FPSLREB Decisions

Grievance referred to adjudication

[1]    The grievor, Fermin Garcia Marin, filed a grievance against his employer, the Treasury Board (Public Works and Government Services Canada (PWGSC)), on April 2, 2004.   The grievance reads as follows:

Department has failed to properly assess performance pay award for 2002/2003 period.

Department has failed to do performance rating for 2002/2003 period.

Corrective action requested.

That performance rating and performance pay award be properly done.

[2]    The grievance was received for adjudication by the Public Service Staff Relations Board (the former Board) on June 7, 2004.

[3]    On June 14, 2004, the former Board requested that the grievor provide more particulars to support his grievance (Exhibit G-1):

. . .

In order to refer a grievance to the Public Service Staff Relations Board pursuant to section 92(1)(b)(i) of the Act, an aggrieved employee must provide clear indication that they have been the subject of disciplinary action resulting in a suspension or a financial penalty.   After reading the correspondence, including the reply from the Employer at the final level that you submitted, the Board would appreciate receiving more particulars to fully ascertain the authority of the Board before continuing.

. . .

[4]    On June 21, 2004, the grievor provided more information in the form of a letter to the former Board in respect of his grievance (Exhibit G-2).   He submitted that he had been removed from his substantive position of Manager, Clothing and Textiles Division, and assigned to the position of Manager, Special Projects, on November 19, 2001.  He stated that the employer had denied him a performance appraisal and performance pay since April 2002, notwithstanding his requests.  He concluded that the employer’s actions in removing him from his position and depriving him of performance pay “were a complement and a consequence to the series of barely disguised disciplinary and punitive actions” to which he had been subjected.   He also gave details as to the remedies he was requesting:

. . .

As a remedy for the lack of performance pay and performance appraisal I ask for:

• An explicit, written apology from the Deputy Minister;
• $8,100 plus interest for the missing performance award for the period 2002/2003;
• $33,600 for loss of projected pension income as a direct consequence of the lack of performance appraisal/award;
• $16,000 for moral and psychological damages;
• $150,000 for exemplary punitive damages.

. . .

[5]    The employer submitted to the former Board, by letter dated August 25, 2004, that the adjudicator appointed to hear this reference to adjudication under section 92 of the Public Service Staff Relations Act (PSSRA) did not have jurisdiction in this matter because the grievance did not relate to disciplinary action or a financial penalty.   The employer requested that the Board dismiss the grievance without a hearing.

[6]    The grievor objected to the employer’s request by letter dated September 8, 2004.  After considering the matter, the former Board advised the parties on September 17, 2004, that the question of jurisdiction should be raised at the outset of the hearing and that the parties should be ready to proceed on the merits in the event that the presiding member reserved his decision.

[7]    Following a request from the employer’s counsel, the former Board provided simultaneous interpretation services for the duration of the hearing.

[8]    On April 1, 2005, the Public Service Labour Relations Act, 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, R.S.C., 1985, c. P-35 (the "former Act").   Also on this date, the Public Service Labour Relations Board (the Board) was created (the Public Service Staff Relations Board having ceased to exist on March 31, 2005) and this new Board   continues to be seized of this grievance.

[9]    At the outset of the hearing, the employer’s counsel submitted that this reference to adjudication was outside my jurisdiction because the grievance was not related to disciplinary action resulting in suspension or a financial penalty and because the grievor had modified his grievance by adding the disguised disciplinary issue only at the stage of referral to adjudication.   The grievor replied that the evidence would show that the employer’s actions in moving him out of his substantive position and depriving him of a performance appraisal and performance pay were in the nature of disguised disciplinary action.   I reserved my decision on those objections, and the parties were directed to proceed with their evidence.

[10]    The employer’s counsel requested that the summons issued to the Assistant Deputy Minister (ADM), Yvette Aloïsi, be quashed.   This request was denied on the basis that the ADM was involved with the grievance and had provided the response at the final level on June 7, 2004.   I advised the parties that the issue of the relevancy and persuasiveness of her testimony would have to be evaluated by me in this decision.

[11]    The grievor’s request for the exclusion of witnesses was granted with the exception of John Bremner, a representative of the employer at the hearing, who would be called to testify.

Summary of evidence

[12]    The grievor joined the PWGSC in 1987, and at the time of this grievance he was the Manager, Clothing and Textiles Division, at the PG-06 group and level.   In June 2001, John Holinsky, the Director General, advised him that something was going wrong within the Division and expressed very serious concerns without giving specific details.   The grievor realized that his future was involved because he was told by Mr. Holinsky to look for another job.   Some difficulties with the soldiers’ clothing project were referred to in Mr. Holinsky’s e-mail of June 11, 2001, to General W.J. Brewer of the Department of National Defence (DND) (Exhibit G-17).

[13]    In the course of his testimony, the grievor stated that he wanted to adduce the written affidavit of Mary Larkin, Acting Project Manager, Clothing and Textiles Division, which had been adduced into evidence in another forum.   The employer raised an objection to that evidence.   The objection was allowed; Ms. Larkin could be called as a witness and there was no reason to accept an affidavit instead of her testimony.

[14]    The grievor stated in his testimony that Mr. Holinsky told him that something was going wrong within the Division.   At that time, the grievor received some complaints from some employees of his division about the relationship of the division with the DND.   Mr. Holinsky did not specify any particulars of the problems involved.   Mr. Holinsky had signed a Performance Pay/Management and Feedback Report on March 25, 2001, indicating a superior overall performance rating (Exhibit G-15).

[15]    On November 14, 2001, in an e-mail to General Brewer, Mr. Holinsky detailed the frustration of the Division’s employees with the difficulties they had experienced with other projects with the DND since 1998.   He suggested that a misunderstanding of the respective roles of the DND and the PWGSC could be the source of the difficulties (Exhibit G-34).  Mr. Holinsky stated the following in his e-mail to General Brewer (Exhibit G-34):

. . .

… Without pointing fingers as to who is to blame, I think we have reached the point where there is too much baggage for the individuals themselves to get on with fixing this.   For this reason, as I mentioned, I am replacing Fermin as of Monday.   I am hoping that the change of personnel on one side will help move this along.   But Bill, I have to ask if there is anything you can do on your side….

. . .

[16]    The testimony of Ms. Larkin corroborated the grievor’s belief that Mr. Holinsky did not support the Division’s evaluations and decisions under pressure from the DND.   The grievor and Ms. Larkin were of the opinion that Mr. Holinsky had changed his mind and shoved aside the Division’s rules after being pressured by the DND.

[17]    On November 19, 2001, Mr. Holinsky assigned the grievor special duties for an estimated period of nine months, subject to an extension.   This assignment was referred to as Manager, Special Projects, but stated that the grievor would remain in his current position.   During the period of the assignment, Céline Bédard was to take on the responsibilities of managing the Division on an assignment basis.   The letter of the grievor’s assignment listed the duties as follows (Exhibit G-6):

. . .

          During this assignment you will be referred to as Manager, Special Projects, and in general terms your duties will include the following:

• to act as the focal point to work with DFAIT and the RCMP and others as required to assist them in defining and expediting their requirements related to the G8 Summit;
• to work with the RCMP to investigate the possibility and mechanisms of conducting cooperative procurement with other jurisdictions of common goods and services;
• to assist CGSB on an as and when required basis to market, promote and deliver their services especially in Mexico; and
• to provide advice and assistance, as appropriate, to the Clothing and Textiles Division.

          Details of the various duties will be developed in the weeks to come.   I consider these projects important for the Sector and have selected you based on your experience and acquired knowledge….

. . .

[18]    At that time, the grievor told Mr. Holinsky that this assignment was against his will.   Previous to this assignment, he had never been asked by Mr. Holinsky to change the way he was managing the Division or to make accommodations in his relationship with the DND.

[19]    Ms. Larkin wrote a letter to Janice Cochrane, Deputy Minister, PWGSC, on November 14, 2001, to support the grievor and to redress his reassignment.  She felt that the grievor was being punished by that reassignment (Exhibit G-31).

[20]    A former Team Leader, Marie Hoover, expressed her support for the grievor in a letter to Ms. Cochrane and stated that she felt that he had been unfairly treated when he was removed from his position of Manager (Exhibit G-31).   In October 2001, a reorganization of the department was planned and Mr. Holinsky offered manager positions for government projects and employee travel to Ms. Larkin and to the grievor at the PG-05 group and level.   They both declined that offer.   In November 2001, the grievor and Ms. Larkin wanted to meet with Mel Skinner, a union representative, to discuss the work situation and the possibility of filing a harassment complaint based on the employer’s threats to split or reorganize the Division, rescind acting assignments or take steps to remove him and Ms. Hoover from their current positions (Exhibit G-21).

[21]    In his testimony, Mr. Holinsky explained that he had wanted people to move around to try to restore the relationship the Clothing and Textiles Division had with its clients, specifically the DND.   The objective of the decision to change the persons responsible for dealing with the DND was to improve the department’s ability to communicate with the DND.   He testified that he had nothing to reproach the grievor for and that the assignment to Special Projects had not been a reprimand and had not moved the grievor out of his position.   The Special Projects assignment continued after the nine months originally planned.

[22]    The grievor was not, despite Mr. Holinsky’s plans, involved in the Special Projects related to the G8 Summit.   Another candidate was chosen by the person responsible for that position as he met the requirements and was prepared to relocate to Calgary, Alberta (Exhibit G-22).

[23]    The grievor went on sick leave from December 20, 2001, to September 3, 2002.   Upon his return to work, he requested that he be reinstated to his position of Manager, Clothing and Textiles Division (Exhibit G-19).

[24]    In response, Mr. Holinsky maintained the grievor on the Special Projects assignment (Exhibit G-20).   Tasks related to the departmental reorganization and to the business relationship with Corcan were set out in an e-mail sent on September 26, 2002 (Exhibit E-4).  Mr. Holinsky requested feedback on the Corcan project on October 3, 2002 (Exhibit E-5), and the grievor replied that changes to his duties should be discussed and agreed on in advance (Exhibit G-32).

[25]    The grievor’s lawyer sent a letter to the Deputy Minister requesting that the grievor be reinstated to his substantive position.   Mr. Holinsky received a copy of that letter and called the grievor to a meeting about it on October 17, 2002.   The grievor testified that during the meeting, Mr. Holinsky was very agitated and told him that that letter had made him angry.   He told the grievor, in a menacing tone, that he would never go back to his substantive position.

[26]    The grievor added to his testimony regarding the above-noted meeting at page 4 of his written reply to the employer’s pleading.   In his written reply, the grievor gave further details regarding the conversation he had with Mr. Holinsky on October 17, 2002, and in his reply he stated that he was told that if he persisted with his defiant attitude, Mr. Holinsky could retaliate.   I will accept that statement as evidence, the employer’s counsel having not submitted any objection to this statement in his response, received by the Board on December 7, 2005.

[27]    An objection made by counsel for the employer as regards the admissibility of Ms. Larkin’s testimony concerning the meeting held on October 17, 2002, between the grievor and Mr. Holinsky was allowed.   I ruled that Ms. Larkin could not testify about what was discussed at a meeting that she did not attend.   Her statement as to the conversation that occurred between the grievor and Mr. Holinsky in her absence was hearsay and could not be accepted in evidence to prove the truth of the conversation.

[28]    On October 4, 2002, the grievor, in an e-mail, stated the following (Exhibit G-32):

… The starting point of any discussion should be the legal rights to my substantive position….

[29]    The grievor stated in the above correspondence that he was ready to fulfill the duties and perform the work requested but that he disagreed with the assignment to Special Projects.  Mr. Holinsky testified that he had asked the grievor to demonstrate that he had made progress on the special projects assigned to him in November 2001.  Mr. Holinsky stated in his testimony that he had not been ignoring the grievor but had invited him to come and talk about it and, he specifically stated: “I was not ostracizing you or closing the door on you.   I want you to come and discuss.”

[30]    The correspondence filed before me shows that Mr. Holinsky asked the grievor to perform special duties and was concerned that he was not performing them.   The following correspondence between Mr. Holinsky and the grievor is related to the special projects:

• November 16, 2002: Mr. Holinsky asked for a plan concerning the Corcan issues (Exhibit E-6).
• January 9, 2003: Mr. Holinsky asked where the grievor stood with the various things he was working on (Exhibit G-18).
• January 14, 2003: the grievor stated that he had no pending tasks.   The grievor stated that his involvement in the departmental reorganization had been of a very short duration and the discussion/agreement on the Corcan case was never concluded.   The grievor requested that Mr. Holinsky give him details on another important task to be taken care of (Exhibit G-18).
• January 14, 2003: Mr. Holinksy responded by advising the grievor of a special project with the RCMP and stated that he expected the grievor to advise him what was required (Exhibit G-18).   On January 23, 2003, the grievor stated that he was no longer playing a role with respect to the Corcan issue (Exhibit E-7).  On January 29, 2003, Mr. Holinsky renewed his request to the grievor to come up with a plan and a solution to solve the problems with Corcan (Exhibit E-8).

[31]    On June 18, 2003, Dan Ross, Associate Assistant Deputy Minister, Operations Branch, offered the grievor the position of Manager, Knowledge Transfer (PG-06) (Exhibit G-23).   In her testimony, Mariette Fyfe-Fortin stated that she had offered the grievor two assignments after she took over the management of the Division in January 2003.  The reorganization of the Division was completed on April 1, 2003, and the responsibilities of the former Clothing and Textiles Division were split: some of the employees worked only on the DND needs and the other tasks were transferred to a division managed by Normand Dessureault.

[32]    In December 2001, just before going on sick leave, the grievor filed a complaint against the employer’s decision to remove him from his formal position, alleging that it was in fact a deployment without his consent.   That complaint was denied on November 18, 2002, by the Public Service Commission (PSC) on the basis that the assignment was temporary.  He then filed a grievance on December 11, 2002, against the employer’s decision to assign him to Special Projects in November 2001.   That grievance was also denied at the last level on June 13, 2003, by Mr. Ross on the basis that the duties assigned to the grievor were within the scope of his work description and within management’s discretion (Exhibit G-10).

[33]    Romeo Berti accepted an interim assignment to the position of Manager, Clothing and Textiles Division, on April 29, 2003.   In November 2003, the linguistic requirement was lowered to allow the permanent assignment of Mr. Berti to that position.   On November 14, 2003, Mr. Berti was transferred on an indeterminate basis to the position of Manager, Supply, which included the management responsibilities for the Clothing and Textiles Division (Exhibit G-11).

[34]    On December 9, 2003, the grievor filed a complaint pursuant to subsection 34.3(1) of the Public Service Employment Act (PSEA) against the deployment of Mr. Berti to the position of Manager, Clothing and Textiles Division.   The grievor submitted that having Mr. Berti perform the responsibilities of position number ICP-01471 (the grievor’s substantive position as Manager, Clothing and Textiles Division) in position number ICP-04990 constituted an abuse of authority and did not follow the policy guidelines with respect to linguistic profile (Exhibit G-10).

[35]    In her report on the inquiry, Claire Morissette wrote, in summarizing management’s position, the following (Exhibit G-10):

[TRANSLATION]

. . .

Before bringing Mr. Berti over on secondment, Mr. Masse did not consider returning Mr. Garcia Marin to his former duties because he knew from Ms. Fyfe-Fortin that returning Mr. Garcia Marin to the Clothing and Textiles Division would be out of the question in light of earlier complaints from clients and employees.

. . .

[36]    An objection was made by the employer’s counsel on the admissibility of that excerpt of Exhibit G-10.   The objection was taken under advisement because Ms. Fyfe-Fortin would be called to testify at the hearing.   In her testimony later on in the hearing, she categorically denied that she had ever said this, stating that bringing the grievor back to his substantive position had not been considered because the responsibilities of the Clothing and Textiles Division were split in two as a result of the reorganization and this gave him an opportunity to get a new start in a similar assignment at the same level.

[37]    In her report of February 23, 2004 (Exhibit G-10), Ms. Morissette concluded as follows:

[TRANSLATION]

CONCLUSION

Therefore, I find that Mr. Berti’s deployment to the ICP-04990 Manager, Supplies position is authorized under the Public Service Employment Act , that it complies with that Act and that this deployment does not constitute an abuse of authority.

[38]    Being unsatisfied with that decision, the grievor referred his complaint to the PSC on March 18, 2004.   In his report dated November 5, 2004 (Exhibit G-11), Maurice Gohier, who presided over the inquiry, concluded as follows:

[TRANSLATION]

Recommendation:

[47]     For all the above reasons, I find that the deployment of Romeo Berti to the ICP-04990, Manager, Supplies position is illegal and contravenes the provisions of subsection 34.3(1) of the Act because it constitutes an abuse of authority on the part of the Department.  Also, assigning new tasks and duties to the complainant’s substantive position and transferring him to another branch constitutes illegal deployment in contravention of the provisions of subsection 34.2(3) of the Act because these actions constitute deployment without consent.

[48]     Consequently, it is recommended that the Department revoke these deployments and that Mr. Berti and the complainant both return to their respective substantive positions and to the respective tasks and duties that they previously performed.

[49]     The Department has thirty days from the date this investigation report is issued to notify the undersigned in writing of what corrective action it intends to take in response to this recommendation.  Under subsection 34.5(1) of the Act, if I am not satisfied with the corrective action taken by the Department, I will report the situation to the Public Service Commission, which, under subsection 34.5(2) of the Act , may then order the deputy head to take such corrective action as it considers appropriate, including revoking these deployments.

[39]    On July 24, 2003, the grievor asked Normand Masse, his Acting Director, to look at the issue of his performance pay (Exhibit G-7).   His request was transferred to Ms. Fyfe-Fortin, who was the former Director General of the Clothing and Textiles Division.   On September 8, 2003, the grievor requested an answer from her and received a copy of the individual information sheet for his performance pay plan, which stated that his performance rating was unable to be assessed and that no performance pay was payable for the 2002-2003 period (Exhibit G-18).

[40]    The grievor was informed by Compensation Services, Human Resources, that his performance rating had been provided by Ms. Fyfe-Fortin.   He was also told that, if he had concerns with the rating, he should discuss them with his manager (Exhibit G-9; March 22, 2004).   In his testimony, the grievor stated that he had never been approached by his manager to provide information for his performance assessment.   On April 2, 2004, the grievor filed a grievance against the employer’s decision not to provide him with a performance rating for the 2002-2003 period and consequently, the employer’s failure to provide him with performance pay.

[41]    John Bremner, Senior Labour Relations Consultant, met with the grievor on May 27, 2004, and explained the grievance process to him and the fact that the ADM would conduct the hearing.   The grievor told Mr. Bremner that he felt the final level hearing should be with the Deputy Minister and that the onus was on the department to justify why he had not been assessed.   Mr. Bremner also explained to the grievor that he would have the opportunity to present his case and evidence to support his grievance at the hearing.   Mr. Bremner’s notes from that meeting were filed as Exhibit E-9.

[42]    The ADM conducted the hearing at the final level of the grievance procedure on May 27, 2004, in the presence of the grievor and Mr. Bremner.   She had been previously informed by Ms. Fyfe-Fortin that the latter was unable to assess the grievor’s performance.   At the hearing at the final level, the ADM asked the grievor if he would provide a list of the work he had performed.   He declined to do so on the basis that an assessment could not be done properly so as to reflect his performance or situation.   In his testimony at the hearing in the present case, the grievor confirmed that he told the ADM that it would not be in his best interests to do so, as is stated in Ms. Fyfe-Fortin’s response to the grievance (Exhibit G-5).   She explained to him that it was not possible to proceed with an assessment without this information.   No performance pay could be awarded without a performance assessment, as specified in the Performance Pay Administration Policy (Exhibit G-4).   The notes taken by Mr. Bremner at the final level hearing were filed as Exhibit E-10.

[43]    On June 7, 2004, the ADM gave her response to the grievance (Exhibit G-5):

. . .

          During the hearing, you stated that after your return from sick leave in September 2002, you were not provided with any performance objectives by your superiors.   A review of the documentation indicated that on September 26, 2003, John Holinsky, Director General, Industrial, Commercial Products and Standardization Services, advised you via e-mail that you were assigned project work required by the Departmental reorganization as well as a project which dealt with liability issues in construction contracts involving the use of CORCAN employees.  When asked what work you did related to these projects, you said you could not remember and that you did not keep a list of the work completed because of your special circumstances.  I have been advised by Departmental officials that you performed minimal work related to those assignments and the special circumstances you are referring to were other workplace issues concerning you.

          When asked if you would now provide a list of your accomplishments, you declined stating you did not think an assessment could be done that would be proper or reflect the actual performance or situation.   You added it was not a good idea and would not be in your best interest to do so.   You further indicated you have suffered economically and you wish to change the corrective action sought in your grievance to state you only want performance pay and not a performance assessment.

          As a senior manager and previous recipient of performance pay, you are familiar with the “Treasury Board Performance Pay Administration Policy for Certain Non-Management Category Senior Excluded Levels”.   As you know, the administration of performance pay is directly linked with an employee’s performance and evaluation of work performed during the review period.   Without first completing a performance evaluation, the Department cannot award performance pay.

          For the above reasons, the corrective action requested cannot be granted and your grievance is denied.

[44]    The Performance Management and Feedback Report for the 1999-2000 period showed that the grievor had a global performance rated at the superior level.   For that period, performance pay of $4,495.00 (6%) was received by the grievor.   For the 2001-2002 period, the Performance Management and Feedback Report stated that the employer was unable to assess a performance rating for the grievor, but he received performance pay of $3,497.00 (4.40%) (Exhibits G-15 and G-16).

[45]    In his testimony, Mr. Holinsky explained that he had been unable to assess the work performed by the grievor for the 2002-2003 period because he had never received any answers from the grievor regarding his requests to show him where the grievor stood on the different projects assigned to him.   Consequently, he had been unable to give Ms. Fyfe-Fortin a performance review for the grievor for that period.  He could not provide an evaluation without substantiating it.   In his testimony, Mr. Holinsky said that he had never received the attachment referred to in the correspondence of January 29, 2003 (Exhibit G-33), and that he had seen this attachment (regarding leave), for the first time at the hearing in the present case.

[46]    Ms. Fyfe-Fortin took over the Clothing and Textiles Division on April 1, 2003, and had no idea what work was being performed by the grievor before then.  Neither Mr. Holinsky, who had been in charge of the Division until January 2003, nor Jean Lacelle, who had taken over the Division from January 2003 to the end of March 2003, was able to give her information on the work performed by the grievor during the relevant period.   The Individual Information sheet for the 2002/2003 period stated that the employer was “unable to assess” a performance rating for the grievor (and no lump sum payment was shown (Exhibit G-8)).

Arguments

For the grievor

[47]    The grievor submitted the following arguments:

Grievance.

          -I have grieved the absence of performance pay/performance appraisal for the period 2002-2003.

          -There is an obligation on the employer to do performance appraisals on employees (see G12, G13) and to apply the performance pay process based on the performance appraisal rating/report; see G-4.  For excluded and unrepresented employees the lack of performance appraisal may result in financial penalties in the form of lack of performance pay or a reduction thereof.

          -I was an active employee for the period under consideration: present at the office and ready to work from September 3, 2002 to March 31, 2003.

          -For the period 2002-2003 there was no appraisal of performance done on me.   There is documentary evidence of this: See G-8 and G-15.   There is also the testimony of Mariette Fife-Fortin and John Holinsky: they both decided to conclude that they were unable to assess my work performance for the period 2002-03.

          -As per G-15, my official appraisals file, the last evaluation performance I had done on me covered the period 1999-2000 and I obtained a “ Superior” rating.   The 99-00 evaluation was reviewed and signed by John Holinsky on May 25, 2001.   For the periods 2000-2001, 2001-2002 and 2002-2003 no performance appraisals were done on me.

-Contrary to policy, neither Mariette Fife-Fortin nor John Holinsky advised me of the performance evaluation process taking place for the period 2002-2003, or of any need of information from me to help them do the performance evaluation or of the “unable to assess” conclusion that they both adopted.   Also, contrary to policy, both Mariette Fife-Fortin and John Holinsky failed to seek my comments to the performance evaluation report (there is no evidence that one had ever been produced) and to request my signature on such report.

-All of the above actions or inactions were not a consequence of an overlook or of an error, they were a consequence of conscious decisions to not have my evaluation properly done as well as to hide the results from me and to not have me involved at any time in the performance evaluation/pay process.   All these decisions are contrary to policy.   The performance evaluation process has to be transparent and this one has not been so.   I find that these decisions were arbitrary, unreasonable and made in bad faith in order to punish/discipline me in a hardly disguised way.

-Despite my repeated requests for an explanation/ information (G-7, G-9 email dated Oct. 14, 2003, email March 18, 2004, E-9 and E-10) the departmental officials never provided the reasons why the performance appraisal/pay was not applied to me.   My request for disclosure and for an opportunity to ask questions to people in the know was ignored even at the final level of the grievance hearing called by the department.   This, in itself, is a clear denial of natural justice.   I was never told what happened, who did or did not do what and for what reasons.   Under these conditions, my possibilities of presenting a complete case were greatly affected in a negative way including finding out the likely motivations of the employer for such damaging behaviour towards me.   Until then I could not reasonably adduce bad faith and or punishing intentions even though these presumable motivations were present in my mind.   All these actions are major flaws that constitute denial of natural justice and that, in effect, invalidate the grievance process as it has been implemented.

The grievance decision of June 7, 2004 from Y. Aloïsi is also invalid for the following reasons:

    1) The decision does not properly address the grievance matters: Performance pay and performance evaluation.   Explicit answers to the following questions were not provided:

Was there a performance evaluation done on me?   Who had responsibility for doing it?   Why wasn’t it done?   Was the employer justified in not doing it?  Why?  How would the employee be affected?  Can/should performance pay be denied to me under the circumstances?  If performance pay is not a possibility, what could be done about the negative effects (financial and others) on the employee by the unjustified failure of the employer to appraise the employee?  Etc.

    2) Even if the decision is considered as having properly addressed all the grievance issues, Y. Aloïsi had no authority to hear my grievance at the final level as discussed earlier under complaint #3.

    3) Even if Y. Aloïsi had authority to hear the grievance at the final level, the employer failed to issue the answer to the grievance within the time stipulated by the PSSRB Regulations, subsection 74(1).   I had already exercised my right of referring the grievance to adjudication. This renders the answer of June 7, 2004 non receivable.

For determining if the employer had in fact complied with police and had properly discharged itself of its obligations in relation to my performance appraisal for the period under consideration, 2002-03, it is not necessary to know if my work performance was considered good, bad or in between.   What is of the essence here is to establish that the appraisal had been done.   That, the employer did not do, contrary to policy.   It is also critical to establish that the appraisal had been done according to policy, reasonably and with total transparency.   That, the employer did not do neither.   J. Holinsky testified that he believed my performance was poor; yet, he failed at his obligation to rate it and he decided to not seek my input or discuss it with me in any way.   Mariette Fife-Fortin testified to the effect that she consulted with J. Holinsky and made hers his conclusions.   Obviously concerned by the potential effects of their conclusions, she testified having consulted with Dan Ross and other executives of the department including Labour Relations, and decided, contrary to policy, not to fill a performance report, not to contact me to inform me of the report, to have my side of the story and to obtain my signature on the report.   In so doing, M. Fife-Fortin did fail to her responsibilities towards the department and me and effectively punished me financially and deprived me of the opportunity to defend myself.  The employer’s actions in this case were arbitrary, unreasonable, showed a total lack of transparency, were contrary to well established policy and customs and constitute serious faults, abuse of authority and undeserved disguised/hidden punishment with financial loss to me.

The behaviour of John Holinsky was illegal, arbitrary, unreasonable and denoted bad faith when he decided to oust me out of my substantive position (see G-34 and G-11) under the subterfuge of a 9 month temporary assignment against my will (see G-6).   This set out the conditions under which J. Holinsky arbitrarily, unduly and without justification deprived me of performance appraisals for 3 consecutive years and deprived me of a meaningful and useful job pertinent to my qualifications and experience.

At the end of the temporary assignment in August 2002, when I returned to work from my sick leave, John Holinsky did not extend the assignment, did not replace it with another one, did not reintegrate me to my position, but instead, he let me in limbo, in a state of neglect with no supervisor to report to.   See G-2 for more details.   On G-19, we can see an email I sent to J. Holinsky asking him to reintegrate me to my position.   He never answered to that.   On his testimony, J. Holinsky said that “he believed he had extended my assignment” but when asked to produce evidence of it, he said that” he had trouble recovering his mail.”   It is like an email is an acceptable way to formalise a job assignment.   It is not.   It is contrary to policy, both, PSC policy and PWGSC policy.   John Holinsky has not produced even the said evidence (email).   If he had ever sent any kind of email extending my assignment or dealing with my working status he would have certainly referred to it when answering my emails, in particular the email dated January 14, 2003 (see G-33) that he let stand unchallenged.   When I asked J. Holinsky “is there any correspondence from him that mentioned any of the tasks of the original assignment” he answered “we talked about it but he (I) never answered to any of them”.   If there had been any mention made of the original tasks, he would have followed up on them as he had with the “new tasks” assigned to me within the pretended same assignment that would now never end since there was not a set of conditions prepared for the assignment similar to those of G-6.   In this way, the assignment could have been of indeterminate duration which is contrary to policy.

In his testimony, when asked who was my supervisor, J. Holinsky said “I had you reporting to me”   He never informed me of that and in his testimony he admitted to not having changed the reporting relationship form as required by the personnel administration policy of the department.   Mr. Holinsky and I had only 2 meetings since September 2002 and one of them was to threaten me, humiliate me, shout at me, diminish me and harass me in an attempt to intimidate me and prevent me from issuing any other complaints/grievances implicating him.   Mary Larking tried to testify about this and present evidence of it but was prevented from doing so by the objections of counsel for the employer.

When J. Holinsky left the Sector in February 2003, he did not advise his acting replacement, Jean Lacelle, of my existence and my peculiar situation, nor of the pretended supervisory role that he had taken upon himself or of any of the pretended pending “important” tasks that I was required to work on.   As a result, the state of neglect I was in already got worse.   Consequently, when Mariette Fife-Fortin replaced Jean Lacelle in March 2003, she did not have a clue of the status of my position or of my duties.   Jean Lacelle or Mariette Fife-Fortin had never talked or otherwise communicated with me.   She did not call me when confronted with the task of doing my performance appraisal either.

The employer’s actions in this case were arbitrary, unreasonable, showed a total lack of transparency are were contrary to well established policy and customs and constitute serious faults, abuse of authority, harassment and underserved disguised/hidden punishment that led to financial loss for me.

As a result of a complaint that I lodged with the Public Service Commission for the deployment of Romeo Berti to do my substantive job, the PSC expressed (see G-11) that the deployment of Romeo Berti and my situation were both utterly illegal (G-11, pg. 13, par 36. [TRANSLATION] “the Department’s actions towards the complainant and Mr. Berti clearly contravene the provisions of the Act.   This is a very serious matter and I would be remiss in my responsibilities if I chose to overlook departmental actions that I consider unacceptable.” ) and lack of transparency towards me (G-11, pg. 15, para 44 [TRANSLATION]. “In my opinion, the Department’s actions show a serious lack of transparency vis-à-vis the complainant and this situation has been going on for far too long already, which is to say, since November 7, 2001.” [Emphasis added]

In view that my job situation was illegal since 7 November, 2001, the lack of meaningful work and supervision that followed can not reasonably be turned around against me and by so doing deprive me of a substantial part of my pay as I had always enjoyed until then.

The concept of “punishment” was introduced early in the succession of events that led us to the actions subject of this grievance.   Pls. See G-31.   Both Mary Larkin and Janice Cochrane addressed the possibility of punishment being one of the reasons for the reassignment of duties by John Holinsky who is the same person that failed to do, or have it done by others, my performance evaluations for the periods 2000-2001, 2001-02 and 2002-03.   Please see G-15.   G-15 is a copy of the official departmental file on my appraisals as of May 2004 and a copy of my Performance pay plan forms from the official pay/benefits departmental file on or about the same time.   There, we can only see 2 performance reports covering the periods 1999-2000 and 2001-02.   Contrary to policy, the latter is “unable to assess” signed by my supervisor of the time, Terry Henry, Director.   That’s all.  Nothing for 2000-01 or 2002-03.   My performance appraisals (or lack thereof) over this period of 3 years is in big contrast to the previous period, when performance appraisal was properly done, signed by John Monette, Director, John Holinsky, DG and myself.  The rating then was superior, and the performance pay award was 6% of my salary then; i.e. $4,495.

On 2000-01 I worked for the full year on my substantive position.   John Monette supervised my work and J. Holinsky was DG.  No performance appraisal.  No performance report.  Nothing.

On 2001-02 I worked on my regular duties of manager, Clothing and Textiles from April 1, 2001 to Dec. 17, 2001.   I was on sick leave status from mid Dec. 2001 to the end of March 2002.   From February 2002 to the end of March 2003, Terry Henry was my Director.   He could and should have obtained Monette’s input re. my work performance for the period.   John Holinsky should have ensured that a proper performance appraisal was done on me. He did not.

Similarly, for the period 2002-03, no performance report was made on me.   A rating of “unable to assess” showed in Performance Pay Plan, Individual Information Sheet for the period.   Pls. See G-8. This form should have been given to me prior to performance paychecks being issued in July 2003.  Contrary to policy, it was not. Pls. See G-13, para. #5.

The decisions to not have my performance appraised for all these periods were arbitrary, contrary to policy, unreasonable and in bad faith.   These actions are clearly hardly disguised punishment/discipline actions involving substantial financial penalties.

G-21 also introduced the factors of personal damage, harassment, threats, harmed reputations, damage to personal credibility and negative impact to our ability to perform.

G-23 shows the undercurrent of threats and disciplinary actions present at about the same time that that Mariette Fife-Fortin was consulting with Dan Ross on my performance appraisal.   I would like to clarify that these threats/warnings were unwarranted, as I have always followed instructions by my managers.

In concluding, the employer illegally created and has continued nurturing a situation that has prevented me to carry out real, meaningful work in line with my qualifications and experience.   These unprovoked, hostile actions have continued for over 3 years now and have given rise to undeserved and illegal punishment, financial and otherwise, including the lack of performance appraisals for 3 consecutive years and depriving me of career progression, damaged my name and my reputation, negatively affected my health (possibly in a permanent way) and have forced me to incur into great effort and expense to defend my dignity and myself.

Is this case really what it appears to be as per the version of the employer.   No performance pay because the employer was “unable to assess” my work performance.

We have seen that there was no report of the assessment/rating, contrary to policy.   Also, contrary to policy I was kept in the dark as to the process, from beginning to end.

In the case Rhing v. Treasury Board, Board File Nos. 166-2-27472 and 166-2-20975, the adjudicator found that the grievor had a right to know the case and evidence against him and to defend himself accordingly.

I had the same right and I could not exercise it because the employer did not disclose the information.

In Attorney General vs. John Mathews, Federal Court File No. T-618-97, the judge of the Federal Court quoted: “the adjudicator found that the employer acted in bad faith in arbitrarily withholding a performance appraisal rating under the guise of lay off.  

The same thing has happened in my case. Nothing prevented the employer to follow their own policies and do a proper assessment and rating.   They just did not and under the guise of “unable to assess.”

The same approach is taken by the adjudicator in PSSRB case # 166-2-26900, D. Vogan and Treasury Board.   The adjudicator found that he would have jurisdiction to entertain the grievance if bad faith on the part of the employer was establish.  

In my case I contend that the employer has not acted sincerely and has used bad faith in its actions.

[Sic throughout]

For the employer

[48]    The employer’s counsel restated the objection made in his correspondence of August 25, 2004, that an adjudicator does not have jurisdiction to hear a reference to adjudication when the nature of the grievance is not included in the enumeration listed in subsection 92(1) of the PSSRA.   In the grievor’s case, the grievance is not related to disciplinary action resulting in suspension or a financial penalty, nor to termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act (FAA).

[49]    In the opinion of the employer’s counsel, the absence of performance pay is related to the employer’s inability to assess the grievor’s performance, and that situation is in the nature of an administrative decision, not a disciplinary one.  The alleged disciplinary nature of the employer’s decision was not mentioned in the wording of the grievance filed before the employer by the grievor.   The disciplinary issue was not submitted at the final level hearing and the employer did not respond to it.  The grievor modified the nature of his grievance when he added the disciplinary issue to his original grievance at the time of the reference to the Board.

[50]    The principle stated in Burchill v. Canada (Attorney General), 37 N.R. 530 (F.C.A.), is applicable in the present case.   This principle was cited in Schofield v. Canada (Attorney General), 2004 FC 622, and is as follows:

. . .

Pursuant to section 92 of the PSSRA, an Adjudicator’s authority is limited to considering a grievance which formed part of the internal grievance procedures.   As stated by Thurlow then C.J. with regards to then section 91(1) of the PSSRA in Burchill v. Canada (Attorney General), 37 N.R. 530 (F.C.A.) at paragraph 5:

…it was not open to the applicant, after losing at the final level of the grievance procedure the only grievance presented, either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge within the meaning of subsection 91(1)….. In our view the applicant having failed to set out in his grievance the complaint upon which he sought to rely before the Adjudicator, namely, that his being laid off was really a camouflaged disciplinary action, the foundation for clothing the Adjudicator with jurisdiction under subsection 91(1) was not laid.   Consequently, he had no such jurisdiction.

. . .

[51]    The lack of assessment and performance pay is not disciplinary in nature, and the grievor has to convince the Board of the disciplinary nature of the employer’s decision.  A disciplinary decision is normally based on wrongdoing by the employee that the employer wants to punish.   In the present file, no misconduct was alleged as the basis for the discipline.

[52]    Ms. Fyfe-Fortin did not know what work was performed by the grievor for the 2002-2003 period and asked the former Director of the Division, Mr. Holinsky, to proceed with his assessment.   Mr. Holinsky responded that he could not proceed with the assessment because the grievor had never answered his request to show where he stood on the projects to which he was assigned.   At the time of the performance assessment, Mr. Holinsky was no longer the Director of the Division and could not give information to Ms. Fyfe-Fortin because he had never received it from the grievor.

[53]    Without information on the work performed by an employee, the employer is unable to proceed with a performance assessment.  Consequently, the employer was unable to grant a performance award to the grievor because his performance could not be assessed.   The decision made by the employer on this basis is administrative in nature and not disciplinary.   In his testimony, Mr. Holinsky clearly stated that the assignment to Special Projects was not disciplinary in nature and was not a reprimand against the grievor.

[54]    The fact that the decision had a financial impact on the grievor does not turn the decision into a disciplinary one.   Although financial consequences can be associated with a performance appraisal, such consequences are not in the nature of a financial penalty, as stated in Bratrud v. Office of the Superintendent of Financial Institutions Canada, 2004 PSSRB 10, in the following words:

. . .

          The jurisprudence of this Board has been consistent in its treatment of performance appraisals (see Porter, supra; Hassan, supra; Veilleux, supra; and Ansari, supra).  Although there may well be financial consequences associated with a performance appraisal, those consequences do not constitute a “financial penalty” under the PSSRA.

          The grievor bears the burden of proof in cases where disguised discipline is alleged….

. . .

[55]    In Veilleux v. Treasury Board (Public Service Commission), PSSRB File No. 166-2-11370 (1982) (QL), the adjudicator stated that the jurisdiction of an adjudicator is limited by section 7 of the PSSRA::

. . .

Section 7 of the Act contains the following provisions:

7. Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.

          This section indicates that, unless the adjudicator is satisfied that the matter involves disguised disciplinary action, he cannot take the place of the employer in matters respecting the organization of work, the assignment of duties to positions or the classification of positions.   Furthermore, he cannot take it upon himself to decide in the employer’s stead on a performance rating for an employee, since this is the right of the employer under section 7 of the Financial Administration Act.

. . .

[56]    In this case, the ADM offered the grievor an opportunity to show her what he had performed but he refused to do so.   Without this information, she could not assess his performance and had no choice but to conclude that she could not allow the grievance.

[57]    The onus was on the grievor to establish that some misconduct or breach of discipline was involved in the employer’s decision not to proceed with his assessment.   That principle is stated in Porter v. Treasury Board (Department of Energy, Mines and Resources), PSSRB File No. 166-2-752 (1973), and should be applied in the present case.   The grievor did not demonstrate that misconduct on his part was a reason for the employer not to proceed with the performance assessment.   Consequently, the adjudicator should deny the grievance on the basis that the grievor did not discharge his burden of proving the disciplinary nature of the employer’s decision.

Reply

[58]    The grievor replied in writing to the employer’s arguments of May 12, 2005.   He recapitulated the arguments submitted at the hearing and stated that one of the reasons the employer penalized him was that he denounced misconduct on the part of the employer.   His assignment to special projects by Mr. Holinsky was an illegal eviction from his substantive position, and Mr. Holinsky’s failure to provide performance appraisals for three consecutive years, from 2000 to 2003, has to be considered as misconduct on his part.   Mr. Ross’ decision to deploy the grievor to the position of Manager, Knowledge Transfer, in June 2003, was also misconduct, as was the illegal deployment of Mr Berti by Mr. Masse in November 2003.   Ms. Fyfe-Fortin was part of the misconduct with regard to Mr. Berti’s deployment and the absence of a performance appraisal for the grievor for 2002-2003.

[59]    In support of his reply, the grievor cited the following decisions:

• Thibault v. Treasury Board (Solicitor General of Canada – Correctional Service) , PSSRB File No. 166-2-26613 (1996) (QL), in support of the principle that in the absence of evidence against a grievor, the action by the employer was therefore disciplinary should receive application in the present case.
• Tucci v. Treasury Board (Revenue Canada, Customs, Excise and Taxation and Public Service Commission ) (96-RC-006).   In this decision, the PSC stated that abuse of authority occurs when a delegate exercises his discretion with an employer’s intention in mind, which subsumes acting for an unauthorized purpose, in bad faith or on irrelevant considerations.   Bad faith has been proven in the present case and that principle should receive application because the deployment to Special Projects was illegal.
• Canada (AG) v. Penner , [1989] 3 F.C. 429, (F.C.A) at 440, commented on the decision in Jacmain v. Attorney General, [1978] 2 S.C.R. 15:   These judgments stated that a camouflage to deprive a person of a protection given by statute is hardly tolerable.   In the present case, the employer deprived the grievor of a performance appraisal and rating as provided for in the Treasury Board Policy.
• The decisions rendered in Bratrud (supra) and Veilleux (supra) cannot receive application here because both cases are about inaccurate and misleading assessments.   The present case is different and is about the lack of an assessment.
• Vogan v. Treasury Board (National Defence) , PSSRB File No. 166-2-26900 (1996) (QL).   The adjudicator would have jurisdiction if bad faith on the part of the employer were established.
• Porter (supra) cannot receive application in the present case because misconduct of the employer is at the origin of the disciplinary measures against the grievor.
• Principles of Administrative Law , Jones and Villars, Carswell, 1991: the principle stated therein should receive application:

. . .

“Discretion may be best defined as the power to make a decision that cannot be determined to be right or wrong in any objective way” and “Nevertheless, unlimited discretion cannot exist.   The courts have continuously asserted their right to review a delegate’s exercise of discretion for a wide range of abuses of authority.”

. . .

[60]    In the present case, the grievor submitted that the following principles should be considered:

• Leonarduzzi v. Treasury Board (Transport Canada), PSSRB File No. 166-2-27886 (1999) (QL):

. . .

… It should be kept in mind that it is the employer who is uniquely in a position to know why it took the decision that it did; in the absence of providing at least minimal evidence and information, it puts the grievor in the invidious position of having to speculate as to the reason behind the decision, and thereby assume an almost impossible burden of seeking to demonstrate bad faith.   This is not mandated by the legislation in question, and flies in the face of simple fairness and common sense….

. . .

• Ling v. Treasury Board (Veterans Affairs Canada), PSSRB Files No. 166-2-27472, and 27975 (1999) (QL): the adjudicator found that the grievor had a right to know the case and evidence against him and to defend himself accordingly.

[61]    In his written reply, the grievor submitted that the lack of the words “disguised disciplinary action” in the description of his grievance as introduced initially does not detract from the case being intrinsically a disguised disciplinary/punitive action.   It is the essence of the case and not the form or how it has been expressed that is determinative.   In support of this argument, the grievor cited  the following decisions:

• Doré v. Canada (Attorney General) , [1987] 2 S.C.R., 503;
• Canada (Attorney General) v. Public Service Alliance of Canada , [1991] 1 S.C.R., 614;
• Leonarduzzi (supra);
• Ling (supra ).

[62]    In Leonarduzzi (supra), the adjudicator states:

. . .

...where a grievance alleging a termination of employment is referred to adjudication, in the face of a jurisdictional objection, it is incumbent on the adjudicator to determine whether in reality there has been a termination of employment pursuant to the PSEA, as opposed to a subterfuge or “camouflage”, (the term used by the Supreme Court in the Jacmain decision)….

. . .

[63]    As for the decision in Canada (Attorney General) v. Leonarduzzi 2001 FCT 529, the grievor cited the following passage:

. . .

          Moreover, Mackay J. in Horn supra, held at page 470:

That special role, and the expertise of those charged with responsibility under the PSSRA in the resolution of differences arising in labour relations in the public sector is now well settled..... .

Determination of what constitutes “disciplinary action” in a given case was, in my view, intended by Parliament to be a matter for determination by those appointed as adjudicators by the Public Service Staff Relations Board pursuant to section 93 of the PSSRA. The question for the Adjudicator is whether the employer’s action is “disciplinary action resulting in discharge” under section 92(1)….

. . .

[64]    In Canada (Attorney General) v. Matthews, [1997] F.C.J. No. 1692, Justice Richard quotes in conclusion:

Conclusion

[23]     In Canada (Attorney General) v. Penner, Mr. Justice Marceau commented on the decision of the Supreme Court of Canada in Jacmain v. Attorney General ( Canada).  He stated:

                   It is clear that five of nine judges who rendered this Jacmain judgment expressed the opinion that an adjudicator seized of a grievance by an employee rejected on probation is entitled to look into the matter to ascertain whether the case is really what it appears to be.  That would be an application of the principle that form should not take precedence over substance….

. . .

[65]    Although counsel for the employer argued that the employer had not had an opportunity to respond to the right grievance since the grievor had not raised the question of disciplinary action, the grievor did repeatedly ask if the department had already decided on the response (Exhibit E-9) to his grievance since it had not shown any intention of disclosing the basic facts behind its failure to assess the grievor’s performance.  The grievor’s questions implied bad faith/denial of natural justice/ abuse of authority/implicit disguised discipline.  Also, whether the department suffered prejudice is a moot point because, in any event, the department did not respond, even to the basic allegations of the grievance.  No valid response to the grievance was given at any level of the grievance process, including the final level.

[66]    The grievor submitted that starting in 2001 the employer showed misconduct, illegal and arbitrary behaviour, violation of policies, lack of transparency, insincerity, bad faith and abuse of authority, any and all of which actions translate into disguised discipline for the following reasons:

• by forcing him illegally out of his position;
• by preventing him between September 2002 and June 2003 from having a real position;
• by failing in its obligation to perform a proper performance appraisal.

[67]    As for the consequential financial penalties, the grievor noted the lack of performance pay, his expenses in attempting to defend himself, as well as the impact on his health, reputation, chance of promotion, and access to other positions.

[68]    The grievor detailed the damages he is claiming as follows:

• $8.100 plus interests for the loss of performance award 2002-03
  Performance awards may go up to 10% of salary. I am in the right to expect the maximum, had the employer acted in good faith and assessed my performance in a reasonable way.
  
  Current salary: $81. 481X10%=$8.148 rounded to $8.100

• $33.600 for loss of projected pension income as a consequence of the lack of performance appraisal/award
  I am 61 years old and I could decide to retire at any time now without penalty.  If I retire when I complete 30 years of service (January 2007) the impact on my pension would be:
  $8.148 divided by 5 = $1.629,60/year would be the missing increment to the average of the 5 best consecutive 5 years salary.
  30 years x 2%/year = 60%
  60% of $1.629,60 = $997,76/year loss of pension income per year.
  $977.76 x 30 years = $29.332,80
  I assume my wife will outlast me by 9 years; then her loss would be $977.76 x 30 years = $488,88 per year income loss
  $488,88 x 9 = $4.399,92
  Total = $29.332,80 +$4.399,92=$33,732.72 rounded off to $33.600

• $16.000 for moral and psychological damages

The arbitrary and unreasonable decision to not do performance appraisal/pay on me, contrary to TB and Departmental policy, has caused me and my family a great deal of anxiety, stress and fear of what the future would bring.
I have to go home 7 days week thinking about my failure and how unjust these people have been and continue to be.
I will still be thinking of what has happened to me 10-20 years from now.  The permanent effect of these illegal actions cannot be wiped out. It will haunt me having to face them at work.
By failing to appraise my performance (several times) the employer has tainted my records and the prospects of a promotion or of a job elsewhere are greatly diminished.
By being force to defend myself and litigate with the employer, my character and reputation are forever tainted.  In addition, the level of anxiety and stress increases with the impact that they have on my health and on the well being of my family.
The actions of the employer are wrong, morally and ethically.  How could I been expected to perform at an extraordinary level if I am not allowed to work because of their illegal actions?  That has a long-term effect on my self-esteem and that of others.
I estimate that $16.000 is just a nominal, token amount to compensate me for all these damages.

• $150.000 for exemplary punitive damages.

Some effective measures shall be taken to prevent the repetition of unfortunate events like these.  The employer has to feel there is a powerful deterrent every time the temptation arises to do something like this.  It will be illusory to think that a nominal fine would achieve these objectives.
If we estimate the “savings” realized by the employer per comparable event at what the direct costs to me are, i.e. $33.600 + $$8.100 = $41.700 and, if we estimate that only one in ten cases would successfully complain, then the total “savings” to the department are $41.700 x 9 = $375.300 for every ten cases.
$150.000 in exemplary and punitive damages are just a fraction of that “saved “amount; however, it carries a dissuasive clout when compared with the “gains” of just one single occurrence.

[Sic throughout]

[69]    In the response received by the Board on December 7, 2005, the employer’s counsel argued as follows:

This is in response to your letter dated December 6, 2005 where you forwarded Mr. Garcia Marin’s material filed on May 10, 2005.  In reference to Mr. Garcia Marin’s representations regarding damages, the employer/ respondent would ask that, since no evidence was heard on this aspect at the hearing, the adjudicator/board member reserve jurisdiction within his decision on the merits.  In the event the grievance and/or complaints are allowed, this would allow the parties an opportunity to present evidence and submissions if they fail to agree on the appropriate remedy.

Reasons for decision

[70]    The employer objected to the Board’s jurisdiction to hear the instant grievance on two grounds.  First, the employer alleged that the grievor modified the nature of his grievance when he referred it to adjudication.  Second, it argued that the grievor failed to demonstrate that the employer’s decision not to proceed with a performance assessment and a performance rating for the 2002-2003 period was a disciplinary action resulting in suspension, a financial penalty or termination of employment or demotion.

1.        On the nature of the grievance

[71]    The details of the grievance filed on April 2, 2004, refer only to the department’s failure to assess his performance and to assign a performance rating for the 2002-2003 period.   The wording of the grievance does not state that those actions of the employer were disciplinary.   The disciplinary nature of the employer’s actions was not alleged or substantiated at the hearing held at the final level of the grievance procedure on May 27, 2004.   At that hearing before the ADM, the grievor did not allege the disciplinary nature of the employer’s actions or its bad faith, nor had he done so in the previous meeting with Mr. Bremner.   While the grievor, in reply, alleged that he had implied, during the disciplinary process, that disciplinary action was at the heart of the employer’s actions, the case law is clear to the effect that more is required of him.   The issue must be raised clearly in order that the employer is able to respond to an allegation that it is aware has been raised against it.

[72]    The evidence and the statements of the witnesses at the hearing on the present grievance demonstrate that the issue of the disciplinary nature of the employer’s actions regarding the absence of a performance pay assessment and award was raised for the first time by the grievor in his letter of June 21, 2004, after the Board requested he give particulars on his reference to adjudication.

[73]    The principle stated in Burchill (supra) and cited in Schofield (supra) is as follows:

. . .

          Pursuant to section 92 of the PSSRA, an Adjudicator’s authority is limited to considering a grievance which formed part of the internal grievance procedures.   As stated by Thurlow then C.J. with regards to then section 91(1) of the PSSRA in Burchill v. Canada (Attorney General), 37 N.R. 530 (F.C.A.) at paragraph 5:

          …it was not open to the applicant, after losing at the final level of the grievance procedure the only grievance presented, either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge within the meaning of subsection 91(1)…. In our view the applicant having failed to set out in his grievance the complaint upon which he sought to rely before the Adjudicator, namely, that his being laid off was really a camouflaged disciplinary action, the foundation for clothing the Adjudicator with jurisdiction under subsection 91(1) was not laid.   Consequently, he had no such jurisdiction.

. . .

[74]    From the evidence, it is clear that the grievor never argued before the employer, during the grievance procedure, that he was being deprived of performance pay for the 2002-2003 period for disciplinary reasons or that the absence of performance pay constituted a financial penalty within the meaning of paragraph 92(1)(c) of the PSSRA.

[75]    Those issues should have been discussed with the employer during the grievance procedure before being submitted by reference to adjudication on the basis of paragraph 92(1)(c) of the PSSRA.   The testimony at the final-level hearing on May 27, 2004, and the notes filed as Exhibit E-10 show that the allegation of disguised disciplinary action was not submitted to the employer by the grievor in support of his grievance.

[76]    The grievor raised the special assignment issue with the employer through various proceedings; the first shortly after his appointment in November 2001, and two others involving complaints under subsections 34.3(1) and 34.4(1) of the PSEA.  The first one was denied by the department and on the complaints filed under the PSEA, decisions were rendered on February 25, 2004, by Ms. Morissette and on November 5, 2004, by Mr. Gohier.   The grievor never linked together, within the grievance procedure, the issues of discipline, of performance pay and his appointment to Special Projects.

[77]    The grievor joined the two issues of discipline and his assignment to Special Projects and his request for a performance appraisal and performance pay only at the stage of the reference to adjudication by his letter dated June 21, 2004.   In doing so, he modified the nature of his grievance, adding that the department’s actions to deprive him of performance pay were disguised disciplinary action resulting in a financial penalty.

[78]    In the present case, the grievor modified the nature of his grievance when he stated in his letter of June 21, 2004, to the former Board that:

. . .

I consider that the department’s actions and inactions to deprive me of performance pay are a complement and a consequence to the series of barely disguised disciplinary and punitive actions that I have been subjected to.   The actions include evicting me from my position for a period of over 2.5 years; withholding valid, proper and meaningful work to do within the framework of an existing, appropriate position; keeping me without a supervisor for over one year; not providing me with clearly set performance objectives and depriving me of performance appraisals; all of which constitute transgressions of the Financial Administration   Act and the Public Service Employment Act.

[79]    Consequently, the principle stated in Burchill (supra) must be applied in the present case, and I am without jurisdiction to decide the grievance as substantiated in the letter of June 21, 2004.   The employer’s objection on the first ground is allowed.   Consequently, I have no jurisdiction to decide on the merit of the grievance.

2.        On the disciplinary nature of the employer’s decision

[80]    Subsidiarily, the grievance also fails to succeed on its merits. The grievor has not proven his case on the disciplinary nature of the absence of performance assessment and the consequent failure to provide him with performance pay.

      A. Nature of the assignment decision

[81]    Although the grievance wording does not refer to the assignment issue, I have nonetheless decided to deal with it for two reasons: first, the grievor has devoted a great deal of his testimony and argument to this issue without objection on the employer’s part, and, secondly, had he proven that his assignment was disciplinary in nature, such proof would necessarily have an impact on my decision regarding the issues which were grieved.   However, I have concluded that the grievor has failed to prove that the assignment was disciplinary in nature, in the sense contemplated by the PSSRA.

[82]    The communication problems between the Clothing and Textiles Division and the DND had existed for a long time when Mr. Holinsky made the decision to assign the grievor to Special Projects on November 7, 2001.   The correspondence dated June 11, 2001, from Mr. Holinsky referred to some fundamental problems and a misunderstanding of roles, responsibilities and objectives (Exhibit G-17).   Mr. Holinsky’s correspondence of November 14, 2001, stated that the problems had been ongoing since 1998 (Exhibit G-34).

[83]    In their testimony, the grievor and Ms. Larkin confirmed problems with the DND requisitions.  Management’s intention to make some changes in the structure of the Division was seen by the grievor and Ms. Larkin as a very serious work-related situation.  Discussions about the reorganization of the Division and their replacement in their acting or formal positions were considered by them to be threats by management against them (Exhibit G-21).

[84]    In his testimony, Mr. Holinsky clearly specified that the grievor’s assignment to Special Projects on November 7, 2001, was not a punishment.   He testified that he had nothing to reproach the grievor for.   The objective of the decision to change the persons responsible for dealing with the DND was to improve the department’s ability to communicate with the DND.   The correspondence to General Brewer on November 14, 2001, was a written confirmation that he hoped that the replacement of personnel on the department’s side would help restore the relationship without laying the blame on anyone (Exhibit G-34).

[85]    The evidence demonstrated that the grievor felt he was being pushed out of his substantive position and that Ms. Larkin had the same feeling of unfair treatment (Exhibit G-31).   But the grievor’s feelings of being unfairly treated do not mean that he was in fact disciplined.   Mr. Gohier concluded that the assignment of new tasks and duties to the grievor’s substantive position and his transfer to another branch constituted illegal deployment without his consent, but this does not mean that it was a disciplinary decision (Exhibit G-11).

[86]    In Porter (supra), the adjudicator set out his understanding of the concept of “disciplinary action” referred to in subparagraph 92(1)(b)(i) of the PSSRA.   After taking into consideration the statutory provisions relating to discipline in the FAA, the Terms and Conditions ofEmployment Regulations and the PSSRA, the adjudicator concluded as follows:

. . .

… In the Robertson case (166-2-454) I attempted to explain the matter as follows:

                   “Both the Statute and Section 106 expressly refer to penalties for breaches of discipline or misconduct.  Those words embody the concept of fault, that is to say: either wilful wrong-doing or culpable negligence, either of which can have penal consequences.  I think the words do not include such failings or deficiencies as involuntary incompetence or incapacity (or infancy or old age) which clearly lack the element of voluntary malfeasance.

                   “My view is that the ‘Disciplinary action’ referred to in Section 91(1)(b) of the Public Service Staff Relations Act is such action as is taken in response to alleged ‘breaches of discipline or misconduct’ --- in other words, in response to what the Employer considers to be some kind of voluntary malfeasance, by whatever name it may be called in an office file.

                   “For clarity, I must add that in some circumstances incompetence or incapacity may be due to voluntary malfeasance and have disciplinary consequences.   If an employee abstains from making the effort required of him when he is capable of making such an effort, or making a better effort, the resulting ‘unsatisfactory performance’ may well attract attention --- and a penalty.   In such a case, however, it is the voluntary abstention rather than the poor performance which is culpable and may constitute just cause for disciplinary action.

                   “Read together, the language of the three statutes seems to signify that ‘breaches of discipline and misconduct’ relate to voluntary malfeasance, and the major penalties resulting therefrom (and imposed by or on behalf of Treasury Board) are referable to adjudication; on the other hand, disabilities, defects or failings of an involuntary character are not subject to disciplinary action but may lead to termination in various forms or to demotion (decided upon by the deputy head or the Commission) which in some cases are subject to appeal and in other cases are not.   The essential distinction is between that which is voluntary, or within the employee’s control, and that which is involuntary, being not within the employee’s control or capacity.”

Although the passage from Robertson quoted above refers to cases involving termination or demotion, I think it applies in principle to a case such as the one before me now, where the employee is complaining against an appraisal of his merits and against the increase awarded to him in 1972….

. . .

[87]    In the present case, the actions of the employer in assigning the grievor to Special Projects on November 7, 2001, and in reorganizing the Division on April 1, 2003, were not taken in response to voluntary malfeasance by the grievor.   The evidence convinced me that those decisions were taken to improve the department’s ability to communicate with the DND and not as a reproach to the grievor.   I accept the testimony of Mr. Holinsky to this effect.   Those actions were taken pursuant to the employer’s right to determine the organization of the public service and to assign duties to employees to improve the services provided by the PWGSC, particularly to the DND, pursuant to section 7 of the PSSRA.   I agree with the adjudicator in Veilleux (supra) that unless the adjudicator is satisfied that the matter involves disguised disciplinary action, the adjudicator cannot take the place of the employer in matters respecting the organization of work or the assignment of duties to positions.   The evidence leads me to conclude that the assignment to Special Projects was a decision of an administrative nature, not a disciplinary one.

B.        Nature of the absence of a performance assessment

[88]    On the performance assessment and performance pay issue, I have determined that the employer’s actions in not providing a performance assessment for 2002-2003 were not disciplinary in nature.   The evidence showed that no performance assessment was done for the years 2000-2001, 2001-2002 and 2002-2003, but the years other than 2002-2003 are not the subject of the grievance before me.   Although the periods of 2000-2001 and 2001-2002 are not the subject of the grievance before me, the grievor nonetheless submitted in his argument and his letter of June 21, 2004 (Exhibit G-2) that the employer had acted in bad faith when it neglected to apply the performance pay process for the periods from 2000 to 2003.   He also stated that the lack of performance pay for those periods was a financial penalty imposed on him.  In essence, the grievor is arguing that the bad faith and disciplinary motives of the employer have been present from the beginning and have tainted everything subsequently.

2001-2002 period

[89]    For the 2001-2002 period, the Performance Management and Feedback Report stated that the grievor’s global performance rating was “unable to assess” (Exhibit G-15).   The individual information sheet indicated that performance pay of 4.40% (or $3,497) had been assessed (Exhibit G-15) and the statement of earnings dated July 29, 2002, showed that the performance award had been received by the grievor (Exhibit G-16).

[90]    The grievor carried out all the duties of his position as Director, Clothing and Textiles Division, until November 18, 2001, and was then given special assignments from November 19, 2001 until April 31, 2002.   He was on sick leave as of December 20, 2001, and did not return to work until September 3, 2002 (Exhibit G-19).

[91]    The evidence showed that the grievor was on sick leave at the end of the 2001-2002 period, and this may explain the absence of a performance assessment and the “unable to assess” indication on the Performance Management and Feedback Report.   Despite that conclusion of “unable to assess”, performance pay was received by the grievor for that period.   In his arguments, the grievor submitted that no performance appraisal had been prepared for him for that period but failed to mention that he had received performance pay.  That payment goes against the general allegation that the employer’s decision not to proceed with a performance assessment for the period of 2.5 years, including the 2002/2003 period, showed bad faith by the employer or the disciplinary nature of its decision.

[92]     Consequently, I cannot agree with the grievor’s submission, for the first part of his assignment to Special Projects from November 19, 2001 to the end of March 2002, that the employer’s decision was of a disciplinary nature or made in bad faith.

2002-2003 period

[93]    The grievor had been assigned to Special Projects by the employer since November 2001.   He was still on sick leave from December 20, 2001, until September 3, 2002.   Upon his return to work, he notified Mr. Holinsky that he expected to be reinstated in his substantive position (Exhibit G-19).   Mr. Holinsky answered him as follows (Exhibit G-15): “We need to talk about the work that you will be performing.”

[94]    On September 26, 2002, Mr. Holinsky assigned the grievor special tasks related to various issues with Corcan and requested that the grievor submit a plan to him by mid-October (Exhibit E-5).  Follow-ups were requested from the grievor on October 1, 2002 (Exhibit G-5), and January 9, 2003 (Exhibit G-18).   On January 14, 2003, the grievor stated the following (Exhibit G-18):

. . .

… After that, you proposed that I work in the Corcan case but, from my standpoint, the ensuing discussions/agreement on that task were never concluded….

. . .

[95]    On January 23, 2003, the grievor stated that he was no longer playing a role with respect to the Corcan issues (Exhibit E-7).   Mr. Holinsky still asked him to come up with a plan to solve the problems with Corcan on January 29, 2003 (Exhibit E-8).   Mr. Holinsky stated in his testimony that the grievor had never come up with a plan.   The evidence demonstrates that the employer requested reports on the tasks performed and a plan to resolve the issues involving Corcan but that the grievor did not respond.   It is understandable that, under these circumstances, Mr. Holinsky stated that he was unable to assess the grievor’s performance.   The absence of response from the grievor to Mr. Holinsky’s requests to follow-up on the new tasks brings me to reject his argument founded on the default of management to ask him to provide information prior to stating that his performance was unable to be assessed.   Further, any such error on the part of management was corrected at the final level of the grievance process when management asked him again to provide a list of work accomplished during the year but the grievor refused.

[96]    The fact that Mr. Holinsky left his position as Director at the beginning of February 2003 can partially explain why he did not proceed with an assessment of the grievor’s performance for the period ending March 31, 2003.   The Acting Director, Jean Lacelle, was in charge until March 31, 2003, when Ms. Fyfe-Fortin took over the position.   Ms. Fyfe-Fortin testified that she had requested information from the past directors about the work performed by the grievor for the 2002-2003 period but that no one had been able to provide her with the information.

[97]    In these circumstances, it appears that Ms. Fyfe-Fortin’s conclusion that she was not able to assess the grievor’s performance for the 2002-2003 period was reasonable.   The fact that she did not contact the grievor to get the information she needed to proceed with the performance assessment was not explained.   Surely this constitutes a mistake in view of the practice of requesting feedback from employees for their performance report (Exhibit G-13).   Part of the mistake is attributable to the grievor, who did not respond to Mr. Holinsky’s requests.

[98]    The Performance Pay Administration Policy of the Treasury Board was not applied by management when it failed to complete performance appraisals for 2000/2001, 2001/2002 and 2002/2003.   This was a mistake of an administrative nature.   No evidence showed that there was a link to a desire to discipline the grievor or that there was a link between the threat of retaliation stated to the grievor by Mr. Holinsky at the October 17, 2002, meeting and Ms. Fyfe-Fortin’s conclusion that she was unable to assess the grievor’s performance for the 2002-2003 period.   Even though Ms. Fyfe-Fortin testified and was cross-examined by the grievor, the issue of discipline and retaliation was never raised by the grievor and I am left only with her evidence to the effect that she was unable to assess the grievor’s performance as she was unable to gather evidence regarding the grievor’s work during the period in question.   The grievor has not proven discipline as he produced no evidence allowing me to conclude that, on a balance of probabilities, he had been disciplined for any culpable act on his part for that period.

[99]    In Porter (supra), the adjudicator applied the principle that the onus is on the grievor to establish that misconduct or discipline is involved where the employee is complaining against an appraisal of his or her merits.  This principle must be applied in the present case.   The onus was on the grievor to prove that the employer’s decision not to proceed with his assessment was disciplinary in nature.

[100]    The grievor refers to the Thibault (supra) decision to say that in the absence of evidence against the grievor, the action of the employer is disciplinary in nature.   This is not what Thibault (supra) says.   The decision refers to the grievance, which clearly mentions the employer’s suspicions about alcohol and concludes by saying that both parties knew that the nature of the grievance concerned discipline.   In Thibault (supra), the adjudicator found that the removal of the grievor’s acting position was motivated by disciplinary motivations on the employer’s part and that the grievor had grieved this all along.   She then went on to consider the foundation for the discipline and found that the employer, in not calling those who made the allegations, had failed to discharge its onus.   Her decision was regarding the substance of the discipline imposed, and not on the issue of whether or not discipline was involved.   The decision does not apply for the proposition cited by the grievor in his argument.  

[101]    The evidence did not demonstrate that the employer’s actions in not assessing a performance pay award or doing a performance rating for 2002-2003 were disciplinary action resulting in a financial penalty.

[102]    In the absence of evidence that misconduct played any part in the decision not to assess the performance of the work done by the grievor for the 2002-2003 period, the reference to adjudication is dismissed, the grievance referred to adjudication being without basis pursuant to subsection 92(1)(c) of the PSSRA.

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

Order

[104]    For all these reasons, this grievance is dismissed.

February 21, 2006.

Léo-Paul Guindon,
adjudicator