FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Yannick Raymond, the grievor, worked for the Canada Public Service Agency (“the employer” or “deputy head”) and, in 2008, she was the director of diversity programs operations (classified at the EX-01 group and level). On June 24, 2008, the employer demoted her to a program officer position classified at the AS-06 group and level in its Official Languages Branch due to her performance, which it found unsatisfactory. Ms.Raymond filed a grievance against her demotion, alleging that the deputy head was unreasonable in finding her performance unsatisfactory and that, alternatively, the demotion was disguised discipline. On August 26, 2008, the employer’s president, acting at the final level of the internal grievance process, modified the initial decision and changed Ms. Raymond’s demotion to the AS-07 group and level.

2 Unsatisfied with that decision, Ms. Raymond referred her grievance to adjudication on September 19, 2008. The employer claimed that the decision to demote Ms. Raymond was for cause and that it was reasonable.

II. Summary of the evidence

A. For the employer

3 On December 12, 2003, the Public Service Human Resources Management Agency of Canada, which was renamed the Canada Public Service Agency (“the Agency”), was created under an order in council under the aegis of the Public Service Modernization Act, S.C. 2003, c. 22.

4 Monique Boudrias was the executive vice-president and the assistant deputy minister of the Agency until she retired in October 2008. Ms. Boudrias explained the context of the Agency’s creation and the resulting integration of employees, including Ms. Raymond.

5 Before the Agency was created, the federal public service modernization mandate fell under the following two working groups: the Public Service Modernization Implementation Secretariat, which reported to the Treasury Board, and the Public Service Modernization Working Group, which reported to the Privy Council. When the Agency was created, employees from those two entities were transferred to it. Ms. Boudrias explained that employees integrated into the Agency retained their classifications. Therefore, when Ms. Raymond was transferred to the Agency, she retained her EX-01 group and level (executive position) classification.

6 Ms. Boudrias explained that, when they were integrated into the Agency, not all executives had supervisory and human resource management responsibilities, contrary to their traditional roles. That was the case for Ms. Raymond, who was integrated into the Agency as the director of learning and cultural change but who, in fact, worked on special projects.

7 Ms. Boudrias explained the performance management and performance award process for the executive group of the public service, and in particular of the Agency. The process is governed by the Treasury Board’s Policy on the Management of Executives (“the Policy”) and by the Directive on the Performance Management Program (PMP) for Executives (“the Directive”).

8 Under the Policy and the Directive, executive compensation is determined by recognizing performance and contribution.

9 The Directive provides that, each fiscal year (from April 1 to March 31 of the following year), all executives must enter into a performance agreement with their immediate superiors. The performance agreement identifies precise expectations (commitments) and expected performance measures. Performance agreements include the following two types of commitments: ongoing commitments and key commitments. Ongoing commitments refer to the expected results of the continuing core accountabilities of an employee’s position, such as human resources management, business planning, policy development or operational program delivery. Key commitments are those that the employee must especially focus on during the fiscal year. Executives’ performances are assessed at the end of a fiscal year according to achieved commitments and to how those commitments were achieved, using key leadership competencies (values and ethics, strategic thinking skills, action management, people management, financial management and commitment).

10 The performance assessment determines access to lump-sum performance awards. Performance awards for executives comprise the following two parts: a move within the salary range of the employee’s position and a lump-sum performance award. In-range salary movement is tied to achieving ongoing commitments, while a lump-sum performance award depends on the executive’s results for his or her key commitments. The Directive provides as follows:

…

4. In-range Movement

• Progress of an executive’s salary within the salary range established for the position, up to the maximum, is affected by the extent to which Ongoing Commitments were achieved as well as how they were achieved (demonstration of Key Leadership Competencies and values and ethics).

…

5. Lump Sum Performance Awards: At-risk Pay and Bonuses

• In addition to the base salary, executives have the opportunity to earn lump sum performance awards each year. The amount of the lump sum performance award depends on the extent to which key commitments were accomplished.
• An executive who has received in-range movement for the achievement of Ongoing Commitments is also eligible for a lump sum performance award for the achievement of Key Commitments. Executive salaries need not be at the salary range maximum in order for executives to receive lump sum performance awards.
• A prerequisite for access to lump sum performance awards is that at least most expectations for the achievement of Ongoing Commitments have been met (Level 2 and up). No lump sum performance award may be provided when the executive’s assessment for Key Commitments was Level 0 or 1 (Unable to Assess or Did Not Meet).

…

11  The Directive also provides that each department must have an internal mechanism for reviewing executives’ performance assessments for fairness and consistency.

12 Ms. Boudrias explained the performance management and performance award mechanisms that applied to the Agency.

13 At the start of each fiscal year, a performance agreement was established for each executive. The performance agreement contained ongoing commitments and key commitments for that year.

14 At the end of each year, the Agency’s executive-performance review committee (“the review committee”) determined the performance ratings and performance awards for its executives. The review committee was composed of vice-presidents and directors general who reported directly to the Agency’s president, and until 2006, it was chaired by Ms. Boudrias. Beginning in 2007-2008, the review committee was co-chaired by Ms. Boudrias and the new president of the Agency. Each vice-president or executive director presented his or her assessments of his or her executives’ performance and, after discussion, the review committee members collectively set the assessment ratings. Lump-sum performance awards were then granted based on the overall allocated budget and on the respective performances of the executives covered by the Directive.

15 Ms. Boudrias testified about the several positions that Ms. Raymond held within the Agency and her 2003-2004 to 2007-2008 performance assessments.

16 From her integration into the Agency until June 2005, Ms. Raymond worked in the branch responsible for implementing public service modernization, and she worked on special projects dealing with learning and cultural change. She was also temporarily seconded to the Department of Canadian Heritage from October 2004 to June 2005.

17 For the Agency’s first fiscal year, i.e., 2003-2004, Ms. Raymond obtained the “Met all objectives” rating for her ongoing commitments and the “Met most objectives” rating for her key commitments. Ms. Raymond progressed within the salary range, and she received a lump-sum performance award.

18 Ms. Boudrias explained that, for that first fiscal year, the review committee decided to grant the “Met all objectives” rating to all the Agency’s executives, even those without supervisory responsibilities.

19 For 2004-2005, Ms. Raymond obtained the “Met most” rating for her ongoing commitments. Since she had already reached the salary range maximum, she could not receive a salary increase. As for her key commitments, she obtained the “Met most” rating, which entitled her to a lump-sum performance award.

20 Ms. Boudrias stated that Ms. Raymond’s performance was not as satisfactory as the Agency’s other executives. She explained that a “Met most” rating was an acceptable level for a new executive but that such a performance level for an employee in an executive position for more than two years was a sign of difficulty. Ms. Boudrias noted that the average performance level for executives was the “Met all” rating. Therefore, according to Ms. Boudrias, Ms. Raymond’s results were a sign of difficulty.

21 Ms. Boudrias said that, at a one point, Ms. Raymond’s director, Lynn Brown, met with her to discuss concerns about Ms. Raymond’s difficulty in meeting her goals, unlike the other executives in her branch. Ms. Boudrias stated that Ms. Brown then asked her if it was possible to place Ms. Raymond in another position when she returned from the Department of Canadian Heritage.

22 Ms. Boudrias stated that she then asked Raymond Crête, who had recently been named director general of the Human Resources Planning, Accountability and Diversity Branch, to place Ms. Raymond into his branch. Ms. Boudrias explained that she made that decision because she knew that Ms. Raymond had known Mr.Crête for a number of years and that she had already worked in human resources management and employment equity. She felt that Mr. Crête would be able to provide Ms.Raymond with an environment that would likely enable her to improve her performance.

23 Ms. Boudrias stated that she asked Mr. Crête to integrate Ms. Raymond into his team by entrusting her with defined projects having close supervision and clear objectives so as to closely monitor her performance.

24 Ms. Raymond worked under Mr. Crête’s supervision for the entire 2005-2006 fiscal year, and she was assigned to specific projects. Mr. Crête explained that his branch was evolving and that he had recommended reorganizing the branch and, in particular, creating additional director positions to carry out the equity and diversity mandate. Mr. Crête integrated Ms. Raymond with the goal of eventually appointing her to a true executive position in charge of an activity centre.

25 Mr. Crête stated that he met with Ms. Raymond as soon as she arrived to discuss the projects on which she was to work. After the discussion, he assigned her ongoing commitments but no key commitments since she was not yet in charge of an activity centre. Ms. Raymond worked on four specific projects.

26 Mr. Crête stated that, at the beginning of the year, he and Ms. Raymond entered into a performance agreement. He also stated that he had regular meetings and discussions with Ms. Raymond during the year, held every week or every other week, during which they discussed the files’ progress.

27 Mr. Crête stated that, as early as the first trimester of the fiscal year, he noticed that Ms. Raymond’s performance was not at the level he expected from someone classified at the EX-01 group and level. The deficiencies that he noted related mostly to Ms. Raymond’s difficulty translating expectations into concrete results and producing action plans, project evaluation frameworks and cost-benefit studies. Mr. Crête stated that, at first, he attributed Ms. Raymond’s difficulties to her being new to the branch and that she needed some time to acclimatize and to familiarize herself with the files and projects.

28 Mr. Crête stated that Ms. Raymond’s performance did not improve during the year. He stated that, for several files, he had asked for specific results, which did not materialize.

29 Mr. Crête indicated that he met with Ms. Raymond in December 2005 to provide her with feedback. He stated that he felt that Ms. Raymond’s awareness had increased, and he said that she reassured him by specifying that she would produce action plans after the holidays. Mr. Crête stated that he saw a fresh attitude from Ms. Raymond after the holidays, but that it was short lived.

30 Mr. Crête noted that, at the end of the 2005-2006 fiscal year, he was still not satisfied with Ms. Raymond’s performance. He stated that he asked Ms. Raymond to perform a self-assessment of her achievements that year. He noted that Ms. Raymond gave him a list consisting of a series of activities that she had carried out but that had not resulted in concrete results. For his part, he found Ms. Raymond’s performance unsatisfactory on the four projects to which she had been assigned.

31 Mr. Crête explained that, in the meantime, the reorganization of his branch was taking shape and that a branch dedicated to employment diversity and equity had been created. He stated that he recommended that Ms. Raymond be assigned to one of the director positions. He explained that, in spite of the deficiencies in Ms. Raymond’s performance, he did not give up on her. He believed that Ms. Raymond could improve her performance with a good remedial action plan and adequate supervision.

32 The performance assessment form that Mr. Crête completed for the 2005-2006 fiscal year refers to unsatisfactory performance and contains the following comments:

This was a difficult year of transition for Yannick. She returned from an assignment with the NCVM to work within the context of the EE group to work on 4 major project files in addition to her own file on establishing a mentoring initiative. Although no formal accountability documents were established Yannick met her DG in numerous occasions to discuss the project files and review the progress throughout the year. Yannick was unable to fully deliver on the files. Concerns on her performance and project files occurred on [space] Yannick has been advised that she will be deployed into the newly created Director of Programs and Partnership within the Diversity area. She is fully aware that with this new responsibility a complete accountability accord will be drawn up and her performance will need to improve dramatically. It would be recommended that she meet with her DG on a quaterly basis to review performance.

[Sic throughout]

33 The review committee rated Ms. Raymond as “Did not meet most” for her 2005-2006 ongoing commitments. She received an “Unable to assess” rating for her key commitments since she had not been assigned any for that fiscal year. Ms. Raymond was not entitled to a lump-sum performance award.

34 Ms. Raymond was transferred to the director of operations position in the Diversity Programs Branch effective May 15, 2006. As of that date, she assumed all the responsibilities inherent in managing an activity centre. At the same time, Mr. Crête left his position. He was first assigned to a special project and was then appointed the Agency’s director general of human resources.

35 Kami Ramcharan was appointed Director of the new branch in June 2006. Ms. Ramcharan indicated that she had been given responsibility for the branch in May 2006, as well as other responsibilities, but that she had focused on the new branch as of June 2006.

36 A performance agreement was drawn up between Ms. Ramcharan and Ms. Raymond for the 2006-2007 fiscal year and was signed on October 31, 2006. Ms. Ramcharan indicated that, although the written agreement was signed in October 2006 for administrative reasons, she had discussed Ms. Raymond’s performance commitments with her beginning in July 2006. Ms. Ramcharan stated that her expectations and work objectives for Ms. Raymond had been clearly expressed in July 2006.

37 Ms. Ramcharan stated that Ms. Raymond’s performance was not satisfactory and that it did not correspond to the performance expected of an employee at the EX-01 group and level. She specified that Ms. Raymond had difficulty producing work plans, translating her expectations into concrete activities, working autonomously and meeting deadlines and that she did not always seem to have a clear understanding of what was expected of her.

38 Ms. Ramcharan indicated that she regularly met with Ms. Raymond to monitor her files and discuss her performance.

39 In November 2006, Ms. Ramcharan decided to formally review Ms. Raymond’s performance for July 1, 2006 to October 31, 2006 because she had concerns about Ms. Raymond’s key leadership competencies and because she wanted to share those concerns with her. Ms. Ramcharan stated that she asked Ms. Raymond, as part of her assessment process, to complete a self-assessment of her performance for July to October. She explained that Ms. Raymond provided her with a list of activities that she had worked on or was still working on but that Ms. Raymond did not formulate an assessment of her performance.

40 Ms. Ramcharan prepared a performance review document. She stated that she gave it to Ms. Raymond on November 14, 2006. The document describes several shortcomings, including Ms. Raymond’s difficulty converting expectations for her activity centre into action plans, developing action plans, and distinguishing between objectives, activities and expected results. Ms. Ramcharan also noted Ms. Raymond’s difficulty effectively communicating her team’s vision and plans and autonomously preparing presentations. The report also indicated that Ms. Raymond was to develop a better understanding of the political context in which her files were executed. Furthermore, it indicated that Ms. Raymond had difficulty meeting deadlines and expectations. Ms. Ramcharan also stated in the report that Ms. Raymond did not demonstrate human-resources planning skills and that she was not convinced that Ms. Raymond would be able to intervene with employees performing unsatisfactorily.

41 Ms. Ramcharan wrote the following about Ms. Raymond’s activity report:

…

Other general comments:

In preparing the review I had asked Yannick to assess her performance over the past three months. She provided a list of deliverables, but no critical assessment of her performance, and she also included future deliverables that have not been completed. This is an example of her lack of capacity to respond directly to the task assigned without changing the expectations. I was very clear when I asked for her assessment of her performance from July 1 to October 31, however she has included projects prior to July and projects not yet completed.

42 Ms. Ramcharan stated that, besides Ms. Raymond’s performance, which she deemed unsatisfactory, two incidents that occurred in November 2006 led to her no longer want Ms. Raymond in her position.

43 First, Ms. Raymond made a comment to her during a conference about Aboriginal peoples that Ms. Ramcharan deemed out of place and inappropriate. However, Ms. Ramcharan acknowledged in cross-examination that she never shared her thoughts about that comment with Ms. Raymond. Ms. Ramcharan also described an incident in which Ms. Raymond allegedly failed to return a deputy minister’s call about a project that Ms. Raymond was leading, which required the intervention of her vice-president.

44 Ms. Ramcharan stated that she knew that Ms. Raymond was going through a stressful time in her personal life. She indicated that she had a discussion with Ms. Raymond in which she told Ms. Raymond that she should take leave if she needed time and that she would support Ms. Raymond in that process because her current performance would damage her career.

45 Ms. Raymond took leave from December 2006 to October 2007.

46 For 2006-2007, the review committee determined that Ms. Raymond did not meet most of her ongoing and key commitments. She did not receive a lump-sum performance award.

47 Ms. Ramcharan stated that she did not anticipate Ms. Raymond being able to return to her position as a director when she returned from leave and that she believed that it would be very difficult for Ms. Raymond to return to work in her branch with responsibilities at a lower level than before her leave.

48 Ms. Ramcharan stated that she discussed Ms. Raymond’s performance and her concerns with Mr. Crête in his capacity as the Agency’s human resources director.

49 Mr. Crête stated that the review committee had discussed Ms. Raymond’s performance and that it had found that Ms. Raymond was not performing well at the EX-01 group and level. Mr. Crête stated that he recommended to the Agency’s president to set up a remedial action plan to identify a group and level at which Ms. Raymond could perform satisfactorily. Ms. Boudrias and the director of labour relations, Monique Lacroix-Labelle, also participated in the process.

50 Ms. Boudrias and Mr. Crête testified about the remedial action plan contemplated for Ms. Raymond. They both indicated that the decision had been made to find a temporary assignment for Ms. Raymond in another work unit where she would assume the responsibilities of a PE-06 group and level position while maintaining her EX-01 classification and pay. Ms. Boudrias stated that the goal was to reduce the stress imposed on Ms. Raymond by lowering expectations for her by giving her less demanding responsibilities that would enable her to perform at a satisfactory level. She added that it was envisaged that Ms. Raymond would be reinstated to an EX-01 position were her performance at the PE-06 group and level fully satisfactory. Mr. Crête developed a remedial action plan to that end, in collaboration with Ms. Ramcharan, Ms. Lacroix-Labelle and the director who was to receive Ms. Raymond, Carole Lacroix.

51 The remedial plan that Mr. Crête, Ms. Ramcharan and Ms. Raymond signed was adduced in evidence. It contains the following:

[Translation]

This letter is to confirm what was discussed during your recent conversations with Ms. Monique Boudrias, Mr. Raymond Crête and myself concerning your performance and the implementation of a plan to identify and confirm the level at which you are able to perform fully satisfactorily as well as to help you meet the level of performance required in the duties of a position at your group and level.

…

In addition, to help you address those performance gaps and find a work environment in which you can succeed, the following was agreed to:

• you will be assigned PE-06 tasks under the direction of Ms.Carole Lacroix, Director General, ES Program and ADM Corporate Secretariat, Leadership and Talent Management Sector, for a period of six months with the possibility of extension to a year if your performance is fully satisfactory;
• your performance agreement will include clear objectives and measurable, attainable and verifiable performance measures that will be used to determine your performance level;
• you will be offered the services of a coach to help you identify the competencies that prove the most challenging for you and to guide your efforts to overcome those gaps;
• a targeted training plan based on your tasks and the performance deficits to address will be developed with your manager in the 30 days after you start your new position;
• you will receive monthly verbal feedback and quarterly written feedback concerning your performance level. It is also advised that you have a weekly bilateral meeting with your manager;
• you will maintain your current EX-01 pay level during the firstsixmonths. Since your performance agreement will not include any key commitments, you will not be entitled to a performance award;
• if, after six months, your performance is fully satisfactory or better, this agreement as well as your current pay level will continue until the end of the assignment to solidify your foundation. At the end of the assignment, we will reassess the possibility of reinstating you in a position at your group and level, and we will support you in your efforts to find a position that suits you.
• if, after six months, your performance is less than fully satisfactory, the assignment may end and the necessary steps will be taken to demote you to a group and level suitable to your abilities.

…

52 An agreement confirming Ms. Raymond’s assignment was also signed by Ms. Raymond and her new director, Ms. Lacroix.

53 Ms. Boudrias stated that she met with Ms. Raymond on a number of occasions, specifically when she returned to work in October 2007, to inform her of the envisaged remedial plan. Ms. Boudrias also indicated that, at Ms. Raymond’s request, she had spoken with Alain Forget, an industrial psychologist, who assessed Ms. Raymond’s managerial profile. Ms. Boudrias stated that Ms. Raymond wanted her to speak with Mr. Forget because the results of her managerial profile were good and were inconsistent with her performance assessment. Ms. Boudrias acknowledged that Ms. Raymond’s results from the evaluation of her management profile were good, and she stated that she indicated to Mr. Forget that she was not contesting those results but that they did not translate to Ms. Raymond’s real-world performance.

54 Ms. Lacroix was unable to testify due to an extended absence from work. However, the performance agreement that she reached with Ms. Raymond and the assessment reports that she prepared on Ms. Raymond’s performance were adduced in evidence. Mr. Crête, who participated in the feedback meetings about Ms. Raymond’s performance, testified as to their content.

55 Ms. Raymond worked on four main projects, and Ms.Lacroix wrote two assessment reports during the assignment.

56 The first assessment report, covering October 16,2007 to January 31, 2008, details an unsatisfactory performance for the four projects assigned to Ms.Raymond. The report sets out a number of examples of unsatisfactory performance, including the following:

[Translation]

…

… Despite many discussions and provided explanations, as well as the knowledge acquired during the project management course, Yannick was not able to propose a complete, well-structured and clear project plan… Yannick has difficulty preparing a project work plan, linking information to present an overall view to then focus on important points to logically make…

… However, Yannick’s main difficulty is the clear definition of target audiences that will be used in the pilot project; a number of discussions took place… but it is difficult for Yannick to create a complete and specific proposal about the project’s participants…

… Yannick has difficulty analyzing information from different sources, summarizing it and coming up with tangible products and solutions…

… Yannick manages her projects instinctively, step by step. She has difficulty determining the interdependencies in the sector’s projects. Yannick does not seem to recognize the importance of follow-ups, deadlines and the effects caused by delays. She also does not seem able to grasp the vision and mandate of our unit, from which stems the difficulty in making connections and having an overall view. Consequently, her actions are fragmented and do not form a whole…

…

57 The report also contains the following comments:

[Translation]

…

The remedial action plan accompanying Yannick’s assignment agreement is clear. Since her performance as an EX-01 has been unsatisfactory over the past years, we have assigned her to PE-06 tasks (EX minus 1) to confirm the level at which she would be able to perform in a fully satisfactory manner. The first six months are crucial to extending the assignment for six additional months. The first three months’ performance was unsatisfactory and casts doubt on the performance for the next three months. To achieve fully satisfactory performance for a six-month period, Yannick has to obtain a rating ranging from superior to outstanding. It is clear at this point that Yannick will not be able to be reinstated at the EX-01 level. Therefore, the next 3months will determine the possible extension of the assignment to 12months and determine the appropriate group and level for the demotion. Her learning plan will be revised based on the detected deficiencies. In addition, a coach’s advice will surely help Yannick focus on what needs improvement…

…

58 The second assessment report, covering February 1, 2008 to April 30, 2008, was also adduced. It indicated satisfactory performance for the first project but unsatisfactory performance for the other three. The report contains the following comments, among others:

[Translation]

…

…Yannick has difficulty communicating clearly and confidently as well as with managing several projects at a time.

…A one-page document was submitted with the help of a consultant and after several discussions and meetings to explain our service standards project. Yannick has difficulty analyzing information from different sources, summarizing it and coming up with solutions and tangible results. This type of project would normally take about two months to complete.

…These past 3 months were key in terms of possibly extending the assignment to 12 months and determining the appropriate group and level of the demotion; the assignment will not be extended. As for determining the appropriate group and level, the results of the assessment tools used to redirect Yannick in her career [sic].

…

59 Mr. Crête stated that feedback meetings were held with Ms. Raymond at the end of each assessment period. He indicated that each meeting lasted two to two-and-a-half hours, that each performance assessment item was discussed in detail and that Ms. Raymond had the chance to express her point of view.

60 Mr. Crête stated that, at the end of the six-months, the persons involved recognized that Ms. Raymond would not achieve a fully satisfactory performance and that it would not be useful to extend the assignment for another six months.

61 Thus, Ms. Raymond’s assignment was terminated, and she was demoted to a program officer position (classified at the AS-06 group and level) in the Agency’s Official Languages Branch, beginning August 5, 2008. Marc O’Sullivan, Executive Director, Official Languages, signed the letter informing Ms. Raymond of her appointment to that position.

62 Nicole Jauvin, Agency President when Ms. Raymond was demoted, also testified.

63 She stated that she was aware of Ms. Raymond’s performance issues and that she had been kept informed on the status of the file. She also co-chaired the 2006-2007 review committee and confirmed that Ms. Raymond was the only executive not to obtain satisfactory performance ratings. Ms. Jauvin stated that she was not directly involved in the decision to demote Ms. Raymond, but she indicated that she acted as the final level of appeal for Ms. Raymond’s grievance. Ms. Jauvin testified that, before rendering her decision on Ms. Raymond’s grievance, she read all the documents relating to her performance and that she twice met with Ms. Raymond. She stated that, after analyzing the file and meeting with Ms.Raymond, she decided to adjust Ms. Raymond’s demotion by reducing it by one level, from the AS-06 to the AS-07 group and level.

64 Ms. Jauvin stated that, although her decision was motivated by her conviction that Ms. Raymond’s performance was unsatisfactory and that she could not keep Ms. Raymond in her director position, she wished to limit the financial impact of the demotion on Ms. Raymond. She also stated that she believed that the compromise would satisfy Ms. Raymond. She confirmed her decision in a letter sent to Ms. Raymond on August 26, 2008.

B. For the grievor

65 Ms. Raymond explained that she obtained a position at the EX-01 group and level in 2002 when she worked for the Public Service Commission of Canada. She indicated that, six months after obtaining a position at that group and level, the branch where she worked was dismantled, and she joined the Public Service Modernization Implementation Secretariat as a senior analyst before being integrated into the Agency in 2003. Ms. Raymond stated that she has held the position of Regional Director for Ontario at Status of Women Canada since November 2009.

66 Ms. Raymond testified about her dissatisfaction with how the Agency treated her.

67 Ms. Raymond adduced an assessment report of her competencies that the Public Service Commission’s Assessment Centre for Executive Appointment completed in 1998. It was valid indefinitely. Its findings show that Ms. Raymond was “generally effective in all competencies.” Ms. Raymond stated that the report shows that she has the competencies to hold an EX-01 position.

68 Ms. Raymond testified about her experience in the Agency and her performance assessments for each fiscal year.

69 For fiscal years 2003-2004 and 2004-2005, Ms.Raymond indicated that she never received negative comments about her performance and that she was never informed that her performance was considered unsatisfactory.

70 As for 2005-2006, when Mr. Crête was supervising her, Ms. Raymond made the following comments. She indicated first that, in contrast to Mr. Crête’s version, they did not enter into a performance agreement at the start of the year. She also stated that, before 2007, she had not seen the performance assessment form that Mr. Crête completed and adduced, even though the first page contained her signature. She acknowledged working on the projects that Mr. Crête mentioned and that he had told her that he was somewhat dissatisfied with her performance.

71 Ms. Raymond also commented on her time in the Diversity Branch under Ms. Ramcharan’s direction in 2006-2007. First, in contrast to Ms. Ramcharan’s version, Ms. Raymond stated that her performance agreement was not concluded in July 2006 but rather on October 31, 2006, the date on which it was signed. Ms.Raymond indicated that the performance agreements of the branch’s executives were not concluded before that date because everyone was waiting for direction from the new vice-president, who started in her position in September 2006.

72 Ms. Raymond stated that Ms. Ramcharan was actually able to evaluate her for only a very short time, i.e., between October 31, 2006 and November 14, 2006, the date of their meeting. She further indicated that she was not informed, and did not understand, why Ms. Ramcharan was required to evaluate her performance during the year and not at the end of the fiscal year, as is normally the case.

73 Ms. Raymond testified further that she submitted a learning and development plan to Ms. Ramcharan for 2006-2007. She adduced the plan in evidence. Ms. Raymond indicated that she was denied a number of the learning activities listed in the plan. However, she acknowledged under cross-examination that she participated in training activities during the year.

74 Ms. Raymond also expressed her disagreement with several elements in Ms. Ramcharan’s assessment report.

75 First, with respect to Ms. Ramcharan’s comments that Ms. Raymond did not follow the instructions for her self-assessment, Ms. Raymond stated that Ms. Ramcharan asked her to prepare a list of projects that she was working on, which she did, along with an update on all the files that she had worked on since arriving at the branch. Ms. Raymond testified that she felt it appropriate and valid to provide Ms. Ramcharan with a report mentioning everything she had worked on since the start of the year, along with her ongoing activities.

76 Ms. Raymond also refuted some of the items in the assessment report.

77 With respect to Ms. Ramcharan’s comment that she found that Ms. Raymond had no human-resources-planning competencies, Ms. Raymond stated that she had no human-resources-planning responsibilities during the assessment period.

78 As for Ms. Ramcharan’s comments about the “strategic thinking” component, Ms. Raymond retorted that, at that time, all the branch’s executives were assigned to operational activities and that they had not yet reached the stage of working at the strategic level since the new vice-president had been in office only since September 2006. She also explained that she did not receive any direction on the organizational context of the new branch from Ms.Ramcharan, who was also new to the branch.

79 Ms. Raymond refuted the claim that she had difficulty preparing presentations and indicated that she had successfully given several presentations in her career. She commented about Ms. Ramcharan’s assessment of her communication skills and stated that Ms. Ramcharan did not give her any examples of deficiencies in that area and that it was the first time that her communication skills had been questioned.

80 With respect to Ms. Ramcharan’s comment questioning Ms. Raymond’s ability to intervene with employees having unsatisfactory performance, Ms. Raymond stated that she did not encounter such a situation working under Ms. Ramcharan’s supervision.

81 Ms. Raymond also testified about the two specific events in November 2006 that Ms. Ramcharan held against her. First, she stated that she was not informed until the hearing that Ms. Ramcharan was critical of her for making an inappropriate comment at the conference on Aboriginal peoples.

82 Ms. Raymond refuted her alleged failure to return a deputy minister’s call and explained, with supporting documentation, what had happened. She stated that she was asked to reply to requests for information on behalf of that deputy minister and that she communicated with the appropriate persons, to the vice-president’s satisfaction.

83 Ms. Raymond testified that she was informed of the review committee’s performance ratings for 2006-2007 while on extended leave and that she asked for clarification, which she did not receive.

84 Ms. Raymond also stated that, when she returned from leave in October 2007, she met with Mr. Crête and Ms. Boudrias. Ms. Boudrias informed her that she would be assigned to another branch because the employees of the Diversity Branch no longer wanted her in the team.

85 She explained that the work environment during her assignment in Ms. Lacroix’ branch was difficult. She stated that she did not receive a work description, that she worked in complete isolation from the team and that she was not part of any committee.

86 She testified that Ms. Lacroix refused to allow her to participate in a forum, which would have enabled her to reconnect with the reality of the public service after her long absence and to benefit from a network of contacts to try to move to another department.

87 She further stated that she did not receive the services of Coach Pierre Lanoix until the end of February 2007, although she had begun her assignment at the end of December 2006. She added that even her coach found her working environment not conducive to success.

88 Ms. Raymond adduced a list of her accomplishments from October 2007 to March 2008 along with the written response she provided to the employer in reaction to Ms. Lacroix’ performance assessments. In her written response, Ms. Raymond expressed her disagreement with some of the items in Ms. Lacroix’ assessment and explained the context in which certain activities had been performed. She also explained in the response why some files did not produce the expected results or were difficult to carry out. On that point, Ms. Raymond mentioned that some aspects were out of her control and that working in isolation did not ease her task.

89 Mr. Lanoix testified. He was hired as a coach for Ms. Raymond. He stated that he prepared an intervention plan with Ms. Raymond and that he met with her several times. Mr. Lanoix commented that he felt that Ms. Raymond appeared to have some considerable strengths but also that there were certain areas in which she was less comfortable. He also testified that he recommended that an industrial psychologist assess Ms. Raymond’s management profile to better orient his intervention. Ms. Raymond’s management profile was in fact assessed by an industrial psychologist, Mr. Forget, who provided an assessment report. I allowed Mr. Forget’s report to be adduced despite the employer’s objection. I offered the employer the possibility of adjourning the hearing before the parties declared the evidence complete to give its counsel an opportunity to cross-examine Mr. Forget. The employer’s counsel waived his right to cross-examine Mr. Forget. The assessment report identified areas of strength and areas requiring attention.

90 Mr. Lanoix stated that Ms. Raymond’s management profile corresponded to his own observations. He also indicated that he felt that the environment in which Ms. Raymond worked during her assignment was not conducive to success. The employer’s counsel objected to Mr. Lanoix providing that opinion because he had not been deemed an expert. I dismissed the objection and allowed Mr. Lanoix to testify about his opinion of the environment in which Ms. Raymond had to work because his impression of the situation affected his work plan with Ms. Raymond and because he mentioned the meetings that he had with Ms. Raymond’s director in which he told her about his impression of the situation. Mr. Lanoix stated that it was the first time he had seen a remedial action plan in which the person who had to demonstrate abilities for a position at a given level was assigned duties at a lower level. He found that the process to which Ms. Raymond had been subjected was unusual. He felt that her working environment placed her in all the areas with which she was uncomfortable and that it did not offer her opportunities for success.

III. Summary of the arguments

A. For the employer

91 The employer argued that an adjudicator’s scope of intervention with respect to a demotion imposed for unsatisfactory performance is set out by the Financial Administration Act, R.S.C. 1985, c.F-11 (FAA), and by the Public Service Labour Relations Act, S.C. 2003, c.22 (“the Act”).

92 First, the employer argued that, under paragraph 12(1)(d) of the FAA, Parliament provided the deputy head with the authority to demote an employee whose performance was deemed unsatisfactory. In addition, subsection 12(3) of the FAA requires that such a measure be imposed for cause.

93 The employer then referred to section230 of the Act, which clearly defines as follows an adjudicator’s scope of intervention:

230. In the case of an employee in the core public administration or an employee of a separate agency designated under subsection 209(3), in making a decision in respect of an employee’s individual grievance relating to a termination of employment or demotion for unsatisfactory performance, an adjudicator must determine the termination or demotion to have been for cause if the opinion of the deputy head that the employee’s performance was unsatisfactory is determined by the adjudicator to have been reasonable.

94 The employer pointed out that section 230 of the Act is a new provision that did not exist in the Public Service Staff Relations Act, R.S.C. 1985, c.P-35 (“the former Act”). The employer argued that, by including that provision, Parliament wanted to frame and limit an adjudicator’s jurisdiction with respect to terminations and demotions imposed for employees’ unsatisfactory performance.

95 Thus, under section230 of the Act, an adjudicator’s assessment is limited to determining whether the deputy head’s assessment of the unsatisfactory nature of an employee’s performance was reasonable. Should the adjudicator decide that the deputy head’s assessment was reasonable, the adjudicator has exhausted his or her jurisdiction and must find that the demotion was for cause. The adjudicator does not have jurisdiction to decide whether the demotion was appropriate and, if applicable, to substitute his or her own assessment for that of the employer.

96 The employer maintained that, by adopting that provision, Parliament consciously limited the scope of adjudicators’ jurisdiction in comparison with the scope of their jurisdiction about termination or demotion for reasons other than performance. For example for a termination or demotion for disciplinary reasons, an adjudicator may substitute his or her own assessment of the situation and of the appropriateness of the measures for that of the employer.

97 Moreover, the employer argued that Parliament undoubtedly had in mind that the employer supervises an employee and sees that individual functioning in the reality of his or her work environment, which puts it in a better position than an adjudicator to judge that employee’s performance and ability to apply his or her skills and knowledge.

98 The employer argued that, by choosing the test of the reasonableness of the deputy head’s assessment of the employee’s performance, Parliament imposed on adjudicators a duty to defer to the deputy head’s decision. The employer further drew a parallel between an adjudicator’s role and that of a higher court sitting in judicial review as follows: an adjudicator should not intervene unless the deputy head’s decision was unreasonable within the meaning given to that expression in the context of judicial review. On that point, the employer cited Dunsmuir v. New Brunswick, 2008 SCC9, in which the Supreme Court of Canada used the following definition:

…

[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

…

99 The employer also referred me to the following definition of “reasonable” found in Black’s Law Dictionary: “Fair, proper, just, moderate …”

100 The employer submitted that nothing in the evidence allows me to conclude that the deputy head’s assessment of Ms. Raymond’s performance was unreasonable, ridiculous, arbitrary, discriminatory or made in bad faith. The employer claimed that it showed that Ms. Raymond’s performance was unsatisfactory and that it had been unsatisfactory for a long time. On that point, the employer emphasized that everyone who supervised Ms. Raymond between 2003 and 2008 observed that her performance was unsatisfactory. The employer further argued that Ms. Raymond was not able to refute the employer’s evidence about the unsatisfactory nature of her performance.

101 Finally, the employer argued that there is no evidence to conclude that it acted for reasons other than those linked to its actual assessment of Ms. Raymond’s performance or that its decision was in any way arbitrary or made in bad faith.

102 The employer also submitted that the new criteria for an adjudicator’s intervention imposed by Parliament had the effect of setting aside the criteria that adjudicators had developed for termination or demotion for incompetence under the former Act, and it referred me to Nnagbo v. Treasury Board (Public Works and Government Services Canada), 2001 PSSRB 1, for an example of the application of those criteria. As an alternative, the employer argued that it followed the parameters of its Directive.

B. For the grievor

103 Contrary to the employer’s claims, Ms.Raymond argued that the enactment of section 230 of the Act did not set aside the criteria developed in the case law for termination or demotion for unsatisfactory performance. She referred me to Morrissette v. Treasury Board (Department of Justice), 2006 PSLRB 10, and O’Leary v. Treasury Board (Department of Indian Affairs and Northern Development), 2007 PSLRB 10, for a description of those criteria. In O’Leary, the adjudicator described the applicable parameters as follows:

…

[286] Section 11 of the FAA, providing authority to the employer to demote an employee for non-culpable behaviour, requires that the employer establish cause for such action.

[287] The Board Chairperson summarized in Nnagbo what the employer had to show in order to establish cause to terminate an employee. The employer must show: that it has acted in good faith; that it has set appropriate standards of performance, which were clearly communicated to the employee; that it gave the employee the necessary tools, training and mentoring to achieve the set standards within a reasonable time frame; that it warned the employee in writing that the failure to meet the set standards by a reasonable set date would lead to termination of his or her employment; and finally, that the employee has failed to meet these standards.

…

104 Ms. Raymond argued that section230 of the Act, which requires that the employer’s assessment and decision be reasonable, is compatible with the criteria developed under the former Act and that, to be deemed reasonable, the employer’s decision to demote an employee for unsatisfactory performance must respect the criteria recognized in the case law.

105 Ms. Raymond emphasized that the Treasury Board incorporated those criteria in its Guidelines for Demotion/Termination of Employment for Unsatisfactory Performance (“the Guidelines”) and that it is required to comply with them. The Guidelines state, in part, the following:

…

In making a decision to demote or terminate employment for unsatisfactory performance, the delegated manager should have ensured that:

• the required level of job performance is determined
• the level of performance required is communicated to the employee
• reasonable levels of supervision and instruction are provided to the employee
• the employee is allowed a reasonable period of time to meet the required level of job performance
• the employee is provided with reasonable warnings regarding the consequences of his/her continued failure to meet the required level of job performance
• once the inability to meet the required level of job performance has been established, reasonable efforts are made to find alternative employment within the competence of the employee.

…

106 Ms. Raymond maintained that the evidence shows that the employer acted in bad faith toward her, that it did not comply with its own guidelines and that it treated her unfairly and arbitrarily. Ms. Raymond’s representative presented several items in support of Ms. Raymond’s claim.

107 First, Ms. Raymond argued that, in actual fact, her demotion did not occur in June 2008 but rather in November 2006 when Ms. Ramcharan decided that she no longer wanted her in her branch. Ms. Raymond claimed that it was then that the employer decided to demote her, although she was not informed of it until October 2007, when she returned to work.

108 Ms. Raymond argued that, during 2005-2006 and 2006-2007, the employer did not clearly communicate its expectations to her, did not provide her with a real opportunity to show that she was able to meet those expectations, did not provide her with proper support and did not clearly inform her that she would be demoted if she did not improve her performance. Ms. Raymond emphasized a number of points.

109 First, she indicated that, in 2006-2007, Mr. Crête did not clearly communicate his expectations to her and that he gave her neither a proper performance agreement nor any ongoing commitments.

110 Ms. Raymond also stressed that, for 2006-2007, Ms. Ramcharan did not give her specific objectives and the expected results that she had to achieve until October 31, 2006, about seven months after the start of the fiscal year and five weeks before she left work for an extended period. She argued that, from April to June 2006, she did not have any idea of the results expected of her and that, at most, she received indications of the projects on which she was required to work.

111 Ms. Raymond argued that, in 2006-2007, she was not given a reasonable period to meet the employer’s expectations because she had worked in the Diversity Branch for only six months. It was a new branch that was just getting set up and that had an unclear environment and unclear expectations. Ms. Raymond added that she was not informed of her expectations until the end of October 2006 and that she then went on leave in December 2006.

112 Ms. Raymond claimed that, before she returned to work in October 2007, the employer never informed her that she would be demoted if her performance did not improve. She pointed out that the employer appointed her to the director position in the Diversity Branch in May 2006 and that it never indicated that she was at risk of being demoted. On her return to work in October 2007, she was informed that she could not resume her position, yet her performance had not been evaluated over a full fiscal year.

113 Ms. Raymond argued that the employer should have waited two full performance assessment cycles before demoting her.

114 She also argued that the employer failed to provide her with the tools that would have helped her improve her performance. On that note, she pointed out that she received support from a coach for only four months, which was definitely not enough.

115 Ms. Raymond further maintained that the employer acted unreasonably in assigning her PE-06 duties to assess her ability to function satisfactorily in a position at the EX-01 group and level.

116 Finally, Ms. Raymond argued that the employer acted arbitrarily by demoting her two levels, moving her from the EX-01 to the PE-06 group and level, when nothing justified a two-level demotion.

117 As for remedy, Ms. Raymond acknowledged that it might be impossible to order her reinstatement to the position she held before her demotion and that I could limit the remedy to financial compensation. On that point, Ms. Raymond asked me to order the employer to pay her the difference between her current salary and the salary that she would have received as an EX-01 since May 15, 2006 and to order that her representation costs be reimbursed.

IV. Reasons

118 The first matter I must decide in this case is the scope of my intervention with respect to the employer’s decision to demote Ms. Raymond.

119 The FAA gives the deputy head the authority to demote an employee whose performance is deemed unsatisfactory, but the decision must be made for cause.

120 An employee demoted for unsatisfactory performance may file a grievance and refer it to adjudication under subparagraph209(1)(c)(i) of the Act. However, Parliament imposed a strict intervention framework on the adjudicator seized of the grievance. I believe it to be useful to again reproduce section230 of the Act:

230. In the case of an employee in the core public administration or an employee of a separate agency designated under subsection 209(3), in making a decision in respect of an employee’s individual grievance relating to a termination of employment or demotion for unsatisfactory performance, an adjudicator must determine the termination or demotion to have been for cause if the opinion of the deputy head that the employee’s performance was unsatisfactory is determined by the adjudicator to have been reasonable.

121 I understand from that provision that an adjudicator seized of a grievance against a termination or demotion for unsatisfactory performance must answer the following question: Was it reasonable, based on the evidence, for the deputy head to deem the performance of the employee in question unsatisfactory?

122 If the adjudicator finds that the deputy head’s assessment of the employee’s performance was reasonable, he or she has exhausted his or her jurisdiction and must find that the demotion was for cause. It is important to note that, under section 230 of the Act, the adjudicator’s assessment must focus not on the reasonableness of the employer’s decision to demote the employee but rather on the reasonableness of the employer’s assessment of the employee’s performance. Consequently, it is not the decision to demote that is at issue but the assessment of the adequacy of the employee’s performance. Those criteria are much more restrictive than those under the former Act,which still apply to demotions and terminations for reasons other than unsatisfactory performance.

123 By including section 230 in the Act, I believe that Parliament clearly wished to limit an adjudicator’s scope of intervention in two ways. First, Parliament wanted to avoid having the adjudicator substitute his or her opinion for that of the employer with respect to the assessment of the employee’s performance by not allowing the adjudicator to intervene unless there is evidence that the deputy head’s assessment was unreasonable. I see in the legislative framework Parliament’s recognition that the employer is in a better position than the adjudicator to assess the quality of an employee’s performance, whom it sees perform on a daily basis.

124 Second, an adjudicator does not have the mandate to assess the appropriateness of the demotion or termination measure if the adjudicator finds that it was reasonable for the deputy head to deem the performance unsatisfactory. Thus, either the deputy head’s assessment that the employee’s performance was unsatisfactory was reasonable, and the demotion is maintained, or the deputy head’s assessment was unreasonable, and the demotion is set aside. The adjudicator may not substitute a penalty that he or she considers more appropriate.

125 I must now determine the criteria that should be used to guide the adjudicator in his or her determination of the reasonableness of the deputy head’s assessment. In other words, how should the term “reasonable” be defined in this context?

126 I believe that the following several references may be useful.

127 Black’s Law Dictionary defines “reasonable” as follows: “Fair, proper, just, moderate… .”

128 The concept of “reasonableness” within the meaning understood by the Supreme Court in matters of judicial review may also be useful and, on that note, I will reiterate as follows the definition in Dunsmuir:

…

[47] …In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

…

129 In my opinion, those definitions are consistent in that they focus on the rigour and fairness of the decision-making process or of the employer’s assessment of the situation. I would add to those factors that a decision made in bad faith, arbitrarily or on a discriminatory basis, or unrelated to the position could not be deemed reasonable.

130 The employer submitted that the criteria developed about a termination or demotion for incompetence under the former Act could not be applied in the context of section230 of the Act. I believe that argument must be qualified. In Nnagbo, the Chairperson of the Board described as follows the criteria that the employer must respect:

…

[53] In cases of termination for cause due to incompetence, the employer must show:

- that it has acted in good faith;

- that it has set appropriate standards of performance which were clearly communicated to the employee;

- that it gave the employee the necessary tools, training and mentoring to achieve the set standards in a reasonable period of time;

- that it warned the employee in writing that failure to meet the set standards by a reasonably set date would lead to termination of his employment, and finally,

- that the employee has failed to meet these standards.

…

131 I agree that, under the former Act, adjudicators were not limited in their assessments of employers’ decisions and that the criteria described above were developed to assess the validity of the employer’s decision to demote or terminate the employee. Thus, certain factors relate more to the fairness of the decision process, and they may not be carried over in their entirety when the adjudicator’s examination is limited to the reasonableness of the deputy head’s assessment as to the satisfactory or unsatisfactory nature of the employee’s performance. However, I believe that some elements do carry over. I do not see how it would be possible to find that it was reasonable for a deputy head to consider the performance of one of his or her employees unsatisfactory if the evidence showed the following:

• the deputy head or the supervisors who assessed the employee’s performance were involved in a bad faith exercise;
• the employee was not subject to appropriate standards of performance;
• the employer did not clearly communicate the standards of performance to the employee that he or she was required to meet; or
• the employee did not receive the tools, training and mentoring required to meet the standards of performance in a reasonable period.

132 I will now return to the facts of this case to determine whether the deputy head’s assessment that Ms.Raymond’s performance was unsatisfactory was reasonable.

133 In light of the evidence, I believe that it was reasonable for the deputy head to deem Ms.Raymond’s performance unsatisfactory for the following reasons.

134 The preponderance of the evidence showed that the directors who successively supervised Ms. Raymond in 2005-2006, 2006-2007 and 2007-2008 all observed deficiencies in her performance. The evidence further showed that the deficiencies that each observed were of the same nature and were related to certain leadership competencies. The evidence does not allow me to conclude that the observations by Ms. Raymond’s different superiors were arbitrary, not objective, or illogical or that they were based on elements completely unrelated to Ms. Raymond’s responsibilities. Mr. Crête and Ms. Ramcharan testified about their assessments of Ms. Raymond’s performance and provided an articulate assessment based on concrete examples. Ms. Lacroix’ assessment reports are also well documented, and they clearly set out the elements of dissatisfaction and the deficiencies observed in Ms. Raymond’s performance. Furthermore, the process that the review committee followed to assign performance ratings to all the Agency’s executives ensured objectivity and impartiality in assessing performance. The review committee rated Ms. Raymond’s performance as unsatisfactory for fiscal years 2005-2006 and 2006-2007. The evidence does not lead me to find that the process that the committee used to assign performance ratings was unfair or inequitable, that it lacked rigour, or that it was otherwise unreasonable.

135 Nor does anything in the evidence lead me to conclude that Mr. Crête, Ms. Ramcharan, Ms. Lacroix, Ms. Boudrias or Ms. Jauvin acted in bad faith or even with animosity toward Ms. Raymond.

136 Ms. Raymond expressed her disagreement with her superiors’ assessments of her performance, and in some cases, she tried to explain her poor performance by her work context. She also sought to refute the assessments of the employer’s witnesses by adducing reports of her management profile and her competencies to show that she had the skills to effectively assume her responsibilities.

137 It is important to fully understand the context of an adjudicator’s intervention in the circumstances of this case. I am not sitting in appeal of the employer’s decision, and I cannot make my own assessment of Ms. Raymond’s performance. My jurisdiction is limited to the question of whether the employer’s assessment of her performance was reasonable.

138 I believe that the employer met the burden of showing that Ms. Raymond’s performance assessment by its representatives was reasonable, and Ms. Raymond did not succeed in countering that evidence. I have absolutely no doubt that Ms. Raymond has strengths and high-level competencies, but those are not enough to counter her immediate supervisors’ observations about her performance in the context of the positions that she held at the Agency. I take from the evidence that, in the context that existed at the Agency, Ms. Raymond was unsuccessful in providing a performance that met the employer’s expectations. That does not mean that Ms. Raymond is incompetent or that she is unable to provide a fully satisfactory performance in a different work environment.

139 I agree with Ms. Raymond that not everything was perfect. Ms. Raymond did not have any ongoing commitments in 2004-2005, but Mr. Crête explained that it was because Ms. Raymond was not responsible for an activity centre in 2004-2005. Ms. Raymond may not have received a formal performance agreement for that same year with specific performance measures, but the preponderance of the evidence showed that she knew very well on which files she had to work, and there is nothing to convince me that Mr. Crête’s expectations were not clear. Moreover, Ms. Raymond acknowledged having several follow-up meetings with Mr. Crête. There is nothing to indicate that Mr. Crête was motivated by any illwill toward Ms.Raymond. On the contrary, he recommended her appointment to the director position in the new Diversity Branch despite his concerns about her performance because he felt that she would be able to meet the employer’s expectations with a sound remedial action plan.

140 I also agree that Ms. Raymond’s transfer to Ms. Ramcharan’s branch did not occur under ideal circumstances. It was a new branch, headed by a new director and a new vice-president. However, nothing permits me to conclude that, even in that context, Ms. Raymond did not know Ms. Ramcharan’s expectations of her or that those expectations were unreasonable. First, Ms. Raymond was appointed to an executive position as a director, which, in my opinion, presupposes that she was able to operate with autonomy in an uncertain and evolving environment. I do not consider it necessary to decide whether Ms. Ramcharan and Ms. Raymond concluded her performance agreement in July or October 2006 because I believe that, in light of the testimonies of Ms. Raymond and Ms. Ramcharan and the activity report that Ms. Raymond submitted to Ms. Ramcharan, Ms. Raymond knew the files that she had to work on and that she had a good enough idea of Ms. Ramcharan’s expectations. However, I am disregarding the two incidents for which Ms. Ramcharan criticized Ms. Raymond. First, Ms. Ramcharan never shared her impression of the comment with Ms. Raymond and never gave her the opportunity to comment on the incident. As for the incident in which Ms. Raymond allegedly failed to return a deputy minister’s call, I accept Ms. Raymond’s version, which was supported by emails and shows that there was nothing for which to criticize her. Besides those issues, and despite the fact that Ms. Raymond worked under Ms. Ramcharan’s supervision only for seven months, Ms. Ramcharan’s performance assessment was objective and supported. Ms. Raymond refuted some of its contents, and she expressed her disagreement with Ms. Ramcharan’s assessment, but she did not convince me that Ms. Ramcharan’s assessment of her performance was unreasonable. Ms. Raymond claimed that she was refused certain training activities. However, she agreed that she had benefited from some training activities during fiscal 2006-2007.

141 Those observations do not support a finding that Ms. Raymond’s performance assessment was unreasonable because she had been subject to inappropriate standards of performance or standards that were not communicated to her clearly or even that the employer might have failed to provide her with the tools, training and mentoring required for her to meet its expectations. In this case, and as has already been indicated, not everything was perfect, but the facts must be assessed in light of Ms.Raymond’s position, specifically an executive officer working in an evolving environment.

142 A word now about Ms. Raymond’s assignment to Ms. Lacroix’ branch in the Leadership and Talent Management Sector. When the employer decided to put a remedial action plan in place, Ms. Raymond’s unsatisfactory performance had already been noted by the review committee, Mr. Crête, Ms. Boudrias and Ms. Ramcharan. The remedial action plan describes the objective as “[translation]… implementing a plan to identify and confirm the level at which you are able to perform at a fully satisfactory level and to help you meet the level of performance required in the duties of a position at your group and level.” My role is not to determine the validity or the appropriateness of the remedial plan put in place by the employer or of the decision it made to assign Ms. Raymond to tasks at the PE-06 group and level. My responsibility is to determine the reasonableness of the employer’s assessment of the quality of Ms. Raymond’s performance. Ms. Lacroix’ assessment reports reveal deficiencies in Ms. Raymond’s performance, which are well documented and objective. Ms. Lacroix’ observations agree with those of Mr. Crête and Ms. Ramcharan. Ms. Raymond refuted several elements of the reports in a document that she submitted to the employer in June 2008, but the elements raised do not allow me to conclude that Ms. Lacroix’ assessment was unreasonable.

143 Finally, a word about Ms. Jauvin’s testimony who was at the time in question the deputy head of the Agency within the meaning of the FAA. Ms. Jauvin explained that she did not make the decision to demote Ms. Raymond because that responsibility had been delegated and she had to maintain a certain distance since she was the last level of appeal in the event of a grievance. However, she co-chaired the committee reviewing executive performance assessments for 2006-2007 and 2007-2008, and she was kept informed of Ms. Raymond’s file. Ms. Jauvin also comprehensively analyzed Ms. Raymond’s file as part of the internal grievance process and twice met with Ms. Raymond. As a result, she decided to uphold the demotion in part because, as she said, she was convinced that Ms. Raymond’s performance was unsatisfactory and that she could not retain her in the director position. However, she decided to lessen the impact of the demotion by lowering it to the AS-07 level. No evidence allows me to conclude that Ms. Jauvin’s assessment of Ms. Raymond’s performance lacked rigour or that it was otherwise unreasonable.

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

V. Order

145 The grievance is dismissed.

February 12, 2010.

PSLRB Translation

Marie-Josée Bédard,
adjudicator