FPSLREB Decisions

Grievance referred to adjudication

[1]   Jean Bratrud is an employee of the Office of the Superintendent of Financial Institutions (OSFI) and is subject to the collective agreement between the Professional Institute of the Public Service of Canada (PIPSC) and the OSFI (Exhibit G-1).  Ms. Bratrud grieved that her performance appraisal constituted harassment and an abuse of authority, contrary to her collective agreement.

[2]   I issued an interim decision on the matter of the jurisdiction of the Public Service Staff Relations Board (as it was then called) to hear a harassment grievance and ruled that I did have jurisdiction (2004 PSSRB 10).  I held that the scope of the grievance was limited to whether the performance appraisal constituted a breach of Ms. Bratrud’s right "to work in an environment free from personal harassment".  I also held that evidence on Ms. Bratrud’s work environment is only relevant to the extent that it provides context for the substantive issue of whether the appraisal itself constitutes an abuse of authority.

[3]   In the interim decision I also ordered disclosure of certain documents listed by Ms. Bratrud, with certain conditions:

• names of financial institutions and any identifiers would be blacked out by the OSFI;

• names of individuals, other than OSFI employees, would be blacked out by the OSFI; and

• the documents, if introduced as exhibits at the hearing, would be sealed and returned to the OSFI after the expiry of the period for judicial review, or of any judicial review proceeding.

[4]   At the commencement of the hearing on the merits of the grievance, it was agreed that we would refer to the financial institutions in question by letters.  In writing this decision, I have not found it necessary to refer to specific institutions.

[5]   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").

[6]   At the end of the employer’s case, Ms. Bratrud’s representative, Steve Eadie, called Ms. Bratrud to testify in reply.  Counsel for the employer, Neil McGraw, objected to this evidence, as she was essentially called to rebut evidence of the employer.  He submitted that Ms. Bratrud could have reasonably foreseen the evidence to be given and the issues that would be raised.  Mr. Eadie stated that she could not have anticipated the response of Frank Mackowiak to various documents.  He submitted that Ms. Bratrud had problems getting disclosure and did not have specific information from Mr. Mackowiak until he gave evidence.

[7]   I allowed the evidence and reserved on its admissibility.  In her reply evidence, Ms. Bratrud responded to some of the statements made by Mr. Mackowiak in his testimony.

[8]   Rebuttal, or reply, evidence should be used for a very narrow range of circumstances (see Guest et al. v. Canada Customs and Revenue Agency, 2003 PSSRB 89).  The following quote from Leading Cases on Labour Arbitration by Mitchnick and Etherington, summarizes the principle:

. . .

5.10     REPLY EVIDENCE

. . . The key principle is that the party leading reply evidence is not permitted to split its case.  Before being required to mount a defence, the responding party is entitled to know the argument it has to meet, and the party which proceeded first will not be allowed to confirm in reply the case that it should have made out in the first instance.  Thus, a party may exercise its right of reply for the purpose of attacking the credibility of the opposing party’s witnesses or of explaining inconsistencies, but it cannot attempt to introduce evidence on new subject-matter, unrelated to what has gone before, or evidence which should have been introduced during the presentation of its case-in-chief . . . .

. . .

[9]   In Re Canada Post Corp v. Letter Carriers’ Union of Canada (N-27-04) (1989), 1 L.A.C. (4th) 447, the arbitrator noted that the right to present evidence in reply “ought not to be narrowly construed”.  In this case, Ms. Bratrud’s testimony was ostensibly for the purpose of responding to inconsistencies in the evidence of the employer’s witnesses.  In addition, Mr. Eadie submitted that prior to this hearing, the employer had given no details to support the performance appraisal.  The evidence of Ms. Bratrud also related to the credibility of the employer’s witnesses.  On this basis, I find that the evidence is admissible.  However, I find that Ms. Bratrud’s testimony largely repeated what she had testified to in her examination-in-chief and cross-examination.  Consequently, I have given her reply evidence little weight.

Summary of the evidence

[10]   The evidence provided at the hearing on the preliminary matter on jurisdiction is summarized in the decision on jurisdiction (2004 PSSRB 10).

[11]   Ms. Bratrud joined the Life Insurance Division in the Toronto office of the OSFI in 1998 as a manager of a life insurance team, relocating from a position within the OSFI in Ottawa.  The Life Insurance Division is known within the OSFI as “FIG-411”.

[12]   Ms. Bratrud introduced her past performance appraisals, and Mr. McGraw objected to their introduction.  I allowed the appraisals to be introduced and reserved on both the relevance and weight to be given to those appraisals (discussed in the reasons section of this decision, below).

[13]   Ms. Bratrud had obtained excellent appraisals in the past, receiving a rating of “exceeds expectations” in the 1998-1999 appraisal, and “often exceeds expectations” in the 1999-2000 appraisal.  In 1998-1999, her previous supervisor, Elizabeth Lepatko, did raise a concern about time management and encouraged Ms. Bratrud to “limit the amount of detail contained in the working papers” (Exhibit G-4).  Ms. Lepatko left the OSFI in 2000, and Ms. Bratrud’s appraisal for 1999-2000 was signed by Johann Bagnall, who based the rating on the recommendation put forward by Ms. Lepatko.  The appraisal stated that the Life Insurance Division was “severely constrained by significant resource deficiencies for the second consecutive year”.

[14]   The OSFI is required to supervise financial institutions, including life insurance companies.  To that end, the OSFI developed a document entitled “Supervisory Framework” (the “framework”) designed to be “an effective process to assess the safety and soundness of regulated financial institutions” (Exhibit G-13).  The framework sets out the process for evaluating an institution’s “risk profile, financial condition, risk management processes, and compliance with applicable laws and regulations”.  The framework was launched in March 1998, was published in 1999, and was being phased in over a three-year period.  Ms. Bratrud reviewed the framework in detail in her testimony.

[15]   Ms. Bagnall became the Senior Director of the FIG-411 in December 1999.  Ms. Bratrud’s supervisor, Ms. Lepatko, left in December 1999, and a competition was held for her replacement.  Calvin Johansson was the successful candidate, but he was not able to start right away because of other commitments within the OSFI.  Ms. Bagnall appointed Mr. Mackowiak in an acting capacity for a 10–month period, until Mr. Johansson was able to take the position.  She testified that she had worked with Mr. Mackowiak before and knew that she could trust his judgement.  She felt that strong people were needed to move forward with the implementation of the new framework.  She testified that when she started her position, the life insurance group was focused on governance issues and there was not always a direct relationship to the risks and how those risks were managed.  She testified that Mr. Mackowiak’s mandate was to move forward on the implementation of the framework while making sure that Mr. Johansson felt comfortable with the approach.  Mr. Mackowiak testified that he consulted with Mr. Johansson on a regular basis.

[16]   Mr. Mackowiak testified that when he arrived at the FIG-411, he noted that the group was focused on best practices and corporate governance and not on risk assessment.  He testified that he tried to get the group to change focus through “dialogue”.  He testified that when he engaged in dialogue with Ms. Bratrud, she would “shut down”.  Ms. Bratrud testified that Mr. Mackowiak would yell at her and tell her that she was wrong.

[17]   The performance review period at issue in this grievance is 2000-2001 (Exhibit G–6).  Ms. Bratrud initially received an overall rating of “inconsistently meets expectations”.  As the appraisal is at the centre of Ms. Bratrud’s grievance, I have included below the relevant narrative sections of the appraisal:

Results and Accomplishments . . . .

. . . During the year, the requirements of the supervisory framework were not addressed well in the process.  Jean’s supervisory focus usually related to matters pertaining to management’s stewardship of the institution such as internal reporting methods, product pricing, new product introductions, content and structure of strategic plans, etc., rather than of the effectiveness of risk management.  I am optimistic that Jean now has a better understanding of the application of the framework principles and will focus on effectiveness rather than characteristics.

. . .

Objective and/or Key responsibility

As part of a team, lead in the formulation of an appropriately risk assessed and prioritized 2000/2001 Supervisory Plan for the team.

Results and Accomplishments . . . .

Jean prepares comprehensive supervisory plans that clearly identify the areas she intends to be reviewed, but risk-assessment and prioritization are lacking.  Areas of review are selected mainly on the basis of the length of time since the last in-depth review, and are limited only by availability of resources.  Jean has expressed her belief that the companies she supervises will not survive because they are not adequately dealing with the forces and conditions of the market in which they operate.  She has also stated that she believes it is OSFI’s responsibility to tell company management where its risks are.  She focuses on strategic planning and how the companies respond to competition rather than on the risks inherent in their business and how well those risks are managed and mitigated.

. . .

Objective and/or Key responsibility

With the assistance of a team, carry out agreed upon and appropriate on-site supervisory work in accordance with each institution’s specific supervisory plan.

Results and Accomplishments . . .  .

Jean executes the on-site work in accordance with the supervisory plan she has prepared for the institution.  File documentation is copious because Jean believes that all observations, benign as well as contentious, must be supported by comprehensive documentary evidence.  Having said that, it must be noted that her section notes are reasonably well done.

As noted above, Jean’s findings are generally “soft” and her recommendations focus mainly on documentation of policies, procedures and corporate governance matters rather than effectiveness of risk management.  While there is merit to some of these recommendations, and some are adopted by the institutions, they do not add a lot of value to the institution from a supervisory perspective.  I have rated Jean’s performance “consistently meets” in this area because her work execution has been according to her plans.  In order to retain this rating in future, Jean will have to change her supervisory focus to risk management effectiveness, and use more discretion with respect to file documentation.

. . .

Objective and/or Key responsibility

With the assistance of a team, develop, manage and carry out the formulation of intervention and other recommendations, and the internal and external reporting requirements of the supervisory process in an informative and insightful manner . . . .

Results and Accomplishments . . . .

Jean’s intervention strategies (read supervisory recommendations) address symptoms rather than causes.  The recommendations direct companies to remedy perceived deficiencies in processes and documentation without any clear rationale of why it is necessary to effect the remedy.  Findings are usually expressed in a best practices format of...it would be better if...rather than identifying an issue and the potential effect on the institution if the issue is not remedied. The findings reported usually do not clearly identify a genuine regulatory issue giving rise to the recommendation.

Jean’s management letters have improved. The practice followed in the former FIG-411 was to break findings down into multiple sub-findings and to include a lot of “motherhood” comments such as “We are pleased to note that (the company has done something we like); it is important that companies (some best practice)”.  The group also issued two management letters, one the official report to the CEO, and another with lesser findings to the CFO.  The entire group was instructed to desist from issuing CFO letters after an independent director of an institution complained during a meeting.  During that year, Jean’s management letters became more concise and to-the-point. Jean writes well, and with better focus on causes and improved conciseness, is capable of producing excellent management letters.

Management letters have not been issued in a timely fashion.  The practice of the group was to finish all the on-site work back-to-back, then issue management letters.  This meant that, in some cases, management letters were not going to institutions until four, five or even six months after the on-site review was completed.  On one occasion during a discussion on reporting timeliness, Jean commented that she’d never heard of any deadline for issuing management letters.  Jean is concerned with maintaining a good image with institutions, and is keenly aware that reporting timeliness has a significant impact on that image. I have no doubt that Jean will meet reasonable timeliness deadlines if provided with appropriate guidance and the opportunity to do so.

. . .

Objective and/or Key responsibility

Conduct effective and timely follow-up with institutions . . . .  Acting on issues raised by the companies between monitoring and on-site phases.

With the assistance of a team, effectively manage and focus the monitoring of assigned institutions in accordance with their risk profile.

Results and Accomplishments . . . .

The former FIG-411 group did not effectively follow-up outstanding issues.  Intervention staging was used as a tool to compel compliance with supervisory recommendations.  In discussions with Jean, I have stated that the appropriate method to compel compliance by recalcitrant companies is to vigorously follow-up in correspondence, and to escalate the matter(s) within OSFI as necessary.  Jean is intense in her pursuit of issues with institutions, and I expect her follow-up with institutions will improve in her new environment. 

Jean’s monitoring has been considerably better than her follow-up.  She is very knowledgeable about life insurance in general, and her institutions in particular, and, as a result, can recognize potential issues.  She makes extensive use of the specialist groups in OSFI, most notably Accounting, Actuarial and Capital.  She efficiently addresses matters raised both by institutions and internally, and is on top of matters pertaining to her institutions.  The key area for improvement is financial analysis.  We have had discussions about using financial information resident in FRIDB [a financial analysis database] , and in material we receive from the institutions to perform financial analysis and track trends in those institutions.  During the past year, there was an increase in financial analysis within the former FIG-411 group.  To maintain this rating, Jean must develop, and make better use of, her analytical skills.

. . .

Objective and/or Key responsibility

Promoting OSFI’s values and leading team members to embrace OSFI’s values of integrity, teamwork, commitment and professionalism.

Results and Accomplishments . . . .

Jean imposes high standards of integrity, commitment and professionalism upon herself.  She strives to maintain an image of openness and professionalism with the management of the institutions she supervises, and she is highly committed to her work as evidenced by the long hours she works.

Jean needs to work on teamwork.  She applies this value very well within her own group. . ., but keeps supervisory staff outside that group at arm’s length.  Jean is very sensitive to criticism and highly suspicious of anyone who criticizes her or her group.  She has also expressed significant distrust of the management of FRFIs, stating her belief that they are constantly trying to get away with something.

Teamwork is critical to OSFI’s achieving its goals as a financial services regulator in an efficient and professional manner.  Jean needs to understand that colleagues are not granted or denied membership in the team on the basis of her evaluation of their perceptions, opinions or behaviour.  Working co-operatively with colleagues whose opinions we don’t share is simply professional behaviour, and is expected of all staff.

It is appropriate to note in this appraisal that I have been given to understand that Jean, since the former FIG-411 group was integrated into FIG-412, has made significant progress in accepting and working with individuals with whom she previously would not associate.  Jean should continue to improve her interaction with her colleagues throughout the organization.

3.  Special Considerations

. . . describe any extenuating circumstances affecting employee performance that was beyond the employee’s control.

The former FIG-411 group operated according to the standards set by its previous director. Those standards included

1. focus on corporate governance / PARC [Program for Assessment of Regulatory Compliance] and business conduct matters,

2. findings and recommendations mainly based on “industry best practices”,

3. findings and recommendations mainly in respect of institutions’ failure to properly document policies, procedures, strategic plans, etc. without any identification of underlying issues, or of matters relating to such things as business conduct, new product launches and mergers & acquisitions,

4. use of intervention stage rating as a means of compelling compliance with supervisory recommendations,

5. use of third party reports and published texts as authority for recommendations,

6. no target / deadline dates for production of management letters to companies, and

7. dual management letters,

   • the “CEO” letter representing our “official” findings and recommendations, and

   • the “CFO” letter containing findings deemed to be of lesser importance.

The supervisory framework was not being applied as intended and this was the environment into which Jean was introduced when she transferred from Ottawa three years ago.

Supervisor Comments

Jean has significant technical knowledge of life insurance business and products.  She adopted the practices advocated by her previous director and her knowledge was not effectively used to supervise life companies according to the supervisory framework.  When that director resigned her office, a decision was made to re-focus the group in the direction of the framework.  That re-focus initially resulted in significant hardship for Jean and the entire . . . group.  To her credit, Jean began to show signs that she was accepting the required changes towards the end of the year.  Now that she has traversed the period of change, in order to attain an overall “consistent meets expectations” rating, Jean must move forward with

• better focus on effectiveness of risk management and improved implementation of the supervisory framework, and

• better teamwork, which would be demonstrated by improved interaction with her colleagues throughout OSFI, regardless of any differences she may have with them.

[18]   Ms. Bratrud provided an extensive rebuttal of the performance appraisal in her testimony through a detailed review of documents prepared by her in the course of her duties.  I have summarized the key points raised.  She also prepared an extensive rebuttal document that she gave to her employer prior to filing her grievance (Exhibit G-15).  Mr. Mackowiak also reviewed the same documents and provided his response to Ms. Bratrud’s rebuttal, as well as identifying sections in the documents that demonstrated the concerns that he had raised in the appraisal.  He also prepared a rebuttal document (Exhibit E-1) that had not been shared with Ms. Bratrud prior to the filing of her grievance.

[19]   Ms. Bratrud testified that the section was understaffed and that she had raised concerns about resources.  She testified that she worked excessive amounts of overtime and produced timesheets to demonstrate this (Exhibit G-33).  In April 1999, Ms. Bagnall’s predecessor (Carol Shevlin) noted that the FIG-411 had been “overstretched and overworked” with “no end in sight” (Exhibit G-32).  Mr. Mackowiak testified that Ms. Bratrud had raised her concerns about resources with him, but that he did not feel that additional resources were required.  He testified that he felt that the work could be done differently so it was not so resource intensive.  Ms. Bratrud testified that Mr. Mackowiak hired additional staff, but they were unable to travel out of town, which significantly limited their ability to assist Ms. Bratrud with her assigned institutions.

[20]   Ms. Bratrud stated that both Mr. Mackowiak and Ms. Bagnall originally came from the Property and Casualty Insurance Section of the OFSI and did not know much about life insurance.  She felt that she needed to provide more details in her documentation because of their lack of knowledge of the life insurance industry.  She testified that Mr. Mackowiak took a short-term view of liabilities for life insurance companies, reflecting his experience in the property and casualty insurance sector.  She testified that given that life insurance policies are for long periods of time, a longer view of liabilities is required.

[21]   Mr. Mackowiak started his position in May 2000, after the supervisory plans for the institutions had been prepared.  It was Ms. Bratrud’s position that if he had any problems with the supervisory plans he could have changed them, but he did not.  Ms. Bratrud testified that all institutions were placed at a “stage” or level (from 0 to 4) based on the degree of concern about its financial viability, with “0” being no concerns and “4” being near insolvency.  Ms. Bagnall and Mr. Mackowiak asked Ms. Bratrud to move (“unstage”) several companies that were at stage 1 (some concerns) to stage “0” (no concerns).  She testified that unstaging a company involved a lot of work.

[22]   Ms. Bratrud testified that Mr. Mackowiak approved all the review letters that she sent to companies and did not criticize them at the time, although he did so in the appraisal.  She testified that the quotes in the appraisal referring to letters sent to companies (“it would be better if” and “we are pleased to note”) were not used in letters written by her during the performance review period.  Mr. Mackowiak reviewed the documents that Ms. Bratrud had worked on during this period, which she had introduced as evidence, and agreed that the quotes were not present.  However, he testified that he had seen those words somewhere but had not identified the document at the time.

[23]   Ms. Bratrud testified that the comments in the appraisal about the need to improve her financial analysis “blew her mind”.  She had been encouraged to come to the Toronto office of the OSFI because of her strength in financial analysis.  Ms. Bratrud testified that the bulk of the financial analysis had been done on the institution files prior to Mr. Mackowiak’s arrival.  Mr. Mackowiak told her that he did not think tables of financial information were informative.  She asked him to show her files where he was satisfied with the financial analysis, but he never showed them to her.

[24]   Ms. Bratrud testified that with regards to teamwork, she helped everyone and kept her door open; she did not “deny membership” to anyone.  Mr. Mackowiak testified that she told him that she would not work with the property and casualty insurance group.

[25]   Christine Voyatzis worked in the FIG-411 as a manager during the initial period of Mr. Mackowiak’s tenure and resigned from the OSFI to take a position in the private sector in October 2000.  She described Mr. Mackowiak’s style as “autocratic” and the work environment as “toxic”.  She testified that Ms. Bratrud did show her the appraisal prepared by Mr. Mackowiak and she was shocked, as she felt that parts of it referred to her work and performance.

[26]   On August 15, 2000, Ms. Bratrud told Mr. Mackowiak that she could not attend a “director/manager” meeting because of an interview she needed to conduct with an insurance company official (Exhibit G-35).  Mr. Mackowiak replied by suggesting that she make other arrangements to interview this official:

. . .

. . . This is the start of brining the Toronto FIG group together as a team and it is important.  Some of the topics scheduled for discussions are things you have indicated to me there is disagreement about between our team and others in the Insurance cluster.  We’ve talked about others’ perceptions.  Jean: you miss this and your absence will be noticed, regardless of the reason.  You’re already missing the all-FIG meetings because you’re out of town.  Declining this one is not a good move.

. . .

[27]   Mr. Mackowiak sent an email to the three managers (Ms. Voyatzis, Normand Ferragne and Ms. Bratrud) on September 11, 2000, regarding concerns that he had with the appropriateness of management reports (Exhibit G-38).  He had reviewed the findings and recommendations in a number of management reports that had already been issued and included comments that he wanted to discuss before presenting them at a team meeting with all staff:

. . .

This document is, by its nature, critical, but my intention here is not to point fingers, assess blame or criticize anyone.  What I want to do is make this a positive experience and deal with the concepts underlying what we report to companies and why.  The only way I could get here from there was to extract specifics, but you should know that, in doing so, I looked at reports for every company in our portfolio.  No one was singled out for special attention.

Another thing.  You will see that my focus is that these findings should not have been reported, and the recommendations made, in management reports.  Findings and recommendations that are included in management reports must be

• specific and unambiguous, and

• supported by either

• reference to the act, regulations, guidelines or other widely disseminated OSFI pronouncement(s), or

• a clear finding of an event in the institution which gives rise to the recommendation.

As far as most of the findings in this document are concerned, there is nothing to preclude anyone discussing these matters with a company and suggesting courses of action.  The key is to differentiate between what is discussed with a company and what should go in to a management report.

. . .

[28]   Mr. Mackowiak met with Ms. Bratrud on September 22, 2000, and had a discussion with her about timeliness in the reporting of findings to companies and his expectation that findings would be reported within 30 days of the onsite review of an institution.  Mr. Mackowiak prepared notes summarizing the content of that meeting immediately afterwards (Exhibit G-12).  She told him that the 30-day standard had not been the practice in the past in the FIG-411 and he responded that he had not known this.  Ms. Bratrud testified that the 30-day standard was the standard for the Property and Casualty Insurance Division, and the FIG-411 historically had a 60-day standard.  Mr. Mackowiak told her that he agreed that the standard would not be applied for performance evaluation purposes and would be considered “water under the bridge”. He told her that the standards would have to be met in the 2001-2002 supervision cycle.  In the appraisal, Mr. Mackowiak included a reference to her failure to meet the timeliness standard.  In his testimony, Mr. Mackowiak stated that including the mention of the timeliness issue in the performance appraisal was “an oversight” and he took responsibility for it.

[29]   At that September 22, 2000, meeting, Mr. Mackowiak also told her that section notes should be completed in the field.  Ms. Bratrud should be putting the results of interviews in the section notes rather than typing “copious” notes.

[30]   John Fernandes, the Assistant Superintendent of the OFSI, spoke to Mr. Mackowiak on October 12, 2000, to relay a negative comment about an onsite review from the president and chief executive officer of a company reviewed by Ms. Bratrud.  Mr. Mackowiak arranged to meet with the individual to discuss his concerns and then informed Ms. Bratrud that he would be meeting with the individual.  However, she had already learned of this meeting from someone else and told Mr Mackowiak that she was upset that Mr. Fernandes had not discussed this directly with her.  She also requested that she be allowed to attend the meeting with the president and chief executive officer.  Mr. Mackowiak said that she could not attend.  Mr. Mackowiak testified that nothing came of this meeting, as the president and chief executive officer told Mr. Mackowiak that he had “no problems”.

[31]   Mr. Mackowiak called a staff meeting for November 16, 2000, to discuss “supervision concepts” (Exhibit G-39).  In his meeting notice he included a document designed to “put some definition around the framework and provide some reasonably specific guidance as to its application”.  The document contained the following “quick summaries” of the main points in the document:

Supervision Concepts

1.   Significant Activities

. . .

Quick Summary
To qualify as a significant activity under the framework, the activity should be one for which there is an individual in the institution who has responsibility for its management and accountability for its performance.  By this standard, any significant activity may be comprised of sub-activities that are significant in their own right.  We should always provide the rationale for our assessment of an activity.

2.   Inherent Risk

. . .

Quick Summary
To evaluate risk in an activity, first identify the event(s), relative to that risk, that would cause an adverse impact, then, on a best efforts basis, quantify the effect of that adverse impact.  Factor in probability of occurrence and we have degree of inherent risk.

3.   Quality of Risk Management

. . .

Quick Summary
When we assign a quality rating to risk management, we should always ask, and answer, the question, “why do I think that?”  Our assessment of the quality of risk management must focus on the effectiveness of risk management, not merely whether or not it is properly documented.

4.   Supervisory Plan

. . .

Quick Summary
A supervisory plan should identify, in detail, the review objectives and the procedures to be performed, and the estimated time to completion, by section.

5.   Monitoring and On-Site Work

. . .

Quick Summary
Monitoring must include financial analysis, and assessment of risk management must focus on the effectiveness of risk management, i.e., the extent to which it actually mitigates risk in the institution’s activities.

5.   Documentation

. . .

Quick Summary
The narratives in section notes should not be dependent on extraneous documentation to fully and properly convey an understanding of their content to a reader.  Staff generally should not append corroborative documentation to support their observations unless it is required as evidentiary support for a finding.

6.   Reporting

. . .

Quick Summary
Findings that result in recommendations to institutions must be properly and clearly supported.  Recommendations must direct institutions to results, not set out the method(s) to achieve the results.  Reports to institutions should be made whenever appropriate findings arise, not only after on-site work.

[32]   On October 18, 2000, a memorandum was sent to all staff from Rose Bussière, of the OSFI’s Human Resources, reminding staff that it would be “an appropriate time for a mid-year review” (Exhibit G-36).  She stated in her memorandum that while the review is an important part of the performance management process, it was not necessary to send the mid-year review to Human Resources.  A mid-year review was not done by Mr. Mackowiak for any of his staff.

[33]   The appraisal prepared by Mr. Mackowiak (Exhibit G-6) was not shown to Ms. Bratrud prior to it being discussed with Ms. Bagnall.  Ms. Bagnall testified that her instruction to managers was that they bring the ratings for each employee to her so that she and the directors could look across the group in order to rate employees consistently.  She testified that she would discuss with her directors the “outliers” – any ratings above or below “meets expectations”.  Once that had been done, the ratings went to the Supervision Steering Committee, headed by the Assistant Superintendent. At that meeting, the “outliers” would be discussed.  After that, the Assistant Superintendent would take the ratings to the Executive Committee.

[34]   Ms. Bagnall testified that managers may or may not get input from employees on their appraisals prior to the ratings being finalized.  She could not remember what the practice was at the OSFI at the time of this appraisal.  After Mr. Mackowiak gave Ms. Bratrud her appraisal, Ms. Bagnall heard that Ms. Bratrud wanted to speak to her.  She did not have a discussion with Ms. Bratrud because Mr. Mackowiak had not yet had a discussion with Ms. Bratrud.

[35]   Ms. Bagnall testified that she discussed Ms. Bratrud’s rating with Mr. Mackowiak.  She stated that she recognized that Ms. Bratrud was a valuable employee, but that management needed to “send her a message” that she needed to improve in the implementation of the framework.

[36]   In a memorandum to Ms. Bagnall dated June 26, 2001 (Exhibit G-37), Mr. Mackowiak set out Ms. Bratrud’s alleged misrepresentations of his statements that he discovered in section notes written between November 15, 2000, and March 5, 2001.  He asked that the memorandum be placed on his personnel file because he felt that the comments, if taken out of context, were damaging to him.  This document was obtained by Ms. Bratrud through an Access to Information and Privacy Act request, and was received by her after she filed her grievance.  The memorandum included the following statements written by Ms. Bratrud and Mr. Mackowiak’s response to those comments:

. . .

2. “Due to the change in supervisory process led by the Acting Director, Frank Mackowiak, FIG Insurance is no longer making written recommendations on organizational policies, procedures, or processes unless insurer is on the brink of insolvency” [sic].

   What was actually said
   Any recommendations made to an institution in a management report must be based on findings relevant to the institution’s financial well-being.  We should not be making recommendations for documentation of policies, procedures or processes.  Our recommendations must be focused on the effect on, and risk to, the institution, if any, of not having appropriate policies, etc.  Simply to say you must have them because it’s prudent isn’t sufficient.

   Assertion that I advocated a practice of not providing written recommendations unless the insurer is on the brink of insolvency is untrue.  No such position was ever taken by me.

. . .

4. “The Acting Director stated that there would not be written findings or recommendations in the Management Reports unless there was either a direct violation of the Insurance Companies Act or the company was on the verge of insolvency.  The Acting Director maintained that PARC was not enforceable and therefore did not qualify for inclusion as a Management Report issue”.

   What was actually said
   Assertion that I stated written recommendations are not made unless there is a direct violation of the ICA, or the company is on the verge of insolvency is untrue.  No such statement was ever made by me.

   PARC is a series of guidelines and guidelines do not have the force of law that statutes and the regulations made pursuant to those statutes do.  Institutions are not required to adhere to the letter of guidelines; it is the spirit of the guidelines we want them to adhere to.  It’s for institution management to decide how they will effect compliance with guidelines.  They do not have to do exactly what the guideline says, and we have to assess whether what they have done satisfies the requirements of the guideline.

. . .

[37]   Ms. Bratrud disagreed with Mr. Mackowiak on the enforceability of guidelines.

[38]   Ms. Bratrud met with Gina Gosse, of the Human Resources Section at the OSFI, on June 25, 2001, accompanied by her bargaining agent representative (Mr. Eadie).  In a follow-up letter to that meeting (Exhibit G-15) dated July 5, 2001, Mr. Eadie wrote:

. . .

I would like to summarize again for you the general concerns with this appraisal.

1. It came as a complete surprise to Ms. Bratrud.
2. It misrepresents the environment in which Ms. Brartrud was working and fails to note constricting actions which she was forced to overcome in her daily work.
3. It fails to take into account the admitted confusion surrounding the implementation of major policy change -- the supervisory framework.
4. It is a document which is critical of a former method of doing business, and attempts to make Ms. Bratrud responsible for past practices which were suddenly deemed poor practices.
5. It is not factually accurate and ascribes certain expenses to Ms. Bratrud that are not true.
6. It is neither constructive nor encouraging and fails to note accomplishments.
7. It is dismissive and punitive.

. . .

[39]   Mr. Mackowiak prepared a detailed rebuttal on July 15, 2001, to the comments contained in Mr. Eadie’s letter (Exhibit E-1).  This document was not shared with Ms. Bratrud by her employer and was only obtained through an Access to Information and Privacy Act request by Ms. Bratrud.

[40]   In her grievance filed on August 15, 2001, Ms. Bratrud requested the following corrective action:

Changes be made to my appraisal (as outlined in my document of July 5 sent to the OSFI’s Human Resources department) so that it accurately reflects my work performance and is at the same ranking as in previous years.

Remuneration lost as a result of not receiving a higher rating be paid retroactively.

The author of the appraisal apologize in writing for the damage he has caused my reputation.

The OSFI arrange a transfer out of the Financial Institutions Group to a mutually agreeable area.

[41]   Changes were made to Ms. Bratrud’s appraisal after the second-level grievance hearing, and further changes were made after the third-level grievance hearing (Exhibit G-8).  In addition to changes in the narrative portions of the appraisal, her overall rating was changed to “consistently meets”.  In the third-level grievance response, the employer also invited Ms. Bratrud to make further comments and those comments would be included in her performance appraisal file.  Ms. Bagnall testified that she and Mr. Mackowiak looked at Ms. Bratrud’s appraisal and made revisions that they were comfortable with.

[42]   When Ms. Bratrud returned from sick leave, she testified that she was not given any work to do.  She introduced emails documenting her requests for work (Exhibit G–9).  Ms. Bagnall testified that it was difficult to assign Ms. Bratrud to an institution, given that she returned near the end of the review cycle.  She was asked to assist in financial analysis training.

[43]   The OSFI’s policy on personal harassment in the workplace was revised in March 1993 (Exhibit G-40).  The general policy statement is as follows:

Every employee of the Office can expect to be treated fairly in the workplace in an environment free of personal harassment.  The use of authority or position to intimidate, coerce or harass is forbidden.  Personal harassment is unacceptable; it may result in disciplinary action, including discharge of the delinquent employee.

[44]   The policy defines “abuse of authority” as occurring when “an individual uses his or her authority or position, with its implicit power, to interfere unjustly with the career of another public servant.  This definition includes such blatant acts of misuse of power as intimidation, threats, blackmail and coercion.  Abuse of authority also includes favouritism of one employee to the disadvantage of another.”

Summary of the arguments

For the grievor

[45]   Mr. Eadie submitted that this grievance involves the determination as to whether the performance appraisal prepared by Mr. Mackowiak constituted an abuse of authority.  Ms. Bratrud has a right to a harassment-free workplace and the collective agreement article states that harassment includes abuse of authority (Article 41).

[46]   Mr. Eadie argued that the definition of abuse of authority includes interfering unjustly with an employee’s career, as set out in the employer’s harassment policy (Exhibit G-40).  Mr. Eadie also referred me to definitions contained in the text Abuse of Authority in the Workplace, A Form of Harassment (Carswell), by Jean-Maurice Cantin, Q.C., that include the improper use of power and the inappropriate use of authority.  Mr. Eadie stated that this case could not involve a “he said-she said” analysis because of the imbalance of power.

[47]   Mr. Eadie submitted that the performance appraisal was an abuse of authority by Mr. Mackowiak, aided by Ms. Bagnall, the Human Resources Department and senior management that received and approved the rating on the appraisal.  He submitted that the employer had no business reasons or legitimate performance appraisal purposes for the appraisal provided.  Ms. Bagnall testified that the real purpose of the appraisal was to “send a message” to Ms. Bratrud.  The real purpose was to humiliate Ms. Bratrud in front of her peers and damage her reputation.  It was also a message not to think independently.  The appraisal ruined Ms. Bratrud’s opportunity to strive and to be considered for promotion.  The appraisal served to undermine her career.

[48]   Mr. Eadie submitted that whether Mr. Mackowiak knew what he was doing when he wrote the appraisal is a complex question.  He submitted that Mr. Mackowiak had a motive.  He was given free reign for 10 months in the Life Insurance Division, an area he had never worked in.  He had a strong dislike for the way things had been done in the past and was given a mandate to do something about it.  He ought reasonably to have known that this appraisal constituted an abuse of authority.  The organization also bears blame.  Mr. Mackowiak had never worked in life insurance before.  He was charged with bringing in major changes but without harassment training or change- management training.  He was also bringing in major changes in an area that had been pleading for resources for years.

[49]   Mr. Eadie submitted that Ms. Bratrud was, before her appraisal, a well-respected, long-service team player with a reputation for hard work, dedication, sound technical knowledge and a cheery disposition.  She had worked for 23 years at the OSFI without a hint of trouble.  When Ms. Bagnall and Mr. Mackowiak took over, there was a change in direction as well as an increased workload with the unstaging of a company.

[50]   Mr. Eadie submitted that the performance appraisal was written evidence of the harassment that had been occurring; it was the “tip of the iceberg”.  It became clear that Ms. Bratrud was not able to please him so she “shut down”, which is a normal human reaction.  He yelled at her and consistently told her she was doing things wrong.  Ms. Voyatsis called it a toxic environment and complained to Human Resources.  Ms. Bratrud was afraid of making it worse by raising her concerns and her plan was to wait him out.  Mr. Mackowiak led her to believe that he was not going to make her accountable for the past.  In his notes (Exhibit G-12), he is recorded as giving her reassurances that issues of the timeliness of reports would not be reflected in her appraisal.  He testified that he made a mistake including the issue of timeliness in her appraisal.  This was a serious mistake and Mr. Eadie questioned why it had happened.

[51]   Mr. Eadie argued that the strategic framework was subject to different approaches within the OSFI.  During the appraisal period, there was not one acceptable approach to implementation.  Ms. Bratrud became a pawn in Mr. Mackowiak’s and Ms. Bagnall’s way of applying the framework, which was dramatically opposed to the way it had been applied in the past.  Mr. Eadie submitted that there appeared to have been a struggle between the Property and Casualty Insurance Division and the Life Insurance Division, and Ms. Bratrud got caught in the middle.

[52]   Mr. Eadie also submitted that Mr. Mackowiak was critical of letters that Ms. Bratrud had sent out, yet he never reviewed those letters.  Mr. Mackowiak also did not formally raise his concerns with the approach taken by the Life Insurance Division until November 2000.

[53]   Mr. Eadie submitted that the performance appraisal constituted an abuse of authority for the following reasons:

• the overall rating was unnecessary for the legitimate purposes of a performance evaluation (a rating of “meets” with comments would have served the purpose of an evaluation);

• it was not accurate and there was no due diligence to ensure its accuracy.  Ms. Bratrud was being blamed for things that she had no control over;

• it fails to provide evidence or support for its assertions;

• it takes Ms. Bratrud’s strengths and twists them in a way that can only hurt her;

• it is written in a condescending tone; Ms. Bratrud was treated as if she had “potential” when Mr. Mackowiak had to have known that she was well-respected;

• it was a complete surprise to Ms. Bratrud;

• it was misleading, as it mixed up Ms. Bratrud’s work and the work of the FIG–411 as a whole; and

• it was never discussed with Ms. Bratrud prior to going to senior management.

[54]   Mr. Eadie also argued that Mr. Mackowiak contravened the performance appraisal policy by not doing a mid-year review.  In addition, he ignored additional requests for resources even though he knew that Ms. Bratrud was working extensive overtime hours.  Mr. Mackowiak could have changed the supervisory plan for the institutions that Ms. Bratrud was responsible for, but he chose not to.

[55]   Mr. Eadie submitted that the appraisal made Ms. Bratrud an “outlier” or a pariah within the OSFI.  After her return to work, she was left sitting in an office with nothing to do.  In addition, she was offered only term positions as alternate positions.

[56]   Mr. Eadie referred me to Re Corporation of City of Toronto v. Canadian Union of Public Employees, Local 43 (1991), 19 L.A.C. (4th) 412.  In that decision, it is stated that if an arbitrator is satisfied that the real reason for doing something is other than a legitimate business decision, “honesty of purpose” has not been demonstrated.

[57]   Mr. Eadie also referred me to University of Calgary Faculty Association v. University of Calgary, [1999] A.G.A.A., No. 104.  In that decision, the conclusion was that the Dean’s decision to cancel courses that the grievors taught was an abuse of authority because it was used for an ulterior motive.

[58]   Mr. Eadie asked that I allow the grievance and order the requested corrective action.

For the employer

[59]   Mr. McGraw submitted that there was nothing in the appraisal that could be described as threatening or abusive.  There is a disagreement as to what is appropriate and correct in the appraisal, but that does not result in a finding of harassment or abuse of authority.

[60]   Mr. McGraw argued that I should not be reviewing Ms. Bratrud’s work and determining whether I agree or disagree with the assessment of her performance.  I should also not look at the other allegations of harassment in the workplace raised at this hearing.  He also submitted that this was not a debate about the interpretation of the strategic framework.  The employer, as management, has a right to decide how the framework is to be applied and it is the employees’ responsibility to follow these instructions.

[61]   Mr. McGraw submitted that following the decision in Burchill v. Attorney General of Canada, [1981] 1 F.C. 109, the grievance is limited to the performance appraisal.  Ms. Bratrud bears the burden of proof and she has not met that burden.

[62]   Mr. McGraw submitted that I must consider the changes made to the original performance appraisal.  If there are particular statements that I find constitute harassment, I must look to see if the comments have been changed.  To do otherwise would vitiate the concept of the internal grievance process.

[63]   Mr. McGraw submitted that there was no evidence that Mr. Mackowiak had a personal vendetta against Ms. Bratrud.  The University of Calgary Faculty Association decision supports the employer’s position, as the comments of Mr. Mackowiak in the appraisal were not shown to be for an “ulterior motive”.  A performance appraisal is, by its very nature, both objective and subjective.  An appraisal is not purely a question of fact but also reflects the opinion of the appraiser and constitutes constructive criticism.  Mr. McGraw stated that the original appraisal could not be viewed as purely negative, as it contained a number of positive comments and ratings.

[64]   By its very nature, an appraisal is an appropriate use of management’s authority and is a management right.  Mr. McGraw submitted that this was not a grievance against harassment, but an attempt to adjudicate a performance appraisal.

[65]   Mr. McGraw referred me to the amended contract language for the article in question in the current collective agreement between the parties that now allows for written counter arguments from an employee, which can be attached to the performance appraisal.

[66]   Mr. McGraw submitted that the question is whether Mr. Mackowiak prepared a performance appraisal that in his mind was correct.  Also, in the face of overwhelming evidence, did he choose to ignore evidence that he knew was unfair and incorrect?  Mr. McGraw submitted that this was not the case.

[67]   Mr. McGraw submitted that the previous work experience of Mr. Mackowiak and Ms. Bagnall (specifically the allegation that both had not worked in the life insurance sector) was irrelevant.  They were Ms. Bratrud’s supervisors and it was her obligation to follow their directions.

[68]   Mr. McGraw argued that the evidence of Ms. Voyatsis was not credible.  The evidence was inconsistent and she had an “axe to grind”.

[69]   Mr. McGraw noted that in Abuse of Authority in the Workplace there is a reference to Re Corporation of City of Toronto that held that a performance appraisal did not constitute harassment.  He submitted that to hold that a statement that an employee “inconsistently meets” expectations was an abuse of authority would have a chilling effect on the ability of managers to prepare honest and constructive criticism.  In this case, there is no evidence to support the fact that Ms. Bratrud was humiliated or harassed in any way.

[70]   Mr. McGraw noted that Mr. Mackowiak testified that his reference to timelines was an oversight and accepted responsibility for that oversight.  This oversight is not an indication of harassment.  Mr. McGraw questioned why this was only raised at this hearing, and that Ms. Bratrud bore some responsibility for raising it earlier in the process.

[71]   Mr. McGraw stated that there was no evidence that Mr. Mackowiak‘s opinion on the issue of resources was held in bad faith.  He also submitted that Ms. Bratrud’s experiences after her return to work were not before me.  In any event, there were legitimate reasons for the situation at that time.

[72]   In terms of the requested corrective action of an apology, Mr. McGraw argued that an individual cannot be forced to apologize.

[73]   Mr. McGraw also referred me to the following cases: Ahad v. Treasury Board (Department of National Defence), PSSRB File Nos. 166-2-15840, 166-2-16038 and 166-2-16233 (1987) (QL); Joss v. Treasury Board (Agriculture and Agri-Food Canada), PSSRB File No. 166-2-27331 (2001) (QL); Veilleux v. Treasury Board (Public Service Commission), PSSRB File No. 166-2-11370 (1982); and Ansari v. Treasury Board (Department of External Affairs), PSSRB File No. 166-2-14680 (1984) (QL).

Reply

[74]   Mr. Eadie submitted that Ms. Bratrud was not asking me to rewrite the appraisal.  In order to look at the question of harassment, there has to be an examination of the appraisal itself.  He also submitted that the first appraisal constituted harassment and it was this appraisal that should be examined in this grievance.

Reasons

[75]   Ms. Bratrud is alleging that Mr. Mackowiak has abused his authority by giving her a negative performance appraisal.  Providing performance appraisals to employees is a critical role for supervisors and alleging that a performance appraisal constitutes an abuse of authority is a serious allegation.  In the interests of effective performance management, a supervisor must feel free to express his or her honestly-held views on an employee’s performance.  The limited role of an adjudicator under this collective agreement is to determine whether there is a lack of a foundation for the observations contained in the appraisal and whether the author of the appraisal had malicious intent in drafting the appraisal.  It is only in the circumstances where there is no foundation for the observations or conclusions reached by the supervisor or where there is evidence of improper intent that an adjudicator could conclude that a performance appraisal constituted an abuse of authority.  For the reasons set out below, I have concluded that there was a foundation for Mr. Mackowiak’s observations and conclusions and that there was no malicious intent.  I have therefore concluded that the performance appraisal does not constitute an abuse of authority.

[76]   The hearing on the merits of the grievance followed some days of testimony on the jurisdictional issue.  Some of the evidence at the hearing on the jurisdictional matter is relevant for the merits of the grievance, and I have considered this evidence in this decision.  The summary of that evidence is contained in the earlier decision (2004 PSSRB 10).

[77]   The issue of what appraisal is at issue in this grievance was raised by the employer: the original appraisal or the amended appraisal.  It is the employer’s position that the revised appraisal was the only appraisal at issue in this grievance.  I disagree.  The appraisal that is primarily at issue is the original appraisal.  This is because the grievance is not about the performance appraisal as a document but rather about the actions of the manager, Mr. Mackowiak, in drafting that appraisal.  To the extent that Ms. Bratrud has alleged that there was an abuse of authority by others in the organization, including Human Resources and senior management, the changes to the appraisal are relevant, as those changes reflect the actions of the employer in addressing concerns raised about the appraisal.  However, these changes would only be relevant if I had found that the original appraisal constituted an abuse of authority.

[78]   Mr. McGraw also objected to the introduction of Ms. Bratrud’s appraisals from previous years, and I reserved on the relevance and weight to be given to these appraisals.  Given that the grievance is limited to the appraisal of 2000-2001, the previous appraisals only serve to provide some context for the allegations in the grievance.  The fact that a previous supervisor (Ms. Lepatko) noted concerns about time management and Ms. Bratrud’s need to limit the amount of detail recorded in documentation does provide some support for Mr. Mackowiak’s reference in the appraisal to the taking of “copious notes”.  The overall ratings also show that Ms. Batrud had been rated highly by previous supervisors, indicating that there had not been significant performance concerns in the past.

[79]   Abuse of authority is not defined in the collective agreement.  Although the Treasury Board’s policy on harassment in the workplace is not applicable to the parties to this collective agreement since OSFI is a separate employer, the 1994 version of the policy does provide a useful working definition of abuse of authority.  The 1994 Treasury Board Policy is quoted in Cantin, Abuse of Authority in the Workplace.  (The definition in the employer’s policy (Exhibit G-40) is similar to the Treasury Board policy.)

Abuse of authority is a form of harassment and occurs when an individual improperly uses the power and authority inherent in his or her position to endanger an employee's job, undermine the performance of that job, threaten the economic livelihood of the employee, or in any way interfere with, or influence the career of, the employee.  It includes intimidation, threats, blackmail or coercion.

[80]   As noted in Mr. Cantin’s text, care must be taken when considering complaints that follow performance appraisals: “. . . a line supervisor is entitled to evaluate the performance of an employee without constraint and without having to be concerned about a complaint which then might become a form of blackmail.”

[81]   In McElera v. Canada (Industry), 2003 FCT 774 , a case involving a harassment investigation under the Treasury Board policy on harassment in the workplace, the judge concluded that there must be intent on the part of the manager to constitute an abuse of authority:

As I read it, the definition of abuse of authority in the Policy requires the presence of an intention to harm an employee.  The definition states that an abuse of authority occurs when power and authority is improperly used "to endanger an employee's job ..."  It does not identify improper conduct "that has the effect of endangering an employee's job" as an abuse of authority.  The references to "intimidation, threats, blackmail or coercion" reinforce the idea that to be considered an abuse of authority, an action must be more than just a flawed administrative decision.

[82]   The University of Calgary Faculty Association case cited by Mr. Eadie also supports this requirement of an intention or “ulterior motive” on the part of the manager.  There was no evidence led to show that Mr. Mackowiak had an intention to harm Ms. Bratrud.

[83]   In Tucci v. Canada (Revenue, Customs, Excise and Taxation), [1997] F.C.J. No. 159, (a judicial review of a deployment investigation pursuant to the Public Service Employment Act), Justice Gibson noted that there can be an abuse of authority in the exercise of discretion without a finding of improper intention:

. . .

. . . Two forms of such abuse are acting on inadequate material or without considering relevant matters and acting in a discriminatory manner, the latter of which might flow from acting on inadequate material or without considering relevant matters. . . .

. . .

[84]   Performance appraisals are, by their very nature, subjective.  An appraisal is the manager’s assessment of the performance of his or her subordinate.  An employee and a manager may not always see eye-to-eye on the assessment.  As long as there is some reasonable basis in fact for the manager’s opinion, that opinion cannot constitute an abuse of authority.  If there are errors made in the appraisal (such as commenting on matters that Mr. Mackowiak had promised not to take into account in the appraisal), the proper forum for addressing it is the performance appraisal process itself (when an employee is invited to give feedback) or through the internal grievance process.  This is especially the case when those errors are minor, as is the case here.  It cannot be said that Mr. Mackowiak relied on inadequate material or did not consider relevant matters in coming to his assessment of Ms. Bratrud’s performance.  There was no evidence to show that he acted in a discriminatory manner in writing the appraisal.

[85]   Ms. Bratrud had the opportunity to add her comments to the performance appraisal.  There was no evidence of any time limits on the addition of comments; therefore, I believe that she still has an opportunity to do so.  I also note that in the final-level response to her grievance, Ms. Bratrud was invited to provide comments that would be included on her performance appraisal file.  The current collective agreement, although not in effect at the time of the grievance, makes this right to include comments explicit.

[86]   There was evidence at this hearing of a difficult relationship between Ms. Bratrud and Mr. Mackowiak.  This difficult relationship was exacerbated by the introduction of the strategic framework and its implementation.  The strategic framework represented a significant departure for the OSFI, and a significant change in approach to the supervision of financial institutions.  However, the implementation of a new framework and disagreements on its application cannot in the circumstances give rise to a finding of abuse of authority.  Management is entitled to manage.  And as long as it is not illegal, employees have an obligation to follow through on those directions.

[87]   Although a mid-year performance review was encouraged at the OSFI (see Exhibit G-36), one was not conducted for Ms. Bratrud.  A failure to follow best practices in performance management does not constitute an abuse of authority.  In any event, the evidence was that Mr. Mackowiak did meet often with Ms. Bratrud to discuss issues relating to her performance.  There was also evidence that he communicated to all staff his concerns about how the supervisory framework was being applied (Exhibits G–38 and G-39).  It cannot be said that Ms. Bratrud was taken by surprise by many of the comments in the appraisal, as these concerns were brought to her attention during the appraisal year.  Even if the comments had come as a total surprise, this would not be enough, in itself, to find that the appraisal amounted to an abuse of authority.

[88]   Since I have found that the original appraisal prepared by Mr. Mackowiak does not constitute an abuse of authority, the subsequent actions of the employer in reviewing the appraisal to make it more favourable to the grievor cannot constitute an abuse of authority.  In the grievance process the employer made changes to the appraisal’s narrative sections and raised the rating to “consistently meets”.  Furthermore, the employer explicitly invited Ms. Bratrud to provide additional comments that would be included in her appraisal file.  The employer has met its obligations to Ms. Bratrud in the performance appraisal process.

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

Order

[90]   The grievance is dismissed.

May 26, 2006.

Ian R. Mackenzie,
adjudicator