FPSLREB Decisions

Complaint before the Board

[1]   Claire Hébert had held an indeterminate position with the Department of Fisheries and Oceans since March 14, 2002. Her appointment to this position was conditional upon a 12-month probation period. On January 9, 2003, the employer notified Ms. Hébert that her employment would terminate on February 10, 2003, shortly before the end of the probation period. Ms. Hébert contested her dismissal during the probation period and filed a grievance.

[2]   Ms. Hébert’s bargaining agent, the Public Service Alliance of Canada (PSAC), represented her until the last level of the grievance procedure. After that, PSAC informed Ms. Hébert that it would not refer her grievance to adjudication. Natalie St-Louis, Gaby Lévesque and Kate Rogers defended this decision by PSAC in their exchanges with Ms. Hébert.

[3]   Consequently, on July 16, 2004, Ms. Hébert filed a complaint against PSAC and Ms. St-Louis, Ms. Lévesque and Ms. Rogers, alleging that they had acted in an arbitrary and discriminatory manner or in bad faith in their representation.

[4]   The complaint was heard in Ottawa on January 11, 2005.

[5]   On April 1, 2005, the new Public Service Labour Relations Act, enacted under section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Under section 39 of the Public Service Modernization Act, the Board remains seized of this complaint.

Summary of the evidence

[6]   On March 14, 2002, Ms.  Hébert was hired by the Department of Fisheries and Oceans for a position at the ST-SCY-03 group and level. On May 27, 2002, her employer notified her that her position had been reclassified at the CR-05 group and level, retroactive to March 15, 2002.

[7]   Ms. Hébert admitted that she had met with her supervisors in October and November 2002 to discuss the quality of her work and her interpersonal skills at work. However, she pointed out, she had always tried to perform her work well and to deal with the situation, even though she felt harassed by some people.

[8]   Commenting on the performance evaluation signed by her supervisor on November 21, 2002, in which mention was made of the need to improve her interpersonal skills, Ms. Hébert indicated that she was not the one who had instigated the problems that existed between her and her work colleagues (Exhibit S-1(a), tab h).

[9]   Thereafter, on January 9, 2003, Ms. Hébert received her dismissal letter while on probation. The employer indicated that her employment would terminate on February 10, 2003. This decision was justified on the basis of the fact that Ms. Hébert did not have the skills and qualities required for the position she was in and that she was unable to adapt to her environment properly.

[10]   Ms.  Hébert contested the employer’s decision to dismiss her while on probation, and asked PSAC to represent her.

[11]     The respondents filed two bound 100-page documents (exhibits S-1(a) and S-1(b)), which together contained all the correspondence exchanged between Ms. Hébert and the respondents, the minutes prepared by the employer and the correspondence between Ms.  Hébert and the employer.

[12]   Gaby Lévesque was the PSAC grievance and adjudication coordinator during the events that led to the complaint. She explained that PSAC consists of local unions, gathered under 17 sections. These look after the grievances at the different levels of the grievance procedure. PSAC is the one that decides whether to refer a grievance to adjudication.

[13]   Ms. Hébert’s grievance was sent by the section head, Simon Ferrand, to Ms. Lévesque, and she in turn sent it to Nathalie St-Louis, grievance and adjudication analyst at PSAC, for review.

[14]   Ms. Lévesque indicated that in an opinion dated March 30, 2004, Ms. St‑Louis   had concluded that it would be difficult to defend the grievance because Ms. Hébert was on probation and had been dismissed under the Public Service Employment Act (PSEA). Ms. St-Louis maintained that such a dismissal could not be adjudicated unless it could be demonstrated that the employer had acted in bad faith. This opinion was sent to Mr. Ferrand, section head, with a copy to Ms. Hébert. At this point, Ms. Lévesque referred to the offer of employment made to Ms. Hébert (exhibit S‑1(a), tab a), specifying that “[…] [translation] employees appointed from outside the Public Service are subject to a twelve-month probation period […]”.

[15]   After this opinion was issued, Ms. Lévesque spent more than an hour on the phone with Ms. Hébert. She said she explained to Ms. Hébert that she was on probation and that her offer of employment (exhibit S-1(a), tab a) specified that she was subject to a 12-month probation. Ms. Lévesque also pointed out to Ms. Hébert that, since her position had been reclassified administratively, Ms. Hébert could not claim to have had a promotion during her employment. Ms. Lévesque indicated that she had asked Ms. Hébert to file a complaint if she wanted to contest PSAC’s decision not to refer her grievance to adjudication.

[16]   According to Ms. St-Louis, the review of the employer’s minutes and the correspondence exchanged between Ms. Hébert and the employer showed that the latter had raised weaknesses with regard to Ms. Hébert’s ability to perform her work and interact with her colleagues at work. Under the circumstances, it would be difficult to prove that the employer had acted in bad faith.

[17]   Ms. St-Louis indicated that she had provided a written opinion on Ms. Hébert’s grievance (exhibit S-1(a), tab 5), in which she addressed the possibility of defending such a grievance. In view of the nature of the job, the reasons for the dismissal, the statutory provisions and after reviewing the case law on grievance adjudication, Ms. St-Louis believed that the grievance was not defensible.

Summary of the arguments

[18]   Ms.  Hébert maintains that the respondents gave more weight to the employer’s arguments than to her own.

[19]   According to Ms. Hébert, the respondents had made up their minds on the issue of interpersonal relations in the workplace. They should have taken her arguments into consideration. Ms. Hébert felt that she performed her work well and was not the one who had instigated the communications problems with her colleagues. The employer did not have any right to dismiss her.

[20]   The respondents, for their part, pointed out that the bargaining agent has some flexibility in assessing and deciding on a grievance. The respondents conducted a careful study of the documents concerning Ms. Hébert and of the case law applicable to an employee who is dismissed while on probation.

[21]   The performance assessment provided to Ms. Hébert during her probation mentioned issues related to her ability to adapt to her environment and did not make any reference to disciplinary problems.

Reasons

[22]   A bargaining agent is required to represent the employees in a bargaining unit in a manner that is neither arbitrary, discriminatory nor in bad faith. When it receives a complaint of unfair representation, the Board must assess the actions in question to determine whether they constitute a breach of this duty of representation.

[23]   The March 15, 2002 letter of offer clearly shows that Ms. Hébert was on probation for a 12-month period and was subject to the PSEA.

[24]   The January 9, 2003 dismissal letter explains the employer’s decision as follows:

[…]

[Translation]

This decision is based on the fact that you do not meet the skill and quality requirements for the position in question, and on the fact that you failed to adapt to your environment properly. You have been told on numerous occasions that unless you corrected this situation, measures would be taken to terminate your employment.

[…]

[25]   Review of evidence presented and the extensive documentation that was filed indicated to me that the employer assessed Ms. Hébert’s work performance and her failure to adapt to her environment properly. In her assessment of the grievance (letter of March 30, 2004), Ms. St-Louis took into consideration the reasons provided by the employer and concluded that it would be difficult to determine that the employer had acted in bad faith or on disciplinary grounds. This opinion is consistent with the degree of evidence required, as established in Rinaldi v. Treasury Board (Canadian Space Agency), Board files 166‑2‑26927 and 26928 (1996) (QL).

[26]   In this case, I believe that the respondents thoroughly assessed all the evidence and decided, in good faith and in a manner that was neither discriminatory nor arbitrary, not to refer Ms. Hébert’s grievance to adjudication. Ms. Hébert did not provide any evidence from which it could be determined that the employer had acted in bad faith or on disciplinary grounds. In this case, the fact that the employer did not rush its decision and assessed Ms. Hébert throughout her probationary period, leading to the final decision to terminate her employment at the very end of the probationary period, must be taken into consideration.

[27]   The respondents reviewed the circumstances of the case and decided not to pursue it. This discretionary decision falls within the parameters of the duty of fair representation, as recognized in Ford v. Public Service Alliance of Canada, Board file 161-2-775 (1995) (QL):

[…]

There is a great deal of jurisprudence emanating from this Board in respect of the above provision and there is no need for me to attempt to summarize it here. Suffice it to say that the Act enjoins the bargaining agent to represent its members fairly and not in a way that is arbitrary, discriminatory or in bad faith. That being said, it does not mean that a bargaining agent is obliged to take every complaint of every member to the highest court in the land. The member does not have an absolute right to have the bargaining agent represent him or her at adjudication. The bargaining agent has considerable scope and is free to weigh a variety of factors in reaching its decision such as the relevant jurisprudence, whether the member’s case is well-founded, costs and the interests of the bargaining unit as a whole as well as other considerations. […]

[…]

[28]   Thus, I do not believe that the complainant has established that the respondents acted in bad faith or in a discriminatory or arbitrary manner in their handling of the complainant’s grievance.  

[29]   For these reasons, the Board makes the following order:

Order

[30]   The complaint is dismissed.

June 23, 2005.

Jean-Pierre Tessier,
Board Member

P.S.L.R.B. Translation