FPSLREB Decisions

I. Individual grievance referred to adjudication

1 The grievor, Dr. Sameh Salib, grieved being rejected on probation from his position as a veterinarian, classified at the VM-01 group and level, with the Canadian Food Inspection Agency (“the Agency” or “the employer”). His grievance states as follows:

By letter dated December 3, 2007, I was informed that I was being rejected on probation. This action was done in bad faith and is disguised retaliation for filing a harassment complaint against my supervisor. On June 22/07, I was given a list of areas which required further discussion or training. On July 11/07, I was told my performance was improving. The last performance feedback that I received from my supervisor on Oct 26/07 was proven to be incorrect and an apology about it was given to me on Tue, 30 Oct 2007. I have not received any notification that my performance was unacceptable to the point that failure to improve may result in rejection, nor since July was I notified in writing of what I needed to do to improve my performance or given any opportunity to improve. In November 2007, I filed a harassment complaint against my supervisor, which was not investigated by the CFIA. After rejecting my complaint, CFIA rejected me on probation. As I was not given any warning that rejection on probation was being considered prior to this complaint, the rejection was done because I exercised my right to file a complaint. I therefore grieve.

2 Dr. Salib asks that his rejection on probation be overturned, that he be re-employed by the Agency at the VM-01 group and level and at a location outside of the Manitoba region, that he be paid all lost wages and benefits, and that he be made whole in every way.

3 The parties have taken no issue with my jurisdiction to decide this matter.

II. Summary of the evidence

4 I heard testimony from Dr. David Bates, Inspection Manager for the Agency, Manitoba West, and Dr. Yvette Neumier, Supervising Veterinarian at a plant in Brandon, Manitoba (“the establishment”).I also heard testimony from the grievor. Both parties filed a number of exhibits. There is some common ground between the parties. However, some differences are apparent on key points. Some of those points turn on the assessment of the credibility of the witnesses.

5 The Agency was looking for veterinarians for the establishment, which has the highest hog production volume of any plant in Canada, slaughtering approximately 10 000 hogs per 8-hour shift. Dr. Bates described the establishment as an aggressive environment that is tough on standards and sanitation as 80 percent of its output is exported to Asia. The establishment was to start a second shift in fall 2007. The impact of the additional shift was that the Agency’s inspection staff needed to double.

6 At the establishment, the Agency employs inspectors and veterinarians. The inspectors are technical staff in the EG classification group with at least a grade 12 education responsible for sanitation and screening live animals and carcasses for abnormalities, which are then referred to the veterinarian for a disposition decision. A veterinarian’s duties include inspecting animal unloading at the establishment, inspecting the herd held in live pens, and performing ante-mortem and post-mortem inspections. A veterinarian’s dispositions can include decisions about whether a carcass must be condemned or whether it can be consumed in whole or in part. The dispositions can include instructions to trimmers employed at the establishment. Veterinarians and technical staff have the authority to stop production on the line if there is a food-safety issue, and the employee making that decision must be prepared to defend it. If errors must be made, the Agency prefers that an employee err on the side of food safety.

7 At the establishment, Dr. Neumier supervises all veterinarians and the head inspector, who is classified at the EG-05 group and level. She graduated in 1984 from the Western College of Veterinary Medicine. She worked in a mixed-animal practice for 15 years before joining the Agency at the establishment in August 1999. She became the veterinarian in charge on an acting basis in 2002 and, by 2003, obtained the position on an indeterminate basis. Dr. Neumier does not have the delegated authority to hire or fire Agency employees. Dr. Neumier reported to Dr. Bates at the relevant time. Dr. Bates and Dr. Neumier converse weekly.

8 Dr. Bates testified that the Agency has difficulty recruiting veterinarians into positions classified at the VM-01 group and level, particularly to smaller towns, such as Brandon. There has been a high turnover of veterinarians classified VM-01 in Manitoba. Dr. Neumier testified that the positions are often not the first choice of graduating veterinarians.

9 Dr. Salib came to the attention of Dr. Bates as a potential candidate as a result of Dr. Salib’s application to the Agency. Dr. Bates obtained Dr. Salib’s résumé from Dr. James Davies, another inspection manager, responsible for Eastern Manitoba.

10 Dr. Bates contacted Dr. Salib by telephone and flew him to Winnipeg, Manitoba. He was interviewed on the first day. Dr. Bates then drove with him to Brandon. Dr. Neumier took Dr. Salib on a tour of the establishment. Dr. Salib impressed Dr. Bates as a person who was enthusiastic, was interested in the job and would likely stay. Dr. Salib took time to look at houses in Brandon. After he left Dr. Salib at the airport, Dr. Bates conducted reference checks. On March 6, 2007, the Agency made Dr. Salib an employment offer, effective May 7, 2007, which included a probationary term of one year (Exhibit E-1). Dr. Salib accepted the Agency’s offer on March 9, 2007.

11 Dr. Bates testified that it is only possible to assess whether a new candidate has the necessary skills during on-the-job training in the probationary period. Dr. Bates wanted Dr. Salib to be successful in the position as Dr. Bates was short veterinarians, and there were problems recruiting and retaining veterinarians to positions classified VM-01.

12 Dr. Salib testified that he is a qualified veterinarian. He is originally from the Arab Republic of Egypt. He was trained as a veterinarian and holds a Bachelor of Veterinary Science (V.M.Sc.) from Zagiz University in Egypt, which he obtained in 1985 (Exhibit G-21). In 1990, he obtained a Certificate in Food Control and Food Hygiene from the Faculty of Medicine, Alexandria University, Egypt (Exhibit G-23). The Canadian Veterinary Medical Association issued him a Certificate of Qualification on May 27, 2002 (Exhibit G-23). Dr. Bates stated that, when he hires foreign veterinarians, who must write and pass the National Board exams, he assumes that a veterinarian’s knowledge of pathology is “up to snuff” as the exams are difficult to pass. Dr. Salib confirmed that the examinations were difficult, but he passed on his first attempt.

13 Dr. Salib testified that he immigrated to Canada because of religious persecution or discrimination based on his religious beliefs. He is a Coptic Christian and lived in Egypt, which primarily has an Islamic population. He testified that his last name means “cross” in Arabic, and therefore, his religious beliefs are apparent to any Egyptian. Although he has a certificate in food hygiene, he was not permitted to obtain a masters degree by his Islamic professor. He also stated that he was discriminated against based on his religious beliefs in Egypt when he applied for a job with a pharmaceutical company. He further stated that it was public policy in Egypt to hold back Coptic Christians and to support Muslims in the public service and in public life. He also testified that he was from a wealthy background and that his family had had property expropriated without compensation for the building of a mosque. He immigrated to Canada because of discrimination, but he did not apply in the refugee category.

14 Dr. Salib’s first language is Arabic and not English; however, he was able to give evidence without an interpreter, and he worked in English before his appointment to a position with the Agency.

15 Dr. Salib had no experience in dealing with hogs or hog production before working with the Agency. Immediately before the appointment, he had been employed in a small animal practice in Prince George, British Columbia.

16 Dr. Neumier testified that before training Dr. Salib she had trained nine other veterinarians. Before her involvement with Dr. Salib, she had never had difficulty training an employee, and all the employees that she had trained became indeterminate employees following their probationary periods. Generally, most probationary hires were competent enough to work on their own after two weeks of training. Before Dr. Salib’s appointment, the longest training period had been five weeks.

17 Dr. Neumier stated that generally, after the first week of on-the-job training, a veterinarian knows how to better apply his or her training to meat. She usually trains a veterinarian for two weeks. She stated that typically, many veterinarians are able to work on their own by the end of the second week but that it sometimes takes three weeks. She said that, by the fifth week, she just has to stand there to “make sure they know their stuff.” Dr. Neumier testified that she is confident that she knows that a veterinarian can do the work when she sees that he or she can understand anatomy and pathology, when she sees him or her employing a logical process when approaching a problem, and when he or she can apply that process without Dr. Neumier needing to repeat herself. She stated that it is not her job to teach basic veterinarian skills and that those skills are a prerequisite. Dr. Neumier stated that she trains new veterinarians to apply their veterinary knowledge to food hygiene since doing so differs slightly from private practice. Because of the establishment’s large output, veterinarians classified at the VM-01 group and level are exposed to a substantial degree of pathology, requiring quick disposition decisions.

18 Dr. Neumier testified that the veterinarian’s role is critical to the safety of the food supply and that the veterinarian’s job is to ensure that the food is safe and wholesome for domestic consumption and export. She testified that, from her initial contact with Dr. Salib when he arrived for the tour, she was unable to assess his ability to perform the job.

19 On May 7, 2007, Dr. Salib started working with the Agency at the establishment. On his first day of work, Dr. Salib was given his equipment. He was shown where all the reading material was located and provided a reading list. He was told that the reading list was just to get him started and that he had to read and go into the manuals and regulations. He was told to use his time productively to read when not on the kill floor or in the barn. He was told to familiarize himself with the activities of the company in the barn and on the kill floor. The veterinarians are housed in an open office when they are not in the barn or the processing areas within the establishment.

20 Dr. Neumier stated that she did the work of a veterinarian when she took Dr. Salib to the kill floor. She explained every carcass that she examined and explained what she was looking for, what she found and what she would do with the findings. She quickly found that she was constantly repeating herself. She stated that at some point during the week she was bowled over when Dr. Salib observed a normal part of the heart — an auricle — and declared that it was fibrinous pericarditis.

21 Dr. Neumier stated that, with the establishment processing 1250 carcasses per hour, the veterinarians see a range of pathology. It is important to determine whether there is a food safety risk or whether a problem is simply aesthetic, which would affect the meat grade. It is particularly important to be able to determine generalized disease conditions, for example, when bacteria had spread throughout the body via the blood system, as the carcass must be condemned and kept out of the food chain. It is also important to distinguish between acute and chronic problems. One method of determining whether a problem is acute or chronic is to determine whether a lesion has fibrinous exudate (i.e., seeped cells or fluids containing insoluble proteins) or whether it is organized as fibrinous or scar tissue. If the lesion is fibrinous, the food safety risk can be downgraded to nil. Dr. Neumier stated that there is no black or white; there are many degrees between what is “OK” and what is “serious.” She said that generally, veterinarians when first hired have not been exposed to the post-mortem examination of lesions. In private practice, veterinarians deal primarily with live animals. After a few days of seeing pathology, Dr. Neumier said that veterinarians could generally recognize pathology and its significance and start to make decisions or dispositions about what to do with the observations.

22 Dr. Neumier testified that, for example, Dr. Salib would examine fibrinous lesions on different carcasses, observe the same thing and make different dispositions. He had trouble distinguishing the appearance of normal intestines, which can be significant since some very serious diseases affecting food safety (such as salmonella) can affect the intestines. He had difficulty understanding what normal viscera looked like. He had difficulty understanding the difference between pathology and mechanical damage to a carcass during processing. He did not use a systematic approach that would start with the heart, lungs, dorsal surface, ventral surface, lymph nodes, diaphragm, liver, gall bladder and associated lymph systems. Dr. Neumier used that system to ensure that it could be demonstrated that a carcass was completely examined, as some lesions can be very small.

23 Dr. Neumier testified that a systematic approach is important since, for example, when examining an abscess, one has to decide whether it is significant and has to be cut out. If abscesses are in joints or in ribs or there are bite marks on a tail, toxins may exist, and the entire carcass should be condemned. Dr. Neumier testified that Dr. Salib often stopped examining a carcass after finding a lesion without executing a systematic examination.

24 Dr. Neumier stated that Dr. Salib had difficulties recognizing arthritis. She stated that one of the more troubling points was that he had difficulty differentiating septicaemia from other conditions. Carcasses with septicaemia have to be condemned as they pose a serious food safety risk. They may also pose a human safety risk since some contain zoonotic diseases, which can be transmitted from animals to humans. Even though plant workers become adept at recognizing some problems, the veterinarian has to make the trimming decisions.

25 Dr. Neumier also testified that it is important not to condemn carcasses frivolously as farmers are not paid for those that are condemned.

26 Dr. Neumier first notified Dr. Bates of her concerns with Dr. Salib’s performance on June 13, 2007. She was to be away on business from June 18 to 22, and on the following week, June 25 to 29, she was attending an Agency-sponsored course. It was to be Dr. Salib’s sixth week of training, and she did not feel that he could work alone. She was stuck in that he would be working alone even though she had serious concerns that he would make incorrect disposition decisions.

27 In her testimony, Dr. Neumier stated that she did not have any confidence that Dr. Salib could be left alone because he was not consistent. Her view was that he did not understand the difference between acute and chronic conditions or generalized and local conditions. She had concerns about his basic knowledge of anatomy, especially for intestinal areas, as well as his basic knowledge of arthritis, pneumonia, abscesses, intestinal inflammation (enteritis), septicaemias, stress syndrome and stress itself. She testified that his disposition decisions appeared as guesswork to her rather than as arising from logic.

28 She had problems with Dr. Salib’s skills in ante-mortem inspections. Typically, veterinarians are required to go to the barn several times per day to monitor humane handling and stunning and to simply observe the herd’s health for diseases such as foot and mouth disease and pneumonia, which was important for detecting problems and essential for monitoring conditions.

29 She was concerned that she never saw Dr. Salib read and was preoccupied about whether he had vision problems and whether he could read.

30 Dr. Bates testified that, about a month after Dr. Salib started working at the establishment, he was informed by Dr. Neumier that Dr. Salib was having difficulty “picking up pathology.” Dr. Bates testified that Dr. Neumier had already started retraining Dr. Salib and that she was running into challenges because he was argumentative during the training. Dr. Bates was advised that two other veterinarians were also involved in the training and that they had also reported that Dr. Salib had difficulty picking up pathology and that he was argumentative. Dr. Bates testified that veterinarians have a clear chance of stopping disease. He testified that veterinarians could pick up some food safety concerns. Failing to identify problems has a human consequence — food safety concerns — and a business consequence — producers can lose markets.

31 Dr. Bates stated that he was concerned with the reports but that he was not panicking at that point, as it was still early in Dr. Salib’s probation. Dr. Bates told Dr. Neumier to continue documenting the issues but that she should meet with Dr. Salib to discuss the concerns and to communicate her concerns in writing. She decided to meet with Dr. Salib on June 22, 2007. She did not inform Dr. Salib in advance that she intended to meet with him. On June 15, 2007, she sent Dr. Bates her reports. She had been keeping handwritten notes, which she typed and edited before sending.

32 Dr. Neumier had arranged for other veterinarians to supervise Dr. Salib, including Drs. N.R. and L.M. (Note: some names have been omitted from this decision for privacy reasons and have been replaced by initials.) Some of Dr. Salib’s problems can be found in Dr. Neumier’s notes (Exhibit G-13), which contain as follows her notes of Dr. N.R.’s observations of Dr. Salib for June 18, 19 and 21:

- One carcass with only tarsal bruising had been marked to have the stifle joint removed (stifle was not arthritic) ie. wrong call.

- carcass with pleural adhesion and a bit of lung edema had been condemned for pneumonia and septicaemia (should not have been condemned)

- one carcass unopened/unenviscerated [sic]with only small opening in pelvic area was going to be condemned by him for proctitis and rectal stricture, but then carcass was eviscerated and he was shown that guts and rectum were normal.

- missed two carcasses with Erysipelas

- did not check joints on other carcasses with huge guts and proctitis and said it was OK.

June 21, 2007: N’s observations

- told by Mel that he missed 2 erysipelas

- did not open joints on Erysipelas carcasses though told many times in the past. Did not assess fully. Wanted to stamp with S (should have been H0

- condemned a pleuritis which was too mild (chronic) to require condemnation. He claimed it was fibrinous but it was not.

- Did not want to condemn a clear case of acute pneumonia/pleuritis, septicaemia, which needed to be condemned.

- He wanted to just pull the pleura on a carcass which had acute fibrinous pleuritis. He said it wasn’t fibrinous

33 On June 22, 2007, on her return to the establishment, Dr. Neumier intended to speak with Dr. Salib that day about his performance problems. Dr. Salib immediately approached her. He was upset and agitated. He indicated that he wished to file a harassment complaint against Dr. N.R., whom Dr. Neumier had left in charge in her absence. Dr. Salib told her that he felt that Dr. N.R. had insulted him earlier in the week. Dr. Salib had been sick with a sinus infection and had felt cold. He had brought a space heater into the office. Dr. N.R. had made a comment that, if Dr. Salib did not like the cold, maybe he should go back to Prince George. Dr. Neumier testified that there is a mild seasonal variation in the temperature in the office and that one does not need to wear a coat. Dr. Neumier interviewed Dr. N.R., who admitted that he had said what Dr. Salib claimed and that it had been intended as a joke. She interviewed another employee, Dr. C., who said that, had those words been said to him, he would have taken them as a joke and would have felt that no harm was intended. Dr. Neumier said that it took a couple of hours to deal with this issue. She got Dr. N.R. and Dr. Salib together, and Dr. N.R. apologized. She considered that the issue was resolved by about 10:30. She said that, after Dr. N.R. left, Dr. Salib continued to insist that he had been insulted by Dr. N.R., who should change his ways and his personality, and Dr. Salib could not understand why he could not be accommodated by raising the temperature in the room.

34 Dr. Neumier’s investigation notes indicate that the problem with heat control was that, if the heat were turned up, it had to be done in another area of the establishment, which would have meant that the establishment’s workers in the next office would have been “cooking.” There were coats available for the cold room, which Dr. Salib could have worn had he continued to feel cold. She felt that it had been unreasonable for him to insist on turning up the heat in the summer to accommodate him when he could simply have put on more clothing.

35 Dr. Neumier then detailed her performance concerns, working from itemized notes. She indicated that Dr. Salib was on probation and that he was expected to become proficient. She testified that she prepared the memo for Dr. Salib in advance of the meeting. She had had her laptop with her while travelling.

36 Dr. Neumier presented her concerns in a memo, and Dr. Salib agreed that the items were discussed by signing the memo. In particular, Dr. Neumier identified a number of areas requiring further discussion, as follows:

- developing a systematic approach to inspecting entire carcasses and viscera

- importance of assessing all lesions and considering all of them together to understand pathogenesis, before reaching a conclusion.

- assessment of imperfect exsanguinations

- understanding lesions observed in porcine stress syndrome

- differentiating between acute and chronic inflammatory response

- understanding importance of localized vs. Generalized inflammation

- appearance of Erysipela

- appearance of lymposarcoma

- appearance of septicaemia

- review of arthritis: tarsal, infectious, degenerative osteoarthritis

- review of pneumonia and its significance

- review of enteritis and proctitis and their significance

- delays in reading training material

37 Dr. Salib did not refuse to sign the memo or note and did nor disagree with the comments. Dr. Neumier believed that the meeting went well and that Dr. Salib had been receptive to her concerns. Dr. Salib repeatedly attempted to move the discussion back to his harassment complaint.

38 Dr. Neumier’s meeting notes from June 22, 2007 (Exhibit E-2) state in part as follows:

…

I started off by telling Sam that he has now been here 7 weeks, and I have identified many areas where his training has not been completely successful and he is lagging behind in those areas. By now he should have a clearer understanding of these areas. I also told him that during his first year, he is on probation in terms of performance, and that he needs to improve.

…

39 Dr. Neumier’s meeting note indicates that Dr. Salib did not appear to be reading and that he could not find Module 32 (“VM Guide to pathology”), which was sitting on his desk. Dr. Neumier indicated that she would be away and that she would follow up when she returned in the first week of July and periodically after that. She advised him that Dr. L.M. would be the acting veterinarian in charge and that Dr. Salib would be working with him.

40 After the discussion on June 22, 2007, Dr. Neumier returned to the establishment’s kill floor with Dr. Salib. By that time, he had worked on his own for four days, with spot checks by other veterinarians. After observing him, Dr. Neumier had the same concerns, which were that the dispositions were not being properly made, he was too hasty making them and, she had observed no change. He received reports from two co-workers, Dr. L.M. and Dr. N.R. Dr. N.R. reported that, every time he tried to explain a problem to Dr. Salib, Dr. Salib was argumentative. The concerns raised were similar to her earlier concerns.

41 For example, Dr. Neumier’s notes for June 22, 2007 (Exhibit G-13, page 4), state the following:

…

-misdiagnosed 2 stifle joint arthritis on 2 different carcasses. These were normal joints but he said they were arthritic: Were not.

- Was going to condemn a carcass with no other lesions except very mild rectal stricture (no inflammation at all. The bung had simply not been pulled down.) Also said it was contamination (was very limited only to pelvic canal – definitely trimmable).

Completely normal small intestine (empty, not gas-filled, no distension, very normal) but he pointed at it and said it was proliferative enteritis. When asked how he could say that he pointed at the NORMAL convolutions. I told him immediately [to] check all the other viscera, but he did not. I later showed him pictures of PPE, and verbal description, and said that even in a bad case it is not reason to condemn unless the carcass in anemic or emaciated.

- We looked at a few carcasses where bung was not pulled through (poor bunging technique) and from that I conclude that he has no understanding of the difference between mechanically damaged rectums, actual rectal strictures (no inflammation), and proctitis.

- After being told to systematically examine entire carcasses, he opened the stifle joints and stopped there. He did not see the obviously enlarged elbow joint.

- Claims he couldn’t find Module 32 anywhere. I told him it was on his desk. He denied it and was looking around for it, so I pointed it out to him – it was directly under his nose the whole time !!!

…

- There was nothing happening on the Held Rail so I directly told him to go stand by the inspectors to understand what they do and look at normal viscera or carcasses. He stood awkwardly maybe 1 minute then came back and never did it again, though he had plenty of opportunity. All of us have told him many times in the past to do so, but he won’t. All the others have done it as part of their training. Almost looks like he thinks EG’s are inferior.

- He asked me why EG’s occasionally push the button to condemn viscera. He should know the reason if he had read the Inspector’s SOP’s, which I have told him to do many times previously. I answered that the answer to that question is in the Inspector’s SOP’s so go read them!

…

42 Dr. Neumier testified that those were fundamental concerns and that Dr. Salib’s missing knowledge would ordinarily have been learned at veterinarian school. Dr. Neumier expressed her concerns to Dr. Bates. In his evidence, Dr. Bates confirmed that the problems identified by Dr. Neumier “scared him” as they were “simple stuff” and significant. The lack of a systematic approach was a huge concern, as it is possible to miss things. He testified that all the concerns identified were significant food safety concerns. In cross-examination, Dr. Bates testified that he was concerned and that Dr. Salib needed to know that, if things did not improve, they would release him.

43 Dr. Salib had a different view of his performance. Dr. Salib testified that he had been happy to join the federal government. His salary started at $68 000 because of his diploma in food hygiene. Dr. Salib testified that he was eager to learn when he started the job. He asked reasonable questions. He had never worked with hogs before and was not afraid of them; however, he was warned that they could bite.

44 Dr. Salib testified that he has no vision or hearing problems. He was tested before his appointment. He has a minor vision issue. He has two pairs of glasses — one for reading and one for driving. He said that he could drive without his glasses but that he was required to use them as his picture for his driver’s licence was taken with glasses.

45 Dr. Salib testified that he was given reading material. He said that he read most of it at home and that he sometimes read it at the establishment. Dr. Salib testified that he read for two to three hours per day. He took a copy of the materials and read them at his home two or three times, because he wanted to make sure that Dr. Neumier could not catch him making any mistakes. He also read articles in a monthly Canadian veterinary journal.

46 Dr. Salib testified that he felt that the first few weeks of training went well and that there were no problems with his work. He understood the training material. He was supervised by Dr. Neumier. He said that Dr. Neumier considered him argumentative when he provided an opinion that differed from hers. In other practice settings, colleagues had discussions. Dr. Salib pointed out that, on the first day of the hearing, Dr. Bates testified that Dr. Salib was polite. Dr. Salib testified that he was not argumentative. In re-examination, Dr. Salib said that he took his duties seriously and that he was open to feedback but that the person giving feedback had to be right before he would listen to him or her.

47 Dr. Salib testified that he started working overtime on June 11, 2007. He worked overtime alone. He received the same amount of overtime as other employees. There was no obligation to work overtime, and the employer was not obliged to assign him overtime if it considered him incompetent.

48 During the hearing, Dr. Salib stated that it was clear that he did not accept the concerns expressed at the hearing and during the meeting of June 22, 2007 and that he considered them unfounded. He also testified that the concerns, if true, were serious.

49  Dr. Salib testified that Dr. Neumier fabricated her concerns in a half-hour period following their discussion about his harassment complaint. Dr. Salib testified that it was only after the harassment complaint that Dr. Neumier went away for half an hour and created the concerns.

50 Dr. Salib further testified that he believed that another more senior veterinarian, Dr. N.R., disliked him from the outset of the employment relationship because Dr. N.R. had a house for sale that he wished Dr. Salib would purchase, which he did not. He said that as a result Dr. N.R. had a negative attitude toward him. This information was not put to Dr. Neumier in her cross-examination.

51 Dr. Salib clearly believes that Dr. N.R. insulted him. Dr. Salib testified that, when he told Dr. Neumier about the harassment complaint, she threatened him and said, “If you don’t withdraw this harassment complaint you will see the consequences. Remember you are on a probation period.” I note that this allegation was not put to Dr. Neumier in cross-examination.

52 Dr. Salib testified that Dr. Neumier did nothing to investigate his complaint. However, it is apparent that Dr. Neumier put Dr. Salib and Dr. N.R. in the same room and that Dr. N.R. admitted to joking about his comment. Her investigative notes were filed as Exhibit G-17, which outlines what she did to investigate the complaint. It is apparent from her notes that she did conduct an investigation of his complaint.

53 Dr. Salib testified that, 30 minutes after the meeting about his harassment complaint, Dr. Neumier called for him. She gave him the June 22 letter and read it. He said that he advised her that there were no problems with his work. He answered all 13 of her concerns. After they were finished, she said, “Okay. Try to read more.” This version of events was not put to Dr. Neumier in cross-examination for her consideration.

54 Dr. Salib was asked in direct examination how he felt about the concerns raised. He said the following:

All the concerns are not true at all. She asked me item by item and I answered for all her items. She created all those concerns 30 minutes after I told her I filed a harassment complaint against N. She didn’t mention them before. All her concerns were 30 minutes after. I don’t think 1 percent that there were any concerns about Sam at the time. All were not true.

55 Dr. Salib was permitted to work on his own after the sixth week. The employer’s reason for doing so was set out as follows in the notes: “… [W]e thought at some point he has to make the leap, and by [being] forced to work alone he might improve…” (Exhibit G-13).

56 Dr. Bates met with Dr. Salib on July 3, 2007. In his re-examination, Dr. Bates testified that that meeting was intended to be blunt, with a blunt follow-up letter, so that Dr. Salib would take the performance concerns seriously. In cross-examination, Dr. Bates testified that, while the employer was not considering releasing Dr. Salib in July, it was certainly a possibility if he did not improve.

57 Dr. Bates was particularly concerned that Dr. Salib denied the meeting of June 22, 2007 with Dr. Neumier at which they met with him to discuss areas of improvement. In cross-examination, Dr. Bates confirmed that Dr. Salib denied meeting with Dr. Neumier and denied receiving feedback on June 22, 2007. In his testimony, Dr. Salib stated, “Why would he do this when there was proof by the fact that he signed the memo?” It is an odd point, but it goes to the issue of whether Dr. Salib was aware of Dr. Neumier’s concerns. In my view, he was aware of her concerns as he signed the memo, but he denied being aware of them when he met with Dr. Bates. I prefer Dr. Bates’ testimony as this is supported by the testimony of Dr. Neumier and documents contemporaneous with the events

58 Following the meeting with Dr. Salib, Dr. Bates set out his concerns as follows in a letter to Dr. Salib dated July 10, 2007 (Exhibit E-4):

…

As Inspection Manager, I had contacted your immediate Supervisor, Dr Neumier, for a progress report on your performance after about 6 weeks on the job. I was informed that you were having some difficulty with your initial training including pathological dispositions. She was also concerned with your progress with study modules as well as commitment to learning other aspects of the job such as barn humane treatment and transport. In addition I was informed that when being re-trained on areas previously covered, you tend to be argumentative.

At our meeting you disputed the fact that you were still having some problems with dispositions and also indicated some dislike for Dr. R as a trainer. I referred you to the fact that Dr Neumier had met with you on June 22, 2007 to discuss areas she had identified in which your training had not been completed successfully and supplied you and had you sign a document which provides further direction to your deficiencies and re-training direction. It concerns me that you did not acknowledge that Dr Neumier had met with you to discuss areas where you need to improve.

A requirement of your probationary / training period is for you to demonstrate flexibility and willingness to learn as you develop your job skills. The CFIA’s procedures and methods may be different from that of your previous experience but you are expected to adapt and become proficient with our approach in order to successfully complete your probationary period.

I clearly stated that Dr. Neumier is your supervisor and is the person that decides whether you are meeting our standards of proficiency as well as sets or delegates who conducts your training.

She has made and will continue to make a concerted effort to provide you with training and retraining to meet our required standards. You are reminded that you are working in a probationary period and must be deemed fully proficient in order to pass probation.

…

59 Dr. Bates testified that the July 10 letter should have been a sufficient warning to Dr. Salib to change his performance. Dr. Bates did not further counsel him in writing as he considered his warning sufficient, and Dr. Neumier was his supervisor. At no point before giving his evidence in the hearing did Dr. Salib point out that Dr. Bates was mistaken in the characterization of lack of acknowledgement that is set out in his letter.

60 Before Dr. Bates had the opportunity to follow up, Dr. Salib emailed him on July 9 and 11, asking Dr. Bates to assess him on whether he had improved in training (Exhibit E-5). On July 9, he sent an email to Dr. Bates, indicating that he had read all the materials.

61 Dr. Bates’ response was to advise Dr. Salib that Dr. Neumier was his supervisor and that she would assess him. Dr. Bates testified that he was surprised by the contact from Dr. Salib. Dr. Bates stated that the letter that he had written was blunt and was meant to be taken seriously and that at least two weeks had to pass for any reasonable chance of improvement. Dr. Bates could not understand why Dr. Salib emailed him just a few days after the July 3 meeting.

62 Dr. Salib testified about his meeting with Dr. Bates on July 3, 2007. Dr. Salib admitted that the meeting lasted about 45 minutes. He testified that they first talked about the harassment complaint and that Dr. Bates said, “You know that N could complain against you. Don’t use inflammation [sic] words.” Dr. Salib said that Dr. Bates said, “If someone filed harassment [sic] against me, I never forget it [sic] all my life.” Dr. Bates then said, “Did you tell them you have a diploma in food hygiene?” Dr. Salib replied, “Is that a crime?” Dr. Bates said, “Adapt yourself to your colleagues.” I note that Dr. Bates denied that he said those things to Dr. Salib. In cross-examination, Dr. Bates admitted telling Dr. Salib that, regardless of whether he liked Dr. R.N., he was a trainer that Dr. Neumier was using and that Dr. Salib should be learning from him. Dr. Bates said that he stuck to the points that were detailed in his letter of July 10, 2007.

63 Dr. Salib testified that Dr. Bates then spoke about Dr. Neumier’s 13 concerns. Dr. Salib said that he told Dr. Bates that he met with Dr. Neumier, where she gave him her concerns and that none of them were true. Dr. Salib then told Dr. Bates, “If you want to make sure examine me yourself or send someone.” Dr. Salib testified that Dr. Bates told him that he did not have time and that he was not going to send anyone. He said that Dr. Neumier was to evaluate him. Dr. Bates began to advise Dr. Salib that he had to be serious with the probation period. It was clear to Dr. Salib that Dr. Bates was taking his information from Dr. Neumier. Dr. Salib repeated that Dr. Bates should examine him if he was unsure.

64 From Dr. Salib’s cross-examination, it is apparent that he wrote the emails to Dr. Bates on July 9 and 11, 2007 because he was seeking a reassessment of his skills by someone other than Dr. Neumier. He testified that, at that time, his performance was “perfect” and that Dr. Neumier fabricated the complaints as part of her response to his harassment complaint. He said that none of her concerns were true and that she created all her concerns as retaliation after he filed the harassment complaint against Dr. N.R. Dr. Salib described his level of performance at that time as “perfect.” He did not allege to Dr. Bates that Dr. Neumier had fabricated her concerns.

65 On July 11, 2007, Dr. Neumier again met with Dr. Salib. She provided him with further written feedback of her concerns (Exhibit E-6). She attempted a constructive approach by advising Dr. Salib that there was improvement but that there were still concerns. Reviewing the document as a whole, the clear message, as follows, is that Dr. Neumier still had significant concerns with Dr. Salib’s performance:

…

While you have shown improvement since our last meeting, there are a few areas I am aware of that require further progress:

1) Assessment of carcasses which have been shot in the barn (and which are technically suspects: First need to verify that the hog was actually shot, then need to try to determine why they were downers (broken leg, dislocation, stress syndrome). This requires hands-on palpitation. Then assess for imperfect bleeding, and tell trimmer what you want trimmed.

2) Arthritis: Need to check both the hip (coxo-femoral) and stifle joint when there is an enlarged iliac i.e. Don’t just assume it is a stiff joint. Also have to check pre-sternal i.n. for arthritis in elbow joints.

3) Septicamias [sic]; I’m still not convinced that you understand what lymph nodes look like with generalized septicaemia, versus regional lymph node inflammation with localized lesions. There should be no need to incise popliteal lymph nodes in the vast majority of situations.

4) We need to set the example in terms of avoiding the spread of contamination. Be cognizant of what you have touched, and ensure that you wash your hands immediately upon encountering contamination from abscesses, fecal and floor carcasses.

5) Observe kidneys carefully especially in Held carcasses, and carry out proper dispositions on them. They are either approved for human consumption (in which case you leave them in the carcass), OK for pet food (mark them with blue ink from the ink pad) or inedible (remove them from the carcass). The trimmers are not responsible for making that disposition.

You have stated that you do not need your glasses for reading or working (only for driving), therefore you are expected to be able to detect specks and other contaminants or pathological lesions on carcasses, and have no trouble reading small typewritten font, especially on 4546 export forms.

…

66 Dr. Neumier expressed further concerns, including the need for ongoing reading at work during off-line breaks, which were not coffee breaks. I note that in her testimony Dr. Neumier stated that she never saw Dr. Salib reading. She checked with her colleagues, and none of them had seen him reading. All the veterinarians in the establishment share the same open office.

67 After the meeting, Dr. Neumier emailed Dr. Bates and provided him with the memo that she gave to Dr. Salib. She commented as follows:

…

You’ll notice in my letter there is one sentence that starts off as “while you have shown improvement. ...” That was the highlight of his day, and it tempered all the negative that followed. He wanted to make sure that you were told that he had improved, so I c’cd [sic] you on my letter.

…

68 In cross-examination, Dr. Salib said that all those concerns were important but false and that nothing had been wrong with his performance. He stated that he read at home and further pointed out an observation made by Dr. L.M. (see Exhibit G-13, page 5) that, on June 27, 2007, she observed him doing many reading and asking better questions.

69 Dr. Neumier prepared notes of her performance concerns about Dr. Salib. She initially kept handwritten notes, which she typed into a file on her computer in mid-June, when she sent it to Dr. Bates. Unfortunately, it is unclear when the notes were prepared, as they have been edited. The first set of notes appears to cover the period from May 7 to June 28, 2007 (Exhibit G-13). The second set of notes, containing 11 pages, appears to cover the period from May 7 to July 20, 2007 (Exhibit G-14). The third set of notes (Exhibit G-15) covers the same period of May 7 to July 20, 2007 with 12 pages of notes. The fourth set of notes (Exhibit G-16) covers the same period of May 7 to July 20, 2007 in 14 pages. Some of the notations clarified the full names and positions of the parties providing information. Some of the notations provided additional information.

70 On July 16, 2007, Dr. Neumier made the following observations about Dr. Salib, as set out at page 9 of her notes (Exhibit G-15):

- Condemned a carcass with acute pneumonia and pleuritis using codes for pleuritis and abscesses. There was no abscess. Is it the fibrin that he mistakes for pus?

- assumed a carcass with a blue mark on the stifle, and only slightly enlarged int. Iliac l.m. had stifle arthritis after he incised hip joint and found it be normal. He was going to mark the stifle to be removed, but I made him open it to show it was normal (and it was just minor tarsal arthritis.

- I called him over to look at a floor hog and said “What do you see on this one?” He immediately pointed to the kidneys (marked in pink for condemning) and said we should mark them for animal food with blue ink. They were completely normal kidneys but had been marked pink because kidneys on floor hogs are condemned. The decision to mark them for animal food made absolutely no sense.

- did not seem to understand that suspect hogs (with suspect tattoo) also have the ears cut off on the bleed table, to help identify them. By seeing the X on the shoulder, he treated them like hogs which have been shot (palpating for fractures, dislocations etc. instead of focussing on the cause for why they are suspects, ie. abscesses, tail-bite.

- I have come to the conclusion that he has poor observation skills. He would have missed an obviously abscessed hindleg, and because of the held rail congestion, the trimmers also may have missed it if they were in a hurry and depended on his instructions.

- Needlessly condemned a hog with a tennis-ball sized walled-off abscess attached loosely in the parietal pleura, which was scarred and represented very chronic (dry) adhesions. Claimed it had extensive chronic pleuritis, therefore should have been condemned. Even though he was right about “chronic”, he seemed to have forgotten that it was “acute” we worry about, not “chronic”.

- Because there were only 2 VM-01’s today, he was always alone in the office. Everytime I checked, he was doing absolutely nothing, just staring into space. No evidence he read anything.

71 On July 17, 2007, Dr. Neumier confiscated a veterinary meat hygiene and pathology textbook, which was available to the veterinarians in their office. The textbook contained photographs, case histories and dispositions. Dr. Neumier believed that Dr. Salib was spending too much time with the book to come up with his diagnoses and that it was of much less use at that point than other training material, including Mandatory Operating Procedures (“MOPs”) and modules. It was not a textbook listed in the training materials provided to Dr. Salib.

72 Dr. Salib testified that he is not argumentative. He said that, when he gave an opinion contrary to Dr. Neumier’s opinion, she considered it argumentative. He testified that Dr. Neumier always expected “yes” and that she expected him to agree with her opinions. He said that discussion is a healthy thing and that in his former job he often had discussions with colleagues. The grievor also tendered a reference from his former employer dated May 13, 2008 (Exhibit G-24), which provided that, during his employment from November 22, 2003 to December 2006, the grievor developed his skills in all areas of practice, medical and surgical cases, lab work, taking X-rays, and on-call services and that he was a valuable member of the team. From her notes (Exhibit G-15), it is clear that Dr. Neumier contacted the former employer on or about July 19, 2007. The notes reveal that there were problems at Dr. Salib’s former employment with his ability to diagnose and treat problems due to poor observational and information gathering skills and that he was argumentative.

73 Dr. Salib testified that the employer must have considered his work sufficient as he worked alone and was assigned overtime, which the employer was not required to do. In viewing my notes, it is clear that Dr. Neumier was not cross-examined on this point.

74 It seems clear that Dr. Neumier became exasperated with Dr. Salib. On July 18, 2007, in an email to Dr. Bates, she questioned whether Dr. Salib was actually qualified as a veterinarian and implied that he had perhaps purchased his degree (Exhibit G-18).

75 After July 22, 2007, Dr. Neumier had less contact with Dr. Salib. She went on holidays for two weeks. She did spot checks on him from time to time. She made inquiries of other veterinarians and lead hands. Dr. Salib eventually worked on the night shift. Dr. Neumier worked days. Dr. Neumier felt that Dr. Salib worked nights so that he could avoid her. There was overlap at the end of the day and at the beginning of the afternoon shift. Dr. Neumier testified that she gave him verbal feedback.

76 At the hearing and during cross-examination, Dr. Salib accepted only positive comments about his performance and did not accept negative comments. For example, in the observations for June 27 and 28, 2007, in Exhibit G-11, he doubts that Dr. L.M. made the negative comments recorded in Dr. Neumier’s notes.

77 On August 29, 2007, Dr. Salib requested a transfer from the establishment to Toronto for “family reasons” (Exhibit G-20). Dr. Salib had informed Dr. Bates that his wife had moved to Toronto, Ontario, and that he wished to join her. Dr. Bates was concerned with the request, as the Agency had formed the view that performance concerns had arisen during the probationary period.

78 Dr. Salib was questioned about the request for transfer. He testified that he and his family were put under severe pressure after June 22 and that he tried to escape the pressure by transferring. In his second harassment complaint, made on November 14, 2007 (Exhibit G-25), Dr. Salib stated that he wanted a transfer because of the increasing psychological stress; the atmosphere was unhealthy for his work, and he could not tolerate discrimination as well as the deficiency of teamwork. He said that he told Dr. Bates and Dr. Neumier that he needed to move to Toronto as his wife wished to study. He said that he did not want to hurt Dr. Neumier’s feelings by telling her that he did not want to work with her.

79 Dr. Salib testified about the difficult circumstances that he experienced in August. He bought his house in April. He said that he could not tolerate the pressure at work. He felt that he was going to die. His blood sugar was abnormally high.

80 On September 19, 2007, Dr. Salib suffered a cut to the base of his thumb, which required four or five stitches. He was given antibiotics. Dr. Salib testified that he had a prescription from his doctor to keep his hand clean and dry for a week, which is also set out in a medical record dated September 19, 2007 (Exhibit E-11). He testified that he was concerned when Dr. Neumier directed him to the kill floor two days later. He was concerned about having to put his hand in contamination such as viscera. Dr. Salib wanted to keep his hand dry and did not want to carry out any inspection duties at the held rail for a week. The held rail is a location where tagged carcasses are held for examination and disposition decision by a veterinarian. Dr. Neumier did not require Dr. Salib to work with a knife on the kill floor or held rail for five days after the injury. She believed that by that time his injury would have healed. She testified that veterinarians wear protective gloves and they sometimes “double glove.” She also indicated that there were no light duties for veterinarians at the establishment and that many other veterinarians with similar injuries would have gone back to work after two days. Dr. Salib testified that he went back to the floor on the Monday to avoid further problems with Dr. Neumier.

81 After October 1, 2007, Dr. Salib worked the evening shift, and Dr. Neumier worked the day shift. She never again worked alongside him, although there was some overlap around the end of the day and at the beginning of the afternoon shift. Dr. Neumier testified that two incidents occurred in October involving Dr. Salib. In the first incident, he wrongfully condemned six or seven pigs with hernias, which are described as belly rupture pigs. They are suspect but are fine and do not need to be condemned. The second incident involved a call for Dr. Salib to go to the barn to examine some suspect hogs. It was important to go right away because the kill was almost over for the day. Dr. Salib did not go to the barn, and the company decided to condemn the pigs because it was not humane to leave them in the barn overnight.

82 On or about October 19, 2007, Dr. Neumier had to investigate a complaint made by the establishment that Dr. Salib had wrongly condemned three carcasses that had fallen on the floor after exiting from the held rail. The description given by an establishment employee was that one of the carcasses fell on a grate and that the other carcasses fell on top of it. One of the carcasses had grease on it. The establishment was concerned that the situation did not warrant the automatic condemnation of all three carcasses. Dr. Neumier had information from the establishment that Dr. Salib was the veterinarian involved. Dr. Neumier spoke to Dr. Salib not in an accusatory fashion but to retrain him, on how to assess carcasses that fall on the floor and in determining which areas were more contaminated than others were.

83 On or about October 25, 2007, the establishment complained in writing about a blanket statement allegedly made by Dr. Salib that any carcass that fell on the floor “meat-side down” must be condemned. Dr. Neumier was concerned as it was not an automatic condemnation. The carcass had to be assessed for actual or potential contamination considering the position on the held rail and the area of the floor. Dr. Neumier was required to investigate the establishment’s complaint.

84 During the investigation, Dr. Salib provided Dr. Neumier with contrary information and denied responsibility. When Dr. Neumier dealt with Dr. Salib, Dr. N.R. was present. Dr. Neumier testified that there is no Professional Institute of the Public Service of Canada (“the bargaining agent”) representative at the establishment. She chose to have the most senior veterinarian present, as there was a disciplinary element to the discussion. She chose to have a senior veterinarian present rather than a senior inspector. Dr. Neumier testified that that is her practice because most veterinarians do not like their performance discussed in front of technical staff. Dr. Salib testified that that he did not understand why she criticized his abilities in front of Dr. N.R., against whom he had filed a harassment complaint earlier in the year.

85 Dr. Neumier did not believe Dr. Salib’s assertion that he was not the veterinarian involved. Before making her determination that Dr. Salib was responsible, as the establishment had alleged, she did not view the “Memorandum of Post Mortem Examinations” (Exhibit G-19), which identifies dispositions by veterinarian and by carcass tag number. She emailed Dr. Salib on October 26, 2007 (Exhibit G-4), communicating her view that she did not believe his assertion and stating that his credibility was seriously undermined:

Following our discussion earlier this evening, I have 2 questions for which I expect an answer.

(1) Is there any reason why, during our discussion with [Dr. R.N], you would have challenged us to prove that any of those 010’s were yours and not [Dr. B.O.’s]? We did not have the card in front of us at the time. Who cares how many floor carcasses [Dr. B.O.] had condemned, especially if he condemned them for a legitimate reason?

(2) How can you possibly attempt to claim that [R] must have been referring to another veterinarian [Dr. B.O.] and deny your instructions to the LeadHand [sic]? Do you think I would have asked both [R] and [M] to go look at all the vets on the Held Rail today and call me back, to make sure the vet they were complaining about was positively identified and call me back? You tell us that your name is not mentioned in [R’s] formal complaint, yet it is right in the Subject line, which is why I had asked you to read it for yourself.

I do not jump to conclusions when I receive a complaint from anyone, whether it is CFIA or company personnel. I conduct a thorough investigation, gathering facts and interviewing witnesses.

I want you to realize that your credibility has been seriously undermined by this latest event. Mistakes and poor judgement calls can happen to anyone, but outright denial is not the best approach.

86 Dr. Salib testified that he contacted company employees the next day. As a result of his communication, two company employees sent emails retracting their identification of Dr. Salib and stating that it was Dr. B.O.

87 Dr. Neumier might have had more information to assist in her investigation had she retrieved and viewed the “Memorandum of Post Mortem Examinations” before emailing Dr. Salib. That memorandum shows that Dr. Salib did not condemn any carcasses for contamination (code 010) on October 25, 2007. It shows that another veterinarian, Dr. B.O., condemned a carcass for contamination on that date. She did not consult the memorandum because she trusted the information that the establishment provided to her, although the Memorandum of Post Mortem Examinations” were in the office next to hers and easy to access. In cross-examination, Dr. Neumier admitted that her investigation of the complaint had not been thorough. From her experience, she believed that Dr. Salib did not fully assess “floor carcasses.” She agreed that the tone of her email (Exhibit G-4) was sharp. Dr. Neumier indicated that, by that point, she was exasperated with Dr. Salib’s work performance, which prevented her from investigating thoroughly.

88 Dr. Neumier apologized to Dr. Salib in an email on October 29, 2007, at 16:36 (Exhibit E-10). In her email, she indicated that she had called a company representative before and after her meeting with Dr. Salib and that, each time, the witness confirmed that it had been Dr. Salib. The email reads in part as follows:

…

Sam, please accept my sincere apologies for taking [R’s] word that you were the one responsible for making the blanket statement during the evening of Oct. 25. In investigating his formal written complaint in which he identified you by name, I phoned him twice (before and after our talk), and he said it was you both times. Again, my apologies for believing you were the one who made the statements to the Lead Hand and for which I received a complaint from the company on Oct. 25. It is unfortunate that I based myself on erroneous information. I am obligated to act on formal complaints, and the first step, verifying identity, which I did, before this information was later retracted by the company.

[Dr. B.O], I discussed this incident with you as well, in [Dr. N.R.’s] presence, and you have denied [R’s] allegation. I am disappointed that you did not admit it while we were discussing. As you yourself said, we must not generalise [sic] about floor carcasses, but rather we must judge each and every one based on food safety risk, which is highly variable. I will need to ascertain once and for all that everyone has a clear understanding of this concept, when I return.

…

89 Dr. Neumier informed Dr. Bates about this issue and that she had mistakenly accused Dr. Salib. She also testified that she dealt with Dr. B.O. harshly when she met with him and advised him that he had misled her by not admitting responsibility.

90 In his testimony, Dr. Salib raised a number of concerns about Dr. Neumier’s investigation of the October 19 and 25 incidents. He said that, during the course of the October 26, 2007 meeting, Dr. Neumier yelled and accused him of challenging her and that she did not accept his information. He said that after receiving the email he felt threatened and insulted and felt that Dr. Neumier lacked knowledge as a supervisor. Dr. Salib testified that it would have been very easy for Dr. Neumier to examine the contamination cards or tags with that date rather than relying on the establishment’s supervisor. He said that it would have taken an additional two minutes. He objected to her sending a copy of Exhibit E-10 to Dr. B.O. and to Dr. R.N. as it violated his privacy.

91 On October 29, 2007, Dr. Bates emailed Mark Coates, Human Resources section of the Agency, forwarding the information headed “1434 Oct 25” and indicating that a call should be arranged between Mr. Coates and Dr. Neumier to “… discuss how to proceed with the second half of this Vets [sic] probationary period” (Exhibit G-3). The heading “1434 Oct 25” refers to the incident in which Dr. Salib was wrongly accused of condemning carcasses and making the blanket statement.

92 That email was sent at 12:23. Dr. Neumier’s apology was sent at 16:36.

93 Dr. Salib did not accept Dr. Neumier’s apology. He filed a harassment complaint against her on October 29, 2007, the text of which appears to have been attached to a cover letter sent by Neal Harden, the grievor’s bargaining agent representative, to Mr. Coates on November 14, 2007 (Exhibit G-25). In the cover letter, Mr. Harden seeks an investigation by an outside investigator and asks that Dr. Salib be removed from Dr. Neumier’s supervision pending the outcome of the investigation.

94 Phillip H. Amundson, Executive Director, Western Area Operations of the Agency, responded in a letter to Dr. Salib dated November 9, 2007 (Exhibit G-7) that the complaint against Dr. Neumier did not fit the Agency’s definition of harassment. He stated the following:

…

Performance management is a necessary process which identifies expectations, provides feedback on performance, and assists employees in meeting the goals of the Agency, primarily the safety of Canada’s food supply.

Although the response to your objections concerning your treatment by a co-worker could have been handled differently, I am satisfied that your supervisor attempted to resolve the conflict at an early stage. In other interactions with you [sic] supervisor it is evident that she was exercising her managerial responsibilities by providing you with ongoing feedback and coaching in order to assist you in successfully meeting performance expectations.

…

95 Dr. Salib stated that he went on sick leave on November 23, 2007. He provided a note from a clinic indicating that he was required to be off sick from November 23 to December 7, 2007 (Exhibit G-29). The note did not explain the nature of the illness. Dr. Salib was unable to confirm with certainty when he faxed the note to Dr. Neumier. At the hearing, he testified that he had been depressed from work-related pressure. Dr. Neumier testified that she only received notice after November 26, 2007 that Dr. Salib would be absent from work. She considered him absent without leave at that point.

96 Dr. Neumier prepared a performance review of Dr. Salib on November 26, 2007. One of her concerns at that point was that Dr. Salib had failed to follow the proper process before taking sick leave. She did not discuss the review or give Dr. Salib the document. Dr. Neumier testified that, although she did not provide Dr. Salib with any written feedback after June 20, she provided him with verbal feedback every time they met. The performance review document was referred to at the hearing but was not filed as an exhibit.

97 Dr. Bates testified that, on November 28, 2007, he had a conference call with Dr. Neumier and others, including Rick Dryden, Regional Director, Manitoba Region of the Agency, to discuss the rationale for rejecting Dr. Salib on probation. Dr. Neumier testified that the persons involved in the call were herself, Dr. Bates, Mr. Coates and Julia Burns, Team Leader, Human Resources, Western Area of the Agency. Dr. Neumier testified that Mr. Amundson was not on the call. She testified that she saw the call’s primary focus as her chance, finally, to state that she was unable to do her job of ensuring food safety at the establishment because of her concerns with Dr. Salib’s performance. In cross-examination, she testified that the harassment allegation against her had not been on her mind.

98 Initially, Dr. Bates could not recall if he was informed of Dr. Salib’s harassment complaint against Dr. Neumier. However, after reviewing the relevant documents, including the copy of Mr. Amundsen’s letter of November 9, 2007 to Dr. Salib (Exhibit G-7), it appears that he must have known of the complaint and its initial disposition. Dr. Bates testified that he could not recall discussing the harassment complaint at the meeting.

99 Dr. Neumier recalled that the conference call of November 28, 2007, was held to discuss Dr. Salib’s probationary status, the harassment complaint against her and Dr. Salib’s absence without leave. She was not asked to leave when the harassment complaint was discussed. At the meeting, nobody advised her that the harassment complaint was not going to be investigated. She considered that the harassment complaint was something “above her level.”

100 Dr. Neumier communicated her concerns that, “short of going back to vet school,” she could not see any purpose in retraining Dr. Salib. She had noted no changes in his performance. As a result of the conference call, Dr. Bates asked Dr. Neumier to put her concerns about Dr. Salib in writing and to focus on the food safety concerns. A decision was made by the end of the conference call that Dr. Salib could not be retrained and that he would be rejected on probation. In re-examination, Dr. Neumier stated that the harassment allegations were brought up. She made her points about his training. It appears that no decision was made at the meeting about the harassment complaint against her.

101 On November 28, 2007, Dr. Neumier wrote to Dr. Bates, at his request, (Exhibit E-7) documenting her concerns about allowing Dr. Salib to perform VM-01 duties at the establishment. Her concerns were set out in part as follows:

…

Dr. Salib works under my supervision and he has gone through a very extended training period. Though he now works under indirect supervision – he is unaccompanied by another trained veterinarian – I continue to have concerns about the quality of his work.

Examples of food safety concerns which have been witnessed by myself, CFIA VM and EG staff, and experienced company Held Rail trimmers over the past 6 months include the following:

- lack of knowledge of normal Porcine anatomy (hearts, small intestines, colon, leading to inability to recognize truly abnormal conditions;

- lack of ability to distinguish etiologies when presenting lesions are similar (colon physical distension due to rectal stricture versus colon distension due to inflammatory colitis), leading to improper dispositions;

- lack of full understanding of chronic versus acute lesions (pleuritis, peritonitis), and the pathogenesis of such lesions;

- lack of understanding of generalized versus localized lesions (pleuritis, peritonitis, abscesses);

- inadequate assessment of carcasses, to the point were significant lesions are missed ( abscesses, enlarged lymph nodes, joint distensions;

- improperly assessing the significance of the presenting lesions, which is necessary to arrive at a disposition decision (multiple abscesses, infections through the hematogenous route, erysipelas skin lesions with associated arthritis);

- poor communication with trimmers, so that less experienced trimmer may not understand exactly what needs to be trimmed;

- inadvertent cross contamination of carcasses by spreading fecal contamination or purulent material through inadequate hand washing, and inattention to contact points between contaminated tissue and his hands, apron or equipment;

- incomplete understanding of septicaemia and lesions which collectively amount to septicaemia (fibrinous pleuritis and pneumonia with generalized lymphadenopathy.). Sam has requested that a company trimmer fully open a carcass with classical septicaemic lesions, thus placing her at risk of exposure to potentially zoonotic pathogens such as Strep suis type II, and he has directed employees to trim septicaemic carcasses instead of condemning them.

Although many of the above observations occurred within the first 4 months of Dr. Salib’s employment, these observations are demonstrable evidence of Dr. Salib’s lack of knowledge of veterinary pathology. Reports of improper dispositions decisions continue to arrive, though more sporadically, to this day. All other veterinarians whom I have trained have demonstrated full understanding of veterinary pathology within their first 2 weeks of training.

My concerns with inadequate Animal Health monitoring stem from instances where I have directly observed, or I have been informed about, Dr. Salib’s cursory ante-mortem inspection on hogs segregated as suspects. There are situations where the animal’s obvious lesions were not identified (swellings, open wounds) or when evidence indicates that the animal was not properly assess [sic] (claiming a hog was a downer when several witnesses indicate this animal could run very well both before and after the ante-mortem). Company employees report that Dr. Salib never takes the time to look at normal penned animals. I am concerned that the failure to observe live animals carefully, combined with the failure to identify obvious lesions on those animals specifically requiring a careful examination, signifies that I cannot count on Dr. Salib to detect the presence of serious contagious animal diseases such as Foot and Mouth disease.

…

102 This was the first time that either Dr. Bates or Dr. Neumier was involved in a decision to reject a probationary employee. It is apparent that, before rejecting Dr. Salib, Dr. Bates consulted with the Agency’s human resources section. On November 30, 2007, Ms. Burns sent a draft letter for Dr. Bates’ consideration, which Mr. Amundson had already reviewed. She sent her email at 11:37. The email also suggested that Dr. Bates should call Dr. Salib and ask him to report to a meeting on the following Monday and to bring a representative with him, if he desired (Exhibit G-5).

103 Dr. Bates said that, before rejecting Dr. Salib on probation, he spoke with Dr. N.R. and Dr. L.M. to determine if they had concerns about Dr. Salib’s training and the food safety aspect arising from Dr. Salib’s work at the establishment.

104 On November 30, 2007, at 16:04, Mr. Amundson sent a letter to Dr. Salib, stating that he would not conduct an investigation into the complaint against Dr. Neumier as he found that Dr. Salib’s written submission did not meet the Agency’s definition of harassment (Exhibit G-26). In particular, Mr. Amundson stated as follows that Dr. Neumier was simply carrying out her duties as a supervisor:

…

After careful consideration of the information, I conclude that the behaviours you describe do not relate to harassment but were necessary interactions by your supervisor and manager as they attempted to coach and counsel you to achieve a level of performance that would meet your job standards or were carrying out regular managerial duties.

…

105 Neither Dr. Bates nor Dr. Neumier was interviewed about the October 29, 2007 harassment complaint.

106 On Friday, November 30, 2007, at 16:09, Dr. Bates emailed Dr. Salib, requesting that he attend a meeting to be held at the Brandon Research Station. The email advised that “[t]he purpose of the meeting is with regard to your employment with the CFIA”(Exhibit G-6). The oral testimony indicated that the Agency had formed the decision to reject Dr. Salib on probation. Dr. Bates testified that he had great trouble reaching Dr. Salib. He called Dr. Salib’s home. Someone appeared to answer the phone but did not speak. Dr. Bates left a message. He also contacted Mr. Harden about a meeting on Monday, December 3. Mr. Harden called Dr. Bates on the Monday and advised him that Dr. Salib was not available for a meeting. Dr. Bates arranged for courier delivery of the rejection on probation letter.

107 Dr. Salib testified that he received the email and the telephone messages on his cell phone and at home on Friday, November 30, and on the following Saturday and that Dr. Bates had also called on the Sunday. He did not respond to Dr. Bates as he was on sick leave and it was the weekend.

108 On December 3, 2007, the Agency rejected Dr. Salib on probation and provided him with one months’ pay in lieu of one month’s notice. The rejection letter, signed by Dr. Bates (Exhibit E-8), states in part as follows:

…

This letter is to advise you that since your employment began with the Canadian Food Inspection Agency on May 7, 2007, you have been unable to meet the performance standards for your position despite being trained on the requirements on an ongoing basis during your probationary period.

As an Agency we are dedicated to safeguarding food, animal and plants, which enhances the health and well-being of Canada’s people, environment and economy. We value scientific rigour and professional competence. These play a critical role in our decision making. As a Veterinarian in this Agency you are responsible for food safety by ensuring that all meat products pose no food safety hazards to consumers. With this in mind, I conclude that you do not possess the level of professional or technical competence required to adequately perform the duties of a Veterinarian and continue your employment with the CFIA.

Therefore, by the authority delegated to me by the President of the Canadian Food Inspection Agency, I hereby give notice of my decision to reject you on probation in accordance with section 13(2) of the Canadian Food Inspection Agency effective close of business Monday, December 3, 2007.

…

109 In cross-examination, Dr. Bates testified that the incident of October 25, 2007 was not a trigger for rejecting Dr. Salib on probation. He expected Dr. Neumier to handle things as he was not involved in everything. Dr. Neumier stated that the incident was not a factor in the rejection decision as Dr. Salib was not responsible for the establishment’s complaint. Both Dr. Neumier and Dr. Bates testified that the grievor’s harassment complaint against Dr. Neumier was not a factor in the Agency’s decision to reject him on probation.

110 After Dr. Salib was rejected on probation, Dr. Neumier gathered all the relevant materials and submitted them to Dr. Bates to place in the file on or about December 7, 2007. The material included an email from Dr. Neumier (Exhibits G-10 and G-11). Dr. L.M. and Dr. N.R. also submitted questionnaires on December 3, 2007 (Exhibits G-8 and G-9). The questionnaires were not before me in evidence. I have no information as to when they were completed. Dr. Neumier also obtained information from K.B., the barn supervisor employed by the establishment. Dr. Neumier referred to that information in an email to Dr. Bates (Exhibit G-11), which apparently contained complaints from the establishment that were in her notes.

111  Dr. Neumier’s notes contain references to comments from other employees. Dr. Neumier testified that she had already sent a large amount of material to Dr. Bates. She did so because of her understanding that decisions to reject on probation were generally challenged. Dr. Bates testified that he had received verbal feedback from Dr. N.R. and Dr. L.M on November 28 or shortly after that before he received the questionnaires. He denied the suggestion from the bargaining agent’s counsel that he was seeking to build the case but stated that most of the information was in place and that it was simply being consolidated.

112 In cross-examination, Dr. Salib did not admit to the accuracy of any of the negative comments identified in Dr. Neumier’s notes. He testified that he felt pressured whenever he met with her.

113 The Agency has a Probation Policy (Amended January 15, 2007) (Exhibit E-9). The policy provides that, when the Agency determines that a probationary employee is not competent or suitable for the position, the probationary employee may be rejected, at the manager’s discretion, at any time during the probationary period, with an appropriate notice period. The policy provides in part as follows:

…

Probationary employees must be given an adequate opportunity to demonstrate that they have the qualities, skills and other attributes required to perform their duties effectively and that they are suitable for continued employment in the CFIA. Supervisors must therefore ensure that performance standards and work objectives are clearly defined and communicated to the employee, that the employee is informed of the expected standards of conduct and that they provide the probationary employee with the information and feedback necessary to support effective performance and proper conduct. Supervisor [sic] must also provide reasonable and appropriate training, equipment, resources and facilities to enable the probationary employee to fully demonstrate his/her competence and suitability for continued employment in the CFIA. Supervisors should consult with their Human Resources Advisor on performance issues as these issues arise.

…

114 The policy does not provide for giving notice to an employee before a rejection on probation that he or she must improve his or her performance or risk rejection.

115 The Agency has published a Non-Disciplinary Demotion or Termination for Cause Policy (Exhibit G-12). The policy is intended to guide management in situations in which an employee’s performance is unsatisfactory and to help management take action to correct unacceptable performance of a non-culpable nature. One of the policy’s requirements, at page 5, is that “[t]he employee is provided with reasonable warnings regarding the consequences of his/her continued failure to meet the required level of job performance.”

116 Dr. Salib testified that he was shocked when he received the rejection on probation letter as he had not been warned about his performance. He viewed it as retaliation for filing his harassment complaints. He said that Dr. Neumier had said when he filed his complaint against Dr. N.R. in June that he would “see the consequences of filing the harassment complaint,” which he did. I note that Dr. Neumier was not cross-examined on the issue of her threatening consequences for Dr. Salib filing the complaint against Dr. N.R.

117 Although Dr. Salib testified that he was not warned about his performance, he also stated that, after June 22, 2007, Dr. Neumier placed severe pressure on him. Furthermore, in connection with the incidents in October, he testified as follows:

…

This was not the first time to accuse me for something I didn’t do it. She kept going, kept going, every day something different, like create something every day. Like she put severe pressure, severe accusation without any evidence, without anything. So like for this reason I consider -- I didn’t accept this apology for as it happened again and again. Like before she accused me many, many times. I can tell you if you want now without any evidence

…

[Sic throughout]

118 Dr. Salib testified that, following his rejection on probation, he decided not to accept further employment in Canada, although he had more than six job offers. He is working on the family farm in Egypt until the adjudication decision is made. He is earning income from the family farm.

119 Dr. Salib testified that he did not receive the separation remuneration from the Agency until after he filed a grievance (Exhibits G-27 and G-28).

III. Summary of the arguments

A. For the employer

120 The employer submitted that this is a simple case of rejection on probation as Dr. Salib did not demonstrate the requisite standard of competency.

121 The employer submitted that it has clearly established an employment-related reason for the rejection on probation. Dr. Neumier said that she trained nine veterinarians before training Dr. Salib. After the first week of training, most new veterinarians know how to apply the training and are comfortable working alone within two to three weeks, but some take as long as four weeks. One veterinarian took six weeks, but it was a confidence and not a competency issue. Dr. Neumier testified that she had had to constantly repeat her instructions to Dr. Salib. Her view was that he could not understand or absorb what she told him. She testified that Dr. Salib was inconsistent in his analyses of lesions, basic anatomy and normal viscera. Week after week, she saw no significant improvement. She expected a systematic approach. He would debate dispositions. He had to be warned about hand washing. She had concerns with what appeared to be inconsistent observations. She rarely saw him reading, even though reading was an essential part of training and of maintaining competency. When she first expressed her concerns to Dr. Bates about Dr. Salib’s competence, he had not yet made any complaints about co-workers and had not taken sick leave.

122 Rather than doing what any seriously committed person would after hearing from both Dr. Neumier and Dr. Bates and making efforts to improve his competency, Dr. Salib began insisting that he be assessed immediately by another person. At that point, he viewed his competency as perfect.

123 Dr. Neumier continued to receive reports that Dr. Salib was functioning virtually at the level of a layperson and that he showed little improvement. She felt that nothing short of a return to veterinary school would have helped Dr. Salib meet the performance standards. She lacked confidence in him and believed that his conduct posed a concern for food safety.

124 On the second issue, as to whether Dr. Salib has established that there was bad faith or camouflage, it is clear that he failed. An employer that, as Dr. Neumier did, fairly communicated the work standards and provided the employee an opportunity to meet them did not make a bad-faith decision in deciding to terminate. Dr. Neumier met with Dr. Salib on June 22 and July 11 and Dr. Bates met with him on July 3. Dr. Salib had many opportunities to use the feedback to adjust his work. He was warned in the probationary period and was told what was expected of him and was told what he had to improve. It cannot be said that the employer’s decision was made in bad faith.

125 Dr. Salib contends that he was rejected on probation because of the harassment complaints, but that is not consistent with the evidence or common sense. Dr. Salib was completely deaf to the employer’s performance concerns. Dr. Bates was anxious and desperate for Dr. Salib to succeed. Dr. Salib agreed only with the positives and not the negatives. It seems that, rather than harassment triggering the rejection decision, Dr. Neumier’s efforts to manage his performance triggered the harassment complaints. Dr. Salib has not proven bad faith, an ulterior motive or a sham. Dr. Salib simply was not up to the task and did not respond to the employer’s guidance as he believed that his performance was perfect.

126 The employer relied on Canadian Forest Products Ltd. (North Central Plywoods Division) v. Pulp, Paper and Woodworkers of Canada, Local 25 (2002), 108 L.A.C. (4th) 399; Boyce v. Treasury Board (Department of National Defence), 2004 PSSRB 39; Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529; Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109; Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.); and Bilton v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 39.

B. For the grievor

127 The grievor submitted that this is a simple case of bad faith, camouflage and disguised discrimination. The grievor stated that the employer informed him of areas requiring improvement on June 22, 2007. The employer wrote to him on July 11, 2007, and told him that he was improving but that further progress was required. The grievor received nothing in writing from the employer until October 26, 2007, and it was demonstrated that that written feedback did not apply to him. He was terminated from his position after he filed the harassment complaint against Dr. Neumier because he filed it.

128 The employer has not established that it dismissed Dr. Salib in good faith. The employer did not fully inform Dr. Salib of what was required and did not tell him that he was not meeting the requirements. The employer did not meet with Dr. Salib to explore alternative solutions as required by the Treasury Board policy on non-disciplinary terminations, which is mirrored in the Agency’s policy (Exhibit G-12).

129 There was no written record of performance deficiencies from July 11 onward.

130 The lack of any written record shows that the problems were not serious enough to warrant termination. If the employer had concerns, it should have put them in writing. Furthermore, the employer was aware that the grievor had misinterpreted its concerns set out in its letter of July 11, 2007, and it made no effort to correct his misunderstanding.

131 Failing to provide notice of the problems and failing to bring the problems to the grievor’s attention are serious breaches of natural justice, even if the employer was not obliged to warn the grievor that his conduct was such that he could be rejected on probation. If the employer had concerns that Dr. Salib’s employment was in jeopardy, it should have expressed them in writing. Leading a person down the garden path is unfair and unreasonable and is bad faith: Canusa CPS, a Division of Shaw Industries Ltd. v. Industrial Wood and Allied Workers of Canada, Local 1000 (1999), 84 L.A.C. (4th) 149.

132 The grievor was terminated because of an “anti-Sam animus” and because of his two harassment complaints. Right from the outset, he was characterized as “overly eager.” His harassment complaint was rejected on November 30, 2007 at 16:04, and he was rejected on probation at 16:09. He was never presented with a draft performance appraisal, and the employer did not solicit the input of other persons before deciding to terminate the grievor. There was no record of performance issues. Nothing happened in the workplace on November 30, 2007, and therefore, the harassment complaint against Dr. Neumier was the event that triggered the rejection on probation. Dr. Neumier testified that the harassment complaint was mentioned during the conference call on November 28, 2007. The employer retaliated by terminating the grievor’s employment, which is a violation of section 186 of the Public Service Labour Relations Act (“the Act”). The employer then collected information from employees. Further evidence of bad faith was the employer’s failure to pay the amounts owed Dr. Salib until March 2008, only after he filed a grievance.

133 The grievor asks that he be reinstated with appropriate back pay. He also asks that he be permitted to complete his probationary period with a fresh start in a new plant under the supervision of persons other than Dr. Neumier and, ultimately, Dr. Bates.

134 The grievor relied on Dhaliwal; and Morissette v. Treasury Board (Department of Justice), 2006 PSLRB 10, decided under the former Act and also referred to sections 185 and 186 of the Act.

C. Employer’s Rebuttal

135 While the employer is required to warn an employee before termination for non-culpable reasons, it is not required to warn a probationary employee: Morissette and Canusa.

IV. Reasons

136 There is common ground between the parties on some points. Both agree that Dr. Salib was within his 12-month probationary period at the relevant time. Both agree that Dr. Neumier’s memos of June 22, 2007 (Exhibit E-3) and July 11, 2007 (Exhibit E-6) disclose serious food safety concerns. Both agree that there was essentially little change in Dr. Salib’s work performance after he received the July 11, 2007 letter. Dr. Salib stated that his performance did not change and that no change was needed because he was already performing the work “perfectly.”

137 A major difference in the evidence is the question of whether Dr. Salib was competently performing his work. Dr. Salib testified that Dr. Neumier’s concerns were fabricated because of his harassment complaints. I have considered and applied the following credibility test found in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at page 356:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.

138 In reviewing the decision of an employer to reject an employee on probation, the test is whether the employer has shown an employment-related reason for the discharge, and if so, then the employee is required to demonstrate that the termination was a sham or a camouflage or that it was done in bad faith: Leonarduzzi. The test is not a “just-cause test” as would be required for the termination of an indeterminate employee.

139 The Agency is separate employer for the purposes of the Act, and the president has the power to appoint and set the duties of employees – see Canadian Food Inspection Agency Act, S. C. 1997. c. 6, sections 12 and 13. This power can be delegated – see section 7. Selecting employees is a management function or a management right. The relevant collective agreement does not contain any helpful provision or limit to that right. The case law generally supports the notion that an arbitrator should intervene only reticently in the termination of a probationary employee: Canadian Forest Products Limited. In British Columbia Telephone Co. v. Federation of Telephone Workers of British Columbia, 15 L.A.C. (2d) 310, cited in Canadian Forest Products Limited, the arbitrator wrote as follows:

…

… Arbitrators must be reluctant to interfere with the prognosis of management in these circumstances. Having recognized management’s legitimate interest in securing the most compatible and suitable work force as well as the fact that management is in the best position to make this judgment, arbitrators must not overrule management’s decisions in this regard unless the decision is arbitrary, discriminatory or in bad faith. The approach recognizes that a probationary employee has no tenure, and yet ensures that he is given a fair opportunity to demonstrate his ability to perform the requirements of the job and meet the standards for regular employment as set by management.

…

140 An arbitrator or adjudicator should not generally intervene because the purpose of a probationary period is to assess an employee’s suitability for employment, and the employer is in the best position to assess it. If the employer assesses the suitability of the employee in a bona fide manner, an adjudicator should not interfere with the employer’s decision.

141 In my view, I should bear in mind the nature of the work that the employer was required to assess. In this case, the nature of the work was highly technical and involved the specialized function of determining whether hog carcasses were safe, in whole or in part, for human consumption. That is of fundamental importance to food safety for domestic consumption and export. It is an important job, which requires a veterinarian to make correct and consistent decisions about animal health and the food safety of carcasses. An employer should be able to rely on consistent and correct decisions in an environment where incorrect decisions may result in catastrophic consequences for public health or its business.

142 The question in this case is whether I accept the employer’s version that it discharged Dr. Salib because it had employment-related concerns or whether I accept Dr. Salib’s version that he was terminated because the employer retaliated against him for filing harassment complaints. I note that Dr. Salib’s allegation is essentially one of fraudulent employer conduct, and it is incumbent on the employee to prove that allegation on a balance of probabilities based on credible and cogent evidence.

143 I have the very clear sense that Dr. Neumier had serious concerns with Dr. Salib’s performance. In comparison with other employees that she trained, Dr. Salib was not competent after he completed five weeks of training. Most of the veterinarians that she trained in the past were competent to make dispositions after two weeks. She had to work with some veterinarians as long as six weeks who were competent but who required her presence for confidence reasons. Dr. Salib was not making correct dispositions of carcasses. Dr. Neumier appears to have had difficulty understanding why the grievor was not “getting it,” since he was being trained, and why he was taking much longer than other employees were. She was concerned that he was not seeing pathology and that he was not observing or understanding and not apparently reading to correct that issue. In her notes, she wondered whether it was because of an eyesight issue, a lack of reading, an inability to understand or apply the training, or a lack of underlying qualifications. In essence, the employer was concerned that Dr. Salib was not demonstrating a capacity for sound decision-making.

144 That issue caused Dr. Neumier sufficient concern to notify Dr. Bates since, for operational reasons, Dr. Salib had to work alone. In my view, Dr. Neumier’s evidence was credible. I see no motive for her to give fabricated evidence. She was able to give clear examples of the problems with Dr. Salib’s work. Her evidence had the ring of truth. She also candidly admitted that she did not have much time to spend with Dr. Salib after June 22. However, I am not satisfied that any additional training, time, tools or resources would have improved Dr. Salib’s performance, given his view of his own performance.

145 It is clear that Dr. Salib did not think that he had any problems “at all” and that his work was “perfect.” His evidence was that he did not need to change his performance; rather, the person assessing his performance had to change. He wanted to be assessed by someone other than Dr. Neumier. He testified that he asked for a different assessor when Dr. Bates provided him with the blunt message in July. For whatever reason, Dr. Salib appears to have formed the view that he did not have to accept guidance or training provided by Dr. Neumier or more senior veterinarians at the establishment unless they “proved him wrong.”

146 After hearing his evidence, I conclude that Dr. Salib had a confirmed, closed-minded and dogmatic approach to his own abilities. Although he stated that he was willing to learn, he also stated that the person suggesting improvement had to “prove that he was wrong” before he would accept correction. This must have made for an extraordinarily challenging and exhausting training process for those involved. I note that Dr. Salib’s testimony in cross-examination, as apparent in his demeanour and testimony, confirmed the views of Dr. Neumier that he was inflexible and argumentative. I also note the following contents of Dr. Bates’ letter of July 10, 2007 (Exhibit E-4):

…

A requirement of your probationary / training period is for you to demonstrate flexibility and willingness to learn as you develop your job skills. The CFIA’s procedures and methods may be different from that of your previous experience but you are expected to adapt and become proficient with our approach in order to successfully complete your probationary period.

…

147 I have considered Dr. Salib’s theory that Dr. Neumier fabricated her concerns about his performance because of his harassment complaint against Dr. N.R. That theory must be assessed in the context of the prevailing circumstances at the relevant time, applying the test in Faryna. The Agency was in a position where it was short veterinarians, and it needed them. Dr. Neumier was involved in the planning for the new shift, and it was obvious to her that more resources were required to do the work. Dr. Neumier seems to have been genuinely distressed in her concerns about Dr. Salib’s performance. Her concerns about food safety were serious rather than frivolous. She had trained other veterinarians without any incidents. Dr. Salib’s harassment complaint against Dr. N.R. was essentially trivial. Considering the conversation as a whole, it seems a very trivial workplace complaint — a minor complaint about a thermostat. In my view, it is unlikely that it was the basis of any conspiracy to oust Dr. Salib from the workplace.

148  It is improbable that a supervisor would fabricate performance concerns in response to a trivial complaint, particularly because the Agency needed more resources to carry on its expanding work and was having difficulty recruiting and retaining employees. Furthermore, when I consider Dr. Salib’s version of the facts, it is clear that Dr. Neumier was not cross-examined on a couple of issues, her alleged threat that Dr. Salib would “see the consequences” if he persisted in his complaint, and the one-half hour gap during which it was alleged that she walked off and fabricated her concerns. I think it unlikely that Dr. Neumier could have dealt with the detailed areas of concern in half an hour after the discussion of the harassment complaint. Finally, I note that Dr. Salib said that Dr. Neumier did nothing, when in fact it is clear that she investigated his complaint.

149 I do not accept Dr. Salib’s version of events as credible, although given that he hijacked the June 22 meeting, his concerns were expressed first, before Dr. Neumier had the opportunity to discuss her concerns with his performance. Dr. Salib does not accept that it is possible that Dr. Neumier had concerns in advance of his harassment complaint. That is simply not credible. In any event, I accept her evidence that there was one continuous meeting on that date that dealt first with harassment and then with her concerns about Dr. Salib’s performance. In my view, when considering Dr. Salib’s theory that Dr. Neumier fabricated her concerns because of the harassment complaint that he made against Dr. N.R. against all the surrounding circumstances, I find that the allegation of fabrication is absurd and improbable.

150 I have considered Dr. Salib’s theory that he was terminated because of his harassment complaint against Dr. Neumier. Again, when assessing that theory and the disputed evidence, it is important to consider the circumstances prevailing at the time: Faryna. Dr. Neumier expressed her concerns about Dr. Salib’s performance to Dr. Bates at an early stage, even before the grievor made his harassment complaint against Dr. N.R. in June 2007 and before any of the other alleged triggering events — the injury and the unsubstantiated events of October 19 and 25 — occurred. In fact, Dr. Salib’s harassment complaint was about how his performance was being supervised, when Dr. Neumier’s job was to train him, correct his mistakes and assess his performance. Besides, Dr. Neumier was obligated to investigate complaints made by the establishment against Agency employees under her supervision.

151 It is clear that Dr. Neumier could have more carefully investigated the establishment’s complaints against Dr. Salib in October 2007. Her email to Dr. Salib on October 26, 2007, communicating her findings was intemperate, particularly in light of her failure to check the “Memorandum of Post Mortem Examinations” (Exhibit G-19). It is also clear that Dr. Neumier recognized her error, apologized to Dr. Salib in writing and verbally warned the other veterinarian who should have taken responsibility for the complaint. In my view, she dealt with it candidly.

152 The bargaining agent’s representative pointed out the lack of written feedback and argued that the employer’s concerns could have not been that serious if they were not put in writing. There is a fundamental inconsistency in Dr. Salib’s evidence on the issue of whether he was aware that the employer had problems with his performance. On one hand, he suggests that he had no contact with Dr. Neumier after June 22 except for conversations on October 19 and 26 related to incidents for which he was wrongly blamed. He also testified that Dr. Neumier was consistently putting psychological pressure on him to the point that he had to lie to Dr. Bates in August about his reasons for a transfer — that his wife wanted to move to Toronto — to get away from the pressure. Additionally, he testified that he had to take leave in November because of the pressure. In reference to the October 26 incident, he said the following:

This was not the first time to accuse me of something I didn’t do. Every day she created something. She put severe pressure, accusation without evidence, without anything. For this reason I didn’t accept this apology. I was sure it was going to happen again and again. She caused me many times without evidence

[Sic throughout]

153 In my view, Dr. Salib’s evidence is consistent with Dr. Neumier’s evidence that she did not provide him with written feedback on his performance, but she provided him with ongoing verbal feedback concerning inadequacies in his performance. He did not accept her feedback because he required evidence, and he considered his performance “perfect.” I find that Dr. Neumier’s feedback caused him to feel pressured. I am satisfied that Dr. Salib was aware of Dr. Neumier’s concerns about his performance and that she communicated them to him verbally. He received enough feedback to feel stress from it.

154 The bargaining agent’s representative pointed out that the Agency allowed Dr. Salib to work alone and that, therefore, the concerns could not have been serious. Dr. Neumier shared her concerns with Dr. Bates before Dr. Salib worked alone. It is clear that she had serious concerns. Dr. Neumier’s hope was that, if Dr. Salib worked on his own, he would be motivated to work competently. Further, Dr. Neumier testified that she believed that her presence made Dr. Salib nervous. Those are valid operational reasons to provide Dr. Salib with an opportunity to demonstrate his competence by working alone. I note that Dr. Neumier had trained all her other candidates in a much shorter period and that most candidates worked alone after two weeks of supervision.

155 The bargaining agent’s representative pointed out that the employer rejected Dr. Salib on probation shortly after it refused to investigate his harassment complaint against Dr. Neumier. Even though he filed a harassment complaint in late October, I am not satisfied that it triggered the employer’s decision to reject him on probation. Other than timing, there is no connection between the filing of that complaint, its disposition and his rejection on probation. Clearly, the employer had long-term concerns about his performance, stemming from the middle of July. It would make sense to consider Dr. Salib’s suitability for continuous employment at the six-month point, which would have been about early November 2007. That is roughly when Dr. Bates contacted Mr. Coates to set up a meeting to consider Dr. Salib’s probationary status.

156 Dr. Salib argued that the employer is required to give notice to a probationary employee that his or her job is in jeopardy and to give him or her a chance to correct his or her behaviour before it can terminate. Failing to do so amounts to bad faith. Clearly, an employer that has performance concerns about an indeterminate employee and that fails to communicate those concerns in advance of termination will likely fail in establishing just or reasonable cause for a non-culpable termination: Morissette.An indeterminate employee cannot be terminated for non-culpable reasons unless the employer has just cause to terminate the employee. To prove just or reasonable cause for non-culpable discharge, the employer must set a clear standard of performance, communicate the deficiencies in performance and warn the employee that failure to meet the standard will result in termination, and the deficient performance must continue after the warnings — see paragraph 121 of this decision. The concept of a warning or notice is integral to the test for non-culpable discharge.

157 In a probationary period, the employee must demonstrate competence. The arbitral authorities suggest that there is no obligation for an employer to warn a probationary employee before discharging that employee. For example, that point was discussed by an arbitration board in Canusa at paragraph 27 as follows:

…

Does the obligation to discharge probationary employees for cause include a duty to warn a probationary employee that he or she is not performing satisfactorily prior to the termination? From the arbitral jurisprudence before me, it would appear that the weight of the authority supports the conclusion that such an obligation does not exist for probationary employees. For seniority employees, where employers are required to adopt a progressive disciplinary approach, it is often incumbent on employers to warn employees that certain conduct does not meet the employer’s standard before terminating their employment. It appears to be somewhat counter-intuitive to find that a similar obligation exists … given the nature and purpose of a probationary period. During a period where an employer attempts to assess the overall suitability of an employee, the general concept of progressive discipline appears … inappropriate. Assuming the standards a probationary employee has to meet are clearly delineated, an employer should be entitled to make an assessment of the probationary employee without the necessity of having to correct conduct which falls short of its standard. An employer faced with the necessity of warning a probationary employee may very well conclude that it has a reasonable basis for terminating that employee. Although there may be circumstances where an arbitrator might conclude that an employer was acting unreasonably where it did not warn a probationary employee, we are unable to conclude, as a general proposition, that he Collective Agreement requires this Employer to warn probationary employees before terminating their employment.

…

158 The employer must provide the employee with a reasonable opportunity to demonstrate competence. There is no requirement in the employer’s policy or in the Collective Agreement Between the Canadian Food Inspection Agency and the Professional Institute of the Public Service of Canada Regarding the Veterinary Medicine Bargaining Unit (Expiry September 30, 2007) (Exhibit G-1) to warn an employee before he or she is rejected on probation. Dr. Salib had at least 6 1/2 months to demonstrate his competence. His evidence was that his performance was “perfect,” that he did not need to change and that he was not prepared to accept advice unless the employer “proved it was correct.” He did not appear to take direction from his supervisor and wanted someone else to assess his performance.

159 The employer appears to have had serious food safety concerns arising from Dr. Salib’s inability to make correct and consistent disposition decisions in ante-mortem and post-mortem inspections. Furthermore, the employer had concerns that Dr. Salib was not monitoring the ante-mortem herd’s health, which is important for the detection of infectious diseases such as foot and mouth disease, which has not been present in Canada since the 1940s. If it emerged, it would have catastrophic consequences for Canadian meat exports.

160 Identified early in the training process, those concerns were about the proper exercise of judgment. Holding a professional certificate is not the only requirement for competency in carrying out VM-01 duties; it is a prerequisite for being selected for training in a probationary period. It is clear that, to be competent at the VM-01 level, a veterinarian must be able to apply that training and to make disposition decisions.

161 In my view, I ought to defer to the Agency’s opinion on the issue of competency, particularly given the serious ramifications for public health if the Agency appoints an applicant to an indeterminate position who does not have the requisite degree of professional or technical competence to exercise judgment in making dispositions.

162 In my view, Dr. Neumier did not handle her concerns with Dr. Salib’s performance as well as she could have. For example, her investigation of the falling carcass incident on October 25 could have been more thorough as there was other information that she could have considered before she concluded that Dr. Salib was responsible. I also note, however, that the information provided by the company that she relied upon changed and when it changed she apologized to Dr. Salib. It is my view that this incident did not cloud her assessment of his performance. In my view, the employer is not required to provide written feedback or clear warnings that an employee’s probationary status is in jeopardy. The employer is required in good faith to provide a reasonable opportunity for the employee to demonstrate his or her competency.

163 It is apparent from his testimony that Dr. Salib is quick to recognize what he perceives as positive and slow to recognize or quick to avoid the negative. He requires proof. I note that an employer is not required to prove the validity of its feedback to an employee in a workplace setting. Work would halt if an employer were required to justify each and every statement when making it. After hearing all the evidence, I am satisfied that Dr. Neumier’s concerns were serious.

164 Dr. Salib has argued that the rejection on probation came as a surprise because he had not long before been told that he was improving. In my view, that is not credible. The real message in the July 11 letter was that further work was needed. The July 11 letter cannot be characterized as noting that he had made real improvement when the employer still had serious concerns. Dr. Salib knew that his status was in jeopardy from the written communication with Dr. Neumier on June 22, 2007. That is why he denied the performance concerns raised in Dr. Neumier’s memo when he met with Dr. Bates on July 3, 2007. Further, Dr. Salib appreciated that his job was in jeopardy because of the meeting with Dr. Bates. That is the only conclusion that can be drawn from the three emails that he sent shortly after the meeting with Dr. Bates, asking for a reassessment of his abilities. Further, he also applied for a transfer in August because he appreciated that his status was in jeopardy. Dr. Salib testified that he was under stress. He knew that his work was not considered acceptable by Dr. Neumier. In November, he sought psychiatric treatment.

165 In some cases, a lack of written feedback may lull an employee into a false sense of security, if the employee is unaware of the employer’s concerns. Dr. Salib was not unaware of the employer’s concerns; he did not accept their validity. In this case, it is apparent that Dr. Salib was anxious about the employer’s view of his performance but not anxious enough to change his behaviour, which he considered perfect. He had a lengthy period, including time working on his own, to demonstrate his competence. In my view, no useful purpose would be served by placing Dr. Salib back into a training environment as he had been in one for more than six months.

166 I find that the employer has established that there were serious issues about Dr. Salib’s abilities to perform all the tasks and duties of a veterinarian at the establishment. I find that, despite the lack of written feedback after July 11, 2007, Dr. Salib was well aware of the employer’s concerns. I find that Dr. Salib has not established bad faith, a sham or camouflaged action by the employer. I find that the employer provided a reasonable opportunity to Dr. Salib to demonstrate his competency and that he was unable to do so.

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

V. Order

168 The grievance is dismissed.

October 6, 2010

Paul Love,
adjudicator