FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Diana Bilton (“the grievor”) was a correctional officer working for the Correctional Service of Canada (“the CSC” or “the employer”) at the Fraser Valley Institution (FVI). Her position was classified at the CX-02 group and level. After completing the correctional officer training program, the grievor was appointed to her position on April 14, 2008. The grievor was recruited from outside the public service. On hiring, she was formally advised that she would be on probation for 12 months from the date of her appointment. On February 16, 2009, the employer informed the grievor that it was rejecting her on probation, that she was released from her duties immediately and that she would continue to be paid until March 16, 2009.

2 The grievor grieved the employer’s decision to reject her on probation on February 18, 2009. In her grievance, she stated that the rejection on probation was disguised discipline, a sham and a camouflage and that it was made in bad faith.

3 On September 28, 2009, the employer informed the Public Service Labour Relations Board that it was objecting to an adjudicator’s jurisdiction to hear the grievance. According to the Public Service Labour Relations Act (“the Act”), an adjudicator cannot hear a grievance about a termination while on probation because those types of terminations fall under the Public Service Employment Act (“the PSEA”). On November 20, 2009, the grievor responded that the employer’s objection was groundless and that she should be allowed to submit evidence on the merits of her grievance.

4 I considered the employer’s objection at the hearing. The parties agreed that they would adduce their evidence and arguments on the objection and on the merits of the grievance. 

II. Summary of the evidence

5 The grievor adduced 18 documents in evidence, and the employer adduced 5 documents. The grievor testified. The employer called Thelma Llewellyn and Leanne Doyle as witnesses. Ms. Llewellyn is a correctional manager (CM) at the FVI. She was the grievor’s supervisor. Ms. Doyle was the acting warden at the FVI between January and March 2009. She signed the grievor’s termination letter.

6 After completing the Correctional Training Program at the CSC Staff College and two weeks of on-the-job familiarization, the grievor was appointed as a primary worker (PW) at the FVI at the CX-02 group and level on April 14, 2008. On April 7, 2008, the grievor accepted the employer’s offer of employment of April 4, 2008, which specified that she would be on probation for 12 months from the date of her appointment. The grievor was supervised by CM Llewellyn, but she reported daily to the CM who was on shift while she was working.

7 On October 5, 2008, the employer provided the grievor with a six-month performance appraisal report covering the period ending September 30, 2008. The grievor did not meet three of the five objectives of her position. Ms. Llewellyn based her evaluation on four “Gen Pac” entries. A Gen Pac entry is a report usually completed by a CM about an employee’s particular weakness or failure. Occasionally, a Gen Pac is completed to acknowledge a positive accomplishment. When completed, Gen Pacs are sent to the affected employees and are posted to a system accessible to all CMs at all times.

8 On May 4, 2008, the grievor was performing a night count of inmates in the minimum or medium security area with two other PWs. She was the first one to enter a house where a few inmates lived. One of the inmates who was hiding in the dark, jumped out at the grievor when she walked past. The grievor was surprised. The two other PWs and the inmates living in the house all began to laugh. The grievor did not charge the inmate for her behaviour. She did not complete an observation report on the incident; nor did the two other PWs. The grievor perceived the incident as some sort of initiation for a new employee since afterwards, the two other PWs told her, “Congratulations, you are one of us now.” On May 10, 2008, CM Ritsco informed Ms. Llewellyn of the May 4, 2008 incident. On May 11, 2008, Ms. Llewellyn met with the grievor to discuss the May 4, 2008 incident. On May 13, 2008, Ms. Llewellyn completed an observation report about the May 4 incident and her discussion with the grievor. An investigation was later launched into what happened on May 4, 2008, and the grievor was criticized in a Gen Pac written on August 19, 2008, for not completing an observation report about the May 4 incident.

9 On June 2, 2008, the grievor was criticized in a Gen Pac for exceeding the 2-hour limit for doing rounds in the living units of the FVI by 52 minutes. On that day, the grievor was doing the rounds with an experienced PW who was also criticized in a Gen Pac for being late in doing a round that day. The grievor testified that she did hundreds of rounds while at the FVI and that that was the only round for which she received a Gen Pac.

10 On June 17, 2008, the grievor was criticized in a Gen Pac for not taking it upon herself to complete an observation report about an incident that happened that day involving a potential injury to an inmate. The grievor testified that she was not the first PW to arrive after the incident occurred. She went to assist the other PW. According to the grievor, the inmate was not injured. The grievor thought that she did not have to complete an observation report because she was not the first intervener in the incident. However, she later obeyed CM Ritsco’s order to complete an observation report.

11 On September 23, 2008, the grievor was criticized in a Gen Pac for improperly searching another employee’s workstation and for seizing tobacco products from that workstation. Tobacco products are allowed in the institution only for certain aboriginal spiritual ceremonies. According to the formal procedure in place, an employee who has tobacco products in the institution should also have in his or her possession a pass signed by the warden allowing the products. The grievor asked the employee to show his pass, but he answered that he did not have one. The grievor seized the products. That employee occupied the position of Aboriginal Liaison Officer, and the grievor later learned that he did not need a pass signed by the warden. The grievor apologized to the employee.  

12 The grievor was provided with her October 5, 2008, performance appraisal report one day before meeting with Ms. Llewellyn to discuss it. The grievor testified that she became very upset when she read the report and that she wrote a rebuttal. However, she decided to accept the report and to sign it, indicating that she concurred with it. She did not give her rebuttal to Ms. Llewellyn, and she did not grieve the report. The grievor felt that if she did not take responsibility for the report, she could be failed on probation. The grievor also did not grieve the four Gen Pacs used to substantiate her performance appraisal report.

13 When discussing her appraisal with Ms. Llewellyn, the grievor was clearly advised that she could fail her probation if she did not improve on her weaknesses. She was also told that she would benefit from being paired with an experienced PW, who could assist in her development. After the performance appraisal report, the grievor was not assigned an experienced PW to work with her or to ask for advice. The grievor’s assigned tasks remained the same. Ms. Llewellyn did not follow up after the appraisal since the grievor almost never met or spoke with her in the weeks that followed.

14 On December 13, 2008, CM O’Dell wrote a Gen Pac about the grievor. It reads as follows:

Diana, the purpose of this email is to capture our most recent conversation today, and provide you with feedback regarding the situation that occurred on your last midnight shift. More specifically, where I observed what appeared to be you sleeping on shift. We have discussed this issue and you have offered an apology as well as an explanation. As I stated, please be aware of the required standards of performance and appropriate conduct while on duty. If you have any questions the CM’s are always available to you and you can access the infonet policy documents for further information.

15 In a report dated January 30, 2009 about the grievor’s performance since her hiring, Ms. Llewellyn wrote that, according to the December 13, 2008 Gen Pac, the grievor was found sleeping on her morning shift. Ms. Llewellyn added that the grievor offered an apology and an explanation for the incident, but sleeping on a shift is considered a serious infraction. Ms. Doyle testified that she was told that the grievor had slept on a shift. The grievor testified that she did not sleep on a shift. She explained that she was on her meal break at 02:00 on FVI premises with two PWs and CM O’Dell. She simply put her head back and closed her eyes while the others were talking among themselves. Approximately 20 minutes later, when they left to go back to work, she got up. There was a discussion between the grievor and CM O’Dell. The grievor testified that she did not apologize to CM O’Dell for sleeping but rather for taking a strong position during their discussion.

16 Ms. Doyle testified that the February 2009 termination letter was prepared by the labour relations branch at the CSC Regional Office. Before making the decision to terminate the grievor, Ms. Doyle reviewed the six-month performance appraisal and the Gen Pacs. She also spoke with Deputy Warden Bobbie Sandhu. Ms. Doyle had serious concerns with the grievor’s performance, specifically with her searching a colleague, her round not being completed on time, her failure to complete observation reports, her failure to report an inmate incident and her sleeping on a shift.

17 The Chief of Human Resources at the FVI advised the grievor that Ms. Doyle wanted to meet with her on February 25, 2009 and that she should be accompanied by a union representative. The grievor wrote back, asking for the purpose of the meeting. Ms. Doyle decided to change the meeting date to February 16, 2009 to not make the grievor wait for the purpose of the meeting. At the meeting on February 16, 2009, the grievor was accompanied by a union representative.

18 The grievor adduced in evidence several local or national CSC policies or directives dealing with reporting security incidents, search plans, employee performance evaluations, the duties of institutional movement officers, the control of entry and exit from the institution, aboriginal programming and exposure to second-hand smoke. It was clear from the testimonies that some of those policies were not consistently adhered to.

19 Ms. Llewellyn and Ms. Doyle did not know the grievor before hiring her at the FVI. Ms. Doyle had never spoken with the grievor before meeting her on February 16, 2009 to present her with the termination letter. The grievor testified that she had a good relationship with the CMs at the FVI, including Ms. Llewellyn. The grievor also testified that she was never disciplined either informally or formally, while working at the FVI.

III. Summary of the arguments

A. For the employer

20 The adjudicator has no jurisdiction to hear this grievance because the grievor’s employment was terminated during her 12-month probation. That type of termination is provided for in the PSEA, and an adjudicator does not have jurisdiction to intervene. Section 62 of the PSEA gives the employer the right to impose a probationary period and to reject an employee during that period. Section 211 of the Act prevents the referral to adjudication of a grievance dealing with any termination of employment under the PSEA.

21 The relevant facts of this case were not contested. The grievor was appointed to her position at the CSC from outside the public service. She was subjected to a 12-month probation. The letter of termination and the evidence adduced clearly demonstrate that the grievor was terminated because she did not succeed in her probation. The grievor adduced absolutely no evidence that the employer terminated her for reasons other than those that were employment related.  

22 Ms. Doyle based her decision to terminate the grievor on the material that she reviewed and on her discussion with the deputy warden. She also consulted the CSC’s labour relations specialists before making her decision. Ms. Doyle concluded that the grievor did not meet the standards. The role of the adjudicator in such a context is not to substitute himself or herself for the employer but to determine whether the motives behind terminating the grievor were employment related.

23 In support of its arguments, the employer referred me to the following decisions: Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.); Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529; Melanson v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 33; Currie v. Deputy Head (Department of Fisheries and Oceans), 2010 PSLRB 10; and Tarasco v. Deputy Head (Department of Citizenship and Immigration), 2009 PSLRB 101.

B. For the grievor

24 The employer did not adduce any credible evidence that the decision to terminate the grievor was based on employment reasons. The decision to terminate was made in bad faith, and it did not respect the rules of natural justice. In such a case, an adjudicator has jurisdiction to hear the grievance.

25 During the probation, the employer should have allowed the grievor to correct her weaknesses by helping, coaching and supporting her. The grievor did not receive any support even though the employer promised some in the performance appraisal report. Furthermore, it rejected the grievor for trivial reasons.

26 The employer based the performance appraisal on four Gen Pacs. In one Gen Pac, the grievor was criticized for being late for one round. That is trivial, considering that the grievor completed hundreds of rounds in a timely manner in her 10 months of employment. In another Gen Pac, the employer criticized the grievor for not reporting an incident involving an inmate and two other PWs. That Gen Pac was written in August 2008 for an incident that happened in May 2008. The grievor was criticized for not taking it upon herself to complete an observation report on the same day after an incident on June 17, 2008. The evidence demonstrated that CMs do not always complete observation reports on the same day as incidents. In the last Gen Pac, the employer criticized the grievor for searching another employee’s workstation. The grievor did not know the FVI’s practices, and she simply applied the formal CSC policy on searches. When she realized that she should not have searched that employee’s workstation, the grievor apologized to the employee.

27 After the October 5, 2008 appraisal, the employer admitted that only one negative incident occurred involving the grievor. On December 13, 2008, the grievor appeared asleep during her meal break, according to the CM on shift that night. The grievor testified that she was not sleeping but rather, that she had her eyes closed while resting after her meal. The employer adduced no evidence that the grievor was sleeping. Furthermore, no mention was made of that incident in the termination letter.

28 Ms. Doyle did not meet with the grievor and ask for her version of the facts before making the decision to terminate her. Nor did she meet with CM Llewellyn, who was the grievor’s supervisor. Ms. Doyle relied on second-hand information. She should have inquired further before making her decision to terminate the grievor. She acted in bad faith by not being diligent.

29 The grievor was not told that she could grieve the Gen Pacs. She did not agree with her performance appraisal report, but she decided not to grieve it. Essentially, the employer justified its decision to terminate the grievor by specifying employment-related reasons, but those reasons are capricious, trivial or even false in the case of some incidents.

30 In support of her arguments, the grievor referred me to the following decisions: McMorrow v. Treasury Board (Veterans Affairs), PSSRB File No. 166-02-23967 (19931119); Dalen v. Deputy Head (Correctional Service of Canada), 2006 PSLRB 73; and Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109.

IV. Reasons

31 The grievor was appointed to a correctional officer position on April 14, 2008. She was hired from outside the public service, and she was advised on hiring that she would be on probation for a 12-month period. The employer terminated her employment on February 16, 2009, before the end of the probation period, and stated that it had serious concerns with her performance. The following provisions of the PSEA give the right to the employer to impose a probation period and to terminate employment during an employee’s probation:

…

61. (1) A person appointed from outside the public service is on probation for a period

(a) established by regulations of the Treasury Board in respect of the class of employees of which that person is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act; or

…

Termination of employment

62. (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

(a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or

…

and the employee ceases to be an employee at the end of that notice period.

…

32 According to section 211 of the Act, a grievance about a termination of employment under the PSEA cannot be referred to adjudication. Considering that this grievance challenges the grievor’s termination while on probation and that I have concluded that the termination was properly effected under the PSEA, an adjudicator does not have jurisdiction to hear it. Section 211 of the Act reads as follows:

211. Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

(a) any termination of employment under the Public Service Employment Act; or

…

33 Even though an adjudicator does not have jurisdiction to hear a grievance about a termination while on probation, he or she must first, before coming to such a conclusion, examine whether the termination was employment related and whether the employer used the probation reason as a sham or camouflage to hide another motive for the termination. As stated in Leonarduzzi, the employer simply has to provide the adjudicator with some evidence that the rejection was related to employment issues or that it was dissatisfied with the suitability of the employee. In contrast to disciplinary cases, the employer does not have to establish just cause for its decision. The grievor’s burden is then to demonstrate that the employer’s decision to terminate her was not employment related and that, instead, it was a camouflage or a sham or was made in bad faith.  

34 Ms. Llewellyn assessed the grievor’s performance six months after she was hired. The performance appraisal report stated that the grievor did not meet three of the five assessment criteria. Everything in that report was employment related. The grievor could have grieved the report in October 2008 or at least have indicated at that time that she did not agree with its contents. Instead, she chose not to challenge it. She signed her name, indicating that she concurred with her supervisor’s evaluation, and she waited until after her termination to challenge the report.

35 Nothing in the evidence adduced at the hearing could lead me to believe that the reasons for terminating the grievor were not employment related. The grievor may be right that she was late just once in doing her rounds. However, being late for a round once is an employment-related reason. It is also an employment-related reason to criticize an employee for not completing observation reports even if it can be shown that the CMs sometimes do not immediately complete them. Some confusion could arise between the formal and informal search policy for employees, but criticizing the grievor about her application of the policy is also employment related. Finally, sleeping on the job is obviously related to employment. The employer did not have to prove that the grievor slept on the job on December 13, 2008, as it would have to in a discipline case. Even though the employer did not refer to that incident in the termination letter, it seems that it was considered when the decision was made to terminate the grievor. The grievor did not challenge the Gen Pac on that incident. If she was not sleeping that night, she should have more strongly protested against the Gen Pac at that time, by filing a grievance for example.

36 Ms. Doyle did not have any obligation to meet with the grievor and to hear from her before making the decision to terminate her. She relied on the information that she had on file, mainly on the six-month performance appraisal. She was within her rights to proceed as she did.

37 When an adjudicator hears a discipline grievance, he or she must decide whether the employer had just cause to impose discipline. In a case of a termination while on probation, the adjudicator does not have the authority to decide whether the employer had just cause to terminate the employee. In other words, the adjudicator cannot substitute his or her judgment for that of to the employer. Had I that authority, I might have reached a different conclusion, but I do not.

38 The grievor referred me to McMorrow, Dhaliwal and Dalen. In McMorrow, the adjudicator took jurisdiction because the employer acted in bad faith by concluding that the grievor should be terminated before its requested investigation was completed. Contrary to this case, in McMorrow, the grievor was rejected on probation not for poor performance but for disciplinary reasons, and the employer came to its decision to reject the grievor on probation before it had received any response on the matter from the grievor. In this case, the grievor took the decision herself not to contest the Gen Pacs. In Dhaliwal, the employer rejected the grievor for a reason other than not performing well in his work, unlike in this case. Mr. Dhaliwal was rejected for his use of sick leave and family related leave, and the employer did not give him the opportunity to explain why he took all that leave before deciding to terminate him. In Dalen, the adjudicator refused to take jurisdiction because the grievor was rejected for employment-related reasons. However, the adjudicator rejected one of the reasons that the employer used to terminate the grievor because the grievor had no control over the incident for which he was criticized. In this case, the grievor had control over the incidents for which she was criticized.

39 The employer adduced evidence that the decision to terminate the grievor was based on employment-related reasons. Considering that the grievor did not prove to me that the termination while on probation was a sham or a camouflage or that it was done in bad faith, I do not have jurisdiction to hear and decide this grievance.

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

V. Order

41 The grievance is dismissed.

March 18, 2010.

Renaud Paquet,
adjudicator