FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Kirushnaveny Krisha Raveendran (“the grievor”) was employed by the Office of the Superintendent of Financial Institutions (“the OSFI”) as a senior supervisor in the Financial Institutions Group, Insurance (“the FI Insurance Group”), from February 20, 2006 until February 8, 2007, when, according to the OSFI, she was rejected on probation. The grievor filed a grievance alleging that her rejection on probation by the OSFI was an abuse of authority in violation of clause 41.01 of the collective agreement signed by the OSFI and the Professional Institute of the Public Service of Canada on December 8, 2003 for the bargaining unit composed of all employees who are not in another bargaining unit (“the collective agreement”) and that the action was undertaken arbitrarily and in bad faith and that it constituted disguised discipline.

2 Clause 41.01 of the collective agreement reads as follows:

ARTICLE 41

SEXUAL AND PERSONAL HARASSEMENT

41.01  The Institute and the Employer recognize the right of employees to work in an environment free from sexual and personal harassment and agree that harassment will not be tolerated in the work place. For the purpose of this clause, harassment includes abuse of authority.

II. Preliminary matters

3 Counsel for the OSFI raised an objection to my jurisdiction on the grounds that a rejection on probation cannot be referred to adjudication under subsection 209(1) of the Public Service Labour Relations Act (“the PSLRA”) other than where the determination of the grievance requires the interpretation or application in relation to the employee of a provision of the collective agreement or where the grievance involves “… a disciplinary action resulting in termination, demotion, suspension or financial penalty … ” Counsel for the OSFI submitted that none of the provisions of subsection 209(1) are relevant to the case where the OSFI has simply exercised its entitlement to reject an employee as unsuitable during the probationary period.

4 Counsel for the OSFI conceded that adjudicators under the PSLRA have been found to have the jurisdiction to examine the question of whether a purported basis for rejection on probation is a “sham or camouflage” disguising an act of bad faith or an abuse of authority on the part of an employer: see Leonarduzzi v. Treasury Board (Transport Canada), PSSRB File No. 166-02-27886 (19990628), upheld in 2001 FCT 529.

5 On that basis, I reserved my ruling on the jurisdictional objection pending a decision on whether the grievor was ultimately able to show that the decision to reject her on probation was a sham or camouflage.

6 Counsel for the OSFI also raised a question concerning certain documents that the OSFI considered sufficiently sensitive and confidential. I ruled that in accordance with the confidentiality provisions of the Office of the Superintendent of Financial Institutions Act, Exhibits E-12, E-33 to E-35, E-37 and E-44 are sealed. The grievor’s representative agreed that he would return all copies of those exhibits in his possession once the period required for an application for judicial review has elapsed.

7 I should note that the grievor’s representative raised before me, in this context, the possibility that he would seek to introduce into evidence a number of documents with a provenance that he was reluctant to share. He ultimately decided not to have those documents admitted and did not make any application to me to have them produced, although I indicated to him that that was an avenue that he could consider.

III. Summary of the evidence

8 The grievor was hired in February 2006 as a senior supervisor in the FI Insurance Group. The unit to which she was assigned, designated “RC 411,” focuses on property and casualty insurance. It is one of the FI Insurance Group’s three divisions. Its activities are carried out under the OSFI’s mandate to regulate and supervise financial conglomerates, deposit-taking institutions and insurance companies conducting business in Canada. The RC 411 unit is headed by a director, who at the relevant time was Raneel Dhillon. Ms. Dhillon gave evidence about the structure and management of the unit. An organizational chart was presented as Exhibit E-1. Two managers, Heinz Schoenberger and James Lee, reported to Ms. Dhillon, and each manager was administratively responsible for the work of three or four senior supervisors.

9 The RC 411 unit has a portfolio of approximately 65 property and casualty insurance companies, which vary in size and complexity. Primary responsibility for the companies is divided among the managers and senior supervisors. Although Ms. Dhillon did not have a personal list of companies to supervise, she was responsible for overseeing and signing off on the work on the entire portfolio. The two managers, Mr. Schoenberger and Mr. Lee, had analogous roles of overseeing the work performed on the half of the portfolio that each was assigned.

10 The OSFI uses “matrix management.” Under that system, although each of the six senior supervisors administratively reports to one of the managers, who completes his or her performance appraisal, a supervisor might be directed by either manager for work on a particular company. This allows the managers to create teams of supervisors for work on individual companies taking into account workloads, scheduling considerations or the expertise of supervisors. Thus, although Mr. Schoenberger was her administrative supervisor, the grievor was on some occasions supervised by Mr. Lee when she was working on the files of companies that came under his half of the portfolio.

11 A further complication in the RC 411 unit’s management structure is the concept of the “relationship manager”. Ms. Dhillon explained that effective supervision and regulation of financial institutions depends on building constructive working relationships with the senior management of the companies being assessed. To support forging those connections, one person is designated as the relationship manager for a particular company and takes overall responsibility for maintaining communication and cultivating the relationship. It is clear that the “relationship manager” designation does not refer to a position but to a function that may be performed by a senior supervisor or a manager. Each senior supervisor and manager is the relationship manager for 7 or 8 of the 65 companies in the portfolio. For practical purposes, the relationship manager decides how reviews and assessments of a company will be carried out and plans and directs the activities of the team involved in the assessments.

12 Ms. Dhillon pointed out that the management structure and the way that work is assigned to those within the RC 411 unit means that a number of people may be involved in activities related to a particular company or part of the portfolio, which requires ensuring that there is an effective system for consistent documentation and effective communication among members of the unit. A number of technological supports have been introduced in recent years to ensure that those objectives can be achieved. These include the Core Supervision Workflow System (“the CSWS”), which maintains an accurate record of all work done in relation to a company and allows the managers to review that work; the Supervision Planning Application (“the SPA”), which assists in planning the assessment process for each company; the Electronic Document Management System (“the EDMS”), which maintains the bank of documentation generated by the activities of the unit; and the Time Reporting System (“the TRS”), which keeps records of the time that employees spend on each activity.

13 Ms. Dhillon testified that there is an established format for maintaining documentation. A risk matrix is provided to employees indicating the criteria to be used in assessing the risk associated with the company being examined. Monitoring documents, such as quarterly reports, section notes commenting on particular aspects of the company’s business and the overall risk assessment summary (“the RAS”), are all composed in a uniform manner. A system called “structured writing” is used to produce most of the documentation. The software limits the number of words that can be used under each heading and is designed to encourage concise and focused writing.

14 Ms. Dhillon described the workload in the RC 411 unit as heavy. The assignment of a range of companies to each senior supervisor is made with a view to spreading the work fairly. At the same time, it is intended to challenge and stretch the capacities of the employees. It is a professional environment in which employees are expected to take on a lot of responsibility and to work as self-sufficiently as possible, although a strong commitment to teamwork and collaboration is also required. It is expected that all senior supervisors will have relationship manager responsibilities, and the effectiveness and professionalism of a senior supervisor in performing that role is critical to the OSFI’s reputation and its ability to maintain productive relationships with financial institutions.

15 Ms. Dhillon testified that she was a member of the panel that initially interviewed the grievor when she applied for a senior supervisor position. The other members of that panel were Wayne Proctor, the director of one of the other RC units, and Danny Cooper, a manager in the Life Insurance Group. They used a standard set of questions aimed at testing the technical and behavioural competencies of applicants. The grievor was asked questions designed to give her an opportunity to demonstrate her knowledge of the economy, the insurance industry and the work of the OSFI. As the grievor had worked for 18 years at the Financial Services Corporation of Ontario (“the provincial agency”), the panel asked her questions to probe that experience. Other questions were designed to test her conceptual thinking, her ability to take initiative, her interpersonal communication skills and her ability to prioritize. Members of the panel described the fast-paced environment at the OSFI, the “relationship manager” role of senior supervisors and the expectations of employees.

16 According to Ms. Dhillon, the interview satisfied the panel that the grievor had a good understanding of the insurance industry and that her experience at the provincial agency would stand her in good stead as a senior supervisor at the OSFI. A second interview was arranged, in which Ms. Dhillon did not participate. The panel included Mr. Proctor; Arvind Baghel, at that time the managing director of the FI Insurance Group; and two managers, Mr. Schoenberger and Mohez Remtulla, who was from the other property and casualty unit. According to Mr. Schoenberger, who was a witness for the OSFI, this interview was less structured and provided an opportunity for the grievor to ask questions.

17 Following the second interview, the two panels met to share their impressions. Ms. Dhillon said that those who had interviewed the grievor concluded that she had sufficient qualifications (she has both a Certified Management Accountant designation and a Master’s of Business Administration), experience and knowledge of the industry to be offered the senior supervisor position. Ms. Dhillon said that they expected that, given the grievor’s long and successful history at the provincial agency, she would be able to “hit the ground running” and that within a short time she would be able to assume the full responsibilities associated with the senior supervisor position.

18 The letter of offer (Exhibit E-4) sent to the grievor was dated January 23, 2006. The letter contained the following sentence:

…

Also, in accordance with the Public Service Employment Act and Regulations (Section 28), the first 12 months of continuous employment is the probationary period.

…

Ms. Dhillon said that the probationary period was also mentioned in the interview in which she participated.

19 Ms. Dhillon stated that there is no standard set of training activities for new employees. The training depends on the employee’s experience and knowledge, and employees are expected, to a large extent, to identify for themselves the training they need. There are some formal training opportunities for new employees, and there are some training activities to keep all employees, whether new or not, current on aspects of the RC 411 unit’s responsibilities. In addition, there is a large amount of material available electronically to allow employees to familiarize themselves with the RC 411 unit’s work, to access necessary information or to improve particular skills such as word processing or email management.

20 In the course of the grievor’s cross-examination, counsel for the OSFI introduced a number of documents (Exhibits E-46, E-51 and E-52) as examples of the kinds of guidance available to the grievor through the OSFINet, the intranet system accessible to OSFI employees. Exhibit E-46 consisted of photocopies of screens from the OSFINet showing some of the material to which the grievor would have had access. That material appeared to include descriptions of the framework for assessment to be used by senior supervisors, criteria and commentary to assist in completing documentation, and relevant statutes and regulations. Exhibits E-51 and E-52 were examples of actual templates of documentation that senior supervisors were required to complete. The templates could be downloaded, and they included commentary intended to provide guidance in completing the forms.

21 Mr. Schoenberger testified that, as the grievor’s administrative manager, he gave her an initial orientation when she began working. It consisted largely of providing her with practical information about how to access various parts of the computer system and introducing her to the people that she would be working with. She was also assigned a “buddy,” Katherine Liao, who was an experienced senior supervisor in the RC 411 unit. Although all employees are expected to provide assistance to new members of the RC 411 unit, the buddy system gives the new employee an identifiable source of information and advice.

22 Ms. Dhillon said that the practice is to give new employees relatively uncomplicated assignments so that they can familiarize themselves with the processes and routines in the RC 411 unit. The complexity of their assignments is gradually increased, and there is an expectation that within a relatively short period they will be able to function as a relationship manager with a slate of companies comparable to those of the other senior supervisors.

23 Ms. Dhillon said that, although she maintains an open-door policy and is ready to assist or advise members of the RC 411 unit, she would not normally play as much of a role in training or assessing a probationary employee as she did in the grievor’s case. Shortly after she arrived, the grievor asked to see Ms. Dhillon because she was having difficulty understanding the supervisory framework document (Exhibit E-5) that set out the basic requirements for the risk assessment process. The supervisory framework elaborates in a succinct way the concepts captured in a table in the risk matrix form used to record the ultimate assessment of the risk associated with a company. This rating of the risk is critical because it determines where the OSFI’s resources are going to be directed. In her meeting with the grievor, Ms. Dhillon directed her to the resources available on the OSFINet and urged her to avail herself of those resources. She advised the grievor to focus on those aspects of the supervisory framework that were different from the documentation that she was used to at the provincial agency. Ms. Dhillon said that she took her cue from the grievor in their conversation and tried to respond to the issues that the grievor raised, taking into account the grievor’s extensive experience in the industry. The Outlook scheduling document concerning the meeting (Exhibit E-6) shows that it was originally scheduled for half an hour, but Ms. Dhillon noted that the meeting took longer than that; her recollection was that it lasted perhaps an hour-and-a-half.

24 The grievor again contacted Ms. Dhillon on June 9, 2006, raising concerns about some of the comments made by the managers in her three-month performance review (Exhibit E-8). Mr. Schoenberger said that he had indicated to the grievor that it was open to her to raise concerns with Ms. Dhillon. Ms. Dhillon said that the representations made by the grievor in this conversation concerned specific aspects of the comments made by Mr. Lee and Mr. Schoenberger about some of the tasks performed by the grievor. The grievor was not complimentary about the two managers, referring to Mr. Lee as “that Lee person,” and Ms. Dhillon found it hard to respond at that level of detail without having the facts clarified. Ms. Dhillon arranged a meeting at which she and the two managers as well as the grievor were present. The meeting took place on June 14, 2006.

25 The meeting got off to a rather shaky start as the grievor was not present at the scheduled time. Mr. Schoenberger went to her cubicle. She said that she was unaware of the meeting. He was able to point it out to her on her electronic calendar. As Ms. Dhillon recalled the meeting, the managers attempted to make it clear that they were trying to “set the grievor up for success” and to ensure that she would start to track to meet her performance expectations. Ms. Dhillon said that the managers specified the problems that they had identified with the grievor’s performance, and she was given an extensive opportunity to comment. It was agreed that Mr. Schoenberger would establish an action plan for the grievor, and he confirmed to the grievor on June 21, 2006, the points that had been covered in the June 14, 2006 meeting. Ms. Dhillon said that she was somewhat concerned that the grievor, in her response to Mr. Schoenberger on June 27, 2006, continued to reiterate her position on what had already been discussed.

26 Ms. Dhillon said that, because she had been so involved with the three-month review, she continued to play a role in the six-month review of the grievor’s performance. Before a meeting involving the managers, Ms. Dhillon said that she met with the grievor to obtain her perspective on the issues being raised so that an action plan could be formulated. Ms. Dhillon was concerned about a seemingly significant gap between the grievor’s perception of her own performance and the managers’ assessments of her performance. She wanted to ensure that the grievor understood the seriousness of the situation and the implications of failing to meet expectations. The six-month performance review completed by Mr. Schoenberger (Exhibit E-14) specified a range of concerns, including delays in submitting documents, failure to complete documents in accordance with the OSFI’s systems, certain actions of the grievor in the course of on-site visits to companies, mistakes in using the TRS and assessments that raised doubts about the grievor’s conceptual and analytical abilities. Ms. Dhillon said that she was concerned that many of the examples given by the managers as part of the assessment raised doubts about the grievor’s capacity to take responsibility for more complex companies or to move into the “relationship manager” role as would be expected of a senior supervisor by the end of the probationary period. She was also concerned that the managers were spending an inordinate amount of time correcting the grievor’s mistakes and providing her with feedback. Ms. Dhillon expressed the view that the situation was sufficiently serious that it would have been appropriate to reject the grievor on probation at that point, but that she decided that the grievor should be given another opportunity to demonstrate that she could successfully complete the probationary period.

27 Ms. Dhillon met with the grievor on November 7, 2006. She asked the grievor to come prepared to discuss the concerns raised in the six-month review and to make her own summary of the basic issues. The grievor provided her with a document (Exhibit E-10, also contained in Exhibit E-11 in unvetted form) in which she responded to the managers’ comments. Ms. Dhillon said that Exhibit E-10 was not quite what she had expected, as it consisted not of an outline of the issues but of a factual refutation of certain specific examples mentioned in the performance review. She forwarded Exhibit E-10 to Mr. Schoenberger and Mr. Lee. Ms. Dhillon and Mr. Lee met with the grievor on November 8, 2006 to review each point. A further document was produced (Exhibit E-12) that incorporated the managers’ responses to the grievor’s statements in Exhibit E-10; Exhibit E-12 also contains comments by Ms. Dhillon concerning statements made by the grievor that directly involved Ms. Dhillon.

28 In an email to the grievor (Exhibit E-13) dated November 9, 2006, Ms. Dhillon summarized the November 8, 2006 meeting. She emphasized that the performance review process was confidential and that neither she nor the managers would share the information with other employees. Under cross-examination, she said that she was aware that the grievor had discussed the issues with other senior supervisors: Ms. Dhillon merely wanted to stress that neither she nor the managers would share any information about the grievor’s review. Ms. Dhillon said that she did not tell the grievor not to talk to other employees. Ms. Dhillon could not account for why the grievor interpreted her comment as threatening. In Exhibit E-13, Ms. Dhillon also indicated that the discussion on November 8, 2006 had “… demonstrated a disconnect between your perception of the expectations and the expectations as laid out in the Goal Commitment Document…” (“the GCD”). To “… ensure clarity of understanding as to expectations,” Ms. Dhillon indicated in the email that it had been agreed that the grievor would provide a report outlining her own understanding of the responsibilities of her position and her own assessment of her performance of those responsibilities. The report was also to identify any gaps in the grievor’s performance and suggest how those gaps might be addressed. Ms. Dhillon also alluded to a further meeting to be held involving herself, the grievor and the two managers on November 21, 2006, although she said in her testimony that the meeting actually took place on November 22, 2006.

29 The grievor responded to the request for a report by providing a document that read as follows:

Clarify expectations of the Job:

Supervisory Frame Work is effectively applied in assessing FI risk profile.

Identification of specific issues/weaknesses and recommendation.

Relationship between OSFI and FI and other stakeholders within OSFI.

Adherence to the Supervisory Plan – covered planned on-site reviews.

Monitoring Activities – on an ongoing & timely fashion. Industry trends and practices are identified and applied to FI on a timely basis.

On-site reviews are conducted in an effective and efficient manner.

Appropriate and value-added recommendations are made to institutions.

Key or critical issues that impact OSFI’s mandate are escalated promptly and

An effective follow up and intervention process is maintained.

Goal

Methodology Enhancements – Supervisory Framework Recommendations

•        Provide assistance as requested to develop additional framework guidance and ensure such guidance is followed in future work.

•        N/A at the moment because I have not attend the basis framework course yet. I will ensure all my future assignments (FIs) are aligned with the OSFI framework. Please note that I have not used the exact framework model [at the provincial agency] as in practice here.

•        Attend all framework training provided

•        Plan to attend the framework course which is scheduled to start on November 14, 2006.

•        Make suggestions to improve and streamline (as appropriate) documentation

•        I did provide some suggestion to curtail [insurer S] RAS documents. I eliminated duplicate charts and information in that document.

          Most of the documents that I prepared have lesser pages than before. Most of the times, as mentioned earlier, I eliminated duplicate irrelevant information.

•        Provide advice on development of Quality Assurance Controls

          I am ready to provide at request.

My needs to improve my performance:

          1. “Outlook” Training course; specifically planning a meeting group meetings;

          2. Courses on Active Listening

          3. Technical – Word Level II Course

          4. Technical – Excel Course (for charts and tables)

          5. More training on SPA and [Institution Specific Plans] Planning Process. I was not involved from the beginning of this process. I still can’t enter in [Institution Specific Plans]. I would like to get some training on it with the new people who have joined recently.

[Sic throughout]

[Emphasis in the original]

30 Before the meeting on November 22, 2006, the grievor had been provided with the six-month review and probation checklist (Exhibit E-14) as well as with the document (Exhibit E-12) outlining responses of the managers and Ms. Dhillon to the grievor’s statements (Exhibit E-10). At the meeting, Ms. Dhillon said that the issues raised in the performance assessment were again discussed, and she read out loud the following statement contained in Exhibit E-14:

…

The next review will be held in mid January 2007. Unless Krisha can demonstrate substantial progress in the areas identified for improvement she will not meet expectations and will not successfully complete her probation period.

…

It was also agreed that a new work plan would be drawn up to provide a basis for the assessment in January 2007. The work plan was completed and forwarded to the grievor on December 7, 2006 (Exhibit E-15).

31 One of the issues discussed at the November 22, 2006 meeting was the intimation by Mr. Lee (in Exhibit E-12) that the grievor had taken inappropriate credit for a RAS that had in fact been entirely done by Ms. Liao. The grievor pointed to an email (Exhibit E-30) from Ms. Liao commending the work done by the grievor and Mr. Lee on the successful completion of the RAS. Ms. Dhillon testified that it was characteristic of Ms. Liao to share credit for good work with everyone who made a contribution, which was not inconsistent with Mr. Lee’s concern that the grievor overstated her role in completing the document.

32 In cross-examination, the grievor’s representative asked Ms. Dhillon whether certain aspects of the assessment in Exhibit E-14 could be perceived as prejudging how the grievor would perform in the future. In particular, he pointed to a comment concerning the possibility that the grievor would attend a training course on the supervisory framework. Under the heading “Required Action,” attendance at the training course was advised, but Mr. Schoenberger continued with the following:

How to address the weaknesses in conceptual thinking and analytical thinking – key skills for supervisory work. Framework course will not fix this.

Ms. Dhillon said that she did not perceive Mr. Schoenberger’s comment as a prejudgment of the grievor’s future work but as a frank statement that there was a concern on the managers’ part that there were underlying problems with the grievor’s analytical capacities that could not be addressed through training geared at understanding the supervisory structure.

33 Following the November 22, 2006 meeting, the grievor sent the following message to Ms. Dhillon and Mr. Schoenberger, copying Mr. Lee, Penny Lee, the managing director of the FI Insurance Group and Connie Dickson, a human resources manager:

…

I understand the feedback given to me in response to my comments. I appreciate and value the continued support from my team at the Senior Supervisor, Manager and Director levels. I also am thankful towards to managers [sic] for aiding me through a variety of processes. I will strive to improve all that has been highlighted in the feedback given to me. I will continue to strengthen my writing abilities and my interpersonal skills. I will aim to meet the expectations set out for me and will continue to spend more time learning and utilizing the various opportunities presented to me in order to improve my abilities and work ethic.

…

Ms. Dhillon said that she understood the message to mean that the grievor understood and accepted the advice that she had been given about her performance through the documentation and discussions associated with the six-month review and that the issues raised in the review could be put to rest.

34 Ms. Dhillon was present at a meeting held on January 22, 2007, with the two managers and the grievor. Ms. Dhillon had asked the grievor whether she wished Ms. Lee to be present, as she knew that the grievor had consulted Ms. Lee following the meeting on November 22, 2006. The grievor declined.

35 At the meeting, according to Ms. Dhillon, the items in the work plan were reviewed in detail. In reporting the meeting to Ms. Dickson and Ms. Lee (Exhibit E-18), Ms. Dhillon noted that the grievor was advised that she was still not meeting expectations and that her performance was not tracking towards successful completion of the probationary period. Mr. Schoenberger, Mr. Lee and Ms. Dhillon all recalled that a variety of issues arising from the work plan were discussed at the meeting, including the concerns expressed by the managers that the grievor was failing to complete assignments in a timely way, that she continued to struggle with presenting documents in the correct format, that she was not taking advice offered to her by others and — perhaps most seriously — that they had reservations about her analytical and conceptual capacity.

36 In cross-examination, the grievor’s representative suggested to Ms. Dhillon that her role in the meeting would have been restricted because she did not participate directly in tasks involving financial institutions and, therefore, she would have a limited understanding of the kind of work done by the grievor. Ms. Dhillon said that, on the contrary, she was directly involved in the assessment of the financial institutions in the RC 411 unit’s portfolio and that she was ultimately responsible for signing off on the composite risk rating of all those institutions. One a day-to-day basis, she would not have direct responsibility for the work assigned to senior supervisors, but that did not mean that she did not have a thorough understanding of the institutions and the responsibilities of the RC 411 unit.

37 Ms. Dhillon received an email from the grievor dated January 25, 2007 (Exhibit E-20), in which she provided a further rebuttal to the assessments discussed in the January 22, 2007 meeting. Rather than responding, Ms. Dhillon noted on January 29, 2007 (Exhibit E-20) that the grievor had asked for a meeting with Ms. Lee. Ms. Dhillon understood that Ms. Lee was trying to organize a meeting.

38 Also on January 29, 2007, the grievor went to Ms. Dhillon’s office and asked to make further comments on the issue discussed in her January 25, 2007 email. Ms. Dhillon said that the comments made by the grievor in Exhibit E-20 could best be addressed by Mr. Schoenberger, who was away at that time, because Ms. Dhillon herself had not been directly involved in the events described.

39 On February 7, 2007, Ms. Dhillon was present at a meeting with Ms. Lee, Ms. Dickson, Mr. Lee and Mr. Schoenberger, where they reviewed the grievor’s performance for the entire 11-month period she had been working in the RC 411 unit. They concluded that there was nothing further that could be done to assist the grievor in successfully completing her probationary period and decided that she should be rejected on probation. Ms. Lee said that she had tentatively scheduled a meeting with the grievor for February 13, 2007, but that she did no longer see any point in having such a meeting. Ms. Dhillon could not say whether the grievor was informed of Ms. Lee’s decision not to meet with her. Ms. Dhillon said that she was satisfied that all the factors relating to the grievor’s performance had been considered and that the grievor had been given adequate opportunities to communicate her concerns. Ms. Dhillon did not recall any specific discussion of the implications of cancelling the projected meeting between the grievor and Ms. Lee scheduled for February 13, 2007. Ms. Dhillon said that Ms. Lee indicated on February 7, 2007 that she was confident that she understood the issues - including the grievor’s position on them - well enough that she did not need to discuss them further with the grievor.

40 Under cross-examination, Ms. Dhillon said that, from the time of the six-month review in November 2006, Ms. Lee and the human resources division would have received documentation concerning the grievor’s assessment, including the grievor’s response to the comments made about her performance.

41 On February 8, 2007, Ms. Dhillon sent the grievor a letter indicating that she was being rejected on probation (Exhibit E-21). The letter contained the following:

…

This action is necessary because you have not been able to demonstrate the level of performance required for the Senior Supervisor position. A number of discussions with you and your Manager for the purposes of providing feedback and direction have failed to result in any significant improvement in your performance.

…

42 Ms. Dhillon also gave evidence concerning some exchanges that she had had with the grievor concerning the grievor’s use of the TRS. Ms. Dhillon said that, although some aspects of the general failure of the grievor to attain adequate proficiency in using the OSFI’s systems were reflected in the performance review, the particular interactions they had over the TRS problems were not part of the review. Ms. Dhillon said that employees are expected to input accurately coded information about the allocation of their time, as this information is essential for the OSFI in planning and monitoring the use of resources. Ms. Dhillon acknowledged that other employees besides the grievor made mistakes in using the TRS. However, she said that those employees were amenable to correction and that their difficulties did not persist. In the grievor’s case, discrepancies in TRS recording were brought to Ms. Dhillon’s attention in October 2006 (Exhibit E-22). Ms. Dhillon explained that the issue was flagged for Mr. Lee by one of the analysts responsible for monitoring the TRS, after the grievor asked him to “fix” the discrepancies in her account (Exhibit E-23), apparently not understanding that it was necessary for employees themselves to reconcile discrepancies in their time accounts. Mr. Lee identified the nature of the discrepancy and confirmed that it was a user rather than a system error (Exhibit E-23). Ms. Dhillon asked the grievor to provide a report of her TRS records from April 1 to October 31, 2006, and subsequently provided explicit instructions about how to analyze the information in the system (Exhibit E-23), including some handwritten notes intended to clarify what was expected. A series of exchanges ensued (Exhibits E-25 and E-26) in which Ms. Dhillon found fault with successive efforts by the grievor to supply the information that she had requested. Ultimately, on December 4, 2006, Ms. Dhillon’s wrote the following:

…

I have ended up doing a substantial portion of the task for you but the outcome is still not satisfactory and the work is not complete. I cannot afford to spend any more time on this going back and forth so I will now complete this task for you. This should have been a half hour task but has ended up taking a huge chunk of my time which is not best utilized this way.

…

The grievor sent further information, and Ms. Dhillon responded on December 6, 2006 as follows:

…

From your response below and review of the supporting material left for me I gather you have once again ignored my simple and strightforward [sic] direction to use the report that I gave to you [Exhibit E-27] with the items in question highlighted to analyze the miscoded time. I had items other than general admin highlighted or identified with question marks which you have totally ignored. Sending me back a table with an additional column titled Statutory Holiday does not achieve anything (since I had already identified the problem). The items that you should have addressed were ignored again. Therefore there was no value added to your response other than to demonstrate once again that there is a serious issue here regarding your ability/willingness to follow through on directions.

Even after so many iterations and repetition of expectations (verbally and in writing) for a simple task this has still not been completed as requested. Please do not send me any further responses on this issue as I have already expended a lot of time trying to resolve this with you with little success. I will not respond to any further emails on this issue.

…

The grievor sent further information concerning the time issue to Ms. Dhillon (Exhibits E-26 and E-28), but Ms. Dhillon did not respond.

43 Under cross-examination, Ms. Dhillon acknowledged that the grievor had adjusted the time sheets to reflect the advice given to her. Ms. Dhillon said, however, that the grievor did not seem able to produce the information Ms. Dhillon requested from the data she had available to her, which she should have been able to do. Ms. Dhillon said that, although the TRS was new, there was an onus on employees to keep abreast of the changes and to familiarize themselves with the new system. Whatever instructions the grievor had been given when she arrived at the OSFI in February 2006 about keeping track of her time were not longer relevant; that was true for all employees, not just the grievor. Ms. Dhillon said that she would not describe herself as angry about the TRS issues involving the grievor. Ms. Dhillon wanted to stress the importance of recording time properly and repeated herself a number of times. The grievor’s representative pointed out that Ms. Dhillon’s exchanges with the grievor over that issue had become a “head-butting exercise” culminating in Ms. Dhillon’s refusal to engage on the issue further. Ms. Dhillon said that she had met with the grievor several times in addition to the emails that they have exchanged and that she simply thought enough time had been devoted to a relatively simple issue. Ms. Dhillon said that she did not follow up to see whether the grievor had any further problems with the TRS as that would have been a task for the managers in the RC 411 unit.

44 Ms. Dhillon acknowledged that there was almost nothing relating to the TRS issue in the document (Exhibit E-19) prepared in January 2007 that laid out the comments of Mr. Schoenberger, Mr. Lee and herself, as well as the grievor’s responses. For example, the document did not mention that the grievor had eventually straightened out the time records. Ms. Dhillon said that that was the case because the use of the TRS was not regarded as a task itself but as part of the background competencies employees were expected to develop to complete their work. Ms. Dhillon expressed the opinion that the decision to terminate the grievor would have been made even had the TRS issue been entirely disregarded. Ms. Dhillon said that the grievor’s comments in the document were directed at the original assessment of the managers up to January 19, 2007. The final column in the document contained further comments and responses from the managers and included some comments on events that took place after January 19. The grievor would not have seen the document in this form.

45 The grievor’s representative asked Ms. Dhillon whether the grievor’s request in Exhibit E-32 showed that the grievor was taking the initiative to obtain further information about the CSWS from computer support staff. Ms. Dhillon pointed out that the grievor sent the request after the January 22, 2007 meeting, when she had been at the OSFI for 11 months and had been using CSWS during that time. Ms. Dhillon said that the grievor’s inquiry showed that she did not understand the basic concept that information on the C drive of her computer would not be available for review by others.

46 Mr. Lee gave evidence on behalf of the OSFI. He has been in his current position as a manager for approximately four years. Before that, he spent six years as a senior supervisor in the OSFI unit dealing with deposit-taking institutions and in the FI Insurance Group. Before that, he had a number of years of experience as a manager at the Liquor Control Board of Ontario. In the course of his career, he said, he had taken some training on conflict and harassment. He had not taken specific training about dealing with probationary employees but understood that they should be treated differently as to the level of difficulty of their initial assignments and the degree of support that they should be given. Mr. Lee said that, as a manager in the RC 411 unit, he had never been the administrative manager for a probationary employee, although under the matrix management system he had had opportunities to observe their work and to provide comments to Mr. Schoenberger. In this case, it had happened that, for the first few months of her probationary period, the grievor was working on files that were part of Mr. Lee’s share of the RC 411 unit’s portfolio.

47 Ms. Lee said that, in assigning the workload to senior supervisors, account is taken of their strengths and experience, the potential for development opportunities, and the amount of work required for different institutions. Mr. Lee commented on Exhibit E-33, which showed the group of institutions assigned to each senior supervisor. All the other senior supervisors would have been expected to play the role of relationship manager for the institutions shown under their names. The grievor was shown as the “de facto” relationship manager for a list of companies. Mr. Lee said that this reflected the recognition that the grievor could not, at the time the document was drawn up, have been expected to assume all the duties of a relationship manager but that it was expected that she would work into the role in a fairly short period. While she was considered a “de facto” relationship manager, the manager would retain overall responsibility for the relationship while the grievor carried out an increasingly large role in supervising the listed companies.

48 In cross-examination, Mr. Lee said that Andy Bilik was also a probationary employee at the time Exhibit E-33 was compiled. He could not recall whether Mr. Bilik was not called a “de facto” relationship manager because he had fully taken on that role with respect to the companies listed under his name, or whether there was some other reason.

49 Mr. Lee also commented on Exhibit E-34, which included work plans for on-site visits to insurance companies S and G. The team for those on-site visits included Mr. Lee, Ms. Liao and the grievor. Mr. Lee said that both on-site visits were seen as useful development opportunities for the grievor and involved fairly straightforward tasks largely concerning updating documentation. Mr. Lee commented that he thought that Ms. Liao’s extensive experience and her role as the grievor’s buddy would provide a useful basis for the grievor’s participation. The grievor was also offered the opportunity to take the lead in the on-site interviews. Mr. Lee said that his personal assessment was that, given her extensive experience at the provincial agency, he would have expected the grievor to be ready for leading on-site interviews. However, he acknowledged that for the first couple of on-site visits it is acceptable for probationary employees to observe rather than to conduct the interviews. For these two companies, Ms. Liao conducted the interviews. In cross-examination, Mr. Lee accepted that the grievor had been offered the option of not conducting the on-site interviews. He said that his concern was not specifically that she chose not to conduct the interviews, although he was somewhat surprised that someone with her previous experience would be reticent to do them, but that her level of preparation, her demeanour and the questions that she did ask did not augur well for her progress towards conducting future interviews on her own.

50 Mr. Lee was present at several planning discussions concerning the two on-site visits to companies S and G, and he understood that the grievor and Ms. Liao had had other discussions. Mr. Lee and Ms. Liao also met with the grievor in May 2006 to debrief her on the on-site meeting with company G, at which time they tried to provide constructive advice (Exhibit E-35). Mr. Lee said that his comments about the on-site meetings found their way into the three-month review document prepared by Mr. Schoenberger (Exhibit E-8), which outlined the discussion that had taken place at the meeting between Mr. Schoenberger, Mr. Lee, Ms. Dhillon and the grievor on June 14, 2006. Ms. Liao did not testify at the hearing before me, but Mr. Lee said that he understood that the comments reflected her opinion as well. Mr. Lee commented that he thought that the grievor had not adequately prepared for the on-site meetings. As he recalled the discussion, the grievor responded that she had been sent a considerable amount of material by Ms. Liao and that she had not had time to review it thoroughly. Mr. Lee also expressed concern about the professionalism of the grievor’s demeanour at the meetings. He said that she seemed uninterested and disengaged from the discussion. Under cross-examination, he reiterated that he had expected the grievor to signify by body language and eye contact that she was fully engaged in the meeting and did not view having her eyes closed as a sign that the grievor was concentrating on what was discussed at the meetings.

51 Mr. Lee said that he also had input into the comments in Exhibit E-8 about the grievor’s communication skills. As an example, he said that she had asked a question at one of the on-site interviews in a confusing way, which had made it difficult for the company representative to respond. He said that that question and some others had also raised some concerns about her actual grasp of some of the technical concepts (in this case, the concept of “facultative limits”) and that it was hard to decide whether the difficulties were related to her communication skills or to her understanding of the subject matter. The grievor’s response to some of the issues raised was included in Exhibit E-8, and Mr. Lee said that he did not completely understand the grievor’s response. It seemed to suggest that he had instructed her not to update the documentation, an instruction he said that he would not have given.

52 Mr. Lee said that the grievor was assigned to a further on-site visit in August 2006, chosen because it would give the grievor an opportunity to demonstrate her extensive knowledge of the auto-insurance industry. The relationship manager was John Krim. The work plan for the on-site visit (Exhibit E-36) shows that the tasks assigned to the grievor formed a significant part of the time allotted to the review. Mr. Lee said that the grievor seemed better prepared for the interview and that she attempted to lead the interview, although Mr. Krim intervened a number of times. Mr. Lee said that he recalled telling the grievor that she seemed better prepared. Mr. Lee also commented that he reviewed the section notes completed by the grievor related to the file, and he found that they required considerable rewriting to bring them into a form consistent with the OSFI’s style. That was in part because the grievor presented one section note to cover both institutions rather than breaking the documentation into two, the significance being, from Mr. Lee’s point of view, that it held up Mr. Krim from completing his share of the documentation. Mr. Lee said that he thought the importance of a timely response had been clearly communicated to the grievor. His comments in that respect were reflected in the six-month review document (Exhibit E-14). He thought that the reference in the document to “poor teamwork” was fair because the delays occasioned by the grievor’s difficulties in completing the documentation held up the work of the rest of the team. He indicated that such delays also have an adverse impact on the OSFI’s reputation with regulated institutions.

53 Mr. Lee provided some of the comments contained in Exhibit E-12. The comments addressed some of the points made by the grievor in her response (Exhibit E-11) to the managers’ comments in the six-month review. He interpreted her comment in point 5 of that exhibit as claiming a larger share of the responsibility for the RAS for company G than she in fact had been assigned and wanted to clarify that Ms. Liao had completed that document. He and the grievor had simply read it over. He made a similar point in his comment on the residual-values aspect of the section notes. In point 6 of Exhibit E-11, the grievor had suggested that she had completed the on-site examination on her own, with mere administrative assistance from Ms. Liao; for his part, Mr. Lee, believed that Ms. Liao had borne most of the responsibility for the on-site interview. In a couple of cases, the grievor said that she had been urgently required to attend an on-site interview and that those situations had diverted her from other tasks. Mr. Lee said that the suggestions to attend the on-site interview had not been urgent and that they were seen as useful development opportunities for the grievor. He agreed that she might have been told to save a tentative date for the on-site visit but that it would not have been presented as an urgent matter. Mr. Lee said that he thought that the issues covered in the three-month review had been laid to rest, but since the grievor referred to some of the issues again in Exhibit E-11, he thought that it was important to correct the inaccuracies. For example, he disputed her statement that all she had heard were “positive comments” about her work before the three-month review; he said that, on a number of occasions, attempts had been made to provide her with constructive feedback. A case in point concerned the occasion when the grievor changed the final risk assessment for one company but failed to update the supporting documentation to reflect the change. She explained it as merely a technical problem because of her inexperience with the CSWS, while Mr. Lee was trying to impress on her the seriousness of inconsistent documentation in the file. Mr. Lee agreed that some of the comments made by the managers in Exhibit E-12 could be viewed as negative. For example, on the fifth page, the managers responded to the grievor’s comment that she had “… completed seven On-site examinations … ” by saying that it overstated her involvement. However, Mr. Lee said that the intent was simply to correct what he and Mr. Schoenberger saw as inaccurate statements on the grievor’s part. This included clarifying that she did not carry out any of the examinations “on her own” as other team members would be present and able to provide advice even if she took primary responsibility for an interview.

54 The grievor’s representative pressed Mr. Lee about the comments in the six-month review document (Exhibit E-37) concerning the grievor’s failure to take responsibility or to offer any explanation for the aspects of her performance noted by the managers. Mr. Lee adhered to the proposition that the grievor failed to accept responsibility for the shortcomings in her performance and that she attributed the difficulties that had been pointed out to the conduct of others or to trivial errors that were being overstated.

55 Mr. Lee did not have as much interaction with the grievor following the six-month review. The one task she performed relating to his files was the completion of a third-quarter monitoring document for one of his companies. When he reviewed it, he found that she had included information on another company in the file. When she attempted to correct the error, she inadvertently opened a completely new file, meaning that there were two parallel files concerning the same process. That caused further confusion for those working on the files, and the grievor did not apparently identify the problem until it was pointed out to her.

56 Mr. Lee said that he had been part of the discussions in January and February 2007 about the grievor’s performance and that he had supported the conclusion that she was not meeting expectations. At the meeting on January 22, 2007, he said that the grievor was given an opportunity to respond to all the comments that had been made about her performance. He did not accept the grievor’s claim that she had not been given sufficient time to complete her work or that her shortcomings should be overlooked because she was a new employee. He felt that the assignment given to her had been fair and had sufficiently taken into account her probationary status. For example, according to the time calculations recorded in Exhibit E-27, the grievor spent 40 hours on her assignment regarding company G. That task would have taken an experienced supervisor about 10 hours, and twice that time —­­ 20 hours —­­  had been budgeted for the task for the grievor. He said that he would have expected the grievor to be able to assume a full “relationship manager” role by late fall 2006 —­­ within her probationary period —­­ but that she was unable to do so.

57 On re-examination, Mr. Lee was invited to compare the grievor’s progress with two other employees who had been on probation in the unit, Mr. Bilik and Brian Divell. Mr. Lee said that the same approach, combining developmental opportunities with on-the-job and formal training, had been used for both the employees and that they had both developed quite quickly.

58 Mr. Lee said that, when the discussion took place in January 2007 about the grievor’s progress on the work plan made in November 2006, it seemed likely that the grievor would be rejected on probation. He believed that she had been given sufficient opportunities to improve her performance and to express her concerns. He accepted that everyone, including himself, could make a mistake but thought that the number and types of errors committed by the grievor suggested that she could not function with the autonomy expected of the professional staff in the RC 411 unit. Among other things, it is expected that a senior supervisor would be able to fit monitoring and the completion of documentation into on-site visits.

59 The grievor’s direct manager, Mr. Schoenberger, also gave evidence. He has been a manager for five years, and before that he was a senior supervisor. Before moving to the OSFI, he had a career with a financial group and as an accountant and auditor. Mr. Schoenberger has had training and experience in managing employees, including those on probation.

60 Mr. Schoenberger explained that the designation of “de facto” relationship manager in Exhibit E-33 was meant to indicate that the grievor was not yet responsible for external communication to regulated institutions but was encouraged to take an increasing amount of responsibility for the listed companies.

61 Mr. Schoenberger described his efforts to ensure that the grievor settled well into the unit, including assigning Ms. Liao to be her buddy, going over the supervisory framework with her, conveying to her how to get started in using the required systems and choosing work for her that would allow her to make the transition to the OSFI. He said that at one point he went through a comparison with her of the provincial agency’s and the OSFI’s systems. He also directed her to the online “employee tool box” as a resource for finding out about the system she would need to follow at the OSFI. He also showed her how to open the file containing the job description for her position. Mr. Schoenberger said that he had been involved in the second hiring interview with the grievor and had concluded that she would have no problem with the technical aspects of the job but that she might need some time to become familiar with the way the OSFI conducted its work. He understood that the grievor was attracted to the OSFI by its reputation as a “cutting edge” regulator and because it regulated large and complex institutions. Although he knew that the grievor might have to shift her focus somewhat to deal with the larger institutions, he assumed that her background at the provincial agency and her familiarity with the industry would allow her to make the transition within a fairly short time. He said that he encouraged the grievor to take advantage of training opportunities and that he approved a number of training courses for her. He also tried to advise her on how to familiarize herself with systems that she had not used before, such as the structured writing software, which was available to her within several weeks of her arrival. There was some training available for employees on the new TRS and on the CSWS. He walked her through the CSWS because of the timing of the formal training.

62 Mr. Schoenberger said that he gave the grievor some isolated tasks to begin with and decided that she might eventually work on company H, so he asked her to familiarize herself with that file. He also thought that it would be useful for her to be involved in the on-site visits being planned by Mr. Lee and Ms. Liao, as those interviews would occur sooner. He initially gave her some very positive feedback about the work that she had performed, although he also advised her on what might be improved. He was not involved during the early stages of the on-site examinations under Mr. Lee but became aware of Mr. Lee’s concerns at the wrap-up meetings on those files.

63 Mr. Schoenberger said that he completed the “new employee checklist” (Exhibit E-8) and the three-month review document (Exhibit E-14) at the same time. He explained the probationary review process to the grievor and told her that she would have to meet expectations. He reviewed the documentation with her and explained that the GCD was being prepared and that it would be ready in June 2006.

64 The meeting to discuss the three-month review was timed so that Mr. Lee’s feedback about the on-site reviews would be available. Mr. Schoenberger said that he explained to the grievor that it had been expected when she was hired that she would be able to “hit the ground running” because of her extensive regulatory experience, and he expressed concern that her performance was not tracking to “meets expectations.” He said that she was not as comfortable with the technology as they had expected and stressed the importance of correcting that issue. He commented positively on some aspects of her work, but also gave examples of specific errors she had made. Mr. Schoenberger said that, during the meeting, he became concerned at the grievor’s reluctance to take advice, make corrections and move on. She continued to be defensive about comments that had been made previously. He felt that that was confirmed by her email of June 27, 2006 (included in Exhibit E-8) but conceded that she might have been trying just to ensure that all of her concerns were documented. At that point, he said, he was not concerned as much about the technical aspects of her responses but about moving her to a more constructive approach to resolving the issues. He said that at the meeting he tried particularly to emphasize the importance of being able to multi-task and set priorities. In his exchange with the grievor, Mr. Schoenberger also tried to stress the importance of using the CSWS more extensively so that she could become familiar with it.

65 Mr. Schoenberger said that he suggested to the grievor that she email him once a week to ask any questions or raise concerns, and he committed to respond. He said that they adhered fairly well to that regime, though he was disappointed that it did not have a more positive effect.

66 Following the three-month review, Mr. Schoenberger said that he tried to identify other developmental opportunities for the grievor. He also went over the GCD (Exhibit E-41) with her, which became available at the end of June 2006. He emphasized that it was important for her to try to meet the personal goal statement included for her in the document as well as to make progress to meet the common requirements that were stated.

67 Mr. Schoenberger assigned the grievor to perform an on-site interview with company F. He and Mr. Krim, who had both had extensive interactions with that company, were also present. Mr. Schoenberger observed that, although the grievor was nominally responsible for conducting the interview, Mr. Krim intervened a number of times because he felt that certain issues were not being adequately covered. In addition, Mr. Schoenberger commented that the representatives of the company did not follow the order of the formal agenda in making their responses. Rather than adapting, the grievor tried to return to the agenda order. He was not sure whether she did that because she did not appreciate that the questions had already been answered, albeit in a different format. Mr. Schoenberger agreed that Mr. Krim has a fairly forceful personality and that the grievor might have found it somewhat difficult to hold her own with Mr. Schoenberger and Mr. Krim. His concern was that she did not seem to adapt her approach to the interview to accommodate the flow of questions and answers.

68 Following the on-site interview with company F, the grievor prepared some related documentation and forwarded it to Mr. Schoenberger. He complimented her on the documentation, which he thought was well done. Mr. Krim later advised Mr. Schoenberger that, as the formal relationship manager, he had reviewed the documentation and made extensive changes to it before it was sent to Mr. Schoenberger. Mr. Schoenberger raised this with the grievor and asked her how much assistance Mr. Krim had provided. She said that his input was minimal. Mr. Schoenberger “left it at that.” In her own testimony, the grievor said that she was insulted by the suggestion that Mr. Krim had had to extensively rewrite the notes, as she was highly qualified and experienced at writing.

69 Mr. Schoenberger then decided that the grievor should be given major responsibility for the on-site visit involving company H, as he thought it would lie well within her competence. Although the company was not large, the assessment required major revisions, and he thought that would be a good chance for the grievor to demonstrate her capacity to go through the entire process. He was “surprised and disappointed” that the on-site visit did not work out well. He had discussed with her the planning process for an examination and had reviewed the planning documentation that she drafted. He was concerned that she did not seem able to clearly describe the nature of the review. He was also concerned at her proposal to ask the auditors of the company for information, which is not normally done. She raised it as a possibility on more than one occasion, without providing a rationale. In cross-examination, Mr. Schoenberger said that the grievor had tried to comply with his suggestions on the planning documents for the company H on-site visit and that some of his comments related to things that the grievor could not be expected to know. What concerned him, he said, was that, although she did make changes, she did not seem to grasp the rationale for some of his comments, and it was necessary for him to make extensive comments more than once. Although he was absent for part of the time during which the grievor was planning for the company H on-site visit, there were a number of aspects of the work that she could have performed in his absence, and he had indicated to her that she could consult Mr. Lee if she had questions.

70 Mr. Schoenberger was initially present at the on-site interview with representatives of company H and then returned to his office, leaving the grievor to finish the interview. He was later called by the Chief Agent of the company, who had been involved in the interview and who was “quite irate” because the grievor had asked for the phone number of the Chief Agent’s boss at the head office of the company in the United States. Mr. Schoenberger assured the Chief Agent that the OSFI would not call her boss and told that to the grievor. The following day, when the on-site interview continued, Mr. Schoenberger told the grievor that he was concerned about the effect of the incident on the relationship between the OSFI and company H. The grievor said that she had merely been planning to obtain some missing information from company H’s head office, but Mr. Schoenberger said that that clearly had not been communicated effectively to the Chief Agent. He described the incident in an email to Ms. Dhillon (Exhibit E-43) because of the potential effect on the relationship with company H. The grievor’s evidence was that she was not aware until this hearing that Mr. Schoenberger had raised the matter with Ms. Dhillon and thought that the incident had been blown out of proportion. The rest of the on-site interview went fairly successfully, although Mr. Schoenberger said that he participated more than he would have expected. It should be noted that the grievor testified that she had merely asked for missing contact information and an organizational chart as called for in her planning checklist. Her request had been made to a company representative, but she had never spoken directly to the Chief Agent.

71 When the grievor gave Mr. Schoenberger the first document arising from the on-site interview of company H, he gave it back to her because it was not in the required format. It needed to be put in structured writing, and several key elements referred to in the plan for the examination were missing. When she provided a revised version, he made extensive comments on it (Exhibit E-44). Some of the comments related to editing issues or to fairly minor matters of interpretation. Others related to issues that Mr. Schoenberger felt were indicative of the grievor’s lack of understanding of some fairly fundamental concepts, which caused him concern. He said that he and the grievor had further exchanges about the document, in the course of which he provided extensive comments and advice, and that she did improve it. Despite the improvements, he remained concerned that the whole process surrounding the document indicated either severe communication issues or a serious lack of conceptual understanding on the part of the grievor. He was also concerned about the grievor’s slowness in providing the documents and was not fully persuaded that her explanation —­­ that she was waiting for further information from company H —­­ fully justified the delays.

72 Mr. Lee and Ms. Dhillon met with the grievor for approximately a hour-and-a-half on November 8, 2006 to discuss the six-month review. Although the document designated as Exhibit E-37, which was used as the basis for the later meeting on November 22, 2008 did not exist in exactly that form earlier in November, Mr. Schoenberger said that the examples used and the points made in that document were circulated as the basis for the discussion on November 8, 2006. Mr. Schoenberger said that, at that time, there was a concern that the problems with the grievor’s performance might go beyond a lack of ability with the OSFI systems and a lack of familiarity with the supervisory framework and that they might stem from conceptual and analytical weaknesses. The significance was that it was difficult for the managers to imagine a strategy that could address those critical competencies. In addition, there were concerns about the grievor’s ability to conduct meetings, the “sloppiness” of the work she presented and her ongoing difficulties with the technology, despite her access to extensive online tutorial resources. For example, although the grievor did not have write access to the SPA or the Institution Specific Plans (ISP), she did have read access, and could draw on the planning information contained there. Mr. Schoenberger’s observation, based on assisting the grievor with the planning for the company H on-site interview, was that greater familiarity with the ISP ant the SPA would not have been successful in addressing the more basic difficulties the grievor had with the substance of the planning exercise and her understanding of the significance of various aspects of the plan. Although it was true that she was familiar from her time at the provincial agency with different systems, there was extensive online support for both Word and Outlook, and the grievor did not seem to use that support.

73 Mr. Schoenberger said that he also had serious concerns at that point about the grievor’s ability to foster positive relationships with the companies supervised by the RC 411 unit. He conceded that it is difficult to specify the attributes that go into a judgment about the employee’s suitability for the “relationship manager” role but said he did not feel that that responsibility could yet be given to her.

74 Following the meeting which Ms. Dhillon attended on November 22, 2006, the grievor was given a work plan (Exhibit E-15) to guide her until the end of January 2007. The plan was discussed with her on or about December 7, 2006. Mr. Schoenberger said that the work plan appeared to include many tasks, but he said that many of them had been started already and that some of them represented fairly routine monitoring work. He testified that, although the grievor had raised some concerns about her workload in December 2006 and January 2007, he felt that those issues had been resolved when her performance was being discussed in January 2007. When she testified, the grievor disagreed that the workload indicated in the work plan was reasonable. She said that, by that point, she felt that she had no choice but to accept it and that it was in any case a fait accompli when it was presented to her. In cross-examination, Mr. Schoenberger acknowledged that, over her time at the OSFI, the grievor had been given tasks associated with a fair number of different companies. However, he said that the number of institutions is not an accurate indicator of the amount of work involved. He thought that the workload assigned to the grievor was reasonable and that, by the end of her employment with the OSFI, it represented a lighter workload than would have been expected for an employee after 11 months.

75 The meeting described earlier in this decision held on January 22, 2007, was intended to assess the grievor’s progress at completing the work plan. It was held before the plan’s end date largely because Mr. Schoenberger was to be away later in January. The grievor was provided with a version of Exhibit E-19 that included the managers’ comments on various performance issues but that did not include her responses or the subsequent comments from managers. Those comments were added to the document after the meeting. In addition, before the meeting, the grievor was informed that an incident of being late for an on-site interview at company D would also be raised (Exhibit E-20). On January 10, 2007, an on-site meeting was scheduled for 09:00. The grievor did not arrive until 09:30, and rather than require her to start the meeting while she was still flustered, Mr. Schoenberger suggested a break until 09:40. He said that the grievor’s explanation for her lateness was that she had gotten lost and that heavy traffic had delayed her. Mr. Schoenberger felt that she should have allowed herself enough time to ensure that she would be on time, and he perceived her lateness as demonstrating a lack of professionalism. One reason he felt strongly about this was that he had discussed the importance of being on time with her the previous day and had offered her a copy of a MapQuest map to the location of the meeting, which she had declined. He agreed that others might not share his view of the importance of this event, but in his opinion, it was a significant indicator.

76 Mr. Schoenberger said that he saw his role and that of Mr. Lee as providing their assessments of the grievor’s performance. The ultimate decision to reject the grievor on probation would be made by more senior managers. He said that, as he saw it, the grievor had some strong assets, but overall she seemed to be a “bad fit” for the position, and he did not think that any further training or acquisition of technical knowledge would resolve the underlying performance issues. He said that the grievor provided good analysis of formal documentation but that she seemed to have difficulty going beyond that to providing intuitive and broad judgment, as required by the OSFI process. Mr. Schoenberger said that, in the exchanges he had with Mr. Lee, Ms. Lee and Ms. Dhillon in the period just before the grievor’s termination, they specifically discussed whether there were any other options that they could offer or steps that they could take that would allow the grievor to retain her employment.

77 The grievor’s representative asked Mr. Schoenberger whether the matrix management system made it excessively difficult for new employees because of competing demands from different managers and other employees. Mr. Schoenberger responded that he thought that any employee working in a professional setting would be expected to be able to set priorities and to decide how to reconcile competing demands.

78 The grievor testified on her own behalf. She had qualified as a chartered accountant in both Sri Lanka and the United Kingdom before moving to Canada. She subsequently obtained her Chartered Management Accountant designation, a Master’s of Business Administration and a certificate in Financial Risk Management. She worked for the provincial agency from 1989 until she started at the OSFI in 2006. While working at the provincial agency, she was involved in the “Futures” mentoring and leadership program.

79 She described her work as a principal examiner at the provincial agency, which involved assessing the solvency and regulatory compliance of insurance companies. Unlike the OSFI, the provincial agency did not require principal examiners to maintain the documents in the files; that was done by administrative support staff. The tabular format for risk assessment at the provincial agency was also different from the supervisory framework used at the OSFI.

80 In mid-2005, the grievor had a conversation with a friend who worked at the OSFI. She told him that she was somewhat dissatisfied with the direction of the provincial agency moving away from an emphasis on solvency examinations and towards a focus on market-conduct aspects of regulation. She felt that the solvency focus was more consistent with her accounting background. In October 2005, he suggested that she apply for a posted senior supervisor position in the FI Insurance Group at the OSFI. She was familiar with the work done by the OSFI because some of their data was transmitted to the provincial agency. In fact, she had applied for a position at the OSFI in 2003 but had not done well in the interview because she was not as familiar with deposit-taking institutions as she was with insurance. She applied for a position in 2005 and was first interviewed on November 23, 2005. Her recollection of the interview was that the questions were mostly aimed at ascertaining what knowledge she possessed; she did not recall any specific discussion of the nature of the duties at the OSFI. She thought that the interview went quite well and was called for a second interview on December 10, 2005.

81 The grievor stated that, when she was called for the second interview, she realized that she would have to make a decision about whether she would actually move to the OSFI. She discussed the matter with several of her good friends at the provincial agency, whose opinion was largely negative. They said that they had heard that the OSFI was not a good place to go because people were being laid off. She consulted a manager of the provincial agency who had worked at the OSFI and his advice was to stay at the provincial agency. The grievor said that the advice had made her slightly apprehensive, as she was the main breadwinner for her family. Nonetheless, she decided to go to the second interview.

82 The second interview touched on many of the same things covered in the first interview, but she was also asked to describe scenarios she had been involved in that would demonstrate her competence in various areas. She was somewhat reluctant to disclose information that she considered confidential, but she was convinced that confidentiality would be maintained and that the scenarios were only being requested as illustrations of her skills. At the end of the interview, when she was asked whether she had any questions, she forthrightly asked about what her colleagues had told her about the OSFI. She indicated that work-life balance was important to her and that she was responsible for driving one of her children to school. She described her family situation and said that she did not want to risk her position at the provincial agency if she could not be assured that she would have stable employment at the OSFI. The managing director, Mr. Baghel, said that there had been some restructuring at the OSFI that involved some layoffs but that the laid-off employees had been “well taken care of” and that there were no outstanding issues with those employees. He said that, with the grievor’s background and experience, they would not expect her to have any difficulty. She said that Mr. Baghel said that he was “100% sure” that she would not fail and that she would be able to “hit the ground running.” Those present at the interview also presented the OSFI as a “caring” employer providing a good environment for maintaining work-life balance. The grievor said that, again, there was little discussion of the specific duties that she would be performing at the OSFI, and she assumed that it would be similar to her work at the provincial agency. In cross-examination, she acknowledged that the interview panel had told her that the examinations were done in teams.

83 The grievor was offered a senior supervisor position on January 23, 2006. The grievor said that she saw the sentence in the letter of offer (Exhibit E-4) referring to the probationary period and that she thought about it carefully. She said that she thought that the issue had been “taken care of” in the second interview. She had raised the question of her prospects at the OSFI and had been assured by senior managers of the organization that she would have nothing to worry about. In cross-examination, the grievor said that she interpreted what Mr. Baghel said as an assurance of success and thought that it was a personal commitment on his part. She thought that she had demonstrated her qualifications and experience at the interview and that it would not be necessary to assess her performance further. For that reason, she attached no importance to the reference to the probationary period in the letter of offer. The grievor said that some of her colleagues at the provincial agency had suggested that she should consider taking a leave of absence while she tried out working at the OSFI, but she thought that that would be “dishonourable” and, in any case, after the interview, she was confident that all her concerns about her tenure of employment at the OSFI had been laid to rest. The grievor said that, if she had understood that there was a probationary period or that her future with the OSFI was not guaranteed, she would not have taken the risk of moving from the provincial agency.

84 The grievor began working at the OSFI on February 20, 2006, and she said that it started well. She met Ms. Dhillon, and Mr. Schoenberger and Ms. Liao showed her around and showed her how to access the computer system. Although she was not familiar with some of the aspects of the technology being used at the OSFI, she thought that she was doing quite well at becoming familiar with what Mr. Schoenberger expected and how the documents should be prepared. She attended a half-day course about the second phase of the CSWS and testified that she had “no clue” what it was about, since she had not been oriented to the first phase and had been at the OSFI only for a week. She thought that she would be able to learn the CSWS later on. Under cross-examination, the grievor said that she accessed the “tool kit” on the OSFINet only once or twice; although she was aware of it, she did not fully understand how to use it. Under cross-examination, she said that, at the time of the three-month review, someone suggested that she could find something in the tool kit, and she telephoned Mr. Baghel to ask how she could find it. The grievor said that she was able to retrieve documents from the EDMS and that she would then work on them on her own C drive and return them to the EDMS. Although she did not initially understand that she was expected to place the documents in the CSWS, it was made clear to her that, when she was sending the documents to managers, she should “drag them through CSWS.” She said that she thought this was a waste of time and that she could not see the logic of it.

85 In mid-April 2006, while she was working on files assigned to her by Mr. Schoenberger, the grievor was informed that she was to accompany Ms. Liao on an on-site interview of which she had no prior notice; she indicated that this was only one example of a situation where she was not allowed sufficient time to prepare. She was also told that Mr. Lee was the manager overseeing the file. She did not understand that, because the matrix management system had not been explained to her. She was working on some monitoring notes assigned to her by Mr. Schoenberger, and she finished those before turning to the material Ms. Liao gave her concerning the on-site interview. At a meeting before the on-site visit at which colleagues from another division were present, she found it necessary to explain something Mr. Lee seemed to be having difficulty understanding. She was uneasy about doing so, as she thought that Mr. Lee might become upset about having her do so in front of people from outside the RC 411 unit. The grievor said that she was not adequately informed about what she was expected to do at the on-site interview and that she did not understand why she received the material from Ms. Liao.

86 With respect to the on-site meeting itself, the grievor said that she had attended a lot of similar meetings and that it was not her practice to devote a great deal of time beforehand to preparation, as the situation might change by the time of the meeting. In this case, some of the participants in the meeting were participating by telephone, and Ms. Liao was sitting closer to the telephone than the grievor. When the point in the meeting came where the questions assigned to the grievor came up, she indicated that Ms. Liao should continue conducting the interview, as it was more convenient given Ms. Liao’s proximity to the telephone. She did not anticipate that Mr. Lee would interpret it as demonstrating that she was unwilling to participate or that she was being “unprofessional.” She asked a question at one point. Mr. Lee later described the question as “confusing” because the company representatives were somewhat slow to respond. The grievor thought their delay meant only that they were thinking carefully about how to respond. She took exception to Mr. Lee’s description of some of the things she said as “jargon” as she felt that she was using terms quite well understood in the industry.

87 The grievor denied that she overstated her role about completing documents and planning and carrying out on-site interviews. For example, Ms. Liao sent her a copy of the documentation for the on-site interview referred to in the previous paragraph, and the grievor commented extensively on it, which resulted in changes to the final RAS. The grievor said that she was upset when Mr. Lee commented on her overstated role as part of the three-month review, and she made the effort to correct the impression with both Ms. Dhillon and Ms. Lee. The grievor stated that she did not, contrary to what the managers had stated (Exhibit E-12), receive “close guidance” from Ms. Liao. In fact, her own view was that she had a better understanding of the insurance industry than Ms. Liao, and she had performed extensive work on the documentation related to the on-site interviews of companies S and G.

88 The grievor said that her relationship with Mr. Schoenberger was initially quite good and that he gave her quite a lot of positive feedback. After she did work with Mr. Lee and Ms. Liao, she began receiving more negative comments, and was surprised and distressed by the comments made in the three-month review. She felt that the comments were unfair and that her work was actually progressing quite well. She felt that she was developing good links with the companies whose files she was working on. As examples, she produced email exchanges with some of the company representatives for whom she had provided information and advice (Exhibit U-3). She said that the negative comments that were made about her, starting with the three-month review, undermined her confidence.

89 The grievor disputed the comments in the documents assessing her performance and in the employer witnesses’ testimonies that she had been given significant advice and guidance during her time at the OSFI. She said that she received almost no help from the managers or from her fellow employees. She did not feel that Ms. Liao, who was assigned as her “buddy,” had the knowledge or experience to help her, and she did not agree that the work that she was given was “routine” or straightforward. She said that, although she adhered to the practice suggested by Mr. Schoenberger of sending him an email every Friday about her progress on her work plan (examples of her emails were included in Exhibit E-40), she rarely received any helpful feedback. After the meeting on January 22, 2007, she sent the message in Exhibit E-17 expressing gratitude for the help that she had received. She said that she sent it because she was hoping that she could improve her relationship with Ms. Dhillon and the two managers. In fact, she felt that their comments were unfair and ill-founded, and she did not feel that they had provided any help at all.

90 The grievor acknowledged that transition was necessary from the way things were done at the provincial agency to the systems at the OSFI and that she had made some errors when she was working on the OSFI documents. However, she said that she saw these as “administrative errors,” the significance of which had been overblown, and that her basic analysis was strong. For example, she said that in January 2007, it was brought to her attention that the documentation for three out of five companies had not been moved properly into the CSWS system. She thought that a “minor downloading issue” had been turned into a concern about the substantive quality of her performance. She followed nearly all the suggestions for changes that were made to her, even when she disagreed with them. For example, with respect to the comments that Mr. Schoenberger made about her planning documents for company H, she saw much of what he said as based on personal preference rather than any basic flaws in her work. She tried to ascertain Mr. Schoenberger’s expectations and to work in a way that would satisfy his expectations. She thought that many of the criticisms made of her in the performance review process referred to petty details and administrative technicalities rather than to the substance of her work. Although her relationship with Mr. Schoenberger was generally good, he did not provide her with much specific assistance, and she felt that he was under pressure to make a negative evaluation of her performance. Although she was criticized for not showing a proper spirit of “teamwork,” she often felt that other members of the unit ignored her requests for help or information. She felt isolated, partly because of the location of her cubicle away from the stations of her colleagues but also because she had difficulty getting guidance from the others.

91 When the January 22, 2007 meeting was held, the grievor said that she had completed a number of tasks set out in the work plan and that she had received a fairly positive response from Mr. Schoenberger. She did not expect the kind of harsh criticism conveyed to her at the meeting. She said that when she tried to tell Ms. Dhillon at the end of the meeting that she had not had a chance to counter all the criticisms, Ms. Dhillon said “I don’t care.” She nonetheless emailed Ms. Dhillon outlining her responses, but Ms. Dhillon merely replied that she did not think it was appropriate to respond because of the meeting scheduled between the grievor and Ms. Lee for February 13, 2007 (Exhibit E-20). The grievor said that she was not expecting to be terminated before she had a chance to layout her case before Ms. Lee and that she thought it was unfair.

IV. Summary of the arguments

A. For the OSFI

92 Counsel for the OSFI argued that I do not have jurisdiction to consider this grievance. The OSFI was able to show that there was a legitimate employment-related reason for the decision to reject the grievor on probation, and the grievor did not meet the burden of showing that the decision was a sham or camouflage. Counsel for the OSFI conceded that an allegation that the decision was a “sham or camouflage” or that it was made in bad faith or as part of an abusive exercise of authority does create an avenue for challenging the decision at adjudication but urged that the scope of this option be considered in the context of observations made by adjudicators and the courts.

93 In Boyce v. Treasury Board (Department of National Defence), 2004 PSSRB 39, an adjudicator described as follows, at paragraphs 50, 54 and 55, the requirements of an employer defending a decision to dismiss a probationary employee:

[50]    The jurisdiction of this Board on cases of rejection on probation is significantly circumscribed by legislation and the decisions of the Federal Court. The end result is that employees rejected on probation have a very high threshold to meet in order to overturn the employer’s decision. Conversely, the employer’s threshold is relatively low to justify a rejection on probation.

…

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

…

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

[55] Once the employer has discharged its burden of demonstrating that the rejection was for an employment-related reason, the burden of proof then shifts to the grievor to demonstrate that the employer’s actions are in fact “a sham or a camouflage” or in bad faith and therefore not in accordance with subsection 28(2) of the PSEA…

94 Counsel for the OSFI referred as well to Owens v. Treasury Board (Royal Canadian Mounted Police), 2003 PSSRB 33, to emphasize the difficult burden shouldered by a probationary employee challenging a decision to terminate him or her.

95 Counsel for the OSFI stressed that the jurisdiction of an adjudicator in this type of case is severely limited and that it does not, for example, permit the adjudicator to assess the merits of the performance appraisal on which the decision to terminate is based. In Spurrell v. Office of the Superintendent of Financial Institutions, 2003 PSSRB 15, an adjudicator made that point, although he then proceeded to make editorial comment about the desirability of making the performance appraisal process more systematic and transparent. Counsel for the OSFI argued that, in this case, even these obiter dicta are not applicable because of the clarity and fairness of the appraisal process in the case of the grievor. In Bahniuk v. Canada Revenue Agency, 2005 PSLRB 177, an adjudicator stated the following at paragraphs 63 and 65:

[63] As noted above, I ruled at the hearing that the scope of my jurisdiction was a narrow one. My jurisdiction is limited to the collective agreement and does not extend to evaluating the performance appraisal itself. In my view, my jurisdiction is limited to determining if the employer acted in bad faith in denying Mr. Bahniuk performance management leave. Bad faith, in this context, would mean that the employer had no basis for its assessment of Mr. Bahniuk’s performance. Whether Mr. Bahniuk deserved the rating he received is not a matter within my jurisdiction. The role of an adjudicator in cases such as these will always be an extremely limited one.

…

[65] In the context of a rejection on probation, the adjudicator in McMorrow (supra) defined bad faith as a decision that was “capricious and arbitrary, without regard to the facts”. In order to find bad faith in the withholding of an entitlement in the collective agreement, Mr. Bahniuk therefore needs to show that there was no basis for the rating of “does not meet” in his performance appraisal. The evidence shows that there was a basis for this rating…

96 Counsel for the OSFI denied that the OSFI had demonstrated bad faith or that it was guilty of abuse of authority in the decision to dismiss the grievor. When the grievor was hired, there was an expectation that, based on her lengthy experience with the provincial agency, she would be able to make the transition to the OSFI swiftly and that she would be able, in short order, to operate at a high level of professional competence in a busy and demanding environment. Instead, from the OSFI’s point of view, she struggled with routine administrative tasks and failed to demonstrate the kind of decisiveness, efficiency and accurate judgment necessary to carry out the tasks associated with the position. In the end, the OSFI concluded that it was unlikely that she would make timely progress towards developing those attributes, and made the decision to terminate her employment. The decision was based on legitimate employment-related concerns. The OSFI did not make this judgment precipitately but in a measured way and allowed the grievor many opportunities to demonstrate that she was making satisfactory progress and that she would continue to do so.

97 Counsel for the OSFI cited Bratrud v. Office of the Superintendent of Financial Institutions, 2006 PSLRB 63, as supporting the OSFI’s position concerning the nature of abuse of authority in the context of assessing an employee’s performance. The adjudicator in that case described the concept of abuse of authority as follows at paragraph 79, drawing on a Treasury Board policy similar in its terms to the comparable policy of the OSFI:

…

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.

The adjudicator cautioned that care should be taken about complaints concerning performance appraisals, writing as follows at paragraph 75:

[75] … 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 … 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…

Although the adjudicator concluded that there might be cases of abuse of authority where it would not be necessary to demonstrate intent, in the context of performance appraisals the idea of abuse of authority carries with it the notion of some “ulterior motive.” At paragraph 84, the adjudicator noted as follows:

[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…

B. For the grievor

98 The grievor’s representative submitted that, although access to adjudication for employees rejected on probation is limited, an employer’s right to release a probationary employee is not unfettered. In Leonarduzzi, an adjudicator held that the employer must be able to demonstrate that there is a legitimate employment-related basis for the decision to terminate a probationary employee. The adjudicator commented as follows:

…

Acceding to the employer’s submissions would open the door to decisions which may be entirely arbitrary, based on irrelevant considerations, and possibly without a scintilla of legitimacy. It should be kept in mind that it is the employer who is uniquely in a position to know why it took the decision 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 reasons behind the decision, and thereby assume an almost impossible burden in seeking to demonstrate bad faith.

…

The adjudicator went on to say that, once the employer has demonstrated an employment-related reason for the termination, the onus shifts to the employee to demonstrate that “… the employer’s actions are in fact a sham or a camouflage … ” of some less-legitimate motive.

99 The grievor’s representative also referred to Dhaliwal v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 109, where an adjudicator commented at paragraph 83, as follows:

[83]    It is clear to me that the Federal Court recognizes the employer’s authority to reject an employee on probation for an employment-related reason. That authority alone allows the employer to terminate the livelihood of an employee, which can have enormous consequences. This authority requires the employer to act in good faith when making such a decision…

100 The grievor’s representative argued that both bad faith and abuse of authority characterized the decision to dismiss the grievor. With respect to abuse of authority, he alluded to the comments in Tibbs v. Deputy Minister of National Defence et al., 2006 PSST 0008, concerning the scope of this concept. The Public Service Staffing Tribunal found as follows that abuse of authority goes beyond bad faith or personal favouritism and does not require proof of intent to be established:

…

Jones & de Villars, supra at 169 have categorized abuse: the first type requires improper intention; in the other types, there may be situations where a delegate acted in good faith, but still will have abused his or her discretionary power.

…

The grievor’s representative stated that there were many instances of abuse of authority in that sense in the dealings the OSFI had with the grievor. As he put it in his written submissions, “[t]he employer failed to show proper diligence, care, sensitivity and regard for Ms. Raveendran’s circumstances.” In failing to provide her with sufficient information about the workplace and work processes, not responding to her concerns, giving her inconsistent feedback about her performance, being inaccessible to her, and brushing off the issues that she raised, the managers in the FI Insurance Group may not have been intending to cause damage to the grievor, but they were nonetheless abusing their authority through inattention and callousness.

101 Furthermore, the grievor’s representative argued, the OSFI acted in bad faith. The importance of good faith was stressed in Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), at 440, as follows:

…

A camouflage to deprive a person of a protection given by statute is hardly tolerable. In fact, we there approach the most fundamental legal requirement for any form of activity to be defended at law, which is good faith…

…

102 At paragraph 95 of Dhaliwal, the adjudicator turned to The Encyclopaedia of Words and Phrases, Legal Maxims, 4th ed., 47th Cumulative Supplement (March 2004), Volume 2, for the following discussion of what constitutes good faith:

The obligation of good faith and fair dealing (which is incumbent on an employer in relation to the dismissal of an employee without cause) is incapable of precise definition. However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, misleading or overly insensitive.

[Emphasis in Dhaliwal]

103 Again, the grievor’s representative stated that there were numerous examples of bad faith in the OSFI’s treatment of the grievor. Her managers wilfully misunderstood her explanations. For example, on the occasion where a chief agent called the OSFI to complain that the grievor was proposing to call the agent’s head office, the managers did not give her a chance to explain her side of the incident. With that example and others, such as the one instance of lateness to an on-site meeting, and the fact that she kept her eyes closed during another on-site meeting, the managers blew the incidents all out of proportion and continued to include them in subsequent assessments of the grievor’s performance. Towards the end of her time at the OSFI, the managers created an unrealistic work plan for her and then expressed disappointment that she was unable to achieve it. They looked for mistakes she made or examples of her shortcomings rather than giving appropriate weight to the positive aspects of her performance.

104 The grievor’s representative further argued that the statements made by the OSFI representatives during the course of the second job interview constituted negligent misrepresentations concerning the stability of employment being offered at OSFI, and that the grievor relied on these misrepresentations to her detriment. The grievor’s representative cited the decision of the Supreme Court of Canada in Queen v. Cognos Inc., [1993] 1 S.C.R. 87, in support of the proposition that such a claim with respect to negligence is distinct from claims grounded in the contract itself. He argued that the OSFI representatives, in particular Mr. Bhagel, had effectively guaranteed that she would have permanent employment at the OSFI, and this was a powerful factor in her decision to accept the offer of employment.

V. Reasons

105 In Jacmain v. Attorney General (Can.) et al., [1978] 2 S.C.R. 15, at 36-37, the Supreme Court of Canada opened the door to the possibility that a rejection on probation could be challenged on the grounds of bad faith:

…

The Court of Appeal held, when the case came before it, that the adjudicator did not have jurisdiction to weigh the cause of rejection, once it was established that this cause was not frivolous and that the rejection was not for reasons based on anything other than good faith…

…

106 In Penner, at page 441, the Federal Court of Appeal confirmed the limited nature of the adjudicator’s role in a case of rejection on probation as follows:

…

The basic conclusion of the Jacmain judgment, as I read it, is that an adjudicator appointed under the P.S.S.R. Act is not concerned with a rejection on probation, as soon as there is evidence satisfactory to him that the employer’s representatives have acted, in good faith, on the ground that they were dissatisfied with the suitability of the employee for the position…

…

107 The representatives of both the OSFI and the grievor in this case are in apparent agreement on many of the legal principles pertaining to this type of case, and they have cited a number of cases setting out those principles. The cases describe the process by which such cases should be determined. The employer must demonstrate that the decision to reject an employee on probation is based on an employment-related reason, and then the onus shifts to the grievor to show that the decision was not what it seems and that it was actuated by bad faith, that it was a sham or camouflage. The cited cases stress that this places a difficult burden on the employee and that it also places strict limits on the role of the adjudicator. The adjudicator must be persuaded that the employer acted in bad faith; otherwise the adjudicator does not have jurisdiction to inquire into the nature of the decision to dismiss the employee or into how it was made.

108 If the parties basically agree about the restrictions on access to adjudication in this type of cases and on what they must respectively show, they do not agree about the significance of the evidence. The grievor’s representative painted a picture of an employee who, almost from the time she arrived at the OSFI, was treated unfairly. According to the scenario, she was not given sufficient information or guidance to allow her to perform her duties. Her minor errors were magnified, her managers never forgot them and her extensive professional experience was never respected.

109 For the OSFI, on the other hand, counsel attempted to demonstrate that the managers at the OSFI had reason to be profoundly disappointed with the grievor’s performance and grounds to conclude that she would be unable to meet their expectations. Although they assigned her less-complicated tasks after she transferred from the provincial agency to permit her to transition to the OSFI’s way of doing things, they expected her to master the changes in process, structure and technology within a fairly short time. Their projection was that she would be able, within the probationary period, to take on the responsibilities of a “relationship manager,” someone who could assume full responsibility for maintaining the relationship between the OSFI and a group of financial institutions. All senior supervisors as well as the managers were expected to play that role for a number of institutions. Instead, they concluded that she was not able to take on the role, and that it was unlikely that she would be able to within a reasonable period.

110 The evidence called by the parties related to a very large number of interactions between the grievor and her superiors and co-workers at the OSFI. In their written submissions, the representatives of the parties further explored the nuances of many of those interactions. From this extensive evidence and argument, it is possible for me to draw some conclusions about the factual context in which the decision to dismiss the grievor was made.

111 I should note at the outset that there is no question that her rejection on probation was a devastating blow to the grievor. As the main breadwinner for her family, she regarded stable and reasonably remunerative employment as vital. In addition, she obviously had derived a great deal of professional satisfaction from her previous job at the provincial agency, and is proud of the qualifications and attainments she gained throughout her career.

112 The evidence presented at the hearing indicates that, almost from the beginning of her time at the OSFI, the grievor had difficulty adjusting to the new environment. Everything seems to have been a struggle, from the use of the technological systems to understanding the workflow patterns to grasping the expectations that her supervisors had of her. For reasons that are not obvious, she did not develop connections at a personal level with co-workers and remained somewhat isolated. In part, it resulted from the physical separation between her workstation and those of other employees. She had a relatively good relationship for much of her time at the OSFI with her substantive supervisor, Mr. Schoenberger, and also with the director, Ms. Dhillon, but she had difficulty relating to Mr. Lee. Her own testimony indicated that she did not have much respect for him.

113 In disposing of the part of the grievance concerning the rejection on probation, it is necessary to examine the two central questions discussed earlier: whether the OSFI has succeeded in showing that legitimate employment-related issues were the basis for the decision to reject the grievor on probation and whether the grievor has succeeded in showing that the decision was not based on those reasons but arose from bad faith.

114 Both the witnesses called by the OSFI and the grievor herself described the working environment in the FI Insurance Group. It is clear that this unit plays a significant role in the legislative scheme established by Parliament for the regulation of financial institutions. The relatively few employees in the RC 411 unit deal with tasks that are demanding and often sensitive. They are recruited to bring a range of expertise that can be deployed through the composition of various teams to address specific regulatory issues or the needs of particular institutions. In the grievor’s case, it was thought that her extensive experience with regulation at the provincial level, her advanced accounting qualifications and her extensive knowledge of the insurance industry would allow her to make a distinctive contribution to the work of the unit. The senior supervisors in the unit are expected to perform many of their duties autonomously and using their professional judgment. On the other hand, they are also expected to be effective team members and to collaborate with others. The workload is heavy and the work is demanding, but the employees in the unit are expected to be able to cope with these demands because of their advanced professional training and their experience.

115 The premise that the senior supervisors are all professional employees who can operate in highly autonomous way helps to explain the nature of the assistance provided to new employees like the grievor. In addition to specific training programs, extensive resources are made available online through the OSFINet. These resources included templates, commentary, statutory materials, the “supervisory framework” (setting out the master structure for the risk assessment process), checklists, updates and bulletins, and links to further materials. The grievor attended some of the formal training programs offered. However, for reasons that are not clear she did not use the resources available on the OSFINet, although Mr. Schoenberger introduced her to it when she first arrived.

116 Although the senior supervisors are expected to exhibit a high level of self-sufficiency, it is also regarded as critical by the OSFI that they operate as effective team members and that they adhere to the required practices for amending and maintaining documentation. The latter is particularly important because more than one member of the RC 411 unit might be working on the same or related documentation, and the two managers, Mr. Schoenberger and Mr. Lee, have to be able to monitor the documentation at all times to exercise effective oversight of the unit’s complete portfolio. The witnesses called by the OSFI gave examples to demonstrate the grievor’s inability or unwillingness to comply with the authorized practices for working on or storing documents. She did not seem able to understand the difference — and the importance of the difference — between the CSWS, designed to keep track of who is working on or changing documents at any given time, and the EDMS, designed for document storage. Her explanation was that she had not had responsibility in her previous job at the provincial agency for the actual completion of documents on an electronic system — she had provided input to administrative personnel who had completed the electronic documents — but the OSFI concluded that she should have been making more progress in learning how to use the systems more effectively. The managers tried to impress on her the difficulties that arose from not being able to find her documents, rely on their accuracy or identify the changes that had been made; they concluded over time that her ability to handle the systems was not improving.

117 The grievor also had difficulty with more routine technological tasks like using email, the word-processing system and the Outlook facility for organizing meetings. The OSFI’s witnesses conceded that they would expect an employee who moved from a WordPerfect environment to one where Word was used or from another email system to Outlook, to need some orientation to new software. However, they expected that it would be fairly straightforward and that the grievor would not still be grappling with it some months into the probationary period.

118 The OSFI’s witnesses also expressed concern about the grievor’s ability to set priorities and to use her time effectively. In their view, she seemed to be unable to juggle a number of responsibilities, even when the assignments were chosen for their lack of complexity. Once she was assigned a task, she seemed resistant to becoming involved in something else, even if a manager suggested to her that it was of a higher priority than the task she was already engaged in.

119 However, the most serious concern expressed by the OSFI was that it developed increasing doubt about the grievor’s fundamental professional judgment. The managers said that, although she did have extensive knowledge of the insurance industry and they respected her experience, her judgments about some issues raised questions for them about whether she had the capacity to grow into an effective senior supervisor in the OSFI environment.

120  I have concluded that the reasons cited by the employer for rejecting the grievor’s on probation were employment-related and that the employer has met its onus at the first step of considering the jurisdictional issue.

121 In her testimony, the grievor said that she felt that the entire process of assessing her after she started working at the OSFI was unfair and unnecessary. She said that her qualifications and competence had been evaluated during the interview process and that no further appraisal of her professional competence was required. She further felt she had been given assurances to that effect in the second interview, particularly from Mr. Baghel.

122 A probationary period is required by section 61 of the Public Service Employment Act (“the PSEA”) for any employee appointed from outside the federal public service. When that appointment is made to a separate agency, the agency determines the length of the probationary period. The grievor’s 12-month probationary period was specified in the letter of offer sent to her, although I accept that she may not have appreciated the significance of it at the time.

123 In any case, requiring a new employee to undergo a probationary period is common practice and protects a legitimate employer interest in ensuring that the employee can adequately perform the duties required in the new position and that the employee will be a “good fit” in the job. Although it is now of some age, the statement of this rationale in Porcupine Area Ambulance Service v. Canadian Union of Public Employees, Local 1484 (1974), 7 L.A.C. (2d) 182, at 185, is still pertinent:

…

… [O]ne must also recognise the legitimate interests of the employer in attempting to secure the most competent, compatible and suitable work force it can acquire. One cannot reasonably expect an employer to be able to assess the full capabilities and potentiality of a job applicant from a brief interview, an application form, references and the like. Rather he must be entitled to an opportunity to view the new hire in the particular context of his own work environment. That is the sole purpose of the probationary period. It is, as we have said, a legitimate purpose.

…

124 Thus it is acceptable for an employer to scrutinize the work of an employee carefully during the probationary period and to make an assessment not only of “administrative” issues — which the grievor conceded were subject to evaluation — but also of whether the employee’s core skills and capabilities suggest that he or she will be able to perform the duties of the position effectively on a permanent basis. The fact that the grievor had communicated her concerns about the stability of her situation at the OSFI did not place an obligation on the OSFI to waive the probationary period, which it could not do in any case under the PSEA, or to make the probationary period a perfunctory or pro forma exercise. It is unfortunate indeed that she misinterpreted what was said to her in the second interview, but her misunderstanding does not render the OSFI’s insistence on assessing her performance harassing or abusive. 

125 With respect to the argument that negligent misrepresentations were made to the grievor in the course of the second job interview, I do not find it necessary to determine how the concept of “wrongful hiring” set out in Cognos Inc. might fit in the context of this proceeding, as I have concluded that, even if a claim based on negligent misrepresentation could be considered, none of the statements made in the course of the interview amounted to negligent misrepresentations. Even as described by the grievor, they did not amount to a guarantee of permanent employment, but were at most assurances that most professional employees of OSFI enjoyed stable careers, and assertions that someone of her apparent calibre could expect to do well. It is clear from the testimony of the grievor that she did not grasp the distinction between layoffs — the issue brought to her attention by her concerned colleagues in the provincial agency — and decisions based on the assessment of performance. Those conducting the interview could not reasonably have been expected to perceive that the grievor regarded performance review as irrelevant in her circumstances, since there was no evident ground on which she could draw that conclusion.

126 This leaves the question of whether the grievor has been able to demonstrate that the decision to dismiss her was made in bad faith or was a sham or camouflage. The grievor’s representative cited numerous examples of interactions between the grievor and the OSFI that, he argued, had those characteristics. With respect to the bad faith argument, the grievor’s representative argued that the grievor’s superiors exaggerated trivial occurrences, dwelt on them for long periods of time, denied her opportunities to explain or defend herself, were alert to identifying negative aspects of her performance, and paid little attention to the positive things that she accomplished. Indeed, he intimated that the managers on occasion tried to trip her up. He argued that her performance assessments were “… deliberately harsh and uncaring and finally misleading.”

127 With respect to the allegation of abuse of authority in violation of the collective agreement, the grievor’s representative said that the grievor’s superiors did not communicate clearly or adequately to the grievor what she was required to do and how to improve her performance, that they did not note her efforts to improve, that they included in her assessment issues that were trivial or irrelevant, and that their entire approach to the grievor was unreasonable and did not give her a chance to succeed.

128 The grievor’s representative made those arguments not only about the managers, Mr. Lee and Mr. Schoenberger, but also about Ms. Dhillon. For example, the grievor’s representative pointed to the exchanges between the grievor and Ms. Dhillon concerning the grievor’s problems accounting for her time in the TRS, briefly described in paragraphs 42 and 43 of this decision. He argued that the tone of Ms. Dhillon’s communications with the grievor was hostile and angry and that it was impossible for the grievor to succeed in such an atmosphere.

129 The extensive and detailed evidence in this case makes it clear that the grievor was not comfortable or happy in her position at the OSFI. She did not develop close working relationships with her co-workers and was particularly ill at ease in her dealings with Mr. Lee. She had a fairly cordial relationship with Mr. Schoenberger and with Ms. Dhillon for much of her time at the OSFI. However, Mr. Schoenberger was unable to devote extensive time to mentoring her because of his own responsibilities, and Ms. Dhillon did not ordinarily get much involved in the day-to-day work of individual employees. The evidence also shows that the two managers and Ms. Dhillon became increasingly critical over time of the grievor’s performance and that they expressed it in more and more pointed terms. The question is whether their attitude to the grievor crossed the boundary between a reasonable and professional assessment of the grievor’s performance and malice or abusiveness.

130 I have concluded that the grievor has not met the difficult burden of showing that the OSFI was abusing its authority when the decision to reject her on probation was made. It is true that increasing exasperation and frustration was evident in the communications from Mr. Lee, Mr. Schoenberger and Ms. Dhillon. This impatience is indeed obvious in the communications from Ms. Dhillon to the grievor concerning the TRS issue.

131 At the same time, all the communications concerned particular performance issues, many of which had been the subject of previous exchanges. In the case of the TRS issue, for example, it must be recalled that Ms. Dhillon was not usually drawn into dealing with a detail of this kind concerning an employee. It must also be recalled that the issue did not arise until the grievor had been at the OSFI for eight months, by which time it was perhaps reasonable of Ms. Dhillon to assume that the grievor would be more at ease with the mundane technical requirements of the job.

132 It is evident that the grievor found it difficult to get what she would consider sufficient attention from her superiors, especially Mr. Schoenberger. A different mentoring approach from Mr. Schoenberger and Mr. Lee might have produced different results with the grievor, but the approach taken to guiding the grievor during her probationary period must be assessed in the particular context of the FI Insurance Group. All the employees there, including the managers, were busy professional people, with extensive responsibilities for their own work. The OSFI had made available to the grievor a large body of electronic resources, including the supervisory tool kit and tutorial resources concerning the electronic systems like the EDMS and the CSWS. It was reasonable to expect her to gather much of the “mentoring” she needed from that source and to supplement that if necessary by questions to her supervisors.

133 Instead of setting about mastering the basic skills that she would need to function at the OSFI, the grievor viewed many of the technical requirements as irksome, trivial or a waste of time. Because of her lengthy experience at the provincial agency, it is understandable that she thought that she could focus on the substantive aspects of the risk assessment process, but that strategy did not really serve her well in a work environment where the technical requirements of form and process were viewed as vital to maintaining coherent and up-to-date documentation.

134 The grievor’s performance assessments were in many ways harsh and became more so as time went on. Since she did not expect this, it is not surprising that she saw them as shocking and unfair. However, an employer must be able to comment candidly on deficiencies in performance and to be clear about the implications of a negative assessment. The grievor’s representative made much of the fact that the assessments were consistently negative and interpreted that as signifying that the OSFI was never willing to give the grievor a chance. However, it would be equally problematic if an employer were to give an employee no advance warning that his or her performance level might have a negative impact on future prospects.

135 Although the grievor did not find the atmosphere congenial, I find that the evidence does not demonstrate that the OSFI exceeded the reasonable bounds of legitimate assessment. Numerous performance issues were brought to the grievor’s attention, she was given many opportunities to respond and to discuss her performance with her superiors, and suggestions were made as to how she could meet the job’s expectations. I have no reason to doubt that the grievor felt increasingly inhibited and under attack, but objectively speaking, her superiors’ actions were taken in good faith and without abusing their authority.

136 In this respect, the case involving the grievor can clearly be distinguished from Dhaliwal, where the decision to reject on probation was made in a quite offhand way, without obtaining all of the relevant facts or addressing any attention to Mr. Dhaliwal’s particular circumstances.

137 Because I have found that the grievor has not satisfied the burden of showing bad faith or abuse of authority, it follows that I do not have jurisdiction to consider the merits of the decision to reject the grievor on probation.

138 For all of the above reasons, I make the following order:

VI. Order

139 The grievance is dismissed.

September 30, 2009.

Beth Bilson,
adjudicator