FPSLREB Decisions

Grievance referred to adjudication

[1]   Robert Wright was employed as a Stores Officer (GS–STS–04) at the Nova Institution in Truro, Nova Scotia.  He was rejected on probation on March 2, 2004, with an effective date of April 2, 2004.  His bargaining agent is the Public Service Alliance of Canada (PSAC) and Mr. Wright was subject to the collective agreement between the Treasury Board and the PSAC for the Operational Services Group (expiry date: August 4, 2003) (Exhibit G–1).  The grievance was referred to adjudication on September 15, 2004.  Mediation was scheduled in January 2005, but was unsuccessful.

[2]   On April 1, 2005, the Public Service Labour Relations Act (PSLRA), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.  Pursuant to section 61 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act (PSSRA), R.S.C., 1985, c. P–35 (the “former Act”).

[3]   In a letter to the Board dated October 28, 2004, the employer objected to the jurisdiction of an adjudicator to hear this grievance on the basis that it is a rejection on probation pursuant to the Public Service Employment Act (PSEA).  The bargaining agent submitted that the rejection was in fact disguised discipline.  The Board advised the parties that the issue of jurisdiction should be raised at the commencement of the hearing.  The parties were in agreement at the commencement of the hearing that I should hear evidence and rule on the preliminary objection as to jurisdiction.

[4]   Counsel for the employer requested an order for the exclusion of witnesses and the grievor’s representative had no objection.  Accordingly, an order to exclude witnesses was granted.  During the course of the hearing, a witness for the grievor, Corporal Kelly Reid, inadvertently sat in the hearing room for a portion of the testimony of a witness for the employer.  Mr. Kamel brought this to my attention and submitted that I should take this into account when assessing the weight of Corporal Reid’s testimony.  I reserved on this submission.  After hearing the testimony of Corporal Reid, I have concluded that this unfortunate oversight had no impact on her testimony or credibility.

[5]   In cross–examination, Mr. Wright stated that he had discussed his testimony with his representative prior to the completion of his cross–examination.  Mr. Kamel submitted that I should take this into account in assessing Mr. Wright’s credibility.  Mr. Hill advised that Mr. Wright had asked how his testimony was going and that was the extent of their discussion.  I conclude that the discussion was short and inconsequential.  I have, therefore, not taken it into account in assessing Mr. Wright’s credibility.

[6]   On the second day of the hearing, Mr. Hill advised that one of the grievor’s witnesses, Jeffrey Rix, would not be available because his grandmother was in the hospital.  Another one of the grievor’s witnesses, Daniel LeBlanc, was in New Brunswick and was not available.  Mr. Hill requested an adjournment and a continuation of the hearing.  Mr. Kamel objected to the adjournment.  He submitted that no subpoenas had been issued.  He also submitted that if the shoe were on the other foot, the bargaining agent would be objecting.  The employer was ready to proceed and it would not be fair to allow a continuation that would require a return to Halifax and the attendance of the employer’s witnesses.  Mr. Hill stated that he had only just learned about Mr. Rix’s situation.  He also stated that Mr. Rix had volunteered to testify and that a subpoena was not necessary.  In any event, he argued that the situation would be the same even if a subpoena had been served on him.

[7]   I granted the adjournment.  I had no reason to doubt that Mr. Rix was unavailable due to a family emergency.  The inconvenience to the employer was outweighed by the possible prejudice to the grievor if I did not let his additional witnesses testify.  I noted that subpoenas were not strictly required, although I also noted that it was a good practice to serve subpoenas.  I noted, as well, that it was a common practice of the Board to grant postponements for both parties when witnesses were not available.  I also note, at this time, that in the event of a finding that an adjudicator does have jurisdiction, there are mechanisms to address any prejudice suffered by the employer as a result of the delay in the conclusion of the hearing.

[8]   The parties agreed that the names of any inmates in exhibits would be blacked out to protect inmate privacy.  Similarly, in this decision, the identity of the inmates has not been revealed.

Summary of the evidence

[9]   Mr. Wright was appointed to a term position as a Stores Officer (GS–STS–04) at the Nova Institution on March 3, 2003, for a period ending on October 3, 2003 (Exhibit E–1).  In his letter of offer, he was advised that he was on probation for the duration of his term or for a maximum of 12 months.  On September 9, 2003, he was appointed to an indeterminate position with an effective date of October 1, 2003 (Exhibit E–2).  In his second letter of offer, he was advised that he would remain on probation until March 3, 2004.

[10]   Nova Institution is a correctional facility for women.  Gisele Smith, the Warden of Nova Institution, testified that there are approximately 105 staff members at the Institution with an inmate population of between 40 and 45 women, which she described as a “low–risk, high–needs” population.  The key activities of the Stores Officer position are set out in the work description (Exhibit E–5) as follows:

• Ensure that Workplace Hazardous Materiel Information System is followed for each hazardous product issued.
• The incumbent of this position has peace officer status.
• Instructs offenders in warehouse techniques and practices and contributes information for the offenders’ Correctional Plan.
• Receives and trans–ship goods being returned to suppliers to ensure that items shipped in error can be returned for replacement or credit.
• Order, receive and issue goods for the offender canteen, ensuring that financial limitations are followed for local purchase orders, call–ups against Standing Offers and 9200’s.
• Storage of items in appropriate locations prior to distribution to ensure safe, secure storage.
• Maintain files on shipments and receipts to maintain an audit trail.
• Maintain an inventory system of goods held in inmate Canteen.
• Inputs and updates data relating to inmate requests for finances, commodity changes, inmate pay, profit and loss, federal and provincial taxes.
• Maintain separate computer data base for inmate Canteen (Equinox).

[11]   Ms. Smith has the delegated authority to reject an employee on probation.  She made the decision to reject Mr. Wright based on the recommendation of Gail Baker, the Assistant Warden, Management Services.  Ms. Baker made her recommendation in consultation with Gerard Trask, the Chief of Materiel Management and Mr. Wright’s immediate supervisor.  Ms. Smith issued the rejection on probation letter on March 2, 2004 (Exhibit E–4). Mr. Wright was provided with one month’s notice and he ceased to be an employee of the Correctional Service of Canada (CSC) as of April 2, 2004.  In the letter, she concluded:  “...Despite management’s constant efforts to provide you with ongoing training and tools to properly perform all the duties of the position, there have been no demonstrated improvements in your work performance.”

[12]   The letter of rejection on probation also set out the facts that the employer was relying on in coming to this conclusion:

...In September 2003, you were appointed to an indeterminate position.  It was at this time that your overall performance declined, to a point where the Performance Evaluation Report completed at the end of February 2004 assessed an overall rating of objective not met.

The department has made available to you the necessary training to perform the duties assigned to you.  Desktop procedures were developed and made available to assist you.  In fact, some of the training was repeated as you were still encountering difficulties in performing tasks.

During the time you were assigned canteen responsibilities, you were counseled a number of times regarding untimely inventory counts. Although you acknowledged the importance of timely reports, you continued to be overdue with the task in addition to committing other errors such as ordering stock without purchase orders, distributing surplus, outdated stock to staff without permission.  Subsequently, in December 2003, you were temporarily relieved of this duty.  You were to refamiliarize yourself with policy and procedures so that you would be able to meet the requirements of the duties.

You were assigned duties of Stores Officer, purchasing required stocked items.  On a number of occasions, you purchased stock without purchase orders.  Your credit card was suspended for not providing receipts you had lost.  Stock has been depleted without any reordering occurring.  I cite, for example, a recent situation whereby the stock of toilet tissue was depleted.  At a minimum, a month’s supply of this item should always be on hand.  In another situation, a five–year supply of buffer pads was ordered, some of which cannot even be used.  You neglected to cancel the order as you had been advised to do weeks prior to the shipment being received.

Not only are you unaware of which stocked items are on hand when asked you do not provide correct information even after checking inventory.  I refer to a situation regarding the stock of microwaves when you reported there was only one when indeed there were three in stock.  Your initial response could have led to over purchasing of this item.

With respect to the duties of Cleaning Supervisor assigned to you, on a number of occasions it was necessary to point out that cleaning was neglected and not up to par.  You had been directed to provide training to a number of women offenders, on the buffing equipment, but to date, only one is trained and available to buff.  Your supervision reports are overdue on a continuous basis and when completed, are not always accurate.

It has been brought to management’s attention that your interaction with the female offenders is not always appropriate, reporting only misbehaviour after the third incident in one particular case.  You are expected to be a positive role model to the female offenders, a fact that was brought to your attention on more than one occasion.

[13]   Ms. Smith testified that the portion of the letter referring to the use of expired surplus supplies was retracted at a meeting she had with Mr. Wright, his union representative and Ms. Baker on April 2, 2004.  The events relating to this incident happened as a result of a fire at the Institution in September 2003.  Mr. Wright was present at the fire and assisted in the cleanup in his role as a volunteer firefighter with the Truro Fire Department.  It was initially alleged that Mr. Wright had provided cans of expired soda to the cleanup team.  Ms. Smith testified that she recognized that Mr. Wright had not provided the expired soda, but that Jeffrey Rix, a Correctional Officer at Nova Institution, had done so.  She testified that she had counselled Mr. Rix for this action.  Mr. Rix testified that he had been counselled shortly after the incident had occurred.

[14]   Gerard Trask, Chief of Materiel Management, was Mr. Wright’s immediate supervisor.  He testified that Mr. Wright received training on the inventory control and financial management system (IFMSS).  He also received operational training from the supplier of the Institution’s cleaning equipment.  Mr. Wright also attended a general orientation session for new CSC employees.  Mr. Trask testified that Mr. Wright was provided with guides and other documents that broke down the tasks of the position into simple steps (Exhibit E–7).  Mr. Trask testified that he believed in keeping things simple; the test was whether he could perform the tasks himself.  In cross–examination, Mr. Trask was asked how to handle a purchase order and he needed to refer to the guide to explain the steps involved.

[15]   Mr. Wright received his first evaluation on September 25, 2003, for the period from March 1 to August 31, 2003, which was prepared by his immediate supervisor, Mr. Trask (Exhibit E–8).  Mr. Trask testified that the appraisal was accurate.  Mr. Wright received an “Objectives met most of the time” for most factors and “Objective met or exceeded all of the time” on the following factors: “accepts responsibility for own decisions”; “performs effectively under pressure”; “displays a healthy attitude towards his work”; “takes necessary action on his own”; “seeks advice and guidance when necessary”; and “develops and maintains effective teamwork and good working relations with staff members and/or inmates”.  The narrative section on his performance is as follows:

Bob’s work ethic is high.  He consistently demonstrates initiative in completing his work assignments, demonstrates good decision making and problem solving skills.  However, Bob does need to concentrate on some minor details of his work and the priority he gives them as they have an effect on other sections of the institution.  Bob tends to ask questions when needed and looks for clarification when required.  His rapport with his co–workers and the inmates is very good.

[16]   Mr. Trask testified that concerns about Mr. Wright’s performance started after he became an indeterminate employee.  Ms. Smith testified that performance deficiencies were brought to her attention early in November 2003 by Mr. Trask and Ms. Baker.  Mr. Trask testified that he tried to remain positive and attempted to get Mr. Wright to identify solutions to the deficiencies by making him believe that the solutions were his own idea.  Mr. Trask described this as a management technique advocated by Winston Churchill.

[17]   Ms. Smith testified that there were two occasions where she had direct experience of Mr. Wright’s performance.  In January of 2004, Mr. Wright was showing an inmate how to use a buffer.  She overheard the inmate say, in a raised voice: “Don’t yell at me.”  She then heard Mr. Wright say that he would not yell at her.  In cross–examination, she admitted that she had not heard Mr. Wright yell at the inmate.

[18]   Ms. Smith also testified that there was an incident involving an assault by an inmate against Mr. Wright with a mop in the first week of May 2003.  She testified that after the assault, the inmate was put in administrative segregation while the incident was investigated.  She asked Mr. Wright not to speak to the inmate and she testified that she learned later that he had gone to speak with the inmate.  She testified that she was concerned because he had talked to the inmate even though she had explicitly asked him not to do so.  Mr. Wright testified that Ms. Smith never told him not to talk to the inmate.  Both Ms. Smith and Ms. Baker had told him that the inmate wanted to apologize and it was up to him if he wanted to talk to her.

[19]   As a result of the assault, the police were called.  Corporal Kelly Reid, a police officer with the Truro Police Department, is a member of the emergency response team for Nova Institution and was dispatched to the Institution in response to the call.  She met with Mr. Wright in an office at the Institution to find out what had happened.  She requested that he come to the police station the following evening to make a statement.  While she was discussing the assault with Mr. Wright, Ms. Baker knocked on the door.  Ms. Baker asked Mr. Wright to accompany her.  Ms. Smith testified that she had asked Ms. Baker to speak to Mr. Wright to make sure that he knew the consequences of laying charges in the context of a correctional facility, where the actions he took could follow him throughout his career.  Ms. Baker testified that an employee could lay charges through the police (“outside charges”) or could lay what are termed “inside charges”, where the assault would be dealt with internally.  Mr. Wright testified that Ms. Baker wanted to know his “intentions” and asked him what he hoped to gain by pursuing “outside charges”.  Mr. Wright testified that Ms. Baker told him that the matter could be dealt with through “inside charges”, where it would not be covered by the media.  She also told him that if he pressed “outside charges”, the inmates in the cleaning program might not work with him and “we may have a problem.”  Mr. Wright testified that he told Mr. Trask about the conversation in its entirety.  Mr. Trask, however, had no recollection of this.

[20]   Corporal Reid testified that when Mr. Wright returned from his meeting with Ms. Baker, he was upset and a bit confused.  He came into the police station the following evening and signed a disclaimer stating that he did not wish to proceed with laying charges.  She testified that he told her that his position at Nova Institution was not permanent and he felt that it was in his best interests not to pursue the matter. Once a disclaimer is signed, a victim has six months within which to change his or her mind.  Mr. Wright testified that he felt his job was threatened and that if he did not change his mind about laying charges, he would no longer have a job.

[21]   Mr. Wright testified that while on CSC orientation training the following week, he spoke to Daniel LeBlanc, a staff training officer at the CSC regional training facility, about the incident.  Mr. LeBlanc testified that Mr. Wright told him that a manager had told him that it would be in his best interests not to pursue laying assault charges.  Mr. Wright asked him if that was harassment.  Mr. LeBlanc testified that he told Mr. Wright that the manager’s comments could be interpreted in different ways and advised him to clarify the meaning with the manager.  He testified that the conversation then ended and he never had any follow–up conversations with Mr. Wright.  Ms. Smith testified that Mr. Wright’s views on laying charges had nothing to do with her decision to reject him on probation.

[22]   Mr. Trask testified that Mr. Wright’s inventory counts were not done properly.  He also testified that Mr. Wright was found to have left the back stores room open when an inmate was still there.  He also testified that Mr. Wright liked to go out every day to get supplies rather than postponing the activity as long as possible and going only once a week.  In cross–examination, he stated that Mr. Wright did not go shopping every day, but it could have been every second day.

[23]   Mr. Trask stated that he offered retraining to Mr. Wright.  He also asked the other Stores Officer, Jackie McNutt, to assist him and asked Mr. Wright to observe her performing her duties.

[24]   Mr. Trask also testified that he could never get hold of Mr. Wright when he needed him.  He testified that Mr. Wright was being paged four to six times a day.  He testified as well that he provided Mr. Wright with a two–way radio as a “tracking device”.  In cross–examination, Mr. Trask admitted that he had not advised Mr. Wright of the purpose of the radio.  Mr. Wright testified that the radio was his idea.  In cross–examination, Mr. Wright was shown a rebuttal document that he had prepared (which was not entered as an exhibit) where he stated that it was decided to give him a radio.  Mr. Wright testified that the two–way radio was a means of communication and that both he and Ms. McNutt were issued radios.  Ms. Baker testified that Ms. McNutt was not given a radio.  Ms. Baker testified that the radio was to be used to locate Mr. Wright more easily and to “determine his whereabouts”.  She also testified that Mr. Trask never used the phrase “tracking device” to describe the radio.

[25]   Mr. Trask testified that he was advised by a correctional supervisor that Mr. Wright was not using the radio properly.  There are two radio channels:  one for security and one for engineering and maintenance.  He stated that he was advised that Mr. Wright was using an inappropriate channel and was having long conversations on the radio.  Mr. Trask also testified that on one occasion, Mr. Wright brought the radio to a meeting and answered it during the meeting.  When Mr. Trask asked him to turn it off, Mr. Wright turned it off but stopped actively participating in the meeting.  Mr. Wright denied that he used the radio inappropriately and testified that he had a radio operator’s licence (Exhibit G–10) and was trained to use the radio properly.

[26]   It was Mr. Trask’s opinion that Mr. Wright wanted to be a primary worker (Correctional Officer).  He based this opinion on the observation that Mr. Wright spent time with primary workers at Nova Institution.  Mr. Wright agreed that he had friends at work who were primary workers, but denied that he wanted to be a primary worker.  In cross–examination, he was asked about a personal relationship with a female correctional officer.  In particular, he was asked if he had been “courting her”.  He admitted that he had had a romantic relationship, but denied that it had interfered with the performance of his duties.  He was asked in cross–examination if she worked in the “secure unit” and responded that she worked in the general population area.  He was asked if he ever went to see her at her work location.  Mr. Wright testified that he saw many staff members during the day, as crossing paths was unavoidable; however, he never went to see her at her work location.  He was also asked if he had spent a lot of time in the “secure unit” and he denied that he had.

[27]   Ms. Smith emphasized in her testimony the critical function of tobacco supplies.  She testified that 75% of the inmates are smokers and that given their dependence on tobacco, there could be serious consequences if there was an insufficient supply of it.  She testified that there were two occasions when there were concerns expressed about an insufficient inventory of tobacco.  At the hearing, she also testified that she had been concerned about her accountability under the Financial Administration Act (FAA).

[28]   On September 4, 2003, the Financial Control Officer for supplier payments, Valmond Bourque, sent an e–mail to Ms. Baker advising her that there was no purchase order for an invoice from JTI MacDonald in the amount of $6,791.67 (Exhibit E–12).  In his responding e–mail, Mr. Wright stated: “I am at fault here” and explained that he was having trouble with the IFMSS and was not able to create the proper order.  He said that Paul Pollard, who was acting for Ms. Baker, approved his placing the order over the phone.

[29]   Helen Speer, a Finance Technician at Regional Headquarters, contacted Mr. Wright by e–mail on December 2, 2003, with regard to a random audit of his payment to JTI MacDonald (for tobacco) (Exhibit E–12).  In the e–mail, she noted that the purchase order was prepared after the invoice date, which implied that the purchase order was prepared after the goods were received.  She asked for justification for this apparent breach of purchasing policy.  In his response (Exhibit E–12), Mr. Wright explained that from an e–mail that he had received, he thought the IFMMS was down all day; therefore, he placed the order by phone without creating a purchase order.  He told her that he had misunderstood the e–mail and realized that it was only down at a later time in the day.  He concluded: “I am taking full responsibility for this action.”  Mr. Wright testified that he had looked for Mr. Trask to tell him that the system was down but that he could not find him.

[30]   Ms. Baker sent an e–mail to Mr. Wright on February 3, 2004, following up on a purchase order for cushions and lockers (Exhibit E–17).  In her e–mail, she notes that she had asked Mr. Wright “about 3 – 4 weeks ago” to make this purchase order.  In an e–mail dated February 6, 2004 (Exhibit G–4), she indicated that she had approved the cushion order and thanked him for the fast ordering.

[31]   Annette Carter, a Finance Specialist at Nova Institution, sent an e–mail to Mr. Trask on February 11, 2004, advising him that Mr. Wright had misplaced one of the invoices to match to his credit card statement (Exhibit E–13).  She had been monitoring Mr. Wright’s payments for the previous six months.  She noted that this would delay his credit card payment, likely making it late.

[32]   Late in February 2004, Ms. Baker was concerned about purchasing and the end of the fiscal year.  In an e–mail to Mr. Trask and Mr. Wright dated February 23, 2004 (Exhibit E–16), she wrote that she had noticed that Ms. McNutt was still doing the majority of purchase orders for the Institution, although she had assigned these duties to Mr. Wright.  She also wrote that, based on what she had heard, “we have a lot of dwindling supplies”.

[33]   Employees who supervise inmates are responsible for producing evaluations of the inmates’ work. On December 8, 2003, Monica Symes sent an e–mail to a number of employees, including Mr. Wright, noting that a number of inmate work reports were late.  Mr. Wright was responsible for six of the seven that were overdue (Exhibit E–11).  On March 26, 2004, Ms. Symes followed up with a number of employees, including Mr. Wright, on overdue work reports (Exhibit E–10).  These are performance reports prepared on inmates based on their work at the Institution.  Mr. Wright forwarded them on March 29, 2004.  Ms. Symes sent an e–mail to Mr. Trask on April 7, 2004, and stated that the reports prepared by Mr. Wright were “of poor quality” and reflected a “lack of professionalism” (Exhibit E–10).

[34]   Mr. Wright testified that after returning from certified sick leave on December 18 and 19, 2003, Ms. Baker called him into her office, closed the door and began to discuss his leave.  She told him that to get ahead at the CSC “you cannot take time off like that”.  He told her that he had had a sinus infection and was not physically able to work on those days.  She told him that primary workers “take all the time they can get and I just don’t want you to develop their attitude.”  Mr. Wright testified that he told a few people about her comments, including his union shop steward.  He testified that he felt that he was being threatened with repercussions for taking certified sick leave.  Mr. Wright testified that he told Mr. Trask about the conversation and that Mr. Trask asked him if there was anything he wanted him to do.  Mr. Wright testified that he just wanted to let Mr. Trask know.  Mr. Trask had no recollection of this conversation.  After telling Mr. Trask, Mr. Wright testified that Ms. Baker called him into her office and told him that she had never had a harassment complaint filed against her.  He asked her why she was talking about harassment, as this was not the word he used when discussing the matter with Mr. Trask.  Ms. Baker had no recollection of any discussions with Mr. Wright about sick leave.

[35]   In cross–examination, Mr. Wright was shown a document he prepared in response to the letter rejecting him on probation (Exhibit E–19).  He was asked if he agreed with his statement in the letter that there was too much work to do and he agreed.  He was also asked if he had problems with multi–tasking and he responded: “At times, yes”.  Mr. Wright was also asked in cross–examination about his previous work experience.  In his rebuttal letter, he stated that he had not had any previous janitorial experience.  In his resume (Exhibit E–20), he said that he had “cleaning experience”.  He explained that his role in his previous position had not been as a janitor, but that he had had some responsibility for cleaning a kitchen.

[36]   Mr. Wright identified an e–mail from his co–worker, Ms. McNutt, to Ms. Speer and Ms. Baker that he had been copied on (Exhibit G–8).  This e–mail was Ms. McNutt’s response to inquiries about errors that she had allegedly made in purchase orders.

[37]   Mr. Wright was given a performance appraisal for the period from September 1, 2003, to February 27, 2004 (Exhibit E–9) by Mr. Trask after returning from a week of certified sick leave.  All of the factors were rated either “Objective not met” or “No basis for rating”, with one exception: for “Occupational Health and Safety – ensures safe and healthful working conditions”, he received a rating of “Objectives met most of the time”.  The narrative portion of the appraisal reads as follows:

Bob’s work ethic has changed considerably since his indeterminate status was reached in September 2003.  Bob consistently lacks initiative in both the completion of his work assignments and the quality. When questioned on the reasons for not reaching his deadlines or producing poor quality work, he states that he ‘did not have the time’.  Bob’s ability to make sound decisions and prioritize his work is very weak.  Bob’s rapport with his co–workers and the inmates he supervises is rapidly declining. Staff and inmates are complaining of his poor service quality and interpersonal skills. An excessive amount of time has been spent re–training and correcting errors by management and co–workers.

[38]   Mr. Wright testified that he was surprised by the performance appraisal.  He testified that when he asked “Do I still have a job?”, Mr. Trask shrugged his shoulders.  Mr. Wright also testified that he had once asked Mr. Trask about his job performance and Mr. Trask replied: “If we were having problems, we would not be investing in training for you.”

[39]   The rejection on probation letter was given to Mr. Wright on March 2, 2004.  The contents of the letter were discussed with Mr. Wright on April 12, 2004, with his union representative present (see paragraph 13, above).

Summary of the arguments

For the employer

[40]   Counsel for the employer submitted that this was not a case of discipline but was a rejection on probation, and the legal test was very different in a rejection on probation situation.  Mr. Kamel reviewed the evidence of the witnesses.  The Warden testified about the impact of a lack of performance in the job of Stores Officer.  She witnessed some of the deficiencies and testified that she was worried about her accountability under the FAA as a result of Mr. Wright’s performance.  Mr. Trask made every effort to assist Mr. Wright.  After achieving his indeterminate status, Mr. Wright’s performance began to decline.  The employer’s theory was that Mr. Wright felt that the job was beneath him and probably intended to become a primary worker; this would explain the amount of time he spent in the secure area.  Ms. Baker testified about inventory reports not completed and other work deficiencies.  She had to follow up on his work on a number of occasions.

[41]   Mr. Kamel pointed out that the e–mail from Ms. McNutt with regard to outstanding issues involving her (Exhibit G–8) was incomplete, and I should give very little weight to it.

[42]   Both Corporal Reid and Mr. LeBlanc had no idea of Mr. Wright’s job performance and for that reason, their evidence is of little value to this adjudication.  Similarly, Mr. Rix’s testimony has nothing to do with the issue before me.

[43]   Mr. Kamel submitted that Mr. Wright’s testimony was not credible; some things he could remember verbatim but others he could not recall.  In his testimony, he said that the two–way radio was his idea, yet in his rebuttal document, which he reviewed at the hearing, he stated that eventually it was decided to give him a radio.

[44]   Mr. Kamel noted that Mr. Wright admitted that he had problems with multi–tasking and admitted to making mistakes.  Mr. Kamel also submitted that Mr. Wright’s girlfriend was working in the secure unit and it seems virtually impossible that he would never go see the woman he was courting.  This explains why he was away from his post so often.

[45]   Mr. Kamel argued that Mr. Wright had tried to make Ms. Baker the scapegoat for his own deficiencies, and yet Ms. Baker had nothing to do with the second evaluation.  Mr. Wright called Mr. Kamel a “smart ass” during his cross–examination.  This is not the kind of behaviour that is appropriate at an institution such as the Nova Institution where staff have to be careful in their dealings with inmates.

[46]   With regard to the good faith of the employer and the suggestion that Mr. Wright was rejected because he had been considering laying charges as a result of the assault, Mr. Kamel said that the question that should be asked is why would the employer appoint Mr. Wright as an indeterminate employee if it intended all along to reject him on probation?

[47]   Mr. Kamel noted that there was no dispute that Mr. Wright was a probationary employee and that he received the letter of rejection within the probationary period.  Mr. Wright was rejected for employment–related reasons. His deficiencies have been highlighted and were incompatible with his job.  Mr. Wright was simply not a good fit for the job.  His lack of performance was blatant.  In his resume, Mr. Wright stated that he had experience in the areas of cleaning, inventory and purchase orders and yet lots of handholding by Mr. Trask and others was required.

[48]   Mr. Kamel outlined the legal test in rejection on probation cases, set out by this Board and the Federal Court.  According to the decision in Canada (Attorney General) v. Penner, [1989] 3 F.C. 429, there is no jurisdiction as soon as an adjudicator is satisfied that the decision to reject an employee on probation was founded on a real cause for rejection.  He also referred me to Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529, which concluded that the employer need only establish “some evidence” that the rejection was related to employment issues “and not for any other purpose”.  He also referred me to Owens v. Treasury Board (Royal Canadian Mounted Police), 2003 PSSRB 33 and Arnould v. Treasury Board (Fisheries and Oceans Canada), 2004 PSSRB 80.  He referred as well to Boyce v. Treasury Board (Department of National Defence), 2004 PSSRB 39, which held that not all of the employer’s reasons for a rejection on probation need to be well founded.

[49]   Mr. Kamel submitted that Mr. Wright’s training and retraining were far from bad faith.  His deficiencies were highlighted:  deficiencies such as late reporting, late purchase orders or no purchase orders.  These are all examples of deficiencies directly related to his employment.  Mr. Wright was given the opportunity to show what he could do but he simply failed to meet the employer halfway.  The job was not a difficult one but was just not a good fit for Mr. Wright.

For the grievor

[50]   Mr. Hill submitted that if the bargaining agent could show bad faith on the part of the employer, then I would have jurisdiction over Mr. Wright’s termination of employment.  He agreed with the legal test set out in the jurisprudence and the shifting burden on the grievor to demonstrate bad faith.  He submitted that the performance issues raised by the employer were trivial.  He stated that one of the important things is whether Mr. Wright was able to do his job.  The first performance evaluation (Exhibit E–8) had a rating of “satisfactory” overall and showed that Mr. Wright could do his job.  Yet, the employer now argues that he was not capable of doing the day–to–day tasks of his job.  Something happened between the first evaluation and the second evaluation.  None of the incidents raised by the employer was documented and there was no letter or notations placed on his personnel file.  All we have is the oral testimony of Ms. Smith, Ms. Baker and Mr. Trask.

[51]   Mr. Hill noted that the letter of rejection contained a reference to the inappropriate distribution of surplus supplies (the expired soda).  The fire occurred in 2003, and Mr. Rix testified that, a few days later, he was counselled by the Warden.  The Warden knew in 2003 that Mr. Wright was not responsible for the distribution of soda, yet she pinned the blame on Mr. Wright in the rejection on probation letter.

[52]   Mr. Hill noted that the employer’s witnesses testified that Ms. McNutt was providing training to Mr. Wright, yet Ms. McNutt was not called as a witness.  This evidence was hearsay and is not reliable.  There was no documentation of training other than that set out in the training summary (Exhibit E–6).  The employer failed to abide by the principles of fairness in not providing the necessary training.

[53]   Mr. Hill argued that although Mr. Trask testified that he believed in keeping things simple, he could not answer the question about how to create a purchase order without referring to the training material.  Mr. Trask also said that he used the approach of Winston Churchill and would let Mr. Wright come up with solutions, getting him to believe that the ideas were his.  These are not appropriate principles for an employee on probation.  Mr. Trask testified that he issued a radio to Mr. Wright as a “tracking device” and admitted that he did not advise Mr. Wright of this.  Where is the honesty in that?  Mr. Trask did not use the necessary building blocks to justify rejection on probation.  Mr. Trask testified that other supervisors had told him that Mr. Wright was using the wrong channels and taking too long in his messages.  None of these supervisors testified, and this was simply hearsay.  Mr. Trask testified that Mr. Wright would go out shopping “every day”.  If the employer had a problem with this, you would think it would put a stop to it.  But the employer let it continue.

[54]   Mr. Hill submitted that most of Ms. Baker’s testimony was hearsay.  She also had positive things to say about the grievor in an e–mail (Exhibit G–4) and asked him to fill out purchase orders (Exhibits G–6, G–7 and G–9).  This disputes the testimony that the employer had issues with his performance.

[55]   Mr. Hill submitted that “good faith” means being open and honest, and communicating in good faith.  This was not done in this case.

[56]   Mr. Hill noted that both Corporal Reid and Mr. LeBlanc testified that Mr. Wright told them it was not in his best interests to proceed with a complaint about the assault.  Mr. Wright felt threatened by Ms. Baker and told Mr. Trask.  Mr. Trask did not recall this, even though Mr. Wright told him that he felt that if he did not change his mind about laying charges, he would not have a job.  Mr. Wright also testified that after he had taken certified sick leave, Ms. Baker threatened him and advised him that he could not take time off like that, saying that she did not want him to have the same attitude as the primary workers.  He told Mr. Trask about this but Mr. Trask did not recall this conversation.  However, Mr. Wright was called back into Ms. Baker’s office after his conversation with Mr. Trask and told that there had never been a harassment complaint against her.

[57]   Mr. Hill submitted that the employer must establish that the rejection on probation was related to employment issues and not “for any other purpose” (Leonarduzzi (supra)). Mr. Hill also referred me to Dhaliwal v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 109.  The grievor’s position is that the first evaluation showed that he was capable of doing the job; therefore, the rejection on probation must have another purpose behind it (in other words, it is a sham).  Dhaliwal (supra) also defines “good faith” as “an honesty of intention and fairness and treatment.”  In Dhaliwal, the duty to fully inform the employee of what is expected of him is set out as part of the definition of good faith.  Mr. Hill asked, other than the performance evaluations, where is the documentation?  The duty to inform the employee that he is not meeting the requirements of the position is outlined in Dhaliwal as a principle of fairness. The employer did not tell him the truth about the radio and sent emails thanking him for his work.  Another principle of fairness set out in Dhaliwal is the duty to provide the employee with the opportunity to make the necessary adjustments.  If the employer had problems in October and November with Mr. Wright’s performance, why were they not raised then or something put on his file?  The principles set out in Dhaliwal also include the duty of the employer to assist in making adjustments.  Mr. Trask’s “Winston Churchill approach” does not meet this standard.

[58]   Mr. Hill referred me to McMorrow v. Treasury Board (Veterans Affairs), PSSRB File No. 166–2–23967 (1993) (QL), which involved a situation where there was a “blatant disregard for fairness” and bad faith was found in that case.  Mr. Hill also referred me to Anonsen v. Treasury Board (Transport Canada), PSSRB File No. 166–2–17193 (1987) (QL).

[59]   It was the bargaining agent’s position that Mr. Wright was rejected on probation as a form of disguised discipline and that this rejection on probation was a sham and a camouflage.  He was rejected for exercising his rights to make a police complaint, to file a harassment complaint (or make inquiries about filing a harassment complaint) and to take sick leave.  The building blocks, as discussed in Dhaliwal (supra), were not followed.

[60]   In conclusion, Mr. Hill asked that the letter of rejection be rescinded and Mr. Wright be reinstated with no loss of salary and benefits and that he be made whole.

Reply

[61]   Mr. Kamel submitted that the comments about hearsay evidence were a slippery slope based on Mr. Wright’s own hearsay evidence.  There is always some hearsay evidence, and the hearsay evidence of the employer’s witness and that of the grievor cancel each other out.  The Boyce (supra) case was based on a report that the manager received that was hearsay and this was not an issue.

[62]   Bad faith cannot be based on innuendo; some concrete evidence is required.  Sick leave was not even considered in the rejection on probation.  There was nothing in the testimony that would indicate that there was even a concern about sick leave or harassment other than in Mr. Wright’s perception.  There was no legal requirement for supervisors and others to take notes for the file.  The fact that the Warden had no, or little, personal or direct knowledge of Mr. Wright’s performance is clearly addressed in Arnould (supra).

[63]   With regard to the thank–you e–mail from Ms. Baker (Exhibit G–4), it was important to note that Mr. Wright was late with the purchase order in the first place.  Ms. Baker was simply trying to encourage him.

[64]   Mr. Kamel submitted that the facts in Dhaliwal (supra) were significantly different from those in this case.  He also submitted that the Anonsen decision (supra) was not relevant.

Reasons

[65]   Mr. Wright was rejected on probation after almost a year of employment with the CSC at Nova Institution.  There is no dispute that Mr. Wright was on probation at the time of his rejection.  The jurisdiction of an adjudicator in such a case is tightly circumscribed by both legislation and jurisprudence.

[66]   The PSSRA, in subsection 92(3), states that nothing in subsection 92(1) "shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act” (PSEA).  Rejection on probation is governed by section 28 of thePSEA.

[67]   The Federal Court in Leonarduzzi (supra) determined that the employer is not required to establish just cause but is only required to establish, through some evidence, that the rejection was related to employment and "not for any other purpose”.  In Penner (supra), the Federal Court of Appeal adopted the test articulated by this Board in Smith v. Treasury Board (Post Office Department), PSSRB File No. 166–2–3017 (1977) (QL):

[…]

In effect, once credible evidence is tendered by the Employer to the adjudicator pointing to some cause for rejection, valid on its face, the discharge hearing on the merits comes shuddering to a halt....

[…]

[68]   Once the employer has discharged its burden of demonstrating that the rejection was for an employment–related reason, the burden of proof then shifts to the grievor to demonstrate that the employer's actions are, in fact, "a sham or a camouflage" or in bad faith and therefore not in accordance with subsection 28(2) of the PSEA:  Leonarduzzi (supra) and Penner (supra).

[69]   The Anonsen decision (supra), cited by the grievor’s representative, predates the analysis in Penner (supra) and Leonarduzzi (supra) and is not relevant.  Furthermore, Mr. Anonsen was rejected on probation for events that predated his employment.  Such is not the case here.

Was there an employment–related reason?

[70]   The employer alleges the following reasons for rejecting Mr. Wright on probation in its letter to him of March 2, 2004 (Exhibit E–4):

• untimely inventory count
• ordering stock without purchase orders
• distributing surplus, outdated stock to staff
• lost credit card receipts
• inventory control problems
• cleaning neglected and not up to standards
• insufficient training of inmates on buffing equipment
• supervisor’s reports on inmates overdue on a continuous basis and not always accurate
• inappropriate interaction with inmates.

[71]   Mr. Wright was offered an indeterminate appointment in October 2003.  The performance appraisal for the period of his term appointment, up until the end of August 2003, was a positive one.  The employer’s witnesses testified that any concerns about his performance during this period were not significant and that the performance–related concerns commenced early in the fall of 2003.  Therefore, I am not taking into account the evidence relating to performance concerns that pre–date the decision to make him an indeterminate employee.  In particular, this applies to the concern raised by Ms. Smith about Mr. Wright contacting the inmate who had assaulted him with a mop in May of 2003.  This occurred prior to his being made indeterminate.

[72]   The distribution of soda after a fire at the Institution in September 2003 was recognized as an unfounded allegation by the employer and was later retracted by Ms. Smith.  However, it did form part of the decision to reject Mr. Wright on probation, as it was specifically mentioned in the letter of rejection.  This demonstrates sloppiness on the part of the employer, given Mr. Rix’s testimony that he was counselled soon after the incident.  It is indeed unfortunate that this retraction does not appear in the final level grievance response or apparently anywhere else on Mr. Wright’s file.  Given the significance of a rejection on probation letter, the employer should have issued either a revised letter or a letter retracting the unfounded allegation and should not have left this issue hanging.  However, the employer needs to show that it had an employment–related reason for rejection on probation, not that all of its stated reasons are well founded (see Boyce (supra)).

[73]   Mr. Trask and counsel for the employer attempted to ascribe motives or reasons for Mr. Wright’s performance deficiencies.  The evidence did not support their opinions.  In any event, it is not necessary to draw any conclusions on reasons or explanations for performance deficiencies relied on by the employer in a rejection on probation.

[74]   Mr. Wright admitted to a relationship with a female employee at the Nova Institution.  The employer attempted to show that this relationship interfered with his performance.  The employer called no witnesses to support this position and was unsuccessful in cross–examining Mr. Wright on this point.  I also note that such allegations were not raised in the rejection on probation letter.  I find that this allegation is unfounded.

[75]   In cross–examination, Mr. Wright called counsel for the employer a “smart–ass”.  Mr. Kamel attempted to use this comment to impugn Mr. Wright’s performance.  Mr. Wright’s comment was made in the heat of cross–examination and, without excusing his inappropriate language, I can draw no conclusions about Mr. Wright’s work performance from this comment.

[76]   The employer did show that it had employment–related concerns over the timeliness of purchase orders, the timely payment of credit card invoices, inventory control and the preparation of supervisor reports.   As noted above, the employer does not need to prove that each and every one of its listed reasons for rejection on probation is well–founded; it only needs to show “an employment–related reason” (Leonarduzzi (supra)).   I therefore find that the employer had an employment–related reason for rejecting Mr. Wright on probation.

Was the rejection a "sham" or in bad faith?

[77]   The burden now shifts to the grievor to demonstrate that the rejection on probation is a "sham" or in bad faith.  The grievor’s representative relied on Dhaliwal (supra) to argue bad faith on the part of the employer.  In my view, Dhaliwal falls squarely within the analysis in McMorrow (supra).  In McMorrow,  the adjudicator noted that, in his view:

[…]

...if it can be demonstrated that the effective decision to reject on probation was capricious and arbitrary, without regard to the facts, and therefore not in good faith, then that decision is a nullity…

It is trite to say that a determination of whether there is good faith or not must be gleaned from all the surrounding circumstances; there can be a multitude of sets of facts that may result in a conclusion of bad faith, ... keeping in mind of course that good faith should always be presumed.

[…]

[78]   It is important to note that the burden rests on the grievor to show bad faith; there is no requirement that the employer prove that it acted in good faith.  The onus is still on the grievor to show that the employer acted in bad faith or, as articulated in Dhaliwal (supra), to show that the employer did not act in good faith.

[79]   Dhaliwal (supra) refers to the Treasury Board policy on non–disciplinary termination as an example of the building blocks necessary to support a rejection on probation.  I think that this policy was used as an illustration of some of the principles of good faith only and was not viewed by the adjudicator as binding on the employer in a case of rejection on probation.  On its face, the Treasury Board policy does not apply to employees on probation.

[80]   In McMorrow (supra), the adjudicator found that the supervisor had reached a firm conclusion to reject the grievor on probation prior to the end of the investigation and without the benefit of any input from the grievor.  Similarly, i n Dhaliwal (supra), the employer’s concerns about the grievor’s use of leave were not brought to his attention and he was not given an opportunity to explain his reasons for the leave requests.  There was also an element of condonation by the employer in Dhaliwal (supra), given that his supervisor approved the leave requests without questioning them.  In Mr. Wright’s case, he was aware that his supervisor and managers had concerns about his performance.  Ms. Baker sent him a number of e–mails concerning inventory counts, purchase orders and credit card payments.  He was also advised that inmate evaluations were late and were of “poor quality”.  Mr. Wright was asked to observe his co–worker and was also offered retraining.  Mr. Trask also discussed performance issues, although he may not have been as direct as he should have been in conveying the identified shortcomings to Mr. Wright.  However, I am satisfied that Mr. Wright was generally aware of performance–related concerns.

[81]   The definition of good faith in the Treasury Board policy excerpted in Dhaliwal (supra) includes warning the employee of “what the consequences will be if he or she continues to fail to meet the requirements of the position”.  The grievor’s representative submitted that the failure of the employer to advise Mr. Wright that he could be rejected on probation amounted to bad faith.  Mr. Wright was advised that he was on probationary status at the commencement of his employment and, in my view, this was sufficient warning that performance–related concerns could result in a rejection on probation

[82]   In this case, performance–related concerns were brought to Mr. Wright’s attention.  Assistance in meeting his performance objectives was provided in the form of on–the–job training and various manuals and guides.  E–mails sent by Ms. Baker expressing appreciation for Mr. Wright’s work do not negate the concerns expressed both orally and in other e–mails.

[83]   There was conflicting evidence on the two–way radio issued to Mr. Wright.  Given Mr. Trask’s testimony that his management style revolved around getting employees to think that the solution was their own, it is easy to understand how the confusion as to whose idea it was could arise.  I accept Mr. Wright’s evidence, corroborated by Ms. Baker, that the term “tracking device” was not used to justify the use of the two–way radio.  The purpose of the two–way radio was to locate Mr. Wright and communicate with him while he performed his duties.  I can see no bad faith on the part of the employer in providing a two–way radio.

[84]   Mr. Hill argued that Mr. Wright’s stated intention to pursue criminal charges after the assault by an inmate with the mop in May 2003 was also a factor in his rejection on probation.  As I have noted above, I did not consider the events prior to Mr. Wright’s appointment to indeterminate status for purposes of assessing whether there was an employment–related reason for the rejection on probation.  In terms of bad faith, there was no evidence to support the allegation that Mr. Wright’s consideration of laying charges was connected with his rejection on probation.  I note also that he was appointed to an indeterminate position after he raised the possibility of pursuing criminal charges.

[85]   Mr. Hill submitted that comments made by Ms. Baker about Mr. Wright’s sick leave usage also demonstrated bad faith.  I accept that the discussion on sick leave likely occurred.  However, it was not demonstrated by Mr. Wright that this had any influence on the employer’s decision to reject on probation.

[86]   In conclusion, I find that Mr. Wright has not met his burden of proof; the evidence as a whole has not demonstrated that the rejection on probation was a sham, a camouflage or in bad faith.  Accordingly, I am without jurisdiction.

[87]   For all of the above reasons, I make the following order:

Order

[88]   This grievance is dismissed for lack of jurisdiction.

September 12, 2005.

Ian R. Mackenzie,
adjudicator