FPSLREB Decisions

Grievance referred to adjudication

1  Paul Stevenson (“the grievor”) is an employee of the Canada Revenue Agency (“the employer”). On November 26, 2004, the grievor was demoted from the position of Rebates Client Services Officer (PM-01) to the position of Review and Verification Clerk (CR-04), and on December 20, 2004, he filed a grievance regarding his demotion. 

2 The grievor contended that his demotion was a veiled attempt to discipline him. The employer took the position that the demotion was administrative in nature, and therefore, I do not have jurisdiction.

3 The employer raised the preliminary matter of jurisdiction before the hearing and asked that the grievance be dismissed. I decided that I had to hear evidence to make a ruling on this matter. At the beginning of the hearing, both counsel provided me with a joint book of documents and a copy of correspondence from the Public Service Alliance of Canada dated February 19, 2009. In so doing, both counsel also informed me that neither party wished to call any oral evidence and that both parties wished to proceed to argue the preliminary objection as to my jurisdiction based on the evidence.

4 The parties agreed that I would render a decision on the jurisdictional matter before hearing any evidence on the merits of the grievance.

5 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.  Pursuant to section 61 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 ("the former Act").

Factual background

6 Counsel for the grievor confirmed that there was no dispute as to the facts in this matter. In that regard, counsel for the employer outlined her version of the facts, which the grievor accepted as a fair analysis.

7 From 1993 to November 26, 2004, the grievor was a Rebates Client Services Officer, and at all relevant times, the employer considered him professional, well liked and pleasant. However, in his position, productivity is important, and the grievor had difficulty processing his files in a timely manner.

8 The documented evidence shows that, in March 2002, the employer began meeting with the grievor to discuss his low productivity levels which were not meeting the expected standards. Several meetings took place over the following months (Exhibit 1, Tabs 10 to 13). On March 24, 2003, a Performance Improvement Plan was implemented by the employer, which the grievor signed (Exhibit 1, Tab 14). 

9 The plan was to be reviewed on June 16, 2003. In fact, the review took place on June 18, 2003 (Exhibit 1, Tab 16). At that meeting, that the employer offered the grievor technological assistance, which he accepted.

10 From that point on, the employer continued to communicate with the grievor (Exhibit 1, Tabs 17 to 25). In September 2003, the employer developed a one–year action plan specifically for the grievor. The action plan was to be reviewed on August 31, 2004 (Exhibit 1, Tab 31). The plan was a very detailed outline of the employer’s expectations, and it specified objective and measurable criteria.

11 Throughout the action plan period, the employer’s representatives and the grievor met to discuss his results. There was no dispute that, despite the assistance provided by the employer, the action plan was developed by the employer with the consent and the efforts of the grievor. However, the grievor was not able to achieve the expected results.

12 On October 2, 2004, the grievor met with his immediate supervisor, who discussed various performance issues. On November 24, 2004, the grievor met with the employer’s representatives. As a result of that meeting, he was given a letter dated November 26, 2004 (Exhibit 1, Tab 40) indicating that, as of January 3, 2005, he was being demoted under paragraph 51(1)(g) of the Canada Revenue Agency Act (CRAA).

13 In an unrelated matter, on June 22 and 30, 2004, the grievor and the employer’s representatives met concerning a disagreement about certain procedures that the grievor felt he was being required to adopt. The procedures were, according to the grievor, contrary to the law. I have read the documents produced by the employer from these meetings (Exhibit 1, Tabs 28 and 29) and conclude that nothing came of this disagreement.

14 In addition, on October 7, 2004, the grievor met with the employer’s representatives about his failure to attend work on a particular day in September. During that meeting, the grievor’s supervisor clearly indicated her disappointment about his “lack of responsibility and dependability” (Exhibit 1, Tab 34). At the conclusion of the meeting, the grievor was advised that his supervisor was considering a disciplinary sanction. That said, the record before me shows no evidence that any disciplinary action was taken.

Analysis of the objection to my jurisdiction and decision

15 The employer takes the position that the grievor’s demotion was administrative in nature and that, therefore, I have no jurisdiction to hear this matter. Both parties accept that my jurisdiction is founded in subsection 92(1) of the former Act, which reads as follow:

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

16 The employer indicates, and I agree, that paragraph 92(1)(c) of the former Act applies in this case since the employer is a separate employer and is not governed by the Financial Administration Act. Further, paragraph 51(1)(g) of the Canada Revenue Agency Act (CRAA) also applies, and it reads as follows:

51. (1) The Agency may, in the exercise of its responsibilities in relation to human resources management,

…

(g) provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed by the Agency and establish the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;

[Emphasis added]

My conclusion is in accordance with a previous decision, McConnell v. Canada Customs and Revenue Agency, 2004 PSSRB 46.

17 Therefore, I only have jurisdiction to hear the merits of this grievance if the employer’s action was disciplinary in nature. The issue before me is to decide, based on the evidence introduced by consent, whether the employer’s action demoting the grievor on November 26, 2004 was disciplinary in nature.

18 Both the grievor and the employer agreed that there must be proof that the action was for disciplinary reasons. The evidence before me suggests that the action taken was for employment reasons (Canada Attorney General v. Leonarduzzi, 2001 FCT 529 as referred to at paragraph 26 of McConnell). Specifically, the evidence must demonstrate that the employer’s action was a “sham or subterfuge” (see McConnell).  In my view there was no such evidence presented in this matter to suggest that the actions of the employer were a “sham or subterfuge”.

19 The grievor did not dispute that the employer had a legitimate operational concern in ensuring that he met the anticipated production levels (see Canada Attorney General v. Frazee, 2007 FC 1176). Furthermore, the grievor does not take the position that the employer at any time alleged “an act of malfeasance” on his part (Peters v. Treasury Board (Department of Indian Affairs and Northern Development), 2007 PSLRB 7).

20 The grievor’s submission was that the demotion was a veiled disciplinary action. Counsel for the grievor referred me to the two meetings where the grievor was, at the very least, counselled about his performances in 2004 (see paragraphs 13 and 14 of this decision). The grievor submits that I should hear the evidence on the merits of the grievance before rendering a decision on the preliminary objection to my jurisdiction. Counsel for the grievor referred me to the following three cases(all of which, in the final analysis, were not that helpful): Government of Saskatchewan v. Saskatchewan Government Employees’ Union (Pollock) (1988), 2 L.A.C. (4th) 423, Labatt’s Ontario Breweries, Division of Labatt Brewing Co. Ltd. v. Canadian Brewery Workers Union, Local 304 (1980), 29 L.A.C. (2d) 275, and Steel Co. of Canada Ltd. v. United Steelworkers, Local 1005 (1976), 7 L.A.C. (2d) 132.

21 In considering the matter before me, I was impressed that no suggestion was made that the employer acted improperly. Furthermore, the grievor acknowledged that the employer had a legitimate operational requirement that had to be met. In essence, the only concern the grievor raised was that, before he was demoted, the employer’s representatives had spoken to him about other issues. The record does not show that he was disciplined for those matters, but even if he was, is there any evidence of sham or subterfuge? I do not think so.

22 I conclude that, based on the record before me, in fact, the employer acted in a forthright manner with the grievor with respect to the performance issues and the other two matters referred to above (see paragraphs 13 and 14 of this decision). My conclusion is that the employer acted in good faith, kept the grievor fully informed of what was expected of him and the consequences of not meeting those expectations, gave the grievor the opportunity to adjust and meet the expectations, provided assistance to the grievor, and explored alternate solutions before deciding to demote him (Lindsay v. Canada Border Services Agency, 2009 PSLRB 62).

23 The employer also noted that the grievor had not exercised his right to an independent third party review of his demotion, which is provided to all employees through the Canada Revenue Agency’s Independent Third Party Review Processing Directive. The directive was updated on May 1, 2005. The grievor did not take issue with that suggestion.

24 I conclude that the preliminary objection to my jurisdiction is well founded and that I am unable to hear this matter on the merits.

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

Order

26 The employer’s preliminary objection is upheld and the grievance is dismissed.

July 16, 2009.

George Filliter,
adjudicator