underwater archaeologist, and nowhere else in Canada can he employ his skill set other than with the UAT,” the Board said.
It noted that while his colleagues would “not be happy” to work with FR again, that “cannot be the reason that the grievor, who was unjustly terminated, cannot be reinstated.”
“There is no question that things would be awkward at first, but the grievor has always been forthcoming and straightforward in his dedication to rebuilding trust on the team,” the Board said.
“The usual remedies apply, which take the form of the repayment of lost wages (including overtime), less the usual deductions, plus the reinstatement of his pension benefits. These amounts are offset by the extent to which the grievor has mitigated his losses by means of other employment,” the Board said.
FR also sought aggravated damages, but the Board said they were not warranted in this case.
“The CLC investigations launched by the grievor created a climate of animosity and uncertainty in the workplace, and according to (the director) and (the supervisor), it threatened the work being done on the UAT’s projects,” the Board said.
“The grievor’s adherence to safety issues had their origins in Part II of the CLC. He was terminated partly because of the stress and tension that the CLC investigations caused in the workplace. His termination was, at least in part, a form of retribution for his having initiated the CLC investigations,” it said.
Interestingly, the Board noted that the role of DSO had been eliminated from Parks Canada. As a result, he could not be reinstated to that specific job.
“He must therefore be reinstated to the group and level from which he was suspended on May 18, 2018, and terminated on September 28, 2018. He is to receive all the salary and benefits (less the usual deductions), including pension, to which he would have been entitled as of May 18, 2018, and interest at the appropriate Bank of Canada rate is to be applied to that amount,” the Board said.
For more information, see Ronca v. Parks Canada Agency, 2023 FPSLREB 97 (CanLII).
