FPSLREB Decisions
Decision Information
The grievor filed a grievance (2007 PSLRB 50) contesting his dismissal - he also filed a grievance protesting the fact that he had not been informed about items placed in his personnel file that were used to justify his dismissal, in particular a performance evaluation report - this report was not sent to him following his access to information request - after examining evidence in emails exchanged between the grievor and his supervisor at the time of the events leading to his dismissal, the adjudicator noted that the grievor had received a copy of the evaluation report and had indicated, in fact, a desire to make comments on it after the hearing on his grievance, which was to have taken place at the end of May 2003 - it is possible that the employer used this document at the grievance hearing and that it was taken out of the grievor’s file - the fact remains, however, that the grievor was aware of the document well before the hearing on his grievance - the adjudicator found that there was no breach of the collective agreement under the circumstances. Grievance dismissed.
Decision Content
Public Service Staff
Relations Act
- Date: 2007-05-11
- File: 166-02-36341
- Citation: 2007 PSLRB 49
Before an adjudicator
BETWEEN
SIMON CLOUTIER
Grievor
and
TREASURY BOARD
(Department of Citizenship and Immigration)
Employer
Indexed as
Cloutier v. Treasury Board (Department of Citizenship and Immigration))
In the matter of a grievance referred to adjudication pursuant to section 92 of the Public Service Staff Relations Act
REASONS FOR DECISION
January 23 to 26, 30 and 31, May 3 to 5 and 8 to 12,
October 31 to November 3, 2006,
and, specifically for this file, July 10 to 13, 2006.
(P.S.L.R.B. Translation)
Grievance referred to adjudication
1 Simon Cloutier ("the grievor") works for the Department of Citizenship and Immigration ("the employer") and holds a position at the PM-03 group and level. In 1999, he was President of Local 10405 of the Canada Employment and Immigration Union, a component of the Public Service Alliance of Canada (PSAC).
2 On July 8, 2003, the grievor was called to a disciplinary meeting at which the employer presented him with a letter of dismissal.
3 The grievor contested his dismissal and also filed a grievance on July 25, 2003 denouncing the fact that he was not informed of items placed in his personnel file that were used to justify his dismissal. He alleged that article 17 of the collective agreement between the Treasury Board and the PSAC, Program and Administrative Services (all employees) had been contravened.
4 This grievance was referred to adjudication on June 30, 2005, and the hearing was held in 2006.
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.
Summary of the evidence
6 At the hearing, the parties referred to the dismissal file (2007 PSLRB 50) and to documents adduced during the hearing.
7 The grievor indicated that, in its letter of dismissal, the employer referred to a number of items. The employer criticizes him for:
- being late on June 2, 2003;
- extending his break on May 13 and July 5, 2003;
- wearing inappropriate attire on June 25, 2003;
- replying late to an email on July 3, 2003; and
- making inappropriate comments to management on July 3, 2003.
8 The grievor stated that he had requested the documents relating to his file under the Access to Information Act. He claims that two of the documents are not in his file. The first relates to an email dated June 4, 2003 sent by Julie Thibodeau to Director Dianne Clément concerning the break on May 13, 2003. The email was not among the documents he received (Exhibit E-7 of the dismissal file). The second document is an evaluation report for 2001-2002 (Exhibit E-2 of the dismissal file).
9 According to the grievor, the employer may not use evidence for which he has not been given copies. Such action allegedly constitutes an abuse of power. The disciplinary process should be invalidated.
10 Ms. Thibodeau testified that she spoke to the grievor about his breaks. The grievor asked her to confirm her comments to him in writing.
11 Ms. Thibodeau confirmed that she sent that information to the grievor.
Summary of the arguments
12 According to the grievor, the employer may not introduce documents that the grievor was not informed of at the time that they were placed in his file.
13 Adducing such documents at the hearing contravenes the rules of equity and invalidates the disciplinary process.
14 The employer pointed out that according to the grievor, the two documents in question were not provided to him when he asked for documents concerning him under the Access to Information Act.
15 Not all documents adduced during a hearing are necessarily part of the file of the grievor affected by disciplinary action.
16 The employer said that the grievor was informed verbally and in writing through numerous emails.
Reasons
17 In his grievance, the grievor referred to the provisions of article 17 of the collective agreement. Clause 17.04 reads as follows:
17.04 The Employer agrees not to introduce as evidence in a hearing relating to disciplinary action any document from the file of an employee the content of which the employee was not aware of at the time of filing or within a reasonable period thereafter.
18 Had the grievance been heard during a hearing prior to the one on the grievor's dismissal, I would have had no choice but to have issued a preventive order requiring the employer to comply with the provisions of article 17 of the collective agreement and ordering it to provide the grievor with all of the documents in his file.
19 In this instance, the hearing on the grievance related to article 17 of the collective agreement was held at the same time as the hearing on the grievor's dismissal (2007 PSLRB 50).
20 During the hearing on the dismissal, the grievor's supervisor testified that she informed him in May 2003 of his performance evaluation. She adduced Exhibit E-5 containing the email sent on May 14, 2003 to the grievor, which contains the following comments, concerning the evaluation report in particular:
[Translation]
…
- Leave: Dianne has replied in writing.
…
21 This email appears to follow up on the grievor's email sent on May 6, 2003 (Exhibit E-4 of the dismissal file), which reads as follows:
[Translation]
…I have quickly read Louise Martin's evaluation report that you gave to me yesterday during our meeting and I would like to make a few comments about it. However, I would like to give you those comments after the hearing of my complaint, which will take place at the end of the month.
I would also like to inform you that the location of the cubicle divider that you have assigned me does not comply with well-established safety measures, which require that I be able to leave my office directly, before the people whom I am interviewing. In addition, while we do not know each other, you will understand that, beyond the above-mentioned safety issue, it is intimidating for me, in the present context, to be the only employee whom you can see directly and constantly from your workstation. I hear my colleagues saying that this is intimidation directly related to my complaint before the Board.
…
22 With respect to the break taken on May 13, 2003, the grievor said that he did not receive the exhibit adduced as Exhibit E-7 at the hearing on his dismissal. The email in question was sent by his supervisor and was addressed to Ms. Clément. It reads as follows:
[Translation]
…on [sic] May 13, at 10:10, I noted that Simon was not in his office but had left for his break. He returned to his office at 10:50.
On May 15, I asked Simon to submit his leave request to me (for the preparation of his grievances before taking leave and he did not do so. [sic]
…
23 I note that the grievor received a copy of the evaluation report and that he wanted to make his comments after the hearing on his complaint, which was to have taken place at the end of May 2003.
24 It is possible that the employer used this document at the complaint hearing and that it was taken out of the grievor's file. However, the grievor was aware of the document based on his May 6, 2003 email.
25 The email about the May 13, 2003 break was an internal exchange between the supervisor and her director. It does not prove the extension of that break but simply confirms that the director was informed of it.
26 That email (Exhibit E-7) was not placed in the grievor's file. The evidence relating to May 13, 2003 had to be established by the supervisor who had witnessed it.
27 The grievor received a copy of the evaluation report and the evidence showed that he read it. It is possible that it was not among the documents sent to him as a result of his request under the Access to Information Act, but the grievor does not suffer any prejudice because he had already read the report.
28 For all of the above reasons, I make the following order:
Order
29 The grievance is denied.
May 11, 2007.
P.S.L.R.B. Translation
Jean-Pierre Tessier,
adjudicator