FPSLREB Decisions

I. Individual grievances referred to adjudication

1 On June 22, 2007, the Correctional Service of Canada (“the employer” or CSC) hired the grievor, Éric Rousseau, for a Correctional Officer I (CX-01) position at Drummond Institution. He was covered by the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (expiry date: May 31, 2010) (“the bargaining agent”). As for any new correctional officer, Mr. Rousseau was on probation for 12 months.

2 Mr. Rousseau filed grievances in response to two decisions made by the employer, which were a written reprimand and his rejection while on probation.

3 On January 28, 2008, the employer issued a written reprimand to Mr. Rousseau alleging that, on November 24, 2007, he failed to conduct security patrols and that, on January 11, 2008, he did not conduct a security patrol in a timely fashion as required by relevant directives. On February 12, 2008, Mr. Rousseau filed a grievance challenging the reprimand. In a letter to the Public Service Labour Relations Board (“the Board”) dated January 9, 2009, the employer objected to an adjudicator’s jurisdiction on the grounds that a written reprimand is not one of the adjudicable matters set out in section 209 of the Public Service Labour Relations Act (“the Act”). In a letter to the Board dated February 4, 2009, Mr. Rousseau’s counsel acknowledged that the objection was well founded, and that, therefore, the grievance required no further action.

4 On February 20, 2008, while Mr. Rousseau was still on probation, the employer terminated his employment on the grounds that he did not possess the abilities required of a correctional officer. Linda Boily, Warden, Drummond Institution, signed the letter of dismissal and set out as follows the reasons for her decision:

[Translation]

…

As indicated in your job offer, you were subjected to a one-year probation period as of the date of your initial appointment, June 28, 2007. One of the purposes of a probationary period is to enable the employer to determine whether the appointee is capable of performing the duties of the position to which he or she is appointed.

On that point, I have concluded that you do not possess the abilities required for the position. Your actions and attitudes have indicated to us shortcomings in your ability to abide by statutes, regulations and the commissioner’s directives, as well as the CSC’s Code of Discipline and Standards of Professional Conduct. Since your appointment, you were found dozing during a shift, you were remiss in the performance of your duties, notably failing to conduct security rounds as required by post orders, and some of your co-workers have complained of your behaviour toward them, including allegedly making sexist comments.

You completed a 13-week training program at the Staff College in addition to a 2-week institutional training program to provide you with in-depth knowledge of the duties and requirements of the correctional officer position. Furthermore, you met with your supervisor on October 25, 2007 with a view to improving your conduct and performance. At that meeting, your supervisor clearly set out the employer’s expectations that you were required to meet.

In my opinion, the event that occurred last January 22 at Dr. Sorel’s clinic clearly demonstrates your inability to perform the duties of a correctional officer position. During that escort assignment, you showed negligence by dozing off while seated on a chair and in possession of a weapon at the clinic and by reading a magazine instead of providing active security and keeping the inmate and your fellow officer in sight as you were required to do. Such negligence is liable to tarnish the CSC’s image. It could also have jeopardized your safety, that of your fellow officer and that of the general public.

Despite the training you received and the benefit of clear direction on expected performance standards, you were unable to comply with mandatory procedures and rules in performing your duties. Therefore, I regret to inform you that you do not possess all the qualities required of our correctional officers.

Consequently, by the powers delegated to me under section 24 of the Public Service Employment Act, I have decided to terminate your employment during your probationary period, in accordance with section 62 of that Act.

…

5 On February 29, 2008, Mr. Rousseau’s bargaining agent filed the following grievance challenging his dismissal:

[Translation]

…

The UCCO/SACC-CSN union, Drummond Section, and Mr. Rousseau challenge in fact and in law Mr. Rousseau’s unfair, arbitrary and expedited dismissal, of which he was notified by Ms. Linda Boily, Warden of Drummond Institution and employer representative, last February 20.

The union and the complainant deplore the fact that his dismissal appears to have been artfully prepared, since management was scheduled to meet with the employee to hear his views on an investigation report dealing with his conduct, as stated in Ms. Boily’s notice of meeting to the complainant dated last February 15. However, the sole purpose of the meeting was to dismiss Mr. Rousseau, as a result of which he was denied justice and deprived of a full and complete defence, contrary to a basic principle of justice.

The union also questions management’s good faith in view of its refusal to discuss the complainant’s case at a meeting of the grievance committee held last February 12, as well as its refusal to meet with us on short but reasonable notice, given the urgency of the situation. Had management agreed to our request, the situation could have been clarified. Our allegations at the time of filing the complainant’s first grievance on February 13 are thus borne out.

The union maintains that the failings ascribed to the complainant in no way warrant his discharge.

…

6 The grievance was referred to adjudication on May 6, 2008. On January 21, 2009, the employer raised an objection to an adjudicator’s jurisdiction to hear Mr. Rousseau’s grievance. The employer held that, under section 211 of the Act, rejection while on probation under section 62 of the Public Service Employment Act (“the PSEA”) is not adjudicable.

7 At the outset of the hearing, the employer reiterated its objection to my jurisdiction. After hearing the parties’ representations on the matter, I decided to take the objection under reserve and to hear the evidence on the merits.

8 The employer called three witnesses: Ms. Boily, Warden, Drummond Institution, Ms. Jo-Ann Dufour, Assistant Director of Operations, and Jacques Gauvreau, Correctional Manager. Mr. Rousseau and his bargaining agent representative, Gaétan Roy, testified for the defence.

II. Summary of the evidence

9 Drummond Institution is a medium-security federal penitentiary, and about 160 correctional officers work there. The prison environment has a highly formal hierarchy. Drummond Institution’s correctional officers report to 13 correctional managers who, in turn, report to the assistant warden. The assistant warden reports to the deputy warden, who is under the authority of the warden of the institution.

10 The prison environment is also a workplace in which the rules of conduct as well as the duties and responsibilities of employees are strictly governed by the directives issued by the commissioner and by post orders that detail the duties and responsibilities for each position in the institution.

11 New correctional officers receive 13 weeks of training to acquaint them with the Standards of Professional Conduct, the Code of Discipline, the commissioner’s directives and all the post orders. The directives and post orders are also available at all times at the institution.

12 Ms. Boily testified about the importance of correctional officers strictly following the rules and directives governing work and ethics. The employer expects correctional officers, whose job is to ensure that inmates abide by the institution’s direction and rules, to behave in an exemplary fashion and to strictly comply with the institution’s rules and procedures.

13 Ms. Boily explained why she dismissed Mr. Rousseau while he was still on probation. She stated that she considered the incident of January 22, 2008 along with Mr. Rousseau’s overall performance and behaviour since his appointment. She took into account the following points in particular: meetings between Mr. Rousseau and his correctional manager; Mr. Rousseau’s performance appraisal report of October 25, 2007; disciplinary action dated January 28, 2008; and the results of the administrative investigation into the incidents of January 22, 2008.

14 First, I will summarize the evidence on the events and actions that occurred before the incidents of January 22, 2008. Second, I will briefly summarize the evidence on the incidents of January 22, 2008. Third, I will set out the evidence on the administrative process followed during the investigation and dismissal.

1. Events before the events of January 22, 2008

15 Mr. Gauvreau was the correctional manager responsible for new correctional officers and, as such, he was Mr. Rousseau’s line supervisor. He submitted in evidence excerpts from a notebook in which he records all particular events about the correctional officers under his responsibility, and he referred to his notes several times during his testimony.

16 Mr. Gauvreau stated that Mr. Rousseau had been late for work now and then, including his first day on the job. He also mentioned that Mr. Rousseau was late for a daily pre-shift meeting in his first week of work. He added that a colleague notified him that Mr. Rousseau also reported to work late on July 8, 2007.

17 Mr. Gauvreau met with Mr. Rousseau to evaluate his performance on October 25, 2007, in the presence of another correctional manager and Mr. Rousseau’s bargaining agent representative. Mr. Gauvreau explained that the purpose of the meeting was to notify Mr. Rousseau of several shortcomings and to clarify the employer’s expectations. Mr. Gauvreau stated that, at that time, he had received a number of comments from Mr. Rousseau’s co-workers criticizing him for not taking direction, for being full of himself and self-centred, and for making sexist remarks to female correctional officers. Mr. Gauvreau stated that he informed Mr. Rousseau of the inappropriate and sexist comments that he was alleged to have made that there was no place for women in the correctional service, although he did not identify who made the complaints. At their October 25, 2007 meeting, Mr. Gauvreau provided Mr. Rousseau with a performance appraisal report containing the following items:

[Translation]

…

… It has come to our attention that Éric appears to have problems adjusting to some of his co-workers. Éric sometimes makes inappropriate verbal comments that his co-workers and supervisors do not appreciate.

…

Action plan: Éric must learn to better control and manage his comments. He must take time to assess each situation before reacting, and should he experience any uncertainty in a given situation, he must seek advice from his superiors. Éric appears to be easily influenced and must be particularly careful to avoid compromising situations during discussions with other staff members.

…

18 Mr. Rousseau signed the performance appraisal report and checked the appropriate box on the form to show his agreement. Mr. Gauvreau indicated that, at the October 25, 2007 meeting, he also discussed with Mr. Rousseau the importance of complying with security patrol directives and pointed out that Mr. Rousseau breached those directives on September 20, 2007. He also added that they discussed the importance of a correctional officer remaining alert and that he cautioned Mr. Rousseau that he had been seen dozing during working hours. Mr. Gauvreau stated that, throughout the discussion, Mr. Rousseau in no way acknowledged his failings and that he emphasized the vague nature of the complaints against him and claimed that he had no problems with his co-workers.

19 Mr. Rousseau did not testify about all the issues that would have been discussed at the October 25, 2007 meeting. However, he did testify about the criticisms alleging that he made inappropriate comments about women. On that matter, Mr. Rousseau stated that Mr. Gauvreau presented him with general allegations and “vague rumours” and that he did not describe specific events. He stated that he asked Mr. Gauvreau to identify the authors and the exact wording of the comments he was alleged to have made. Mr. Gauvreau refused. Mr. Rousseau noted that the discussion was cordial, adding that Mr. Gauvreau had merely cautioned him to be careful with his comments.

20 Mr. Roy is the bargaining agent’s local president, and he accompanied Mr. Rousseau throughout the processes that led to his discharge. Mr. Roy testified about the sexist comments for which the employer reproached Mr. Rousseau. First, he stated that he had never been personally notified of any inappropriate remarks allegedly made by Mr. Rousseau and added that he had conducted his own investigation with five correctional officers. He stated that four of them affirmed that they had no problem with Mr. Rousseau and denied that he ever made inappropriate comments to them. He acknowledged that one of the female officers did indicate that she had problems with Mr. Rousseau that were unrelated to sexist or inappropriate remarks.

21 On January 28, 2008, Mr. Gauvreau issued a written reprimand to Mr. Rousseau for breaching the directives and instructions governing security patrols. The letter of reprimand describes as follows the breaches for which Mr. Rousseau was reproached:

[Translation]

…

On November 24, 2007, after a reading of the electronic scanning sticks was taken, it was observed that you had failed to make your rounds as required by Post Order 604. No round was recorded by the electronic scanning system between 03:24 and 06:02. Furthermore, on January 11, 2008, it was observed that a round was made at an interval of 1 hour and 10 minutes, contrary to the post order and Commissioner’s Directive 566.4, Inmate Counts.

…

22 Ms. Boily, Ms. Dufour and Mr. Gauvreau all testified about the importance of security patrols and strict compliance by correctional officers with relevant commissioner’s directives and post orders. Security patrols, along with official inmate counts, confirm that inmates are alive and well.

23 Security patrols and official inmate counts are strictly governed by a commissioner’s directive (566-4) and by Post Order 604, which sets out in detail the duties and responsibilities of correctional officers on duty in a cellblock during the morning shift.

24 Commissioner’s Directive 566-4 defines a security patrol as “[a]n observation … of designated areas of the institution to ensure the security of the institution and the well-being of inmates.” A count consists of an official count of all inmates in their cells to ensure that each inmate is alive. The correctional officer is required to record the results of a count in an official register and to provide it to the correctional manager in charge. During the relevant period, Post Order 604 required the correctional officer on the morning shift to conduct 10 security patrols on an irregular basis at intervals of no more than 1 hour. A security patrol may take between four and eight minutes per row, and each cellblock at Drummond Institution has two rows. Two official counts are required per shift, and a count is considered one of the required security patrols that must be conducted.

25 Ms. Boily explained that changes were made to the procedure for recording security rounds. Security patrols were initially performed manually and recorded in a register. Once the procedure was amended, security patrols were to be conducted using an electronic scanning stick (referred to as a punch by the witnesses) that records the time each patrol begins and ends. The commissioner imposed the procedure following investigations into an inmate’s suicide, which uncovered shortcomings in inmate supervision.

26 Stringent administrative measures took effect when the new security-patrol control and scanning procedure was introduced. A correctional officer who does not conduct a security patrol within 60 minutes must record his or her omission in the cellblock log and provide an explanation. During each shift, the correctional manager responsible for operations analyzes the security patrol reports of the previous shift and is required to investigate each gap or failure to comply with the schedule and to report his or her findings to the warden of the institution. The institution then submits a monthly report to the regional office describing the instances of non-compliance with the schedule, including the attendant reasons and the corrective action taken. Finally, the regional office reports to the commissioner.

27 Ms. Boily acknowledged that employees and the bargaining agent were opposed to the introduction of the scanning stick, but the employer was adamant that the new procedure be strictly complied with. She added that follow-ups were made with correctional officers whenever a patrol was skipped or was not conducted within the prescribed time. Ms. Boily stated that Mr. Rousseau was not the only correctional officer to have been reprimanded for non-compliance with the security patrol procedures.

28 On January 14, 2008, Mr. Gauvreau asked Mr. Rousseau to send him an email explaining why he had not conducted his security patrols on schedule. Mr. Gauvreau stated that such a request was made whenever a discrepancy was observed, at which time the correctional officer was required to provide an explanation that sometimes showed that the discrepancy had been warranted. In his email to Mr. Gauvreau, Mr. Rousseau stated the following:

[Translation]

…

Further to your January 14, 2008 email, I am responding about the morning of November 24, 2007. After performing the 03:15-03:20 EDPs check, I conducted my 04:00-04:10 round. Apparently, I failed to use my scanning stick. After a search of the dayrooms (which yielded five blades and handmade knives), it was around 05:20 or 05:30. Therefore, I waited until 06:00, given the short time remaining. When you informed me of the problem a few days later, I understood that, like you told me, I should have notified the duty manager, although I was unaware of that requirement at the time. On January 14, 2008, I received an email entitled Amended Post Order and, after reading it, I took the necessary steps to comply with the instructions, including 604.

…

29 Mr. Gauvreau said that he met with Mr. Rousseau and a bargaining agent representative on February 2, 2008 to discuss the incidents. Mr. Rousseau then apparently reiterated his version of the facts and stated that he had conducted a security patrol at 04:30, although he had forgotten to take along his scanning stick. As for the patrol that he should have made at 05:30, Mr. Rousseau apparently explained that he had just finished searching the dayrooms, which yielded five handmade weapons, and that he had decided to delay his patrol since he would shortly be performing an official count at 06:00.

30 Mr. Gauvreau did not accept Mr. Rousseau’s explanation. He said that Mr. Rousseau had performed 7 of the 10 security patrols required under Post Order 604 on his November 24, 2007 shift and that a 2-hour-and-30-minute interval between 2 patrols was unacceptable. His view was that a short delay could be understandable depending on the circumstances and that certain serious events, such as an inmate’s medical emergency, could justify delaying or skipping patrols.

31 Mr. Gauvreau reported that conducting searches and finding handmade weapons were common occurrences that in no way justified skipping a security patrol. Mses. Boily and Dufour and Mr. Gauvreau confirmed that correctional officers search the dayrooms at night when the inmates are in their cells and that they may stop searching to perform their security patrols, which take only a few minutes.

32 With respect to Mr. Rousseau’s decision to await the 06:00 count rather than conduct a security patrol at 05:30, Mr. Gauvreau testified that it was unacceptable for a correctional officer to breach the commissioner’s directive and the post order.

33 In response to a question on the time elapsed between the incident of November 24, 2007, the email of January 14, 2008, the meeting of January 24, 2008 and the disciplinary action taken on January 28, 2008, Mr. Gauvreau explained that correctional officers and correctional managers often work different shifts, thus causing delays in transferring information and organizing meetings. Ms. Dufour offered the same explanation in her testimony.

34 Mr. Rousseau also testified about the events of November 24, 2007. He stated that he conducted a security patrol around 04:30, although he forgot to bring his scanning stick. He explained that he did not wear the stick on his waist because the case does not always remain attached. He said that he forgot his stick because he was busy and because he had performed patrols between two dayroom searches. He also said that the scanning stick was not used on both the day and the night shifts and that he worked rotating shifts. As for his 05:30 patrol, he acknowledged that he chose not to perform it since an official count was scheduled for 30 minutes later.

35 Mr. Rousseau stated that Mr. Gauvreau asked him a couple of days after November 24, 2007 to explain why he did not perform security patrols on that date. He reported that he informed Mr. Gauvreau of the searches that he had done and the items that he had found and that Mr. Gauvreau had cautioned him that he should have told the correctional manager in charge what had happened. Mr. Rousseau said that he took note of Mr. Gauvreau’s comments and that he believed that the incident was closed. It was not mentioned again until he received an email from Mr. Gauvreau in January 2008 requesting his written version of the facts.

36 Mr. Roy also testified about the security patrols. He indicated that the introduction of the scanning stick caused much confusion among correctional officers, that the applicable directives were unclear, that the stick was not used on all shifts and that many correctional officers forgot to use it. He was present at the disciplinary meeting of January 24, 2008, and he reported getting the impression that the employer was attempting to corner Mr. Rousseau, adding that, to his knowledge, many other employees had met with the employer due to shortcomings in performing patrols, although the employer had only issued them verbal warnings.

2. Incident of January 22, 2008

37 On January 22, 2008, Mr. Rousseau was part of an escort assigned to accompany an inmate to a medical clinic. François Fréchette was the responsible correctional officer, while Mr. Rousseau was the second escort. On their return, Mr. Fréchette completed an observation report in which he criticized Mr. Rousseau for his behaviour during the escort. The report included the following:

[Translation]

…

After waiting with the inmate for the physician in an examination room for several minutes, I left the room to check that everything was normal with my fellow officer who was waiting at the door. To my great surprise, he was “stretched out” on a chair and appeared to be asleep. I woke him up, and he asked if the physician had been by, thus demonstrating that, for some time, he had been completely unaware of what had been occurring around him.

…

38 After reviewing Mr. Fréchette’s observation report, the employer initiated an administrative investigation to shed light on his allegations. On January 25, 2008, Marc Lanoie, Acting Warden at the institution, assigned the investigation to Ms. Dufour, as chair of the investigation committee, and to Laurier Nolet, as a committee member.

39 As deputy warden of operations, Ms. Dufour is the line manager of the 13 correctional managers who supervise correctional officers.

40 Ms. Dufour testified about the investigation process that she and Mr. Nolet followed. Their mandate was fourfold: to establish the context and the circumstances of the event; to determine whether a breach or infraction of the CSC’s policies, its Code of Discipline or the Values and Ethics Code for the Public Service had occurred; to measure the potential impact of the situation on the CSC’s image; and, finally, to gather any information that they judged relevant. Ms. Dufour made it clear that the committee’s mandate was to establish whether Mr. Rousseau had been remiss in his duty and whether disciplinary action should be taken, although it did not extend to recommending the type of disciplinary action to impose, were it determined that any was required.

41 Ms. Dufour reported that she and Mr. Nolet reviewed existing documents and observation reports, information on the inmate and his temporary absence, and Mr. Rousseau’s file. She added that they met with the individuals involved, including Mr. Gauvreau, and that they visited the clinic where the incident occurred.

42 Ms. Dufour explained the context in which the incident occurred. Inmate temporary absences are governed stringently by a commissioner’s directive and post orders. Before a temporary absence is authorized, the inmate’s file is reviewed to assess his level of risk and to determine the type of escort required to protect employees, the inmate and the public. In this case, it was determined that the outing would take place under a security escort. That type of escort is selected when the risk assessment shows that the inmate must be under safe custody at all times and that particular control measures are needed. In this case, it was determined that the security escort would be armed and that it would comprise two correctional officers.

43 Ms. Dufour indicated that Mr. Fréchette was responsible for the escort and that Mr. Rousseau acted as the second escort. She explained that, in an escort, the correctional officer responsible for the escort must remain in close contact with the inmate and keep him in custody at all times, while the second escort carries the weapon and is responsible for protecting the premises, the inmate, his fellow officer, the public, and himself or herself.

44 Ms. Dufour and Mr. Nolet met with Messrs. Fréchette, Rousseau and Gauvreau to record their versions of the events. Each interview was summarized in the investigation report that was adduced in evidence. Mr. Nolet’s and Ms. Dufour’s interview notes were also submitted in evidence. It should be noted that Mr. Fréchette did not testify at the adjudication hearing and that Mr. Rousseau’s counsel objected to Mr. Fréchette’s statement being submitted in evidence because it was hearsay. However, I authorized its inclusion.

45 The meeting with Mr. Fréchette took place on January 28, 2008. The summary of the interview describes as follows his version of the events:

[Translation]

…

The incident occurred while they were in the third room at the back of the clinic. Officer Fréchette was in the treatment room with the inmate, who was seated at the back of the room, while Officer Fréchette remained standing, to the right of the door. Officer Rousseau was seated outside the room, to the left of the door and across the hallway. Passage was possible between the chair and the treatment room. Officer Fréchette stated that the door was open and that, after 5 to 10 minutes of waiting and not seeing his colleague, he approached the door to ascertain that all was well. That was when he said that he saw Officer Rousseau with his right arm resting on the arm of the chair and his hands on his forehead, holding his head, his eyes closed. Officer Fréchette allegedly called out “Hey” in his direction, causing Officer Rousseau to open his eyes. Officer Fréchette described Officer Rousseau’s reaction, saying he looked “a little lost, like someone who just woke up.” Officer Rousseau then apparently asked if the physician had come. Officer Fréchette took no particular note of the incident at the time but remained cautious. He went so far as to say that he was sure that he could have walked out of the examination room with the inmate without Officer Rousseau noticing.

Officer Fréchette mentioned that he turned up the ventilation once they were back in the service vehicle to prevent the inmate from witnessing the conversation and that he attempted to discuss the situation with Officer Rousseau. Officer Fréchette apparently told his co-worker that his behaviour had been unacceptable and that it had been a serious threat to the safety of the escort by imperilling his own life and those of his co-worker and the inmate, as well as the safety of the clinic and its occupants. Officer Rousseau then apparently acknowledged that he had been “nodding off,” although he felt that it was nothing serious. Officer Fréchette then indicated to Officer Rousseau that he was unwilling to accept what had just occurred, and he mentioned the CSC’s image. Throughout the discussion, Officer Fréchette pointed out to the investigation committee that Officer Rousseau continually played down the significance of his behaviour and that he was nonchalant. He stated that Officer Rousseau apparently did not grasp the nature of his work and the importance of remaining vigilant. Officer Fréchette stated that he even asked his colleague if he liked his job.

…

46 The summary of the interview also describes as follows a telephone conversation between Mr. Fréchette and Mr. Rousseau that would have taken place on the following day:

[Translation]

…

On the day following the events, i.e., on January 23, 2008, at approximately 15:00, Officer Fréchette stated that he received a phone call from Officer Rousseau, who had heard that Officer Fréchette had reported the incident and who wished to put a stop to the process. Although he made no specific request, Officer Rousseau apparently expressed his willingness to explain his behaviour in the hope that the process would go no further.

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47 On January 28, 2008, Ms. Dufour and Mr. Nolet also met with Mr. Rousseau, who was accompanied by Mr. Roy, to obtain his version of the facts. Ms. Dufour reported that Mr. Rousseau had the opportunity to provide his version of the facts and any comments that he wished to make. The summary of the interview describes as follows Mr. Rousseau’s version of the facts:

[Translation]

…

… The treatment that the inmate was undergoing comprised several interruptions, during which he remained calmly seated in the hallway. Officer Rousseau mentioned that he was “nodding off” on a chair outside the treatment room when Officer Fréchette came up to him. He asked his fellow officer if the physician was through with the inmate to determine whether his escort duty was at an end. Officer Rousseau indicated that he was unaware of how far along the treatment process had progressed or if it had completed. Apparently, the treatment finished about 15 minutes later, and they returned to the penitentiary with the inmate. Recognizing that he was having trouble remaining alert and that he was “nodding off,” Officer Rousseau told the investigation committee that he responded by reading a magazine. Faced with the committee’s surprised reaction and questioned on one’s ability to remain alert while reading, Officer Rousseau explained he was “skimming through an old magazine without concentrating on reading.”

Officer Rousseau said that he was seated with his elbow on the armrest close to the grip of his weapon. Thus, he judged that, technically, his weapon was protected. He described his physical surroundings by saying that he was in the hallway toward the back of the clinic with only one restricted access point and no access at the end of the hallway.

Officer Rousseau indicated that, when the escort was over and the group was making its way back to the penitentiary, Officer Fréchette apparently mentioned to him that Officer Rousseau had been “nodding off,” although he claimed not to have responded because of the inmate’s presence in the back of the security van. On arriving at the penitentiary, he went in, returned his weapon and filled the tank with gas. He added that he did not see Officer Fréchette again afterwards.

The next morning, January 23, he arrived at the penitentiary to begin his shift with the intention of speaking to Officer Fréchette when he was greeted by the correctional manager in charge as he was signing the roll to record his arrival on the job. The manager inquired how he was doing and whether he was drowsy on that day. Officer Rousseau added that he attempted to reach Officer Fréchette in the afternoon to talk things over. In Officer Rousseau’s view, the discussion was cordial, although Officer Fréchette seemed to have already formed an opinion. Officer Rousseau mentioned that his fellow officer was condescending toward him and that he felt that his case had already been decided, stating that Officer Fréchette apparently mentioned that he had already had two meetings so far.

…

Officer Rousseau acknowledged “nodding off” and being drowsy as well as lowering his guard, and said that he started reading a magazine intently to overcome his sleepiness. However, he played down the consequences of his behaviour and blamed Officer Fréchette for not telling him to get up and walk around to wake up.

In response to a question on his role as second escort correctional officer during an inmate’s temporary absence, Officer Rousseau stated that he was responsible for ensuring the escort’s safety, securing the premises, monitoring comings and goings in the vicinity, and maintaining a reasonable distance from the offender.

Asked whether he had made mistakes, Officer Rousseau admitted that he had been drowsy and less than completely alert, although he did not acknowledge that reading a magazine was a problem. He felt that it had been merely something to do while waiting. Officer Rousseau admitted that he let his guard down but did not feel that his lack of vigilance caused danger. He stated that he had felt physically alert although tired after a bad night. He mentioned having completed a days’ work and not feeling fatigued when he set out on escort duty.

…

48 Ms. Dufour’s and Mr. Nolet’s interview notes agree with the summary of the interview recorded in the committee’s report.

49 Ms. Dufour reported visiting the clinic on January 30, 2008 and meeting with the physician and a clinic employee. Neither had witnessed signs of drowsiness on Mr. Rousseau’s part. However, the physician apparently confirmed seeing Mr. Rousseau reading a magazine. Ms. Dufour also said that she observed that the chair on which Mr. Rousseau had been seated while on escort duty afforded him only a partial view of the office in which the inmate was undergoing treatment.

50 Ms. Dufour and Mr. Nolet also met with Mr. Gauvreau. Although Mr. Gauvreau did not witness the events of January 22, 2008, Ms. Dufour explained that they met with him to fulfill the fourth part of their mandate, under which they were asked to gather all the additional information that they deemed relevant. During the meeting, Mr. Gauvreau described the several measures that he had taken with respect to Mr. Rousseau from the time of his appointment. The following are excerpts of the meeting summary:

[Translation]

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Mr. Gauvreau told the investigation committee that meetings had already been held with Officer Rousseau on several occasions for negligence, lack of attention and lack of professional thoroughness. The first meeting, in October 2007, was recorded with a union representative present. The perceptions of Mr. Rousseau’s work and the expectations that he was required to meet were clearly identified. Mr. Gauvreau stated that, at that meeting, the employee was perceived as unreceptive, that he did not recognize his failings and that he refused to accept any blame, including for dozing off while assigned to a cellblock where inmates resided, for making sexist remarks about female CSC workers, for being remiss in his duties while making mandatory security rounds and for making derogatory remarks about Drummond’s clients. Mr. Gauvreau described Officer Rousseau as an individual who sidetracks discussions, defeats observations, argues and shows little openness to others’ comments. Officer Rousseau can be described as nonchalant, sometimes late, and, when lacking experience within the CSC, relying on his life experience and his age to justify his actions.

At the end of November 2007, additional instances of dereliction of duty while on security rounds led to disciplinary action in the form of a written reprimand. At the hearing for that disciplinary action, Mr. Gauvreau reported that Officer Rousseau played down the non-compliance with the commissioner’s directive and minimized his responsibility for the acts for which he was disciplined. In January 2008, other similar failings were recorded on Officer Rousseau’s personal file.

Finally, Mr. Gauvreau told the investigation committee that Officer Rousseau was perceived as an individual who minimizes his responsibilities, does not learn from his mistakes, hides behind the union and appears unaware of his security role.

…

51 Mr. Gauvreau confirmed during his testimony that the summary of his meeting with the members of the investigation committee was an accurate account of his statements.

52 After their investigation, Ms. Dufour and Mr. Nolet issued a written report in which they concluded that Mr. Rousseau had breached the Code of Discipline many times. The following is from the committee’s report:

[Translation]

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Final conclusion and recommendations

In light of the preceding paragraphs, the investigation committee finds that Officer Éric Rousseau committed five (5) violations of the Code of Discipline and the Standards of Professional Conduct.

The lack of vigilance and dozing off, the inmate’s proximity to the service weapon, the reading and the lack of respect for the regulations during an approved security assignment are actions and attitudes contrary to the several standards that govern the CSC.

Negligence in respecting statutes, regulations and commissioner’s directives; performing his duties in a negligent manner likely to jeopardize the safety of others; behaviour tarnishing the CSC’s image; and sleeping during working hours are four (4) failings considered major. The investigation committee considers not complying with established security standards, as described under the following heading, as a minor failing.

Éric Rousseau acknowledges that he lacked vigilance, although he greatly minimizes the extent and the impact of his actions, just as he blames his fellow officer for not suggesting that he get up and walk and denies that his behaviour caused danger. Furthermore, although he admits that his fellow officer had reason to reprimand him, he maintains that there was no cause to notify the correctional manager in charge and uses the term “denouncement” in reference to his co-worker. The members of the investigation committee consider the following behaviours of Officer Rousseau as many aggravating factors: minimizing his actions, blaming his fellow officer for his actions or inactions, and lacking transparency by firmly holding to his view that a fellow officer must not be denounced. The committee also points out that Officer Rousseau is on probation, having less than one year of service, and that he has already been the subject of several measures resulting from inappropriate behaviour and attitudes. Corrective action was imposed on Officer Rousseau for several types of negligence. Prior corrective measures followed an escalating scale, from a formal interview to a verbal reprimand, culminating in a written notice. As things stand, the seriousness of this incident leads us to recommend disciplinary and/or administrative action toward employee Éric Rousseau.

…

53 Ms. Dufour stated that she considered Mr. Rousseau’s transgressions major failings from a security viewpoint. Under cross-examination on the intentional nature of Mr. Rousseau’s drowsiness and its duration, Ms. Dufour responded that she was unable to address the deliberate nature of his behaviour. However, she did indicate the duration of his drowsiness was irrelevant since a lack of vigilance for a fraction of a second was enough for a major incident jeopardizing the safety of others to occur.

54 Mr. Rousseau’s version of the events differs in some respects from that of Mr. Fréchette.

55 Mr. Rousseau acknowledged that he sat on a chair at the end of the hallway while the inmate was in the third examination room, although he stated that it was the best vantage point from which to observe his overall surroundings and the interior of the examination room, where the inmate was located. He explained that the atmosphere was “[translation] quiet and peaceful” and admitted that at some point he
“nodded off” and blinked his eyes. He testified that, when Mr. Fréchette remarked that he was “nodding off,” he picked up a magazine from a table to have something to do and to occupy his hands while maintaining his field of vision. He explained that he skimmed through the magazine without really reading it. He added that he asked Mr. Fréchette whether the physician would return, rather than whether he had already returned, as Mr. Fréchette claimed.

56 Mr. Rousseau stated that he refused to discuss the incident with Mr. Fréchette in the prison van, as that would have been inappropriate in the inmate’s presence. He reported that he contacted Mr. Fréchette the next day to settle the matter and to continue the conversation that had begun in the prison van. Contrary to Mr. Fréchette’s version of the facts contained in the investigation report, Mr. Rousseau stated that Mr. Fréchette notified him that he had drawn up an observation report after the incident. Mr. Rousseau submitted that he informed his fellow officer that they could have discussed the issue as colleagues, to which Mr. Fréchette apparently replied that, in any case, management had already called him to three meetings.

57 Mr. Rousseau also stated that the summary of his interview with Ms. Dufour and Mr. Nolet, as recorded in the investigation report, did not accurately reflect his comments. He said that, on reading the report, he got the general impression that the committee had considered Mr. Fréchette’s version as the truth without retaining his version. He noted several inaccuracies in the summary of his interview, some of which go to the very heart of the accusations against him. In the first place, although the summary mentioned that he had been dozing, that he had read a magazine to fight off sleep and that he had been reading intently, Mr. Rousseau stated that he always maintained that he had not been dozing but rather that he had been “nodding off” and that he had merely “skimmed through” a magazine.

58 The report also indicates that Mr. Rousseau acknowledged having let down his guard, although he minimized its extent and seriousness. Mr. Rousseau denied minimizing the significance of his action and said that, rather, he put his behaviour in perspective while acknowledging “nodding off” and “skimming through” a magazine, although he had at all times maintained an overall view of his surroundings. Under cross-examination, Mr. Rousseau stated that, for him, there was a distinction between dozing, which involves loss of consciousness, and “nodding off,” which does not. However, he admitted that “nodding off” could entail a loss of vigilance, although he was convinced that, in this case, there was no danger and that he would have been capable of reacting had an incident occurred.

59 Mr. Roy testified that it was common for correctional officers to read the newspaper on their shifts, even during escort duty, and that he had never known of a correctional officer to receive a disciplinary measure for reading.

3. Investigation and dismissal process

60 Ms. Dufour testified about the January 28, 2008 meeting of Mr. Rousseau and the members of the investigation committee.

61 Ms. Dufour indicated that the interview with Mr. Rousseau dealt solely with the events of January 22, 2008 and not with the prior incidents reported by Mr. Gauvreau. She justified that approach by the fact that the investigation mandate pertained to the events of January 22, 2008, while the other incidents were considered in the fourth part of the mandate because they were part of a continuum. Although those incidents were part of Mr. Rousseau’s file, they were not under investigation.

62 Ms. Dufour also added that she read her notes aloud after the interview with Mr. Rousseau to enable him to point out any inaccuracies. However, Mr. Rousseau denied that Ms. Dufour had done so and Mr. Roy had no recollection of the event.

63 Ms. Dufour also indicated that, if an investigation report were liable to tarnish a person’s reputation, the sections of the report concerning that person were provided to the individual before the final report was tabled. Ms. Boily stated that she followed that procedure in Mr. Rousseau’s case and that she met with him to provide him with extracts of the investigation report, specifically the summary of his interview and the section containing the committee’s findings and conclusions. Under cross-examination, Ms. Dufour was unable either to provide the date of the meeting or to confirm whether Mr. Rousseau had been alone or accompanied by a bargaining agent representative. However, she did say that the meeting lasted approximately 20 minutes. She explained that the purpose of the meeting was not to discuss the report’s conclusions with Mr. Rousseau but rather to give him an opportunity to review the conclusions before the report was tabled.

64 Mr. Rousseau stated that he never received any excerpts of the report from Ms. Dufour before February 20, 2008 and that, on that date, Ms. Dufour provided him with a complete copy of the investigation report. Later in his testimony, Mr. Rousseau recalled having received the report several days before meeting with Ms. Boily. He mentioned that he highlighted certain passages and that he realized while reading the report that it referred to incidents that occurred before the events of January 22, 2008. Mr. Roy also confirmed that Ms. Dufour had provided the complete report to Mr. Rousseau before his February 20, 2008 meeting with Ms. Boily. Mr. Roy stated that he asked Ms. Dufour whether they could discuss the report. She replied that she was not empowered to do so.

65 Ms. Boily was also questioned about the investigation process, about her decision to dismiss Mr. Rousseau and about her February 20, 2008 meeting with him.

66 With respect to the investigation mandate for Ms. Dufour and Mr. Nolet, Ms. Boily explained that she expected that they would establish the facts after gathering relevant information, that they would look for potential extenuating circumstances that would explain or mitigate the incident, and that they would determine whether Mr. Rousseau had committed any breaches. She also added that it was her prerogative to determine the steps to take once the investigation report was tabled.

67 Ms. Boily reported that she relied on the committee’s findings and conclusions and that she did not question the content of its interviews or its analyses of them. On the seriousness of the incident of January 22, 2008, Ms. Boily stated that she considered nodding off a serious failing, especially during escort duty in physical surroundings where the security level was lower than that of the institution. Questioned on breaches of security patrols, Ms. Boily replied that she found it inconceivable for an employee, especially one on probation and fresh out of training, to deliberately decide for no major reason not to comply with the directive on security patrols. She added that commissioner’s directives and post orders must be stringently followed and that there was no flexibility in applying them.

68 Ms. Boily also reiterated that she made her decision based on the entirety of Mr. Rousseau’s file and not solely based on the incident of January 22, 2008. She submitted that she also considered Mr. Rousseau’s attitude toward the failings ascribed to him. Mr. Rousseau appeared to minimize the seriousness of his misdeeds and did not seem open to amending his behaviour.

69 Ms. Boily met with Mr. Rousseau on February 20, 2008 to give him the letter of dismissal.

70 On February 15, 2008, Mr. Rousseau received the following notice of meeting:

[Translation]

…

Subject: Mandate for a disciplinary investigation into the incident of January 22, 2008

We wish to meet with you on Wednesday, February 20, 2008, at 15:30, following the submission of the report mentioned above

We also wish to remind you that you may be accompanied at the meeting.

…

71 Mr. Roy accompanied Mr. Rousseau to the February 20, 2008 meeting. Ms. Boily stated that Mr. Rousseau was given the opportunity to make comments during the meeting. However, she did not take his few comments into account.

72 Mr. Rousseau’s counsel asked Ms. Boily if, in her opinion, Mr. Rousseau could have had any reason to believe that the February 20, 2008 meeting was called to discuss the investigation report. She replied in the negative and added that the appropriate time for discussing the investigation report was during the administrative investigation.

73 Mr. Rousseau’s counsel also asked Ms. Boily if she had questioned Mr. Rousseau about his version of the events of January 22, 2008. She replied in the negative and repeated that the investigation committee’s mandate was to shed light on those events and to obtain versions of the events from the individuals involved, including Mr. Rousseau. She explained that she had no reason to doubt the committee’s findings and conclusions.

74 Mr. Rousseau’s counsel then suggested that Ms. Boily refused to listen to Mr. Rousseau at the meeting. She replied that she did not refuse to listen to Mr. Rousseau but that she did not consider his arguments. He then suggested that she told Mr. Rousseau that the decision to dismiss him had already been made. Ms. Boily replied that she could not recall her exact words but that she may have told Mr. Rousseau that the time for arguments was over and that the investigation committee had done its job.

75 Ms. Boily also submitted that Mr. Rousseau and his bargaining agent representatives had the opportunity to make representations during the internal grievance process.

76 In his testimony, Mr. Rousseau contended that, when he met with Ms. Boily, he did not have an opportunity to explain his version of the events and his position on the report and that Ms. Boily informed him that the decision to dismiss him had already been made.

77 Mr. Roy maintained that Mr. Rousseau had noted many inaccuracies on reviewing the investigation report provided to him by Ms. Dufour and that he had wished to bring them to the attention of the employer. Mr. Roy stated that he made an unsuccessful attempt to discuss the case with the Grievance Committee, at which time the employer’s representatives indicated that Mr. Rousseau’s case would not be settled at their level. Mr. Roy added that he then requested a meeting with Ms. Boily to discuss the investigation report and to enable Mr. Rousseau to present his comments. When Mr. Rousseau was summoned to a meeting with Ms. Boily on February 20, 2008, Mr. Roy thought that the purpose of the meeting was to discuss the investigation report. He said that, at the beginning of the meeting, he and Mr. Rousseau attempted to comment on the investigation report and that Ms. Boily interrupted them a moment later. She gave Mr. Rousseau the letter of dismissal and indicated that the decision had already been made. Mr. Roy said that he tried to discuss the matter with Ms. Boily but that she was not open for discussion.

III. Summary of the arguments

A. For the employer

78 The employer reviewed the parameters developed by the Board’s jurisprudence on cases of rejection on probation and submitted that the employer’s burden of proof was restricted to demonstrating that the grievor’s dismissal was based on employment-related reasons. The employer’s representative maintained that it was not the adjudicator’s responsibility to determine whether the reasons given justified the discharge. The adjudicator had merely to ascertain that the reasons for dismissal were real and that they were truly employment related and to determine whether the decision to dismiss the grievor was made in good faith. In support of its position, the employer referred me to the following decisions: Melanson v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 33; Chaudhry v. Canada (Attorney General), 2008 FCA 61; Chaudhry v. Canada (Attorney General), 2007 FC 389; Dalen v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 73; Morin v. Treasury Board (Department of Fisheries and Oceans), 2006 PSLRB 35; Archambault v. Canada (Canada Customs and Revenue Agency), 2005 FC 183; Wright v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 139; Chaudhry v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 72; Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109; Arnould v. Treasury Board (Fisheries and Oceans Canada), 2004 PSSRB 80; Boyce v. Treasury Board (Department of National Defence), 2004 PSSRB 39; Owens v. Treasury Board (Royal Canadian Mounted Police), 2003 PSSRB 33; Ross v. Treasury Board (Correctional Services Canada), 2003 PSSRB 97; Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529; Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.); The Queen v. Ouimet, [1979] 1 F.C. 55; Porcupine Area Ambulance Service v. Canadian Union of Public Employees, Local 1484 (1974), 7 L.A.C. (2d) 182; and Ondo-Mvondo v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 52.

79 The employer maintained that it largely exceeded its burden of proof in this case and that it demonstrated without any doubt that Mr. Rousseau’s dismissal was related to his employment, notably to his performance and behaviour.

80 The employer submitted that the terms and conditions related to an employee’s hiring and related to probation are sufficient caution that unsatisfactory performance and behavioural failings may lead to the employee’s rejection while on probation. On that point, the employer referred to Mr. Rousseau’s offer of employment, which notified him of his probationary period.

81 The employer contended that the evidence demonstrated that it rejected Mr. Rousseau for several misdeeds. He was reproached for those misdeeds, and they are set out in the letter of dismissal. According to the employer, Mr. Rousseau’s misdeeds were many, including not complying with the directives on security patrols, disregarding relevant directives and not remaining sufficiently vigilant during escort duty on January 22, 2008. The employer emphasized that the fact that Mr. Rousseau acknowledged “nodding off” and “skimming through” a magazine while on escort duty on January 22, 2008 would have been sufficient to conclude that he had not complied with the directives and had not shown sufficient vigilance and that failings of this nature are serious security breaches and are sufficient grounds for rejection. However, the employer maintained that it considered Mr. Rousseau’s file in its entirety, including his performance appraisal of October 2007 and the disciplinary measure of January 28, 2008. The employer argued that it was justified in considering all the events related to Mr. Rousseau’s performance and behaviour when deciding whether to reject him on probation.

82 On the duty to act fairly, the employer held that it had always acted transparently toward Mr. Rousseau, that criticisms of his behaviour were clearly explained on each occasion, and that he had always been given the opportunity to provide his version of the facts and an explanation.

83 The employer also maintained it had acted in good faith at all times and that there is a presumption of good faith, while an allegation of bad faith requires proof. In this case, the employer argued that the evidence in no way supports an allegation that its representatives acted in bad faith.

B. For the grievor

84 Mr. Rousseau’s counsel took issue with the administrative process leading to Mr. Rousseau’s rejection and the reasons given for his dismissal. He maintained that the employer did not fulfill its obligation to act fairly toward Mr. Rousseau, who was denied justice. He suggested that Mr. Rousseau’s rejection was marked by bad faith, that the employer had greatly exaggerated the gravity of the incidents blamed on Mr. Rousseau and that those incidents in no way justified a discharge.

85 With respect to the duty to act fairly, Mr. Rousseau’s counsel referred me to Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311, and contended that the employer did not fulfill its duty to act fairly in many instances, including, among others, the following:

• The committee responsible for investigating the events of January 22, 2008 considered incidents and measures unrelated to those events without notifying Mr. Rousseau or giving him the opportunity to present his version of the facts.
• The investigation committee did not accurately report the comments made by Mr. Rousseau when he was invited to give his version of the facts, and he was given no opportunity to notify either Ms. Dufour or Ms. Boily of the mistakes contained in the report.
• Ms. Dufour refused to discuss the report’s content and the committee’s conclusions with Mr. Rousseau, and he was given no opportunity to comment on the content and conclusions or to provide an explanation.
• Ms. Boily refused to hear Mr. Rousseau’s version of the facts and his explanation of the events of January 22, 2008 and of other evidence against him.

86 With respect to the events of November 24, 2007, Mr. Rousseau’s counsel argued that, by considering them in support of its decision to reject Mr. Rousseau, the employer sanctioned Mr. Rousseau a second time since he had already received a written reprimand for those events.

87 Mr. Rousseau’s counsel also maintained that the employer’s attitude was proof of its bad faith. In addition to the particulars of the process that led to Mr. Rousseau’s rejection, Mr. Rousseau’s counsel commented on the reproaches directed at Mr. Rousseau for his alleged inappropriate and sexist comments. Counsel for Mr. Rousseau argued that the employer displayed a lack of rigour and of transparency by relying on hearsay and by refusing to clearly identify to Mr. Rousseau the complainants and the contents of the alleged comments. In his opinion, the employer’s attitude made it impossible for Mr. Rousseau to defend himself.

88 Mr. Rousseau’s counsel also claimed that the employer greatly exaggerated the events of January 22, 2008 and the extent of Mr. Rousseau’s misdeeds. He believed that the conclusion that Mr. Rousseau “was asleep” and “reading intently” was not substantiated by the evidence, which demonstrated rather that Mr. Rousseau nodded off for a few seconds and picked up a magazine, which he skimmed through distractedly while remaining vigilant. Mr. Rousseau’s counsel also maintained that the conclusion that Mr. Rousseau’s behaviour endangered the safety of the public, the inmate and his fellow officer was greatly exaggerated.

89 On the security patrol events of November 24, 2007, Mr. Rousseau’s counsel submitted that the employer should have considered the context in which the procedure requiring the use of scanning sticks was implemented since employees neither clearly understood it nor applied it consistently. He also argued that Mr. Rousseau had made his rounds at 04:30, but that he had merely omitted to record them using the scanning stick; thus, the only patrol skipped was the 05:30. Mr. Rousseau’s counsel maintained that that error was relatively minor, considering the number of patrols that Mr. Rousseau performed during his employment. He also maintained that the employer seemed at all costs to be seeking a reason to assign blame to Mr. Rousseau. In addition, he noted that a discussion between Mr. Gauvreau and Mr. Rousseau, which occurred a few days after the event, appeared to put an end to the security-patrol incident. However, that incident was raised again in January 2008 when the employer was investigating the incidents of the escort duty.

IV. Reasons

90 An adjudicator has limited jurisdiction for hearing a grievance challenging the rejection of an employee on probation. Although a grievor may, under section 209 of the Act and in the circumstances it describes, refer a grievance to adjudication related to his or her termination, section 211 of the Act creates an exception by prescribing that a grievance about a termination under the PSEA cannot be referred to adjudication. Notably, under subsection 62(1) of the PSEA, a deputy head may at any time notify an employee on probation that his or her employment is terminated. There is no question in this case that Mr. Rousseau was on a 12-month probationary period that was still under way when he was dismissed.

91 However, the mere allegation that an employee was discharged while on probation is not sufficient to trigger the application of section 211 of the Act and thus to deprive the adjudicator of all jurisdiction. The adjudicator has to ensure that the dismissal was indeed a termination on probation within the meaning of the PSEA.

92 The case law has developed analytical factors for determining whether a dismissal is indeed a termination on probation within the meaning of the PSEA.

93 At paragraph 19 of Penner, the Federal Court of Appeal set out the following reminder of the probationary period’s purpose:

19 … As was said by Heald J. [[1977] 1 F.C. 91 (C.A.), sub. nom. Attorney General of Canada v. Public Service Staff Relations Board, at page 100], and approved by de Grandpre J. in his reasons in Jacmain (at page 37) “the whole intent of section 28 [now 62] is to give the employer an opportunity to assess an employee's suitability for a position. If, at any time during that period, the employer concludes that the employee is not suitable, then the employer can reject him without the employee having the adjudication avenue of redress…”

…

94 The Federal Court of Appeal also ruled in Penner that the employer is required to have acted in good faith in deciding to reject on probation. Referring to Jacmain v. Attorney General (Canada) et al., [1978] 2 S.C.R. 15, the conclusive ruling on an adjudicator’s jurisdiction over a rejection on probation, Justice Marceau commented as follows:

…

18      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… .

…

95 An employer that claims to have rejected an employee on probation must demonstrate that the dismissal was for a true reason related to the employee’s employment, specifically the employee’s performance or behaviour. In that case, the employer is not required to demonstrate that dismissal was the appropriate measure in the circumstances. The Federal Court defined as follows in Leonarduzzi the initial burden that the employer is required to meet:

…

[42]    The respondent submits the employer must make a prima facie case that the grievor was terminated for just cause. This is not so. A distinction must be made between an employment related reason and “just cause”. In Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (F.C.A.), a case involving the jurisdiction of the Board to hear a grievance of a probationary employee terminated for cause under section 28 of the PSEA, Marceau J.A. stated at page 438:

Other adjudicators have adopted quite a different attitude and accepted that they had no jurisdiction to inquire into the adequacy and the merit of the decision to reject, as soon as they could satisfy themselves that indeed the decision was founded on a real cause for rejection, that is to say a bona fide dissatisfaction as to suitability. In Smith (Board file 166-2-3017), adjudicator Norman is straightforward:

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. The adjudicator, at that moment, loses any authority to order the grievor reinstated on the footing that just cause for discharge has not been established by the Employer.

[43]    Justice Marceau held it was the view Adjudicator Norman expressed above which was the only one authorized by the Supreme Court of Canada’s decision in Re Jacmain v. Attorney General (Canada) et al., [1978] 2 S.C.R. 15 and the only one the legislation really supports.

…

[Emphasis in the original]

96 In Melanson, the adjudicator held that the reason for rejection must not only be employment related; it must also be legitimate. I agree with that view to the extent that a reason cannot be “legitimate” if it is frivolous or unrelated to the employee’s behaviour or to the quality of the employee’s job performance. However, an adjudicator who is required to determine whether an employer rejected an employee on probation for a legitimate reason must avoid dealing with the rejection’s validity by assessing the employee’s performance or behaviour against the decision to reject the employee.

97 In applying those principles to the facts of this case, I find that the employer met its burden of demonstrating that the decision to reject Mr. Rousseau while on probation was truly related to his employment and, particularly, to his failings in the performance of his duties and to his behaviour.

98 Mr. Rousseau’s letter of dismissal mentions that the employer found that he did not possess the abilities required for employment as a correctional officer. The letter describes several incidents as the basis for the conclusion. For example, Mr. Rousseau failed to perform security rounds as prescribed by post orders, some co-workers complained of the sexist nature of comments he allegedly made to female colleagues, and he had been negligent and had failed to comply with directives while on escort duty on January 22, 2008.

99 In her testimony, Ms. Boily confirmed that she considered Mr. Rousseau’s file in its entirety in addition to his failings of January 22, 2008, including his performance assessment of October 25, 2007 and the disciplinary measure of January 28, 2008.

100 The failings ascribed to Mr. Rousseau were adduced in evidence for the most part on the basis of a balance of probability.

101 I will deal first with the incident of January 22, 2008. The evidence on the events of the incident is contradictory in some ways; however, I consider that the investigation committee’s conclusions were reasonable for the most part with respect to both its assessment of the facts and its recommendations. The committee met with all the individuals involved in the events. The interview notes of the two committee members were adduced in evidence, and they are consistent with the versions of the events provided by the individuals who met with the committee, as recorded in the committee’s report. I understand that Mr. Rousseau’s version differs from that of Mr. Fréchette in some respects. I also understand that Mr. Rousseau feels that his comments were not accurately reported and that distinctions may be made between dozing and nodding off as well as between reading a magazine and skimming through a magazine although, in my opinion, the committee’s assessment of the different versions and its conclusions are reasonable. I will add that Mr. Rousseau’s version of the events, in which he recognized that he “nodded off” and that he skimmed through a magazine to keep busy, support the conclusion that he did not comply with the directives on armed escorts, that he was negligent and that he showed a lack of vigilance.

102 With respect to the other grounds on which the employer based its decision to dismiss Mr. Rousseau, I believe that the employer was justified in assessing Mr. Rousseau’s overall performance and behaviour by taking into account the progression of his performance and behaviour since his appointment. The purpose of a probationary period is to determine whether an employee has the abilities required by a given position. The legislator determined that probation would be for 12 months, and it is entirely logical that the employer would evaluate an employee’s behaviour and performance over the entire period.

103  Therefore, I find that the employer was entitled to take into account Mr. Rousseau’s performance appraisal of October 25, 2007, with which Mr. Rousseau agreed by signing the performance appraisal form.

104 In my view, the same principle applies to the security-patrol events of November 2007. In my estimation, the employer proved the allegations of Mr. Rousseau’s failings. I also believe that the employer was entitled to consider Mr. Rousseau’s behaviour during the events, even though they had already resulted in a disciplinary measure. In January 2008, those events were not considered in a disciplinary setting but rather with a view to making an overall assessment of Mr. Rousseau’s behaviour and of his progress since his appointment. I do not find that the employer imposed a double disciplinary sanction on Mr. Rousseau by considering those events along with others.

105 With respect to the allegations that Mr. Rousseau made inappropriate and sexist comments, I find that the evidence is inconclusive. However, I believe that the evidence, specifically the October 2007 performance appraisal and Mr. Gauvreau’s testimony, demonstrated that the employer took action toward Mr. Rousseau after his co-workers complained of his behaviour. I agree that the employer dealt with Mr. Rousseau’s alleged comments in the vaguest of terms although, for the purposes of this case, I am unable to find that, based on the evidence, the allegation was fabricated.

106 Once the employer has demonstrated that the termination was employment related, the adjudicator is without jurisdiction unless the grievor demonstrates that his or her dismissal was not in fact a true rejection on probation within the meaning of the PSEA. In Leonarduzzi, the Federal Court found that the adjudicator’s jurisdiction was not removed if the grievor demonstrated that the dismissal was “a sham or a camouflage” or that it was motivated by the employer’s bad faith. The adjudicator in Chaudhry accurately described the burden that the grievor must discharge as follows:

…

[108]   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: Leonarduzzi (supra) and Penner (supra).

…

107 It is worth recalling that good faith is presumed while bad faith must be proved.

108 Mr. Rousseau’s counsel referred to Nicholson in support of his allegation that the employer did not fulfill its duty of fairness. That decision was followed in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, in which the Supreme Court found that the duty of fairness stemming from administrative law applied to the decision to terminate the holder of a public office. The concept of procedural fairness was discussed in Dunsmuir v. New Brunswick, 2008 SCC 9, in which Justices Bastarache and Lebel recounted in the following terms its purpose:

…

[90]    From these foundational cases, procedural fairness has grown to become a central principle of Canadian administrative law. Its overarching purpose is not difficult to discern: administrative decision makers, in the exercise of public powers, should act fairly in coming to decisions that affect the interests of individuals. In other words, “[t]he observance of fair procedures is central to the notion of the ‘just’ exercise of power” (Brown and Evans, at p. 7-3)…

…

109 However, in Dunsmuir the Supreme Court reversed those principles within the public service context, ruling that, where an employment contract existed, termination of a public employee’s position, whether or not the employee held a public office, was governed by contract law rather than by the principles of administrative law, including the right to procedural fairness.

110 In my view, the principles set out in Dunsmuir do not deprive a public employee whose employment is terminated of the right to be treated in good faith and fairly by the employer. The public employee who is dismissed has the same rights and obligations as a private-sector employee. Therefore, an employer who dismisses an employee must act fairly and in good faith toward that employee.

111 In Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, the Supreme Court acknowledged and sanctioned the employer’s obligation to act in good faith and to ensure fair treatment when dismissing an employee.

112 In my view, those principles apply to the same extent to the process leading to the employer’s decision to dismiss an employee as to the manner in which the dismissal occurs.

113 Board adjudicators have already ruled on the employer’s obligation to act in good faith and fairly and have determined that they had jurisdiction if the decision to dismiss the grievor was made in bad faith or unfairly.

114 On page 16 of McMorrow v. Treasury Board (Veterans Affairs Canada), PSSRB File No. 166-02-23967 (19931119), the adjudicator states that “… the blatant disregard of even elementary notions of fairness in assessing the conduct of the grievor are cogent considerations in determining whether the employer acted in good faith in terminating Mr. McMorrow’s employment.” In that case, the adjudicator found that he had the authority to rule on rejection on probation because the employer had not acted in good faith. The evidence showed that the decision to dismiss the employee had been made while the investigation was ongoing and before the employee had had the opportunity to present his version of the facts about the allegations against him.

115 In Dhaliwal, the adjudicator found that the employer had not acted in good faith. He stated the following:

…

[92]    Prior to making and rendering a decision, it is incumbent on the decision-maker to seek out and know the facts. It is my belief that the Warden based his decision on honesty of intention; however, it was not based on all of the relevant facts.

[93]   I therefore conclude that although there may have an employment-related issue, the employer has failed to abide by its own document, which establishes principles of fairness and defines good faith. I also conclude that the grievor has met its burden in establishing bad faith, as there was a lack of diligence by the employer that would have given the grievor an opportunity to discuss, defend or make the necessary adjustments to meet the requirements of his position.

…

116 However, in Boyce,the adjudicator refused to find that the employer had acted in bad faith because it had conducted a comprehensive investigation and the employee had had the opportunity to present his version of the facts. The adjudicator wrote as follows:

…

[60]    In reviewing the Department’s administrative procedures that lead to the decision to reject an employee on probation, it is important to note that the adjudicator’s role is not to determine the adequacy of those procedures. The role of the adjudicator is to assess whether the actions of the employer showed such a “blatant disregard for elementary notions of fairness as to show bad faith”: McMorrow (supra).

[61]   In McMorrow, the adjudicator found that the supervisor had reached a firm conclusion to reject on probation prior to the end of the investigation and without the benefit of any input from the grievor. In this case, Lt.-Col. Schildknecht reviewed the results of an administrative investigation, as well as the documentation retrieved from Mr. Boyce’s account, prior to coming to a decision. Mr. Boyce did present his views on the basic allegations at the beginning of the investigation in his meeting with Mr. Deschamps and Warrant Officer Legault. I find that the actions of Lt.-Col. Schildknecht in the investigation and in coming to his decision to reject Mr. Boyce on probation do not show a “blatant disregard for elementary notions of fairness” and, therefore, do not constitute bad faith.

…

117 That said, the requirement to act fairly and in good faith does not extend to offering the employee a hearing before his or her dismissal.

118 In Chaudhry, the Federal Court of Appeal ruled that an employee was not entitled to a hearing before being dismissed by the employer. Justice Sexton wrote the following:

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[7]      In a similar vein, the appellant argues that the fact that he did not receive a hearing prior to his rejection of [sic] probation violated his right to a fair hearing pursuant to section 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III (“Bill of Rights”). Section 2(e) of the Bill of Rights only provides for a right to a fair hearing for the determination of one’s rights and obligations. Those rights and obligations were part of the conditions for his probationary hiring. I do not see that he became entitled to a hearing prior to his rejection of [sic] probation. In any event, the appellant had a hearing before the adjudicator, and that hearing, in my opinion, was conducted fairly in accordance with the principles of fundamental justice.

…

[Emphasis in the original]

119 I must now apply those principles to the facts of this case. First, I am unable to conclude that, based on the evidence, the reasons given in the letter of dismissal and mentioned by Ms. Boily in her testimony were not the true reasons for her decision to reject Mr. Rousseau on probation or that Ms. Boily’s decision was a subterfuge, designed to rid herself of Mr. Rousseau at all costs.

120 I hold the view from the start that there is a presumption of good faith, whereas bad faith must be proved. Nothing in the testimony given by Ms. Boily, Ms. Dufour and Mr. Gauvreau can lead me to conclude that the employer acted in bad faith or that it sought, by all possible means, to blame Mr. Rousseau in order to get rid of him. First, I do not share the view of Mr. Rousseau’s counsel that the employer made exaggerated allegations against Mr. Rousseau and that it overstated their seriousness to the extent that it acted in bad faith. Mr. Rousseau may very well not share the employer’s view of the extent and seriousness of the failings ascribed to him, but I find that, based on the evidence adduced, the employer reasonably assessed the several events that occurred and weighed in good faith and in a reasonable manner the seriousness of those failings.

121 I will now deal with the employer’s duty of fairness. First, I find that the evidence demonstrates Mr. Rousseau’s contention that he was not given the opportunity to present his version of the facts to Ms. Boily, neither for the events of January 22, 2008 nor for the other elements on which she based her decision to reject him on probation. The evidence also demonstrates that Mr. Rousseau was not given the opportunity to present to the investigation committee his version of the facts for issues other than those about the events of January 22, 2008. However, in my opinion those findings are not sufficient to conclude that the employer acted unfairly.

122 First, I will comment on the failings before January 22, 2008, particularly those set out in the October 2007 performance appraisal and those that led to the January 28, 2008 written reprimand. During his October 2007 performance appraisal, Mr. Rousseau met with Messrs. Gauvreau and Lavigne and was given the opportunity to present his version of the events and to provide an explanation. In fact, he signed the performance appraisal form to show his agreement with its contents.

123 With respect to the security-patrol events that led to the written reprimand of January 28, 2008, Mr. Rousseau was given the opportunity to share his viewpoint with Mr. Gauvreau before the employer decided to issue a reprimand.

124 I consider that it was reasonable for Ms. Boily to assign responsibility for the investigation into the January 22, 2008 events to a committee since she is incapable of investigating on her own all the incidents that occur within the institution. In so doing, the employer did not give credence to Mr. Fréchette’s complaint but rather analyzed the entire situation. During the investigation, Mr. Rousseau had the opportunity to present his viewpoint and his version of the events to the committee before it issued its conclusions and recommendations. Although Mr. Rousseau alleged that not all of his comments were reported accurately, I find that the discrepancies to which he refers, if proven, are not sufficiently significant to invalidate the committee’s conclusions.

125 I also find that it was not unreasonable to authorize the committee to consider the other information contained in Mr. Rousseau’s file without conducting a second investigation into the incidents to which it refers. The employer had already followed up on each point that the committee considered, and on every occasion, Mr. Rousseau was given the opportunity to present his version of the facts and an explanation. I do not hold the view that it was the committee’s duty or that of Ms. Boily to investigate those events anew, and I find that they were entitled to consider them in their assessment of Mr. Rousseau’s overall job performance.

126 I also consider that it was not unreasonable for Ms. Boily to rely on the assessment of the facts made by the members of the investigation committee, which she had specifically mandated to determine what had actually occurred.

127 I will now deal briefly with Mr. Rousseau’s meeting with Ms. Boily on February 20, 2008. First, I find that the evidence does not confirm that the meeting’s purpose was to discuss the investigation report. The notice of the meeting is concise and states that Ms. Boily wished to meet Mr. Rousseau “[translation] “following the submission of the investigation report.” Mr. Roy and Ms. Boily held different views on the purpose of the meeting, although the evidence does not support the findings that the employer had notified Mr. Rousseau or Mr. Roy that the meeting’s purpose was to discuss the report. As for the meeting itself, I believe that it would have been desirable to offer Mr. Rousseau the opportunity to provide an explanation to Ms. Boily and to present his version of the facts. However, as mentioned earlier in this decision, I do not consider that omission sufficient to conclude that the employer acted unfairly toward Mr. Rousseau. I would rule otherwise if the employer had taken into account Mr. Rousseau’s failings without giving him the opportunity to present his version of the facts or an explanation. However, Mr. Rousseau was given the opportunity to present his version of the facts for the events dealt with in his October 2007 performance appraisal, for the November 2007 security patrol events and for the January 22, 2008 events that occurred while he was escorting an inmate.

128 In addition, the evidence did not demonstrate that Mr. Rousseau or his representatives were not given the opportunity to make the representations that they judged appropriate at the different levels of the grievance process.

129 For all the above reasons, I find that Mr. Rousseau has not demonstrated that the employer acted in bad faith or that it failed to meet its duty of fairness to the extent of invalidating the rejection on probation. Nor has he shown that his rejection was a subterfuge.

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

V. Order

131 The objections to the jurisdiction of an adjudicator are allowed.

132 The grievances are dismissed.

July 23, 2009.

PSLRB Translation

Marie-Josée Bédard,
adjudicator