FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Barbara Fode, (“the grievor”) was employed as a border services officer (“BSO”) with the Canada Border Services Agency (“the Agency” or “the employer”) at the Roosville, British Columbia, port. She was dismissed by the employer, effective September 24, 2007, after failing to successfully complete the Port of Entry Recruit Training (“POERT”) program at the Rigaud Learning Centre (“Rigaud”). On October 16, 2007, Ms. Fode grieved the termination of her employment and asked that she be reinstated, repaid all lost wages and benefits with interest, and that she be made whole.

II. Summary of the evidence

2 I heard from Steven Heintz, Lead Assessor, and Bill Anderson, Director, Okanagan and Kootenay District of the Agency, on behalf of the employer, and from Ms. Fode. In addition to the testimony, the grievor and the Agency filed documentary evidence.

3 Ms. Fode completed a term appointment as a student customs inspector in 2003 and another one from May 17 to September 4, 2004 (Exhibit E-2, Tab 11). She was then offered a term appointment to the position of Customs Inspector, commencing on November 8, 2004, and terminating on July 1, 2005 (Exhibit E-2, Tab 12). Mr. Anderson explained that the term employment offer is referred to as “bridging,” brings a student into employment, without the student applying again through a recruiting process.

4 Ms. Fode successfully completed her terms and was subsequently offered an indeterminate position on June 9, 2005 (Exhibit E-2, Tab 13). The offer was subject to satisfactory performance during a 12-month probationary period. By accepting the offer, the grievor agreed to complete an extensive training program and agreed that failure to meet the minimum requirements would result in termination. The condition was expressed as follows:

…

All candidates appointed indeterminately must be willing to undertake and successfully complete an extensive training program for recruits at the Rigaud Learning Centre in Rigaud, Quebec (currently approximately 9 consecutive weeks in length) and extensive training associated with Officer Powers, including Criminal Code enforcement and Use of Force training which requires various levels of physical exertion. Failure to meet the minimum requirements on any of the training courses will result in termination for reasons other than breaches of discipline or misconduct.

…

[Emphasis added]

5 When Ms. Fode undertook the training, it consisted of a four-week orientation over the Internet, that began on August 6, 2007, and a seven-week in-class modified core portion at Rigaud on September 4, 2007. The letter advising her of the course was sent to her on July 26, 2007 (Exhibit E-2, Tab 14) and was signed on behalf of Mr. Anderson and specified the following:

…

Once you have successfully completed the Orientation phase, you will advance to the Core phase of the training program.

You are reminded, failure to successfully complete this training could result in you being deployed to an equivalent position, deployed to a lower level position or if nothing is available within your organization, your employment will cease.

Also, attached is a copy of the summary of terms and conditions for your participation in the program. If you agree with these terms and conditions, please sign the attached and return it to the above address. Failure to return this letter will be considered a refusal.

[Emphasis added]

…

6 An acceptance page followed the main letter. On July 30, 2007, Ms. Fode signed the portion of the letter that read, “I agree to participate in the assessment phase and accept the associated terms and conditions. I agree to report to the Border Services Learning Centre in Rigaud Quebec, as stated above.”

7 Attached to the letter was a two-page document entitled “Summary of Terms and Conditions Border Services Officer Assessment Program for Public Servants.” The document provides for the payment of an allowance, specifies an effective date, describes the assessment program, deals with security clearances, describes a report on hiring, specifies travel costs, mentions a smoking policy and provides contact information. The document also contains the following statement:

…

Failure to successfully complete this training could result in you being deployed to an equivalent position, deployed to a lower level position or if nothing is available within your organization, your employment will cease.

…

8 Ms. Fode successfully completed the online portion of the course.

9 Mr. Heintz testified about the POERT program at Rigaud. By way of background, he started his career in 2000 with the Canada Customs and Revenue Agency as a customs inspector. In 2003, he became an instructor at Rigaud, delivering programs to indeterminate inspectors and recruits. He testified that he joined the evaluation unit of the POERT program in 2006 and that he became an assessor, assessing recruits on testing days during simulation exercises. He has been trained by the Agency to assess recruits. Mr. Heintz undertook and passed the POERT program as a condition of his employment.

10 Mr. Heintz testified that recruits are tested on competencies identified in the guide entitled, “Canada Customs and Revenue Agency’s Organizational Competencies” (Exhibit E-2, Tab 2). Those competencies were developed through a process in 2002, in which experts were engaged and managers consulted. Mr. Heintz testified that the POERT is a program based on competencies — or the skills and abilities — required to do the job as a BSO. The guide is given to recruits on the first day of the core program. The recruits are also given information concerning the testing process. The following 11 competencies are set out in the guide: Client Service Orientation, Supporting CBSA Values, Analytical Thinking, Dealing With Difficult Situations, Decisiveness, Effective Interactive Communication, Self-Confidence, Inspection Techniques, Information Seeking Skills, Legislation, Policies and Procedures, and Agency Business Systems.

11 After the first two weeks of training at Rigaud, recruits are tested and a decision is reached — D1 – as to whether the recruit continues further in the program. On the Monday of the third week, the recruits participate in simulation exercises and on Tuesday, the recruits write examinations. On the Wednesday, the assessors meet and integrate the results as a team and write their notes. Finally, on the Thursday recruits are given feedback. 

12 Mr. Heintz testified that, about a week before the testing, the recruits are briefed as to how the simulation day will proceed. They are given written instructions concerning the testing process, “D1 Test Briefing” (Exhibit E-2, Tab 8) and are given an alphanumeric identification tag. The recruits participate in practice simulations, which represent what they might see on the testing day. Within a 2-day period, they participate in 14 practice sessions and observe 22 simulations involving their peers. On assessment day, the recruits are assessed by persons who did not conduct their training.

13 The testing scenarios are conducted at a simulated border post. There are three simulation exercises, and the recruits act in the role of a BSO. The Agency engages actors on the simulation day to play the roles of persons seeking to enter Canada. The assessors are generally experienced persons such as chief superintendents of the Agency or members of the evaluation team. The interaction between the recruit and the assessor is limited to an introduction, and trainers do not assess the recruits that they train. Each recruit is given five minutes to read a background sheet as to where he or she is located and the limitations of the situation. After the simulation is finished the assessor asks the recruit for his or her decision and justification for that decision, for the reasons behind his or her actions and to provide the applicable exemption or tariff number. After the recruit provides the requested information to the assessor, the recruit waits until the other two recruits are finished their sessions and they continue on to the two other simulations, after which they are finished for the day. This process takes an hour to an hour and 15 minutes.

14 Mr. Heintz testified that trainees must inform the Agency if he or she experiences problems before testing. This is also dealt with as follows in the “Test Objective Booklet” (Exhibit E-2, Tab 5, page 2):

…

Please note that if you are experiencing any physical or psychological indisposition of sufficient severity to interfere with your performance during the written examinations and/or simulations, it is your responsibility to inform an exam coordinator/administrator of your indisposition prior to the testing session. If you start the exam/simulation despite physical or psychological indisposition you must accept the test/simulation results.

…

15 The results of Ms. Fode’s performance on the written assessments at D1 are set out in Exhibit E-2, Tab 9. Mr. Heintz testified that the assessment results in a rating of either “met” or “not met.” Ms. Fode passed the written knowledge tests, which consisted of an open book and a closed book test.

16 Ms. Fode’s results in the simulation exercises are set out in Exhibit E-2, Tab 10. Mr. Heintz testified that the Agency does not expect perfection, but recruits must meet the standard two out of three times to succeed. The assessors determined that Ms. Fode met the competencies of Client Service Orientation, Supporting CBSA Values, Analytical Thinking and Effective Interactive Communication. The assessors determined that she did not meet the competencies of Dealing With Difficult Situations, Decisiveness, Self-Confidence, Information Seeking Skills, Legislation, and Policies and Procedures. Overall, the assessors determined that Ms. Fode’s rating was “not met.”

17 Mr. Heintz testified that, in a borderline situation, the results are sent to the program manager for review. The recruit is given the benefit of any doubt. However, Ms. Fode’s performance was not borderline. She was directed to leave the course, as the employer considered her performance unsatisfactory.

18 In cross-examination, Mr. Heintz confirmed that he was not aware of the terms and conditions under which Ms. Fode attended the training at Rigaud. He was not aware of her conditions of hiring. Mr. Heintz is not provided with information concerning any recruit’s job performance before Rigaud training. Mr. Heintz was aware of a backlog in sending recruits for training at Rigaud. Mr. Heintz testified that he worked for two years in his position before he went for training at Rigaud. Mr. Heintz testified that the POERT assesses competency on the day of testing and that Ms. Fode did not demonstrate that competency. He testified in cross-examination that three years was a long time to work before going to Rigaud, but he has heard of employees going to Rigaud after five years of work because of the backlog. Mr. Heintz believes that three years would be the exception. There is a push to get recruits to Rigaud early, to get them trained.

19 Mr. Heintz testified that the POERT was shortened from nine to seven weeks for individuals who had completed the Control and Defensive Tactics Training, because of the backlog. Mr. Heintz also testified that he was aware of other recruits who had failed POERT and who had been dismissed from their positions with the Agency. In cross-examination, he stated that he had heard that one employee had remained with the Agency after failing the POERT and that that recruit had retaken the POERT. In re-examination, he testified that he was not aware of the terms and conditions of employment for that employee.

20 Ms. Fode was terminated from her BSO position effective at the close of business on September 24, 2007 by a termination letter sent by G. Blake Delgaty, Regional Director General, Pacific Region, on September 26, 2007. He specified that her indeterminate appointment was contingent on the successful completion of the training program and that he was advised that she had failed to complete the required D1 component and therefore that she had failed to meet a condition of employment. Her employment was terminated under paragraph 12(1)(e) of the Financial Administration Act, R.S.C. 1985, c. F11,for “… reasons other than breaches of discipline or misconduct …”

21 Mr. Anderson testified that the Okanagan and Kootenay District is one of five districts in the Pacific Region. He manages 16 points of entry. He has been with the Agency, in all its previous forms, since 1976, and was to retire a week after the hearing. He has been the district director since 2002. Before that, he was chief of the Kootenay area ports for two years. He worked in administration for 25 years before that at the Agency’s headquarters and also worked for a year as a BSO at Fort Erie, Ontario.

22 Mr. Anderson testified that, as a student customs inspector, Ms. Fode would have taken six days of use-of-force training, as it is a health and safety requirement of the position. All students were required to complete the use-of-force training. Students have been released in the past for not completing that training; however, Ms. Fode completed it successfully. Mr. Anderson was involved in preparing the letter offering Ms. Fode her indeterminate position (Exhibit E-2, Tab 12), however, the letter was signed by the Regional Director as a soft staffing freeze was in place at that time.

23 Mr. Anderson stated that the terms of appointment, including the requirement to complete the POERT, were standard for all persons offered indeterminate positions. Mr. Anderson testified that the POERT program was modified from nine weeks to seven weeks duration for those employees who had completed use-of-force training. He said that in his district no individuals were appointed who had not successfully completed the training.

24 Mr. Anderson testified that the Agency tried early on to obtain a place for Ms. Fode at the POERT, but many were people waiting, so it could not get her in right away. Before the training session that she attended, the Agency offered Ms. Fode three opportunities to take it but she asked to defer for personal reasons. The Agency accommodated her, given the nature of those reasons. Mr. Anderson stated that it was very unusual for individuals to request to defer the training because it is a term and condition of employment, and dates are given well in advance so that employees may make the adjustments necessary to attend the training.

25 An email from Amy Walker, Labour Relations Advisor (Exhibit E-3), indicates that, in December 2006, Ms. Fode was scheduled to attend the training in Rigaud on January 8, 2007. She requested a deferment to September. She was scheduled to attend on May 27, 2007, but she declined. Ms. Fode was scheduled again for July 16, 2007, but the employer agreed to reschedule as she was committed to a triathlon in Penticton. Mr. Anderson testified that the Agency was short staffed due to the death of an officer, there was a staffing freeze at that time and Ms. Fode had personal reasons for deferring, so it made sense to defer her training.

26 Mr. Anderson stated that it was unusual for an employee to attend training after working for two years, despite the backlog. The employer attempted to get “the backlogs” to the POERT as soon as possible. Mr. Anderson was aware of at least one other employee in his district who had experienced delays in obtaining training. In cross-examination, Mr. Anderson agreed with the grievor’s representative that the grievor did not deliberately delay going to the POERT and that, in hindsight, it might have been preferable had she attended the program sooner.

27 Mr. Anderson testified that the letter of July 26, 2007 (Exhibit E-2, Tab 14), sent to Ms. Fode was an administrative instruction providing her with the information needed to attend the training session at Rigaud commencing September 4, 2007. The letter reads in part as follows:

…

… Failure to successfully complete this training could result in you being deployed to an equivalent position, deployed to a lower level position or if nothing is available within your organization, your employment will cease.

…

28 In direct examination, Mr. Anderson was asked why that paragraph was in the letter. He replied that he was not sure. Mr. Anderson testified that Agency headquarters sent that template letter and that someone else had signed it while he was on leave. He stated that it was not his intention to amend or alter the terms and conditions of the grievor’s employment. It was an administrative instruction for her to attend training in Rigaud. Mr. Anderson, in re-examination, stated that he thought that the letter of July 26, 2007 was inconsistent with the original offer of indeterminate employment.

29 When Mr. Anderson received notice that Ms. Fode did not successfully complete the training, he stated that he was shocked and that he phoned the Regional Director General “to see what was going on” as Ms. Fode was a good employee and he thought that “this is wrong.” Mr. Anderson stated that he was advised that Ms. Fode had failed to demonstrate a significant number of competencies and that it was “game over.”

30 In cross-examination, Mr. Anderson testified that the decision to terminate the grievor came from his superiors and that it was because she did not successfully complete the training at Rigaud.

31 Mr. Anderson stated that, after the grievor was terminated, she was advised that a position classified CR-04 was coming up and Ms. Fode was encouraged to apply for it by Superintendent Rowena Davis and Chief Kevin Hughson because she was a good employee and because, later on, she could then reapply for a BSO position. Her application for the competition was screened out by the Public Service Commission. Mr. Hughson offered her casual employment for a 90-day term as a traveller services representative, classified CR-04, at the Kingsgate port. In cross-examination, Mr. Anderson testified that Ms. Fode apparently did not apply for the CR-04 position as it was not permanent, and she thought that she had other employment at that time and was looking for something permanent.

32 In cross-examination, Mr. Anderson stated that he did not try to find a deployment opportunity for the grievor before her termination as the terms and conditions of employment were such that an employee was required to pass the POERT. There was no equivalent position within the Agency. He testified that he did not engage the deployment policy as he was under no obligation to offer anything else to Ms. Fode.

33 In cross-examination, Mr. Anderson testified that he believed that the Agency was not required to offer the grievor alternative employment and that she was a good employee. There were vacancies for which she would have been a good fit as she knew the organization. Obtaining a vacant position would have allowed her to remain with the Agency so that she could later apply for another BSO position.

34 Mr. Anderson was cross-examined concerning the July 26, 2007 letter. He was asked why certain letter templates were acceptable, why this one was not and why it was an error. He said that, from his perspective, he was mandated to use letters he did not always agree with. He said that in 2005 and 2006 the Agency changed how it hired people in terms of the applicability of physical standards. His understanding was that some thought was given to what applied to term employees, which was different from what applied to new recruits. There was some question as to what obligation existed to term employees as the Agency was developing standards. He apologized for this. He said that there was uncertainty as to how to treat term employees until a policy was developed. Mr. Anderson said that he was not aware of the policies, which were under development at the Agency’s headquarters.

35 Mr. Anderson agreed that Ms. Fode’s on-the-job performance was never an issue. He agreed that an employee reading the letter could come away with a commitment or an assurance about the job. He agreed that the paragraph described a degree of protection. The letter was prepared by Lowena Carter, an administrative employee.

36 Mr. Anderson testified that the letter was an error. When he returned from leave, he raised the wording issue with the Human Resources Director in Vancouver and other directors and indicated that it made no sense.

37 Mr. Anderson was asked why the employer did not consider deployment opportunities for Ms. Fode. He replied that the terms and conditions of employment were such that every employee had to pass the POERT. In the Okanagan and Kootenay District, the staff is composed of BSOs, managers and clerks. There are no similar positions at the same level. He was asked why he did not consider or engage the Treasury Board Deployment Policy or equivalent. He said that it was a requirement of the position to complete Rigaud training and that he was under no obligation to offer anything else. He did not see the July 26, 2007 letter as a reason to offer her anything before terminating her.

38 In cross-examination, Mr. Anderson was asked if he was aware of another situation in which an employee was not automatically terminated after failing the Rigaud training. He said that he could not think of one. He was asked if it was now possible with the amalgamation or redefinition of the Immigration side of the Agency. Mr. Anderson said that those employees also had training in Rigaud. He agreed that some employees arrived from the Immigration side of the Canada Customs and Revenue Agency with indeterminate status. Mr. Anderson said that those employees were not required to attend the POERT. Mr. Anderson explained that those employees performed immigration functions but that the Agency moved aggressively to integrate the immigration and customs functions.

39 In cross-examination, Mr. Anderson agreed that the grievor’s lateness to training had been an exception but there were several employees who were delayed getting their training at Rigaud.

40 In cross-examination, Mr. Anderson testified that now the process is that external hires go through the interview process and then go to training at Rigaud. They are paid a training allowance of $125 per week, but they are not Agency employees until they successfully complete the POERT. He described it as a more arms-length arrangement than in the past.

41 In cross-examination, Mr. Anderson testified that he did not have the authority to terminate Ms. Fode and that it was not his decision. The person with the authority to terminate indeterminate employees was the regional director general. Mr. Anderson had the opportunity to review a letter written by a superintendent (Exhibit G-1). Mr. Anderson was asked why, given the grievor’s years of service, the time it took her to get to training at Rigaud and the fact that a different policy is in place, why the employer did not do something other than terminate her. He replied that they were instructed that, if an employee who did not successfully complete the POERT, he or she would be terminated.

42 Mr. Anderson agreed that there was a contradiction between the July 26 letter and the June letter offering the grievor indeterminate employment, but he said that he did not see the July 26 letter as a legal staffing instrument; he always viewed it as merely an administrative instruction with unfortunate wording. He agreed that Ms. Fode accepted and signed the letter. Mr. Anderson said that he did not see it as an offer but agreed that it could be considered a formal staffing instrument.

43 In re-examination, Mr. Anderson confirmed that the statement in the July 26 letter was inconsistent with the offer of employment and that he was upset when he saw it upon his return from vacation. He did not view it as an amendment to the offer of employment. If he had understood it to be an amendment, he would have reviewed it, changed it or sought clarification, but he was mandated to use the templates, “no questions asked.”

44 In re-examination, Mr. Anderson testified that legacy immigration officers were not required to attend the POERT as part of their terms and conditions of employment. Those officers were cross-trained — they were sent on a 10-day customs course, and customs officers were sent on a 10-day immigration course.

45 The employer closed its case after the first day of hearing. There was an extensive adjournment for discussions between the parties. On the morning of March 24, 2010, the employer applied to reopen its case to call Mr. Delgaty, the author of the July 26 letter, to testify to the issue of whether the insertion of the clause at issue had been an administrative error. The employer’s counsel had not spoken to the witness, had not discussed with him the nature of the evidence that he could give and was not able to speak as to his availability to give evidence. He was apparently out of the country at the time of the hearing. The grievor’s representative was opposed to an adjournment. He argued that the employer could not split its case and argued that an adjournment should not be granted, just because a witness did not come through with the evidence. The grievor’s representative further argued that the grievor would be prejudiced by further delay as she was in a holding pattern and was employed in a position which makes it difficult for her to obtain time off work. He further argued that he was fully booked until 2011. He said that, just because the evidence might be germane or relevant, it does not mean that the employer should be permitted to reopen its case. In reply, the employer’s counsel stated that there is new evidence and it is important that the employer be allowed to put forward its entire case. 

46 I determined that, although the employer appeared to be asking for the adjournment in good faith, there would be substantial prejudice to the grievor if this case did not proceed to a timely disposition as the termination occurred in 2007, the grievor works for a school board and has difficulty with her own availability during the school year, and her representative has difficulties with availability before early 2011. The employer’s counsel had not yet interviewed the potential witness as he was out of the country and did not know whether Mr. Delgaty had evidence that could be of assistance. Furthermore, the employer already led evidence that it had no intention of amending the terms and conditions of the June 9, 2005 letter and that the insertion of different terms in the July 26, 2007 letter was an administrative error.

47 Ms. Fode testified. She is currently employed with School District No. 5 in Cranbrook, British Columbia, as a youth-care worker, and she works with high-risk children. It is a seasonal job, providing employment during the school year. In the summer, she does volunteer work and participates in triathlon events. At the time of the termination, she was the sole supporter of her three children. Ms. Fode testified that she had worked as a summer student in 2003 and in 2004.

48 Ms. Fode testified that she had been performing the duties of a BSO since November 8, 2004. She understood that she had been offered the indeterminate position because she had proved that she was competent at her job. She stated that she had expected that she would attend training at Rigaud four to six months after she accepted her offer of indeterminate employment. She testified that other new hires had attended Rigaud before her. She stated that it had seemed like every other new hire had gone to Rigaud shortly after hiring.

49 Ms. Fode stated that she was aware of the condition of attending training in Rigaud when she signed the offer of indeterminate employment. It was an important condition for her since, if she did not succeed, she had the option to finish her degree. She had to take into consideration that she had to support her family, and she would rather have gone to training earlier so that she would have had a better sense of where she was at. She would have preferred to have gone to training right away so that she would have had full job security. Her sense of job security came from knowing that the employer considered her competent enough to leave her in her position while it sent others to training.

50 During her first year of employment, she had access to training opportunities, including an officer powers course, a first aid course, a motor vehicle and passenger course, an obscenity course, and a Canadian Food Inspection Agency course. She took all those courses before March 30, 2006.

51 Ms. Fode believes that the Agency sent newly hired employees other than her to training first because she was performing competently. She also understood that there was a backlog in the availability of training openings at Rigaud. Kevin Hughson, a director at Kingsway, had told her that, at that time, they had felt that it was better to send fresh hires to the course rather than her.

52 Ms. Fode testified that she asked the Agency to postpone the training at Rigaud because of an injury sustained by her mother, who subsequently passed away, for her daughter’s high school graduation, and so that she could participate in the Penticton Ironman, a triathlon event. Ms. Fode was appreciative of the employer’s deferment of her training.

53 She testified that, before taking the core portion of the training in Rigaud, she completed the Penticton Ironman on August 25, 2007. It is a gruelling triathlon. She testified that she had been training intensely before the race. She testified that she was recovering from that event while at Rigaud.

54 Ms. Fode testified that, after she read the letter of July 26, 2007, she felt a sense of comfort that her attendance at Rigaud training was more of a formality and that they were offering her the opportunity to have a sense of security, if she was not successful in the course. She said that it was important to her as she had three years invested in the position, she had taken other training and job security was important to her in raising her children.

55 Ms. Fode testified that she took the July 26, 2007 letter seriously because her mother had been seriously injured in a car accident. She did not question the letter. She stated that she relied on it.

56 Ms. Fode testified that, when she arrived at Rigaud, she felt competent and did not have any concerns. She testified that, after completing the Ironman and readapting to regular life, she had nutritional and weight gain issues. Because of studying, she was unable to keep up her level of fitness. She felt tired. She did not bring any issues to the attention of the employer when she was at Rigaud as she had no concerns about her performance. She did speak with the chef about food issues, including sodium intolerance. Ms. Fode was aware that she could bring her concerns to the employer.

57 Ms. Fode believes that she did well in the training. She received positive feedback. Ms. Fode acknowledged that she did not hold up very well on the day of the assessment. She knew right after the testing that it had not gone that well. She was hoping that it had not gone as bad as she thought it had. She does not dispute that she did not successfully complete the course. She testified that she had a bad day.

58 When she found out about her results, she was disappointed with herself. She thought that she probably would be able to continue with the training and was surprised when she was sent home. She said that she phoned her superintendent when she received the termination letter as she was surprised that they could terminate her after the letter that she had previously received.

59 In cross-examination, Ms. Fode testified that she did not bring her concerns to the employer’s attention after the test as she thought that she at least still had a job.

60 Ms. Fode supplied eight letters of support from other employees, including former supervisors (Exhibit G-3). In particular, one superintendent wrote the following (Exhibit G-1):

…

I wholeheartedly object to the termination of Barb FODE’S employment. Barb has been under my supervision for almost 3 years and during that time, I have observed that she is a dedicated employee who works hard and is an eager learner. Barb’s behaviour is professional and her decisions are well thought out. She interacts well with her colleagues and polite but firm with our clients. Barb asks appropriate questions, acts responsibly and can articulate reasons for her decisions.

I realize that Barb was unsuccessful in the simulated portion of Determination Point 1 but I cannot understand why, when we have a BSO who has proven herself in reality, a second opportunity to test cannot be offered. We are in a staffing crunch yet we toss away a perfectly good BSO because of a bad day. I recognize that the need to e firm with termination decisions and I agree that a candidate who is “off the street”, this method is likely an appropriate move. But bridged employees should be treated differently. By terminating her employment in this manner, Barb’s 3 years of dedicated service have been labelled as “worthless”, counting for nothing.

[Sic throughout]

…

61 In cross-examination, Ms. Fode stated that she understood as a general rule that a BSO would be terminated if he or she did not succeed in the POERT. There were no discussions between the grievor and the Agency to indicate that the terms and conditions of attending the POERT were amended. After receiving the July 26, 2007 letter, she did not discuss any of its terms of the letter with a manager or superintendent. Although she understood generally that employees attend the POERT within four to six months of hiring, no one at the Agency promised or guaranteed that she would attend within that period.

62 In cross-examination, Ms. Fode was asked whether she would not have signed the letter without the provision, to which she replied that she may have considered not signing it given the situation with her mother at home at that time.

63 In cross-examination, Ms. Fode stated that she understood that other employees might have had priority over her for training at Rigaud. The grievor admitted that she was offered training at Rigaud before December 2006 and that she appreciated the employer’s accommodation of her requests to defer her training. She accepted responsibility for not successfully passing the scenarios in the simulations. She said that she should have addressed some things in training before the testing period but she did not.

64 In cross-examination, the grievor was asked if she had personal knowledge of any individuals who had failed the POERT and who had been able to retain their positions. She had no personal knowledge, but she heard from other employees that it had happened. She said that the system had been changed, with former immigration employees being placed into positions. She understood from other employees that they understood that they had to pass the POERT or they would be terminated from their employment, but the majority attended the POERT after they were first hired. She considered her situation different as she was told that she was competent in her job, she had the July 26 letter and had been delayed in taking the POERT.

III. Summary of the arguments

A. For the employer

65 The uncontroverted evidence from Mr. Heintz is that the grievor’s training assessment at Rigaud was reasonable and that it was conducted in the required manner. No evidence suggests that anything was wrong with the process. The grievor expressed a view concerning the subjectivity of the evaluations conducted during practice sessions, and she also accepted responsibility for her lack of success.

66 The only question is whether the July 26, 2007 letter altered the terms and conditions of the employment offer dated June 9, 2005. The employer submitted that this was not the case. The Rigaud training was not a requirement until the grievor attained probationary status as an indeterminate employee. There was some delay in sending Ms. Fode to Rigaud, but the employer never guaranteed or promised that she would be sent to the POERT within four to six months of the offer of indeterminate employment offer. At that time, there was a shortage of training spaces available because the Agency had been recruiting. Management also decided that new employees had priority over existing employees for the POERT so that they could become operational. Some other employees also had to wait for their training. In the two year period when Ms. Fode was an indeterminate employee (June 9, 2005 to July 26, 2007) and awaiting training at Rigaud, nine months of the delay can be attributed to her requests to defer the training. Her requests were exceptional but not unreasonable, and it is important to note that not all the training delay was as a result of the employer’s actions.

67 Ms. Fode was not the first or last employee to be terminated for not successfully completing the training. The evidence shows that the general rule was that BSOs were required to successfully complete the training to remain in the organization. That is a long-standing practice that continues today.

68 Since Ms. Fode was terminated, the employer has changed its hiring practices. After the selection process, candidates must successfully complete training, including the POERT at Rigaud before they are appointed as BSOs. Otherwise, they cannot be appointed.  

69 In this case, the appointment letter of June 9, 2005 clearly states that failing to complete the requirements will result in termination, and the grievor accepted those terms of appointment. An employer that terminates a grievor who failed to comply with a condition of employment set at the time of hiring is not in breach of a collective agreement: Oshawa General Hospital v. Nurses’ Assoc. Oshawa General Hospital (1975), 10 L.A.C. (2d) 201. That case involved a student nurse who was required to pass an examination or she would be terminated, and she failed to pass the examination. The arbitrator held that it amounted to just cause for her termination.

70 The grievor acknowledged that no discussion occurred about the paragraph in the July26, 2007 letter relating to her attendance at Rigaud training. Mr. Anderson testified that the purpose of the letter was to advise the employee of her upcoming participation in the POERT. He testified that the wording was unfortunate but that the employer had no intention of changing its policy that employees who failed to successfully complete the POERT could not remain in their BSO positions. However, there was some internal policy debate about employees moving from term to indeterminate appointments.

71 The employer noted that no notice was sent that the terms and conditions of employment were to be amended or altered. The letter of July 26, 2007 cannot reasonably be construed as an amended employment offer. Furthermore, the paragraph was not discussed with Ms. Fode.

72 The employer would have had an obligation to provide notice of a change of the terms and conditions of employment even had it made a change favourable to the grievor; the employer cannot be held to another standard if a mistake or administrative error was made. If the initial letter of offer was the July 2007 letter, but the employer then sent a letter with wording similar to the June 2005 letter, the employer could not have relied on the second letter’s wording to terminate Ms. Fode. The second letter would not have been a legitimate method of amending the terms and conditions of employment. An employer is required to give notice of a change of policy and cannot rely on a later policy that changes the terms and conditions of employment to terminate an employee: see Oshawa General Hospital v. Nurses’ Assoc. Oshawa General Hospital (1975), 8 L.A.C. (2d) 329.

73 The grievor says that she relied on the July letter. The employer argued at best “she may” not have gone or agreed to go but for the July 26, 2007 letter. The suggestion is that but for her reliance on this letter she would not have been terminated.

74 The employer argued that there is no estoppel that arises here. There was no clear and unequivocal representation, intended to be relied upon, that was relied upon, to the detriment of the employee. The conditions for an estoppel have not been met — there was no clear representation made, which was intended to be relied upon.

75 The employer met its burden and was justified in terminating Ms. Fode based on the terms and conditions of the employment offer. The employer was not obliged to find other opportunities for her. She was liked, the local supervisors were not happy with her failure at the course and her termination, and the employer made an effort to find her other work.

76 The employer submitted that, in the alternative, the only remedy available is that Ms. Fode should be reinstated for the purpose of trying to deploy her within a reasonable period as per Zhang v. Treasury Board (Privy Council Office), 2005 PSLRB 173. If she was deployed in a position, she could reapply for a BSO position.

B. For the grievor

77 The evidence demonstrated that some employees went to the POERT and that some did not. There are no hard and fast rules about successfully completing the POERT. There is evidence suggesting that a variance exists with respect to POERT completion today. There is a reason that new employees now go to Rigaud before being hired.

78 There is a disconnect between the grievor’s assessment at the POERT and her on-the-job performance. The bargaining agent cannot understand why someone who had proven her performance in reality and who was a skilled, valued and trained employee was not given a second chance with a retesting or other employment, considering that she faced difficult circumstances in her private life.

79 The employer amended the terms of the grievor’s offer and represented the changes to her, and she had no reason to second guess the amendments. The employer has not established that the paragraph in the July 26 letter was an administrative error. The July letter is clear and unambiguous. The employer has an obligation to look for alternative employment for Ms. Fode, as in Zhang.

80 The grievor’s representative submitted that Ms. Fode relied on estoppel. There was detrimental reliance, and the employer should be estopped from terminating her. The grievor’s representative referred to the test for estoppel expressed in Northwest Territories (Commissioner) v. Northwest Territories Public Service Assn. (1986), 24 L.A.C. (3d) 132; and in Bolton v. Treasury Board (Indian and Northern Affairs Canada), 2003 PSSRB 39.

81 This is a case of detrimental reliance. When Ms. Fode received the letter of July 26, 2007, she understandably took comfort, that as a single mother of three children going through a divorce and with a mother who was ill and who passed away, she had continuing employment. She does not take exception to the assessment at the POERT, but she stated that it was unfair to terminate her given the July 26 letter. The employer gave undertakings in that letter, failed to carry them out and stated that it was not required to do so.

82 The grievor’s representative submitted that Ms. Fode should be restated in her BSO position retroactively to permit her to retest and that, if she remains unsuccessful, she is entitled to deployment under the Treasury Board Deployment Policy. This policy appears to no longer be in effect.

83 Other employees who failed the POERT have retained their indeterminate positions.

84 The grievor has undergone a material change from a $70 000 per year job to a $33 000 per year job.

85 The grievor’s representative also referred to Hunt and Shaw v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 65, and submitted that providing a remedy to Ms. Fode would not upset the balance struck in the relevant collective agreement.

86 The employer has an obligation to demonstrate it made an administrative error and they did not do so. While Mr. Anderson stated that the July 26 letter was simply an administrative instruction, it could be read as a commitment or promise by the employer. The context and timing are critical. Changes were underway. There was uncertainty, and Mr. Anderson was following instructions from his superiors. Ms. Fode should not have to pay the price for an interdepartmental conflict.

87 The grievor’s representative stated that there were inconsistencies with the requirement to attend and successfully complete the POERT. Some employees were directly appointed without attending the POERT. Some employees did not pass the POERT but retained their indeterminate positions.

88 Until she received the July 2007 letter, the grievor was aware and anxious about the condition of attending training at Rigaud. When she received the letter, she felt better. She was lulled into a false sense of security. Ms. Fode attended the Rigaud training with a sense of security, in good faith, and things would have been different had she known that the employer was relying on the terms of the original employment offer.

89 In terms of remedy, the proper thing is that Ms. Fode should be reinstated as a BSO and sent for retesting as she was tested at the worst time for her. If she is unsuccessful, the employer should be required to engage the Treasury Board Deployment Policy. At the minimum, she should be reinstated in the clerical services position, classified at the CR-04 group and level, so that she could be deployed or look for other positions. It would have been a very different story had the letter of July 2007 not been sent to her.

90 The grievor stated that there is no evidence that the employer terminated employees in situations similar to Ms. Fode.

91 An employee should be able to rely on documents issued by the employer without obtaining advice from a lawyer or union representative when that document clearly expresses an obligation.

C. The employer’s Reply

92 There is no cogent evidence showing that employees who failed the POERT were not terminated. The employer stated that there is no cogent evidence other than BSOs were required to successfully complete the POERT or their employment was terminated. It happened regularly. The only deviation was Mr. Heintz, who stated that he was aware of one case, but there was no evidence of the terms and conditions of employment of that employee. The only other information is the hearsay that he heard that some recruits who failed their training were not terminated.

93 The assessment counts and not the on-the-job performance and the grievor was unable to pass the assessment.  

94 Although the grievor’s training was delayed, she was responsible for one third of the delay. There was a delay due to a backlog. There was good faith on the part of the employer. The backlog or delay did not alter or abridge her requirement to complete the training at Rigaud or create new obligations for the employer.

95 Ms. Fode submitted that she had personal reasons for not achieving her best, but she did not communicate any personal reasons to the assessing staff that would have affected her performance, and she acknowledged that assessing staff were open to receiving such information.

96 The July 26, 2007 letter and Mr. Anderson’s failure to change the letter does not amount to an amendment of Ms. Fode’s terms and conditions of employment. There may have been internal discussions about the employer’s obligations to term employees, but there was no intention to alter the terms of the arrangement with Ms. Fode. Had Mr. Anderson understood that the July 26 letter was intended to alter the legal relationship between the parties, he would have taken steps to amend the letter.

97 The evidence did not suggest that Ms. Fode was not a training priority. However, it was valid and reasonable for the employer to train new recruits at Rigaud who did not have Ms. Fode’s background as a student or term employee. The employer did its best to get Ms. Fode to training within a year-and-a-half after her appointment.

98 Mr. Anderson’s evidence was clear that BSOs who did not successfully complete the POERT were terminated.

IV. Reasons

99 I accept the employer’s evidence that, at the time of Ms. Fode’s hiring, a BSO appointed as an indeterminate employee was required to successfully complete the POERT program as a condition of employment. Again, the relevant portion of the offer was the following:

…

… Failure to meet the minimum requirements on any of the training courses will result in termination for reasons other than breaches of discipline or misconduct.

…

100 The requirement did not apply to Ms. Fode until June 20, 2005, when she accepted the offer of indeterminate employment made on June 9, 2005. There is no evidence that the employer intended to modify that condition. The hiring practice is now different in that new recruits must complete the POERT before receiving an offer of employment with the Agency.

101 In my view, there is no cogent evidence that satisfies me on a balance of probabilities that other employees in positions similar to that of Ms. Fode were retained by the Agency after failing the POERT. I do not accept the speculations of either Mr. Heintz or the grievor that other persons were treated differently as I do not know enough about who these persons were, their histories with the employer, the terms under which they attended Rigaud training or their positions with the Agency. There is evidence before me from Mr. Anderson that in the Pacific region employees who did not pass the POERT were terminated. Mr. Anderson was unable to speak to what occurred in other regions, but that does not mean that I should infer from that absence of information that the employer did not terminate employees who failed the POERT. I note that the evidence of Mr. Heintz and Ms. Fode on that subject is hearsay. Hearsay is admissible in an adjudicative hearing. I must consider the weight of this evidence. I have direct evidence from Mr. Anderson on point, which in my view, is more cogent and must be given greater weight than hearsay.

102 “Legacy immigration officers,” which I take to mean officers with seniority, who were employed in a federal government department before the creation of the Agency, were not required to attend the POERT training as part of their terms and conditions of employment. That situation is irrelevant to the analysis of this grievance.

103 In my view, the lapse of time — in this case 20 months — did not erase Ms. Fode’s obligation to successfully complete the POERT. There was a shortage of seats at the program. The employer may have chosen to send newly recruited employees over those with some training and experience as a result of student employment or through term employment. Parts of the delay in the grievor attending the program were legitimate requests that she made to defer the training. However, the deferment of the training did not abridge any obligation to take it.

104 The parties differ on the effect of the July 26, 2007 letter, the salient part of which is the following:

…

Once you have successfully completed the Orientation phase, you will advance to the Core phase of the training program.

You are reminded, failure to successfully complete this training could result in you being deployed to an equivalent position, deployed to a lower level position or if nothing is available within your organization, your employment will cease.

…

105 In my view, the July 26, 2007 letter cannot reasonably be construed as amending the terms and conditions of the grievor’s employment. I am not satisfied that Mr. Anderson had the delegated authority to make employment offers or to terminate the employment of indeterminate employees. If he had no authority to make an offer, in my view he had no authority to amend such an offer. The hiring letter for the indeterminate position and the termination letter were both signed by Mr. Delgaty, Regional Director General. 

106 The grievor acknowledged the terms and conditions of her offer by signing the June 2005 letter. It was clear that she was obliged to attend training in Rigaud by virtue of the original offer of employment. She did not alter her position in any way by agreeing to go to Rigaud. Had she declined to go, the employer would have been fully entitled to terminate her employment.

107 A clear difference exists in the wording of the June 2005 and July 2007 letters. However, I do not believe that the employer intended to waive either the training or a competency-based assessment of the grievor at Rigaud. Furthermore, it appears to me that the July 26 letter was a template and not a “considered employer response” to the special circumstances of Ms. Fode as a single parent, who had a disabled mother, who had been a valued employee with the Agency and who had had her training delayed. There is no evidence that the July 26 letter was crafted with the grievor’s personal circumstances in mind.

108 In my view, the employer did not waive or amend the earlier conditions as the letter of offer is not directly referred to in the July 26 letter. The July 26, 2007 letter has the potential to be misleading as it was not a reminder of something referred to earlier, but was new.   

109 Ms. Fode argued that the employer was estopped from dismissing her and stated that all the conditions were met for an estoppel. The elements of estoppels are summarized in Northwest Territories (Commissioner) v. Northwest Territories Public Service Association at para. 27, which relied upon Lake Ontario Cement, Lime and Gypsum Workers’ International Union, Local 387 (1984), 13 L.A.C. (3d) (Picher) at page 7:

(1) A promise or assurance by words or conduct;

(2) Intended to alter the legal relations between the parties

(3) Relied on or acted upon by the other party, so that it would be prejudicial if the undertaking were revoked.

110 In assessing that argument, it is helpful to examine the situation of Ms. Fode before and after the July 2007 letter.

111 Ms. Fode’s situation immediately before the issuance of the July 2007 letter was that she was obliged to attend and successfully complete the POERT program, by virtue of the letter of offer. For the reasons set out earlier in this decision, a delay in taking the course did not erase that obligation to attend.

112 In my view, it cannot be said that Ms. Fode was prejudiced by any delay. She had the opportunity to obtain extensive work experience, which should have assisted her in passing the training at Rigaud. She was not lulled into a false sense of security by the employer’s July 26, 2007 letter in that she did not reduce her effort in the program because she knew that she had a job. She took the training and applied herself to it.

113 I do not accept her evidence that she may not have attended the training at Rigaud but for the statement in the July letter. On a balance of probabilities, I accept that she would have undertaken the training regardless of the new wording, because she wanted to continue as a BSO, and if she had refused to take the training, she would have been terminated. Ms. Fode, in my view, is an extremely confident person who participates in high-level athletic events, received positive feedback in her position, enjoyed her job and appreciated that the employer granted three deferments to the requirement to attend Rigaud training. She wanted to attend it to secure her position, particularly in light of her obligations to care for an injured mother and to support her children. Anyone in her situation would have expected that she would pass the assessment, given her on-the-job experience. It is improbable that she placed any reliance on the statement in the July letter.

114 I view the tentative nature of her evidence in the context of the surrounding circumstances and consider her answer that she may not have attended Rigaud as a construction in hindsight. Her testimony is not in accordance with the preponderance of probabilities, as per Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at page 356, as follows:

…

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.

…

115 Although her representative argued that her position changed in that she lost her job and obtained a new job that pays less, it did not result from relying on the July 26 letter. This is a consequence of her failure to pass the simulation assessments, which she had no choice in undertaking because it was a requirement of her obtaining an indeterminate position.

116 In my view, the July letter directed the grievor to report to the training program and provided proof that she knew of the direction. In short, the letter cannot be said to have induced Ms. Fode to take the training course, to take it on the dates specified, or to have induced her to take the POERT less seriously. Clearly, there was no employer intent to delete the requirement to take the POERT from her terms and conditions of appointment.

117 Ms. Fode testified that she was surprised that she was not permitted to continue the training at Rigaud after the assessment. I do not accept that testimony as credible or reliable. While she was confident of her own performance up to the time of the assessment, it cannot seriously be accepted that she was unaware of the consequences, since they are clearly set out in the “Port of Entry Recruit Training Program Test Objective Booklet” at pages 3 and 4, which outlines that the employee must consistently meet each individual competency test, which is defined as passing a minimum of two out of three for all competencies except the Inspection Technique competency, which is defined as one out of two simulations passed. Furthermore, the consequences are set out at page 4 as follows: “IMPORTANT: You will not be able to continue in the program if you do not meet these conditions for the simulation exercises.”

118 I do not understand, nor is it explained in the evidence, why the employer did not give Ms. Fode an opportunity to be assessed again when she failed the POERT program, given that she had worked for the Agency for almost three years, she was a good employee and the employer had no concerns with her employment.

119 Although I have difficulty understanding why the employer did what it did, in order for me to intervene in its decision, I must be able to articulate a proper legal reason. Generally, it is a management right, subject to any qualifications in the collective agreement, to set the terms for hiring employees. The employer considered the POERT important enough that it made its successful completion a condition of the grievor’s employment.

120 Although there were delays in her taking the POERT training, the delay does not alter the obligations set out in the hiring letter. I do not believe that the employer intended to alter Ms. Fode’s terms and conditions of employment or to modify the requirement that all persons working as BSOs, who were not immigration legacy officers, had to pass the POERT. Even though the wording of the July 26 letter differed from the original terms and conditions of employment, I am not satisfied that Ms. Fode relied to her detriment on the letter, as she was obliged to take the training. Failing to succeed at the POERT resulted in her termination, but I do not accept that the July 26 letter had any influence on the timing of her attendance, the effort she put into the training or her communications with managers about her situation — either before or after the testing.

121 It is not open to me to intervene in a decision that complies with the collective agreement or the relevant legislation. The personal circumstances expressed by Ms. Fode evoke sympathy, but I note that her circumstances were not important enough for her to decline to attend the POERT, to communicate any problems to the instructors at the POERT before the testing or to communicate problems to the assessors before or even after she was assessed.

122 In my view, the July letter cannot be the basis of an estoppel. There was no intention by the employer to change the previous requirements nor that Ms. Fode rely on the statements in the letter. There was no reliance or alteration of Ms. Fode’s position, or detriment to her, as she was obliged to go to training; attendance was compulsory. Had she not attended, she would have been terminated.

123 Ms. Fode argues that I should rely on Zhang and order that she be reinstated so that the employer may search for other opportunities for her. In my view, Zhang does not apply. In Zhang, the employee, previously employed in another department, lost her security clearance after she accepted employment with the Privy Council and underwent security screening at a higher level. The applicable Treasury Board policy, the Treasury Board Personnel Security Standard, required the employer to search for alternate positions unless there were exceptional circumstances in which an employee’s security clearance was revoked. That policy had to be adhered to when terminating any employee for a revocation of a security clearance. I do not accept that the employer intended that all BSOs who failed the POERT be given another chance at the test or be provided deployment opportunities before termination. I do not see any cogent reason that Ms. Fode should be treated differently than other employees who attended and failed the POERT and were dismissed.

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

V. Order

125 The grievance is dismissed.

October 7, 2010.

Paul Love,
adjudicator