FPSLREB Decisions

For reasons of national security, the names of the witnesses and persons involved in this grievance have been protected with the exception of the grievor and the Deputy Director of Operations, Canadian Security Intelligence Service.

I. Individual grievance referred to adjudication

1      The grievor, Marc-André Bergeron, began working as an intelligence officer for the Canadian Security Intelligence Service (CSIS or “the employer”) on January 3, 2003.

2      On October 2, 2007, three months before the end of his probationary period, the employer terminated the grievor on the grounds that he did not have the skills and abilities to be a CSIS intelligence officer. The letter of offer stated that, before being appointed for an indeterminate period, the grievor had to successfully complete two training components over a five-year period, the Intelligence Officer Entry Training Program and the Intelligence Officer Career Progression Program.

3      On October 16, 2007, the grievor filed a four-page grievance, stating that he disagreed with the termination because it was unfair and contrary to CSIS policies. The grievance was dismissed at the two levels of the grievance process. It was referred to adjudication on January 17, 2008.

4      First, it is important to note that the CSIS is a separate employer. Through an exemption, labour relations at the CSIS are not subject to the Public Service Labour Relations Act, except with respect to adjudicating grievances. Under section 8 of the Canadian Security Intelligence Service Act, the CSIS establishes its own rules of procedure with respect to the conduct and discipline of its employees. Intelligence officers are not unionized, but they may be represented by the Employee Association in the grievance process.

II. Objection to the Board’s jurisdiction

5      On February 13, 2008, the employer filed an objection to the jurisdiction of a Public Service Labour Relations Board adjudicator to hear the employee’s grievance on the grounds that he was terminated during probation for employment-related reasons. After a preliminary hearing of the parties’ arguments on that issue, I reserved on the employer’s objection and heard evidence on the merits of the grievance.

III. Summary of the employer’s evidence

6      Michel Coulombe was the employer’s only witness. When the grievor’s employment was terminated, Mr. Coulombe was Director General, Quebec Region. He held that position between 2006 and 2007. Since September 2010, he has been Deputy Director of Operations, CSIS, responsible for all its activities in Canada and abroad. Mr. Coulombe has worked for the CSIS since November 1986.

7      Mr. Coulombe testified about the essential attributes of an intelligence officer, which include interpersonal skills, judgment, self-assurance, professionalism, meticulousness, time planning skills, initiative and team spirit. An intelligence officer’s training during the probationary period is composed of two stages. The first lasts about three years at Headquarters in Ottawa as an analyst, and the second is two years in a regional office as an investigator. When working as an analyst, the intelligence officer receives and analyzes information and draws conclusions. As an investigator, the intelligence officer collects information and produces reports.

8      An intelligence officer becomes an indeterminate employee on the successful completion of the second step. Because an intelligence officer’s training is rigorous, a five-year probationary period is required.

9      Intelligence officers are evaluated annually. Their supervisors determine their training and development needs, counsel them about their duties and career opportunities, identify their duties, and evaluate their performance. The performance standard required of all intelligence officers is a so-called minimum “overall average” of 2.5, which is the average of sections B1 and B2 of the performance evaluation report. A performance score of less than the 2.5 overall average rating can result in rejection due to unsatisfactory performance or a recommendation to deny a pay increase. A written notice of shortcomings can be issued to an intelligence officer who fails to meet the established performance levels and objectives and who has not improved after at least one special performance assessment. A special performance assessment is made when an intelligence officer could be released or when an annual pay increment was denied for inadequate performance. An intelligence officer with an overall average rating of less than 2.5 can request that a review committee be convened (see HUM-306, “Performance Evaluation Program,” at paragraphs 5.2, 3.6, 3.5 and 3.7, dated March 24, 2001) or, since July 18, 2007, file a grievance (see HUM-306, at paragraphs 4 and 5).

10 Mr. Coulombe said that he decided to terminate the grievor after reviewing all his performance evaluations since his hiring and specifically the comments of his superiors for each performance evaluation that was below the 2.5 average to ensure a full and detailed rationale. Since they were experienced supervisors, Mr. Coulombe had no reason to doubt their comments on the evaluations. The following shortcomings convinced Mr. Coulombe that the grievor did not have the essential attributes required of an intelligence officer: lack of thoroughness in certain written reports, lack of work planning and organization, lack of judgment and lack of quality interviews. In Mr. Coulombe’s opinion, the incidents reported in the grievor’s performance evaluations jeopardized the CSIS’s credibility and the effectiveness of its operations and, more than once, compromised its security.

11 Mr. Coulombe testified that the grievor did not receive a written notice of shortcomings, as prescribed in policy HUM-306-1, because issuing such a notice is optional. In this case, he did not see the usefulness of issuing one. An interview report prepared by the grievor and checked by his supervisor and that supervisor’s superior convinced Mr. Coulombe that the grievor’s performance would not change. After that incident, the grievor’s supervisor reviewed the other interview reports prepared by the grievor and found no errors. Nonetheless, Mr. Coulombe continued to doubt the grievor’s lack of rigour since beginning his employment. Therefore, he had a termination letter prepared, and he presented it to the grievor on October 2, 2007.

12 Mr. Coulombe explained that the decision to terminate an employee is made with utmost caution because the CSIS invests considerable time and resources training intelligence officers. They then depart with substantial knowledge that could harm the CSIS.

13 In cross-examination, Mr. Coulombe acknowledged that the grievor was terminated three months before the end of the five-year probationary period. He admitted that he never met the grievor before terminating him. Mr. Coulombe said that he was unaware that the grievor had asked for a transfer to the Vancouver regional office to be with his partner. In any case, given the grievor’s short period of employment at the Montreal regional office and the quality of his performance evaluations, Mr. Coulombe would not have granted the grievor’s request.

14 Mr. Coulombe testified that, in his opinion, the same shortcomings continued to appear in each succeeding performance evaluation and that he was satisfied with the accuracy of the performance evaluations, including the special reports. In his opinion, the grievor received the help he needed and did not take advantage of the advice he was given, for example, about the need for improvement and training in time management, mentoring, and the specific performance objectives that had been communicated to him. He blamed the grievor for not taking any initiative to remedy his shortcomings and for not initiating a formal challenge process when he disagreed with his evaluations. He said that he was not familiar with the quality of the grievor’s work at Headquarters.

15 In response to a question from the grievor suggesting that challenging a performance evaluation would negatively affect an intelligence officer’s career, Mr. Coulombe said that he did not agree. He recalled the case of a high-ranking manager who had challenged an evaluation without detriment to his advancement. He said that he was not aware that the new generation of intelligence officers had a different view of challenging an evaluation or filing a grievance.

16 Mr. Coulombe testified that he was unaware that the grievor’s supervisor did not communicate his dissatisfaction to the grievor between May and September 2007. In Mr. Coulombe’s opinion, performance evaluation periods are not set in stone and can vary by a few weeks because of a number of factors, including among others summer holidays, an absence or a longer observation period. He said that the lack of a performance evaluation for a few months is not critical and that it does not indicate a lack of thoroughness in the grievor’s performance evaluations. Mr. Coulombe pointed out that an intelligence officer does not provide his or her comments on a performance evaluation until after it has been signed by each supervisor. However, he did not recall whether he had read the grievor’s comments on each evaluation, and he insisted that the grievor did not exercise his right to challenge his evaluations.

17 Mr. Coulombe stated that he did not consider transferring the grievor because his shortcomings had been identified by more than one supervisor and, anyway, a transfer would not have changed anything. Mr. Coulombe professed that the grievor simply did not have the skills and abilities of an intelligence officer. Mr. Coulombe testified that he was unaware that the grievor had a personality conflict with his supervisor. Regardless, it would not have changed his evaluation of the grievor’s capacities. Mr. Coulombe said that he was satisfied that all CSIS policies had been complied with and that he had confidence in those who had played a role in assessing the grievor’s capacities. He pointed out that the human resources department is not responsible for reviewing employees’ comments on performance evaluation forms but for ensuring that supervisors’ comments are justified. Mr. Coulombe’s only role was to review evaluations that did not score the 2.5 average. Mr. Coulombe said that he was not aware that the grievor had been assessed against duties not yet assigned to him.

IV. Summary of the grievor’s evidence

A. The testimony of the Employee Association’s regional representative

18 Mr. Coulombe called the regional representative of the Employee Association to a meeting one week before the grievor was terminated and did not inform him of the subject. Forty-five minutes before the meeting began, the representative was made aware of the grievor’s imminent termination and was told that his presence was needed. He said that he was taken by surprise because a problem situation resulting in an employee’s termination was usually preceded by a discussion. He did not personally know the grievor at that time. After the meeting, he gave the grievor his contact information. As an example of an earlier discussion that had had positive results, the regional representative referred to the case of a stock keeper who was to be terminated for incompetence. Two-and-a-half months of discussions led to his reassignment to the security department, where he still works. The representative suggested that, for a personality conflict, it is always possible to reassign an intelligence officer to another sector. He added that it was unusual that an employee would be surprised by the CSIS’s decision to terminate his or her employment without warning.

19 According to the regional representative, the employer’s policy is clear that employees are issued a notice of shortcomings after two special assessments. That was the procedure in the past, and it is the intelligence officer’s final notice that his or her job is on the line. The regional representative acknowledged that the Association is not a labour union and that it owes its existence to the employer’s goodwill. In his experience, disputes are resolved amicably through discussion, without the need for grievances. Still, in the regional representative’s opinion, employees refrain from filing grievances because no legal basis supports them, apart from the employer’s goodwill. Since the CSIS is a small organization and the possibilities for advancement are few, employees generally fear that filing a grievance or challenging a performance evaluation may compromise their careers.

20 The regional representative testified that, in his experience, CSIS employees seek counsel from him. They generally wish to resolve workplace conflicts informally, as set out in the most recent version of policy HUM-306, dated July 18, 2007.

21 In cross-examination, the regional representative admitted that employees seek him out for performance evaluation problems. Before being terminated, the grievor had never consulted him. He never saw the grievor’s evaluations. The regional representative remarked that, at the moment of his termination, the grievor was surprised because he thought that the meeting was to be about his request for a transfer to the Vancouver regional office. According to the regional representative, issuing a written notice of shortcomings before a termination was current practice in all sectors.

B. The testimony of witness “A”

22 Witness “A” stated that she worked under the direction of the grievor’s supervisor between June 2006 and October 2007. She found her relationship with him difficult and stressful. He was abrupt, direct and gruff the few times that she spoke with him. She chose to ignore him as much as possible, to stay in her office even though he was next door and to communicate with him by email. He would often suddenly slam his office door. She described his management style as dictatorial and authoritative. As a person, she described him as taciturn, nervous, always on time and relentless that regulations be respected. He completed two performance evaluations about her. The first was not very favourable because he mentioned an actual incident of no great importance, which she did not expect would be included in the evaluation. She did not dare complain about it. The low score she received was eventually raised. She persevered and was placed under another supervisor some time later. The second performance evaluation was excellent. In cross-examination, the witness admitted that she was not familiar with the quality of the grievor’s work.

C. The testimony of witness “B”

23 Witness “B” stated that she worked under the direction of the grievor’s supervisor from June 2006 to October 2007. She noticed that, when he dealt with other employees and with her personally, he was extremely frank and formal and somewhat condescending. She performed her work as instructed, did not ask any questions and was not friends with him. He made her feel uncomfortable. One particular incident brought her to tears. He never completed a performance evaluation about her. She did not dare make a formal complaint about his behaviour. In cross-examination, the witness admitted that she was not familiar with the quality of the grievor’s work.

D. The grievor’s testimony

24 The grievor testified that he was extremely surprised to learn of his termination on October 2, 2007. He thought that he was meeting with Mr. Coulombe to discuss his request for a transfer to the British Columbia regional office. It was the first time he met Mr. Coulombe. Mr. Coulombe told him in a few words that he was being terminated and that he would be paid for the next two days. The grievor then met with the regional representative of the Employee Association and asked him to file a grievance.

25 The grievor maintained that he never received the written notice of shortcomings that can lead to termination. On the contrary, his supervisor made him believe that, from May to October 2007, he was satisfied with the grievor’s work. Beginning on September 25, 2006, at his supervisor’s request, the grievor provided him with his weekly work objectives and results. The emails he received in response from his supervisor, when there were any, were brief, with few criticisms. Verbal interactions with his supervisor were brief and were most often along the lines of “no problem, everything’s fine.”

26 While working at the Montreal regional office, the grievor had only one training session, on time management. His performance was not evaluated for February to June 2006. On May 7, 2007, he met with his supervisor and two other managers to discuss his performance. The grievor testified that they were not attentive to his comments on the evaluation report. Following that meeting, the Sector Head added written comments, which were attached to the grievor’s performance evaluation form.

27 The grievor testified that, although he frequently asked for feedback, his supervisor was generally not very communicative. As an example, the grievor said that, when he tried meeting with his supervisor about his performance, his supervisor was always busy and talked about the weather and sports instead. The supervisor would leave his office to end discussions. Other times, his supervisor ran into him and told him that “everything was fine.” The supervisor’s replies to the emails that the grievor sent to him to keep him up to date about the grievor’s weekly objectives and activities were abrupt and terse. His supervisor did not talk to him about the incidents for which he was criticized in his performance evaluation until he met with him for that purpose. The grievor testified that he made genuine efforts to improve the points raised in his performance evaluations but that he did not receive any feedback from his supervisor about his progress or lack of it until the next evaluation.

28 In 2004, the grievor was paired with an experienced intelligence officer as part of his training. The intelligence officer gave him a glowing evaluation for the period to March 7, 2004. The grievor took his investigator training from January 9 to February 24, 2006. To be eligible for that training, his performance had to be entirely satisfactory. He met the training objectives and obtained the maximum score of 3. The training team’s notes indicate that he had the essential skills and abilities to become a regional investigator. The instructors described him as mature and methodical in his approach.

29 The grievor was assigned to work as an intelligence officer in the Montreal region in June 2006. He testified that the section to which he was assigned was one of the largest and busiest. He learned on the job, as he was given his work assignments. He did not have an immediate supervisor from June to September 2006, although he worked in collaboration with another experienced intelligence officer under the supervision of another manager, who said that he was completely satisfied with the grievor’s services. However, that manager was not asked to complete a performance evaluation for July 4 to September 5, 2006, while the grievor was under his supervision.

30 His supervisor began in that role on September 5, 2006. He immediately noted that there was a lack of objectives with which to conduct a future performance evaluation of the grievor. On October 11, 2006, he established work objectives that the grievor agreed to. The grievor pointed out that he was the only intelligence officer forced to work that way. The grievor continued working on an investigation with the intelligence officer in the field. The grievor said that he worked hard and that he worked long hours. The only feedback that his supervisor provided was “OK” and “good.”

31 The grievor summarized his supervisor’s expectations as follows. He wanted intelligence officers to be in the field, not in front of a computer. He expected intelligence officers to be versatile, to work hard and to demonstrate mutual cooperation, team spirit and communication. During his first meeting with his supervisor, on October 11, 2006, one month after the supervisor’s start date, his supervisor immediately put the grievor’s earlier performance evaluations in front of him and said that he gave him little credibility. According to the grievor, his supervisor labelled him as undesirable even before getting to know him or his work. The grievor said that he was disappointed with that attitude because he was passionate about performing well. Since he was starting out as an intelligence officer, the grievor had hoped for a mentor. However, his supervisor was nothing of the sort.

32 On February 13, 2007, the grievor had a heated discussion with his supervisor about a subject of investigation. The conversation turned sour. His supervisor shut the door and told the grievor that he risked becoming isolated. His supervisor denied having a personality conflict with him. In the grievor’s opinion, the conversation was a slap in the face, and he experienced physical distress from the situation. At the end of the meeting, he told his supervisor that he was not feeling well and that he would not report to work the next day.

33 The grievor consulted his physician the next day and obtained a certificate for a medical absence for one month starting February 14, 2007, due to “situational anxiety.” The medical certificate was not contested. On February 15, 2007, the grievor sent an explanatory email to his supervisor, which he filed as evidence. Out of professionalism, the grievor nevertheless went back to work on February 15, 2007, to complete his interviews and to find a replacement for certain tasks. He notified his supervisor that he would not be at work on March 2, 2007. The grievor had been assigned to an emergency operation centre on that date. His supervisor demonstrated no interest, sympathy or compassion and did not offer help under the employee assistance program as a result of the incident.

34 In the grievor’s performance evaluations, his supervisor did not consider the established objectives or the results of his investigations, verifications, analyses and reports. His supervisor became mired in certain details without clarifying his comments about the grievor’s overall performance or his initiatives with respect to the targets that he was handling. The grievor provided as an example his absence from the office on February 5, 2007, noted in the special evaluation of May 7, 2007, when he had actually been working in the field. His supervisor reported that incident without considering the grievor’s version of the story. Nothing was unusual about the absence because his supervisor had stressed the need to be in the field, and he did not have to ask for permission each time he left the office to work. In the first draft of that performance evaluation, the grievor pointed out to his supervisor that he had incorrectly reported another incident. That incident was removed from the final version. All positive comments about his performance were also removed from the final version. The performance rating was not changed to account for his accomplishments. His supervisor reported that he had not been notified of the grievor’s absence from the office on February 14, 2004, when the grievor had notified him, verbally and then in writing. His supervisor did not refer to the good work that he was doing on countless other cases. The grievor testified that, when he met with his supervisor and two managers about the performance evaluation of May 7, 2007, one of them told him that, if he did not improve after a second special evaluation, he would be issued a written notice of shortcomings, which would be his last chance to improve.

35 His supervisor also did not consider the complex case that the grievor dealt with between July and September 2006 and that he continued to deal with after that or the positive comments made about him by the intelligence officer with whom he was paired. The grievor testified that he communicated with his supervisor daily and that he apprised him of what he was doing, as he wanted his supervisor to be satisfied with his performance.

36 As for the performance evaluation of September 8, 2007, it was not given to the grievor until the moment of his termination, and he was not permitted to give his version of the facts. The incidents reported in the evaluation about an apparently botched interview were included without any consideration of his explanations, which would have cast a completely different light on the individual being interviewed. His supervisor did not communicate his dissatisfaction to him but reported it directly to his superior. His supervisor and his superior conducted their own interview without telling the grievor. The grievor explained that two interviews are never identical, especially when the second is led by senior intelligence officers. The grievor challenged the facts as they were reported.

37 The grievor explained why he did not ask for a review committee to convene over the elements of his performance evaluations with which he disagreed. While at Headquarters, he consulted the local representative of the Employee Association, who told him that at the CSIS it was better to resolve conflicts informally and to wait and see if the situation straightens itself out before acting. The grievor understood that asking for a review or filing a grievance during the probationary period would surely jeopardize the career of a young intelligence officer. Therefore, he chose to remain silent and to try to improve. The grievor admitted that he quickly understood with the arrival of his new supervisor that he had shaken hands with the devil and that he could do nothing to make him happy.

V. The grievor’s cross-examination

38 In cross-examination, the grievor acknowledged that the letter of offer specified a five-year probationary period beginning after he successfully completed the Intelligence Officer Entry Training Program and ending January 3, 2008. He admitted that he received a copy of the performance evaluations filed as evidence by Mr. Coulombe, that the evaluations affected his pay increases and that he was entitled to make his comments. The grievor added that an intelligence officer’s comments are not exhaustive but that they cover the most important items. In addition, intelligence officers’ comments are added after all managers have signed an evaluation. In his case, the comments were of no consequence since he did not receive any feedback about them.

39 The grievor acknowledged the importance of obtaining accurate information and the consequences for the CSIS if it were not accurate. He acknowledged clarifying some of his reports. His supervisor did not recognize his past experience at Headquarters as relevant for handling similar cases.

40 The grievor testified that he discussed the performance evaluations for September 5, 2006 to January 6, 2007, and for January 7, 2007 to May 5, 2007 with his supervisor. Both discussions were brief and covered only the key points and the evaluation ratings. His supervisor was not interested in the grievor’s comments. The grievor told his supervisor that he was surprised at receiving a below-average rating because his supervisor never gave him any indication that he was dissatisfied with the grievor’s work. According to the grievor, his supervisor did not like that kind of discussion. The grievor acknowledged obtaining an average rating below the 2.5 average required under the policy HUM-306-1 for September 5, 2006 to October 2, 2007.

41 The grievor was questioned at length about his performance evaluations and the results, as follows:

• For January 6, 2003 to April 11, 2003, during the Intelligence Officer Entry Training program, he obtained an average score of 3.
• For April 11, 2003 to January 6, 2004, he obtained an average score of 3.
• For January 6, 2004 to January 6, 2005, he obtained an average score of 2.3.
• For January 17, 2005 to April 5, 2005, he obtained an average score of 2.6.
• For April 6, 2005 to December 6, 2005, he obtained an average score of 2.5.
• For January 9, 2006 to February 24, 2006, during the investigator course for intelligence officers, he met all objectives (an average of 3, according to the instructors’ notes).
• No evaluation was done for February 24 to September 5, 2006.
• For September 5, 2006 to January 6, 2007 (annual evaluation), he obtained an average score of 2.4.
• For January 7, 2007 to May 7, 2007 (special evaluation), he obtained an average score of 2.3.
• For May 8 to September 8, 2007 (special evaluation), he obtained an average score of 2.2.

42 On June 27, 2007, the grievor entered his own observations contesting the version of events described in the evaluation report after meeting with his supervisor and two managers on June 8, 2007. The grievor defended himself against the criticisms noted by his supervisor by referring to the weekly objectives that his supervisor approved and the results that he obtained (Exhibit 21), to his numerous initiatives (Exhibit 11), to his reports and updates on his activities (Exhibit 22), and to what he called highlights (Exhibit 22), which were the reports on interviews and meetings that he had initiated or that his supervisor had assigned to him (Exhibit 10). The grievor admitted that he delayed handling information in the fall of 2006 and that he received a notice of delay. However, at the time of the evaluation, and as indicated by his supervisor, the grievor had just started the job and was not yet performing all the duties in the job description. His supervisor did not consider any of his comments and did not alter his evaluation accordingly.

43 When questioned about an interview, the grievor testified that his supervisor asked him to observe a remote interview. After accepting the assignment, the grievor’s partner (also an intelligence officer) told him that she would be in Montreal that Saturday evening. The grievor attended as an observer on the afternoon of the interview. The interview lasted longer than scheduled. No incident of concern occurred. The grievor left as the interview was ending to meet with his partner. In his performance evaluation, his supervisor criticized him for leaving before the end of the interview.

44 The grievor spoke of how he worked in the field, as instructed by his supervisor, but stated that his supervisor then criticized him for his work methods. The grievor explained the reasons behind his actions.

45 The grievor explained that he made an appointment at the CSIS offices and that he notified his supervisor accordingly in his objectives for the week. In his performance evaluation, his supervisor criticized him for holding the appointment at the CSIS offices because it compromised CSIS security measures.

46 The grievor explained that he did not fail to notify his supervisor that he would not report to the office on February 14, 2007. He notified him at the end of his meeting with him on February 13, 2007. The meeting incensed the grievor’s supervisor (see the grievor’s testimony at paragraph 32 of this decision). His supervisor then criticized him for not calling on the morning of February 14 to tell him that he would be absent for the day. He did not consider that the grievor had a medical certificate to explain his absence and that he sent an explanatory email on February 15, 2007.

47 The grievor testified that he had taken an initiative for which his supervisor subsequently criticized him because that initiative risked compromising the security of CSIS computer systems. His supervisor informed his superiors directly without speaking to the grievor about it. The grievor did not anticipate such a negative reaction over a method of communication that has become commonplace. The grievor saw the incident as a generational misunderstanding. The grievor testified that he was disappointed because his superiors’ remarks in his performance evaluation made no mention of his version of the facts.

48 The grievor explained that he did not understand the misconduct he was criticized for because he worked in the field on a Friday afternoon without notifying his supervisor. He was not required to notify his supervisor every time he left the office on business.

49 The grievor testified that he tried to have more meaningful discussions with his supervisor after his supervisor’s first performance evaluation (for September 5, 2006 to January 7, 2007) by keeping him apprised of all his activities. It was important to him that his supervisor provide him with feedback so that he could be sure that his supervisor was satisfied with his work at all times, rather than not seeing results until his performance evaluation. However, his supervisor never had time to speak with him; he allowed the grievor only about 10 minutes at most and avoided the subject by talking about other things.

50 The grievor acknowledged that his supervisor provided him with instructions and advice about investigations in some emails although, he said, without any other feedback. His supervisor assigned him tasks without taking any interest in him, which led to the grievor’s opinion that the supervision was inadequate.

VI. The employer’s rebuttal evidence

51 I asked the employer if it intended to present rebuttal evidence to the grievor’s testimony. The hearing was adjourned for two-and-a-half hours so that the employer could decide. According to the employer, witnesses were available on the premises, if needed. It declined to present rebuttal evidence.

VII. The grievor’s rebuttal to his cross-examination

52 The grievor testified that his probationary period was for five years — a completely exceptional situation in the federal public service. To get the job he wanted, he could not have challenged that condition of employment. The numerous emails exchanged with his supervisor between September 5, 2006 and the date of his termination reflect the scope of his work as an intelligence officer. The incidents reflected in the performance evaluations do not account for the full extent of his performance. The grievor pointed out that, since July 18, 2007, any disagreement with a performance rating below the overall average rating of 2.5 has to be contested by filing a grievance and not before a review committee. He was terminated before being able to file a grievance about his last performance evaluation.

53 The grievor maintained that his comments referred to the items with which he did not agree in his performance evaluation. The grievor pointed out that, in remarks appearing in the performance evaluation for January 7 to May 7, 2007, his supervisor’s superior indicated that, if the grievor did not meet performance standards after two special assignments, he would receive a written notice of shortcomings. The grievor testified that he never received a notice of shortcomings. To the contrary, his supervisor prepared a special evaluation for May 8 to September 8, 2007, which was communicated to him at the same time as the termination letter, without any other notification. The grievor maintained that he never had a constructive discussion about his performance with his supervisor before his termination. According to the grievor, his supervisor failed in his supervisory duties with respect to the policy HUM-306, Performance Evaluation Program, July 18, 2007 version, at paragraph 2.5.

54 The grievor acknowledged that he made mistakes during his training as an intelligence officer but objected to those errors being the sole subjects of his supervisor’s performance evaluations of him. Those performance evaluations were harsh and incomplete, and the consequences were out of proportion to the incidents he was criticized for. They did not consider the improvements he made following the reported incidents, his successes, and the quantity and overall quality of his work. The grievor said that he became punctual as soon as his supervisor pointed out to him that he was slow to submit his reports. The employer did not provide evidence of “deficient work production,” raised in an email from the grievor’s supervisor dated November 21, 2006. The grievor said that he complied with CSIS values and the excellence required of an intelligence officer’s work and that he had given the best that he had to offer. The grievor reiterated the highlights from his evidence-in-chief.

VIII. Summary of the arguments

A. For the employer

55 The employer restated its objection to the jurisdiction of an adjudicator to rule on a grievance about a termination during a probation. The employer’s decision to terminate the grievor while on probation was for an employment-related reason, and the evidence established that the grievor did not possess all the attributes required of an intelligence officer. Under the Public Service Labour Relations Act, an adjudicator’s jurisdiction is limited to ruling on a grievance about disciplinary action that resulted in termination, demotion, suspension or financial penalty.

56 The principles are not the same for a termination during probation as for a disciplinary termination. The purpose of probation is to evaluate an employee’s conduct and performance to determine whether he or she meets the requirements of the job. Employment may be terminated if the employer has at minimum an employment-related reason, without establishing a prima facie case. The burden of proof then shifts to the grievor, who must demonstrate that the rejection was in fact a sham, a camouflage or in bad faith. It is not simply a matter of proving that another decision could have been made. Good faith is presumed, and bad faith must be proven. Even if an employer commits an error when it decides to end a probation, the termination can be contested only if the reason is employment related.

57 In the employer’s opinion, its only obligations for adjudication are to establish the probationary period and to produce the termination letter. Dissatisfaction in good faith of an employee’s ability to perform a job is sufficient. In this case, the employer filed in evidence the offer of employment and the grievor’s signature indicating that he agreed to all the terms and conditions, including the five-year probationary period. The termination letter referred to employment-related reasons — the grievor did not have the necessary skills and abilities.

58 On October 2, 2007, the grievor was terminated during his probationary period, which was to end on January 3, 2008. Mr. Coulombe testified that he made the decision to terminate the grievor. He reviewed all the performance evaluations produced since the grievor began working. The same shortcomings kept arising in evaluations — lack of judgment and lack of thoroughness, even after more than four years.

59 The CSIS’s mandate is to collect information for making decisions with major consequences on national security. The quality and accuracy of that information and of the analyses made by intelligence officers are of utmost importance. The observations noted in the grievor’s performance evaluations pointed to shortcomings and errors of judgment. For example, the grievor’s last performance evaluation reported errors in an interview report that were uncovered by his supervisor and his superior in a subsequent interview. Although no errors were detected in the grievor’s earlier reports, it was difficult to check them after the fact.

60 All the performance evaluations reveal shortcomings in areas essential to an intelligence officer. Mr. Coulombe testified that he reviewed each evaluation as well as comments from more than one supervisor. The grievor should have appealed to a review committee if he disagreed with the results of the evaluations. Given the severity of the shortcomings, the employer was under no obligation to issue a written notice of shortcomings, and Mr. Coulombe decided instead to end the probationary period due to a lack of improvement.

61 According to the jurisprudence, a probationary period is, in itself, a warning to the employee that the employer expects quality performance. In this case, the employer discharged its burden of demonstrating that the employment-related decision to terminate the grievor’s probation was his lack of skills and abilities.

62 The employer pointed out that none of the grievor’s witnesses was able to assess his performance. The regional representative did not meet the grievor until the date of his termination. Witness A was not an intelligence officer and was able only to describe the character of the grievor’s supervisor. She admitted that the performance evaluations produced by the same supervisor for her had been fair. Witness B was not an intelligence officer, and although she did not like working with the grievor’s supervisor, she reported no incidents demonstrating anything but his frankness.

63 The employer maintained that it was up to the grievor to demonstrate its bad faith. The grievor could not say at the hearing before the adjudicator that he no longer remembered certain incidents with any certainty or that he disagreed with the facts reported in the performance evaluations and the assigned ratings. Even when he had an above-average rating, the performance evaluations still referred to certain areas for improvement. The employer provided examples from the grievor’s cross-examination and maintained that his testimony was contradictory and difficult to follow. Overall, the grievor defended himself over a matter of interpreting facts. Those examples demonstrate that the grievor consistently displayed a lack of judgment, which is not attributable to his supervisor’s management style and that goes well beyond the minimum evidence needed to demonstrate that he did not possess the essential skills and abilities. The employer argued that I must not substitute my decision for its decision.

64 In conclusion, the employer maintained that Mr. Coulombe’s testimony, supported by the exhibits filed in evidence, as well as the grievor’s difficult cross-examination, showed that the grievor was terminated for an employment-related reason and that he did not successfully establish that it was a sham, a camouflage or in bad faith. Therefore, the employer maintained that I do not have jurisdiction to decide the grievance and asked that I dismiss it.

B. For the grievor

65 The grievor argued that it was crucial for me to concentrate on the situation that resulted in his termination. He maintained that he discharged his burden of proof by demonstrating that the employer disregarded its own policies on performance evaluations and employee support. The grievor argued that the employer terminated his employment prematurely and abusively, three months before the end of a five-year probationary period.

66 The grievor maintained that the evidence supported his allegation that he and his supervisor had a personality conflict, as demonstrated by the increasingly negative tones of the performance evaluations carried out between January 7 and September 8, 2007. Mr. Coulombe blindly followed what the grievor’s supervisor said and did not provide the grievor with an opportunity to explain; nor did it issue a written notice of shortcomings, as the employer had committed to do on May 7, 2007. The grievor’s supervisor demonstrated no interest or transparency when the grievor sought to improve his performance.

67 The grievor maintained that, several times during his cross-examination, he responded that he needed operational reports for a given situation so that he could fully answer the questions he was being asked. The employer did not produce those reports.

68 The grievor defended not asking for a review of his performance evaluation by a review committee or filing a grievance by referring to the advice he received from the Employee Association representative. The grievor maintained that his supervisor clearly failed to follow the employer’s policy, under which supervisors are to have regular discussions with their employees throughout the evaluation period (paragraph 5.1.1 of policy HUM-306, Performance Evaluation Program, March 24, 2001 version, and paragraph 2.1 of the July 18, 2007 version). The grievor reiterated that he voiced his disagreement with each performance evaluation. However, his comments were recorded after all levels of supervision had affixed their signatures. Since there was no feedback, the grievor concluded that management did not take his comments seriously.

69 The grievor maintained that, before making as drastic a decision as terminating his employment, the employer should have considered other options, as it had in the past, such as transferring him to another unit, assigning him other duties or communicating his shortcomings to him in writing, as it had agreed. The grievor blamed the employer for its lack of transparency since it failed to inform the regional representative beforehand, as it usually did in cases of termination or disciplinary penalties.

70 The grievor maintained that his supervisor did not directly notify him of his dissatisfaction with his work. For example, in response to the grievor’s weekly list of objectives for an upcoming week, his supervisor would email him, stating “OK” and “good” or “everything’s fine, Marc.” The grievor did not understand his supervisor’s dissatisfaction until he met with him for his evaluations. By the third evaluation, it was too late. The grievor provided the following example of his supervisor’s lack of transparency, not to mention bad faith, about his evaluations. Following a discussion with the grievor, his supervisor amended the performance evaluation for January 7 to May 7, 2007 by removing the positive comments and by reformulating an incident that he had misunderstood, without changing the corresponding ratings that gave the grievor a passing average. The grievor did not realize that a modified version had been produced until he met with his supervisor and two managers a few days later.

71 The grievor provided the following example of his supervisor’s lack of communication to him. In the evaluation of May 8 to September 9, 2007, his supervisor reported noticing something unusual following an interview report prepared by the grievor and submitted to his supervisor on August 28, 2007, for approval. In the days that followed, the grievor asked why his report had not been approved. His supervisor was evasive. The grievor learned when reading his performance evaluation the day of his termination that his supervisor and his supervisor’s superior conducted a second interview and that the facts were different. His supervisor did not discuss it with him, and the grievor was unable to explain himself. However, that incident seems to be the event that culminated in terminating the grievor’s employment.

72 The grievor maintained that he was not the only one who experienced difficulties with his supervisor. Witnesses A and B remarked on his supervisor’s unpleasant character and the fact that he was taciturn. The grievor argued that his difficult interpersonal relationship with his supervisor seriously affected the appraisal of his work. The grievor maintained that his supervisor took a dislike to him from the very start because he had no objectives in his file. From that day forward, his supervisor singled him out from the other intelligence officers by asking him to produce weekly objective and result reports.

73 The grievor provided three examples of his supervisor’s difficult character and his lack of communication. To speak with him, the grievor had to chase him down the corridor to the location of his next appointment or to the washroom. During the February 13, 2007 meeting, his supervisor treated him poorly. When the grievor presented a medical certificate justifying his absence on February 14, 2007, his supervisor told him that he had not been notified and reported the incident in the grievor’s performance evaluation. The grievor felt that he took his responsibility to improve seriously and that his supervisor failed in his responsibility to supervise by not providing him with the feedback he was looking for. The grievor failed to understand how he could have done so well on his investigator course and scored so poorly with his supervisor, despite all his efforts.

74 As a final example of his supervisor’s contempt, the grievor stated that the day before his employment was terminated he spoke with his supervisor about taking accrued overtime as compensatory time off. His supervisor gave him the time off, knowing full well that it would be revoked the next day at the grievor’s termination.

75 The grievor concluded that these examples illustrate that his termination was a sham or a camouflage and that the employer acted in bad faith. The grievor maintained that the loss of his employment caused him extreme stress and that almost 16 months passed before he found suitable employment, apart from a few weeks on a contract. His personal life, his health and his financial situation were considerably affected. He asked that, were he reinstated, I consider all the harm done to him by the loss of his employment. He asked that his grievance be allowed.

C. Employer’s response

76 The employer responded that it had been under no obligation to issue a written notice of shortcomings to the grievor. The policy HUM-306 states at paragraph 3.6 that the employer “may” issue such a notice. Although it can be traumatic for an employee to lose his or her job, the employer has the prerogative to choose the employees it wants.

77 Clearly, there was animosity between the grievor and his supervisor. The grievor admitted in cross-examination that he did interact with his supervisor, specifically through weekly objectives and the results that flowed from them. The employer did not understand how changing an evaluation after meeting with the employee could be perceived as bad faith rather than as simply listening. The employer defended the decision made by the grievor’s supervisor and his superior to conduct a second interview. It was to control the seriousness and the potential of the error caused by the grievor. The grievor’s supervisor did not testify. Consequently, the grievor’s testimony was speculation as to the supervisor’s bad faith.

78 The employer added that the incidents reported in the performance evaluations showed the little improvement that the grievor made throughout his probationary period. Mr. Coulombe would have certainly met with the grievor before terminating him had he been asked. The employer denied that the grievor was targeted for losing his employment, as that implies collusion between the grievor’s supervisor and two other managers. No evidence was adduced to support such a plot.

79 The employer maintained that the grievor was amply notified of his shortcomings by his performance evaluations and that he had been offered training to improve his time management skills. The grievor asked for nothing else. The decision to terminate him was based on the evaluations made since he began working. The shortcomings of the grievor’s supervisor have no bearing on the elements on which Mr. Coulombe based his termination decision. The employer maintained that the grievor’s testimony did not contradict the contents of the performance evaluations, except perhaps when he worked outside the office one Friday afternoon.

80 The grievor had no reason to be surprised by his termination because he already had a special assessment and had been warned to improve his performance. A surprise does not constitute bad faith by the employer. A tense relationship between the grievor and his supervisor cannot be used to explain lack of judgment, difficulty meeting deadlines or reporting information inaccurately. The CSIS cannot employ an intelligence officer with shortcomings in its ranks. The employer discharged its burden of demonstrating that the termination during probation was for employment-related reasons and that I have no jurisdiction to rule on the grievance.

IX. Reasons

81 The grievance and the evidence heard at the hearing raise the following two issues:

A - Did the employer apply its policies and procedures when it terminated the grievor during probation?

B - Did the employer provide evidence of an employment-related reason?

A. Did the employer apply its policies and procedures when it terminated the grievor during probation?

82 For the purposes of Schedule V to the Financial Administration Act, R.S.C. 1985, c. F-11, the CSIS is a separate employer, and its director has the exclusive authority to determine the terms and conditions of employment of CSIS employees. The Canadian Security Intelligence Service Act contains the following related provisions:

…

8. (1) Notwithstanding the Financial Administration Act and the Public Service Employment Act, the Director has exclusive authority to appoint employees and, in relation to the human resources management of employees, other than persons attached or seconded to the Service as employees,

(a) to provide for the terms and conditions of their employment; and

(b) subject to the regulations,

(i) to exercise the powers and perform the functions of the Treasury Board relating to human resources management under the Financial Administration Act, and

(ii) to exercise the powers and perform the functions assigned to the Public Service Commission by or pursuant to the Public Service Employment Act.

Discipline and grievances of employees

(2) Notwithstanding the Public Service Labour Relations Act but subject to subsection (3) and the regulations, the Director may establish procedures respecting the conduct and discipline of, and the presentation, consideration and adjudication of grievances in relation to, employees, other than persons attached or seconded to the Service as employees.

Adjudication of employee grievances

(3) When a grievance is referred to adjudication, the adjudication shall not be heard or determined by any person, other than a full-time member of the Public Service Labour Relations Board established under section 12 of the Public Service Labour Relations Act.

Regulations

(4) The Governor in Council may make regulations

(a) governing the exercise of the powers and the performance of the duties and functions of the Director referred to in subsection (1); and

(b) in relation to employees to whom subsection (2) applies, governing their conduct and discipline and the presentation, consideration and adjudication of grievances.

…

83 In the absence of regulations, as provided in subsection 8(4) of the Canadian Security Intelligence Service Act, the CSIS established human resources policies. The Performance Evaluation Program (HUM-306) and the recruitment policy (HUM-407) refer to the authority delegated under the Canadian Security Intelligence Service Act. The recruitment policy was referred to in the letter of termination to support the employer’s decision to terminate the grievor during probation because he did not meet the requirements of the job. At the hearing, the employer based its decision on the fact that the grievor did not meet the requirements of the job by referring to the Performance Evaluation Program and the performance evaluation procedures. Therefore, it is appropriate to review those provisions.

84 The five-year probationary period applicable to an intelligence officer can be found in policy HUM-407, which is about recruitment. The version in effect on the date on which the grievor was hired was the June 30, 2003 version. It was amended on December 10, 2003 and on January 17, 2006. However, the provisions about an intelligence officer’s probationary period and rejection are identical in all three versions and read as follows:

…

7.       PROBATION

7.1     All employees are subject to a probationary period. The duration of the probationary period varies for groups of employees as follows:

-         Intelligence Officers within the Intelligence Officer Career Progression Program (IOCP) are subject to a probationary period of five years.

…

7.3     During the probationary period an employee may be found unsuitable for the position due to low productivity, poor quality or work or inappropriate behaviour. If efforts to assist the employee in improving are unsuccessful, the Director General or Autonomous Chief may decide, during the probationary period, to reject that employee on probation.

…

85 The five-year probationary period is referred to in the grievor’s letter of offer, dated December 10, 2002, as follows:

[Translation]

…

2.       INTELLIGENCE OFFICER CAREER PROGRESSION (IOCP)

2.1  The IOCP Program extends over a period of five years. You must successfully complete the Intelligence Officer Entry Training (IOET) program (fourteen weeks) before commencing your duties as a probationary intelligence officer. After spending approximately three years at Headquarters, you must take and successfully complete the investigator course (five weeks) for your subsequent transfer to a regional office.

2.2     PROBATION

As an Intelligence Officer, you will be on probation for the entire duration of the IOCP program, which begins with the successful completion of the Intelligence Officer Entry Training program. Extended leave for more than 30 days is not included during the probationary period.

…

[Emphasis in the original]

86 The Performance Evaluation Program (HUM-306 - Human Resources Policies and Procedures - Performance Evaluation Program) was also amended during the grievor’s years of service. The following, in the form of a comparative table, are the relevant provisions from both versions:

HUM-306 – Performance Evaluation Program Effective March 24, 2001	HUM-306 – Performance Evaluation Program Effective July 18, 2007
1.       INTRODUCTION           Policy Objective 1.1 Performance evaluation is a method of assessing employee performance through established objectives in agreed work plans for the current evaluation period. The process for evaluating performance, as outlined in this policy, promotes effective, ongoing communication between supervisors and employees on work performance. …	1.       INTRODUCTION           Policy Objective 1.1     Performance evaluations are an important human resource tool used to assess employee performance through clear and measurable objectives in agreed work plans for a specific evaluation period. They are also used to identify employees’ training and development plan. …
2.       RESPONSIBILITIES           Supervisor 2.1  Each supervisor is responsible for meeting with the employee before the start of each evaluation period to establish a work plan that records agreement on objectives and expected performance levels. The supervisor is also responsible for ongoing communication with the employee on his or her performance throughout the evaluation period. … 5.       EVALUATING PERFORMANCE           Evaluation Reports … 5.1.1   Supervisors may keep notes to help prepare performance evaluations. These notes do not require the employee’s signature, but the employee’s performance should be discussed regularly to ensure employees are aware of their progress. These notes should be either attached to the completed PER or destroyed following discussion of the PER with the employee. …	2.      RESPONSIBILITIES           Supervisors 2.1     Each supervisor is responsible for meeting with the employee before the start of each evaluation period to establish a documented work plan that records agreement on a clear, understood set of objectives and expected performance levels. The supervisor is also responsible for establishing/reviewing the employee’s training needs and for ongoing communication with the employee on his/her performance throughout the evaluation period. 2.2     Supervisors are responsible for providing necessary guidance, coaching and/or training to assist the employee in meeting his/her established work objectives and for completing performance evaluation reports (PERs) for each employee under their supervision… 2.3     Supervisors are responsible for fostering/encouraging informal resolution of performance related issues or disagreements. 2.4     Supervisors should keep notes throughout the appraisal period for ease of reference when writing the performance report and to support ratings given when necessary. These notes to not require the employee’s signature, however he employee’s performance should be discussed regularly to ensure he/she is aware of his/her progress. These notes should be either attached to the completed PER or destroyed following discussion of the PER with the employee. When the overall average is less than 2.5, the notes should be kept for at least one year following completion of the PER. …
Employee 2.3     Employees are responsible for establishing performance levels with their supervisors, based on agreed objectives, and for discussing their performance with their supervisors throughout the evaluation period. …	Employees 2.7     Employees are responsible for establishing performance levels with their supervisors, based on agreed objectives, and for discussing their performance with their supervisors throughout the evaluation period. …
Probationary Period 3.3     All employees are subject to a probationary period as stipulated in HUM-407, “Recruitment”.           Timing for Probationary Reports 3.4     For all determinate and indeterminate employees on probation … supervisors must complete a performance evaluation report … Intelligence Officers, including those within the IOCP program will receive evaluations annually. …	Timing (Due Dates) – Annual Performance Evaluation Reports 3.4     Annual performance evaluation reports (PERs) must be submitted as follows: … -         for Intelligence Officers within the Intelligence Officer Career Progression (IOCP) program – on the anniversary of the commencement of their Intelligence Officer Entry Training. …
Special Reports 3.5     Special reports should be completed when: 1.       the employee’s performance has changed noticeably; 2.       the employee may be rejected or demoted for inadequate performance; 3.       the employee’s annual pay increment may be denied for inadequate performance; …	5. Special Reports 5.1     Special reports should be completed under the following circumstances: - an employee’s performance has changed noticeably; - an employee may be released or demoted for inadequate performance; and - an employee’s annual pay increment may be denied for inadequate performance. 5.2     Performance evaluation reports and/or narrative assessments can be submitted at any time during the year when there is a special circumstance/ situation requiring that an assessment be completed. …
Notice of Shortcomings 3.6     An employee who fails to meet the established performance levels and objectives and who has not improved after at least one special report may be issued a notice of shortcomings. See HUM-306-1, “Procedures – Performance Evaluation”, Section 3 entitled: “Issuing Notice of Shortcomings”. …	Notice of Shortcomings 4.1.4   An employee who fails to meet established performance levels and objectives and who has not improved after at least one special report may be issued a notice of shortcomings. Refer to HUM-306-1, “Procedures – Performance Evaluation,” Section 5 entitled: “Issuing Notice of Shortcomings.” …
Review Committee 3.7     Only employees with an overall average rating below 2.5 may request a review committee. See HUM-306-1, “Procedures – Performance Evaluation”, Section 4 entitled “Review Committee”. 3.7.1   Employees who feel that their evaluation contains an error in fact may request that a review committee be convened. 3.7.2   Employees requesting a review committee must provide sufficient rationale in support of their request. 3.7.3   The decision of the appropriate Deputy Director or Assistant Director on whether the evaluation contains an error in fact is final. …	Disagreement with Assessment/Overall Ratings below 2.5 4.2     Only employees who receive a PER with an overall average rating below 2.5, and who are in disagreement with their assessment, may contest their evaluation by filing a grievance… Prior to doing so, employees are encouraged to meet with representatives of the Performance Evaluation Unit, CM to address any concerns, and attempt to resolve their concerns through informal dialogue with their supervisors. …
Performance Standards 5.2     The performance standard required of Service employees is a minimum “overall average” of 2.5 (average of sections B1 and B2 of the “Performance Evaluation Report”). 5.2.1   All levels of assessment must be supported with narrative comments and examples. Ratings below or above 3.0 require sufficient detail justifying the rating given. 5.2.2   Any numeric value below 2.5, as an “overall average”, is deemed not to meet established Service standards and could ultimately lead to release from the Service based on poor performance. Performance of Employees 5.3     At the beginning of each evaluation period, supervisors must establish objectives with employees and the performance levels they expect. Employees will be evaluated in accordance with these predetermined objectives and levels. 5.4     The performance of employees must be assessed by: A)      EVALUATION OF ACHIEVEMENTS, e.g., objectives and results (see “Performance Evaluation Report”, section A); and B)       CHARACTERISTICS OF THE EMPLOYEE, as per essential attributes (see “Performance Evaluation Report”, section B1); and job/organization-related skills (see “Performance Evaluation Report”, section B2).           Evaluation of Achievements 5.4.1   The overall achievement of established objectives, (see “Performance Evaluation Report”, section A2), must be evaluated with the whole number rating: 1.       the employee clearly has not met the established objectives; 2.       some improvement is required in order for the employee to meet the established objectives; 3.       the employee has met all the established objectives; 4.       the employee has exceeded the established objectives on a continual basis.           Evaluation of Characteristics 5.4.2   CHARACTERISTICS OF THE EMPLOYEE, as per essential attributes (see “Performance Evaluation Report”, section B1); and job/organization-related skills, (see “Performance Evaluation Report”, section B2), must be evaluated with the following whole number rating: 1.       the employee clearly does not meet the requirements of this characteristic/attribute given the organization’s expectations and the requirements of the task; 2.       some improvement is required beforethe employeecan meetthe requirements of this characteristic/ attribute given the organization’s expectations and the requirements of the task; 3.       the employee has met all the requirements of this characteristic/ attribute given the organization’s expectations and the requirements of the task; 4.       the employee exceeds on a continual basis the requirements of the characteristic/attribute, as well as the organization’s expectations and the requirements of the task. …	Performance Standard - Below 2.5 4.1.1   Any numeric value below 2.5, as an “overall average,” is deemed not to meet Service standards and could ultimately lead to release from the Service based on poor performance. Consultation with Performance Evaluation Unit, Career Management 4.1.2  Supervisors completing an assessment for any of their employees, who will be receiving an overall average of less than 2.5 should contact the Performance Evaluation Unit, Career Management (CM) for consultation and/or advice purposes prior to submitting the PER to the employee. … [N/A]

[Emphasis in the original]

87 The procedure to issue a notice of shortcomings indicated in the Performance Evaluation Program is stipulated in policy HUM-306-1 - Procedures - Performance Evaluation. As with the performance evaluation procedures, the policy was amended while the grievor was in the CSIS’s employment. The following, in the form of a table, is a comparison of the two versions:

HUM-306-1 – Procedures - Performance Evaluation Effective December 6, 2002

HUM-306-1 – Procedures - Performance Evaluation Effective July 18, 2007

… 3.       ISSUING NOTICE OF SHORTCOMINGS Supervisor 3.1     If after at least one special report, the employee’s performance has not improved, meet with the employee and give him or her a written notice of shortcomings that includes: 1.       specific facts that demonstrate the employee’s shortcomings; 2.       steps that the employee must take to bring performance to an acceptable level and the time that will be given to do so (a minimum of three months is required); and 3.       a statement that declares that “failure to improve and maintain an acceptable level of performance could result in procedures for a transfer, demotion or release from the Service”. 3.2     Have the employee sign the notice of shortcomings and send a copy of the notice to the Head, Performance Evaluation Reports and Special Projects, Personnel Services (PS). Employee 3.3     Upon receiving a notice of shortcomings, sign the original. The signature acknowledges receipt only.

… 5.       ISSUING NOTICE OF SHORTCOMINGS 5.1     It is recommended that prior to issuing a notice of shortcoming, the supervisor consult with the Performance Evaluation Unit, Career Management (CM). 5.2     If after at least one special report, the employee’s performance has not improved, meet with the employee and give him/her a written notice of shortcomings that includes: -         an introduction/summary that consists of a reference to the applicable policy and procedures, as well as a reference to the previous Performance Evaluation Report (PER); -         specific facts that demonstrate the employee’s shortcomings and a description of weaknesses identified in the PER; -         steps that the employee must take to bring performance to an acceptable level and the time that will be given to do so (a minimum of three months is required); -         a brief description of the type of help/assistance that has been provided to the employee and that will continue to be provided in order to help the employee improve (e.g., courses taken, coaching, meetings, etc.); and -         consequences should the employee fail to improve and maintain an acceptable level of performance within the prescribed time frame. This should include a statement that declares that “failure to improve and maintain an acceptable level of performance could result in procedures for a transfer, demotion or release from the Service.” 5.2.1   Have the employee sign the notice of shortcomings and send a copy of the notice to the Head, Performance Evaluation Unit, CM for retention on the employee’s performance file.

[Emphasis in the original]

88 The grievor’s letter of termination is worded as follows:

[Translation]

October 2, 2007

Mr. Marc-André Bergeron

…

This is in reference to the Performance Evaluation Report for September 5, 2006 to January 6, 2007, the Special Evaluation Report for January 7, 2007 to May 7, 2007, and the one covering May 8, 2007 to September 8, 2007.

Those evaluations were conducted to assess your performance and to allow you to correct any shortcomings. However, despite all the assistance and the countless opportunities with which you were provided to improve, your performance continues to be below the CSIS’s standards. Therefore, I must conclude that you do not have the skills and abilities needed to be an intelligence officer at the CSIS. Consequently, and in accordance with CSIS policy HUM-407, paragraph 7.3, I regret to inform you of your rejection on probation effective today. However, you will be paid until October 5, 2007.

In accordance with CSIS policy HUM-502, you may file a grievance in writing within 25 business days following receipt of this notice. I further wish to inform you that, if you so desire, you may request assistance from the Employee Association.

                                                Michel Coulombe
                                                Director General
                                                Quebec Region

89 When I read the notice of termination during probation, I noted that it refers to the grievor’s evaluation for a specific period, from September 5, 2006 to September 8, 2007. No explanation was provided as to why the employer chose to single out a 13-month evaluation period for justifying its decision to terminate the grievor rather than considering the entire 5-year probationary period. At the hearing, the employer presented me with evidence that considered all five years of the probationary period and argued that the grievor did not prove that he was up to the job over the five-year period.

90 Mr. Coulombe testified that his decision to terminate the grievor during probation was founded on the grievor’s written performance evaluations since he began working, which he reviewed in full. Mr. Coulombe was categorical when he stated that, based on the performance evaluations, the grievor did not meet the job requirements and that all procedures were followed. Mr. Coulombe stated that the employer’s obligation to provide a notice of shortcomings was discretionary and that, in the grievor’s case, the shortcomings were identified by more than one supervisor and were communicated to the grievor. In any case, providing that notice would not have changed his decision in any way.

91 I believe that the letter of termination and the conditions outlined in the letter of offer are contradictory, in that the letter of offer specifies that the probationary period is 5 years, while the letter of termination refers to an evaluation period of 13 months.

92 If I consider the entire probationary period, the grievor’s performance was acceptable for the first 44 months of his employment, from his hire date, on January 3, 2003 until September 4, 2006. I must assume that, if the grievor had not performed adequately during the first 44 months, the employer would have terminated his employment, which it obviously did not. At the hearing, the employer reviewed the grievor’s first 44 months of service and attempted to demonstrate that he had not performed adequately since being hired. In cross-examination, the grievor was questioned at length about the performance evaluations done before those conducted by his supervisor. The focus was on one case, in which he obtained an average rating of 2.3, but especially on those in which he obtained an average score or higher, with the goal of demonstrating that the grievor had long had the same shortcomings as identified by his supervisor and ultimately by Mr. Coulombe.

93 I dismiss the evidence about the grievor’s shortcomings before September 5, 2006 as irrelevant to his termination for the following two reasons. First, the letter of termination states that the employer judged that the grievor did not meet his job criteria only from September 5, 2006 to September 8, 2007. Second, under the terms of the employer’s program, an employee scoring an average of 2.5 meets all required objectives. After obtaining a score of 2.3 for January 6, 2004 to January 6, 2005, the grievor improved and subsequently scored 2.6 for January 17 to April 5, 2005, 2.5 for April 6 to December 6, 2005, and 3 for the investigator training. In addition, only employees receiving a below-average performance rating could request a review committee or, since July 18, 2007, file a grievance.

94 The employer argued that, in the absence of an objection, the grievor must have accepted the scores assigned to him in the performance evaluations. I believe that the same principle applies to the employer — it must accept the results of the positive scores that it assigned the grievor. Ultimately, the employer cannot later create doubt about an employee’s performance that it had earlier deemed satisfactory. Furthermore, in my opinion, an employer is precluded, after terminating an employee, from invoking reasons that were not communicated to the employee at the time of termination.

95 The grievor strongly insisted that the employer did not send him a notice of shortcomings before terminating him. The employer defended itself, stating it was under no obligation to provide him with such a notice because they are discretionary.

96 According to the wording of the Performance Evaluation Program, the notice is discretionary. However, the provision refers to another provision in the Performance Evaluation Procedures that, in my opinion, is much less discretionary. Two versions of the Performance Evaluation Procedures were filed as evidence. Given the date of the last special assessment and the date on which the grievor was terminated, I believe that the version of the Performance Evaluation Procedures effective from July 18, 2007 applies in this case. Paragraph 5.2 of that version states that, if, after at least one special assessment, the employee’s performance has not improved, the supervisor will meet with the employee and give him or her a written notice of shortcomings. According to the Performance Evaluation Procedures, the supervisor is required to meet with any employee scoring less than 2.5 after two special assessments.

97 In this case, I must prefer the grievor’s version of the obligation to provide him with a written notice of shortcomings. First, the evaluation for January 7 to May 7, 2007, reports the following:

[Translation]

…

It was explained to Mr. Bergeron that if his performance did not improve and if he did not meet the standards, even after two special reports, then a written notice of shortcomings would be sent to him and, were the situation to persist after the notice, action would be taken that could result in his dismissal.

…

[Emphasis added]

98 I must presume that the superior of the grievor’s supervisor was sincere when he committed to provide the grievor with a warning. For that reason, my opinion is that the employer could not then fail to issue a written notice of shortcomings just because that notice was discretionary.

99 When reading the entire Performance Evaluation Program since it was amended on July 18, 2007, I noted that it is now much more geared to conflict resolution and employee coaching than the previous version. In that vein, the supervisor’s responsibilities as outlined in paragraph 2.2 include providing an employee with the necessary guidance and advice, coaching the employee and seeing to his or her training, and, at paragraph 2.3, promoting the informal resolution of performance-related issues or disagreements. The written notice of shortcomings given to affected employees since July 18, 2007, is also more conciliatory. The December 6, 2002, version stated that an employee was to be informed of his or her “shortcomings” and the actions needed to remedy them. The July 18, 2007, version outlines precisely what the supervisor must implement, as follows:

-    an introduction/summary that consists of a reference to the applicable policy and procedures, as well as a reference to the previous Performance Evaluation Report (PER);

-    specific facts that demonstrate the employee’s shortcomings and a description of weaknesses identified in the PER;

-    steps that the employee must take to bring performance to an acceptable level and the time that will be given to do so (a minimum of three months is required);

-    a brief description of the type of help/assistance that has been provided to the employee and that will continue to be provided in order to help the employee improve (e.g., courses taken, coaching, meetings, etc.); and

-    consequences should the employee fail to improve and maintain an acceptable level of performance within the prescribed time frame. This should include a statement that declares that “failure to improve and maintain an acceptable level of performance could result in procedures for a transfer, demotion or release from the Service.”

100 Although the employment status of an employee on probation is precarious, the employer’s policy, much like the jurisprudence, establishes that the employee cannot be arbitrarily terminated. The employer must establish that the employee has been provided with the necessary opportunity to demonstrate that he or she has the skills and abilities required for the job. The adjudicator’s role is not to substitute his or her decision for the employer’s or to rule on whether the employer’s decision was correct but to determine whether the evaluation method was fair and reasonable under the circumstances (see Hotel Fort Garry and Canadian Brotherhood of Railway, Transport and General Workers (1993), 33 C.L.A.S. 544. and the analysis in Brown and Beatty, Canadian Labour Arbitration, at paragraph 7:5020). The CSIS policy on coaching an employee during the probationary period in all respects matches the trend in the case law.

101 Next, the Performance Evaluation Program (HUM-306) has the precise objective of promoting sustained and effective communications between managers and employees about performance. In this case, the grievor did not benefit from that type of communication. Indeed, the grievor could not have known that his employment was in danger in the absence of feedback from his supervisor. According to the evidence, the grievor’s supervisor liked neither confrontation nor communication. One item of evidence shows that he was taciturn and that he slammed his door. His response to the grievor’s weekly reports was to tell him that everything was fine. Instead of telling him that his employment was being terminated the next day, his supervisor approved a request for compensatory time off. That indicates to me that the grievor’s supervisor did not like confronting people or perhaps that he had no interest in being transparent with his employees. The employer did not contradict the evidence that the grievor’s supervisor was not communicative and that he informed the grievor of his deficiencies only every few months.

102 Section 2 of the policy HUM-306 states that managers are responsible for meeting with employees and establishing a work plan that records agreement on a clear, understood set of objectives and expected performance levels. It states further that supervisors are responsible for providing necessary guidance, coaching and training, and helping employees meet their objectives. In addition, section 5 of the Performance Evaluation Procedures specifies that managers must inform employees of the actions they need to take to improve personally and to improve their performance. In this case, it was not demonstrated to me that the grievor’s supervisor had fulfilled either responsibility.

103 The grievor did not receive any of the conciliation and assistance measures outlined in the policy, among others the steps he needed to take to bring his performance up to an acceptable level, the time for those steps (at least three months) and the type of help to aid his improvement, such as courses, coaching and meetings.

104 I have also considered the uncontradicted testimony of the regional representative, who stated that it was unusual that an employee would be surprised by a decision to terminate him or her without warning; employees usually receive a written notice of shortcomings after two special assessments before their employment is terminated. The employer usually keeps the Association’s regional representative current about any problem situations. Discussions are initiated to resolve conflicts, which was not done in this case. Furthermore, the employer did not contradict the fact that the grievor was honestly surprised by the letter of termination and did not suggest that he invented that argument solely to polish his defence.

105 That analysis leads me to conclude that, if the employer relies on its policies when it decides to terminate an employee, then it must consider both the provisions in its favour and those in the employee’s favour. The policy HUM-306 indeed states that the obligation to issue a notice of shortcomings is optional. However, considering the remark made by the superior of the grievor’s supervisor in the January 7 to May 7, 2007 evaluation and the commitment made at the June 2007 meeting, the grievor could have legitimately expected that a written notice of shortcomings would be sent to him if the employer were considering terminating him during his probation. Additionally, the employer did not contradict the grievor’s testimony that he was not informed of the employer’s dissatisfaction during the five months preceding his termination.

106 Consequently, I believe that the employer omitted an essential step before terminating the grievor. That omission is an important factor to consider when assessing whether the employee was fairly terminated.

B. Did the employer provide evidence of an employment-related reason?

107 The employer’s evidence to support its decision to terminate the grievor during probation relies on the performance evaluations filed as evidence and Mr. Coulombe’s opinion about them. Since the grievor’s evaluations for September 5, 2006 to September 8, 2007 were below the 2.5 average, Mr. Coulombe terminated the grievor because he did not meet the job requirements.

108 The grievor’s evidence in response to the employer’s evidence can be summarized as follows. His performance met the CSIS’s standards until he found himself under the supervision of a new supervisor. From September 5, 2006 onward, his new supervisor managed him closely. He imposed written objectives on October 11, 2006, five weeks after his arrival, and he demanded that the grievor present him with weekly objectives and his results. The grievor complied with that demand. The grievor testified that he was the only one given that obligation, a statement that the employer did not contradict.

109 On January 7, 2007, the grievor’s supervisor expressed his dissatisfaction with the grievor’s performance by giving him a below-average performance rating. That rating was unexpected, as the grievor had complied with his supervisor’s demands for improvement. Four months later, the grievor received a special performance evaluation in which he was given a score one point below the average, followed by a second special evaluation four months later in which he scored three points below the average, which served as the reason for termination during probation.

110 The grievor maintained that the performance evaluations did not reflect his entire performance, that his supervisor was not impartial and that management did not follow its own evaluation procedures before terminating him. He provided many examples of his claims. His supervisor told him from the start that he was not intelligence officer material, without giving him the chance to prove himself. By providing him with precious few comments about his weekly objectives and results, his supervisor made him believe that everything was fine and then expressed his dissatisfaction during performance evaluations. His supervisor did not offer him any training, except for time management, and he avoided meetings with the grievor when he asked for feedback on his performance. In the performance evaluations, his supervisor only reported incidents that he considered negative, without any positive items that might have increased the grievor’s rating. It was never refuted that his supervisor deleted positive points after having a discussion with the grievor. As a new intelligence officer in the field, the grievor testified that he had expected to be coached. He did not receive any advice or guidance on ways to improve, and his supervisor failed to act as a mentor. His supervisor held him accountable to the standard of a seasoned intelligence officer.

111 The grievor was subjected to a lengthy cross-examination during which the employer tried to make him admit to the contents of the performance evaluations and to his so-called poor performance. The employer pointed out that the grievor never used the internal recourse of a review committee to contest his evaluations.

112 Since the grievor was self-represented, and because of the contradictory questions posed by counsel for the employer, I intervened on a few occasions and asked the employer if it would adduce evidence in opposition to the grievor’s testimony (the rule in Browne v. Dunn,[1894] 6 R. 67). The employer reserved its decision each time I intervened. After the grievor was cross-examined, and after his rebuttal, I again asked the employer if it intended to present rebuttal evidence. The employer confirmed to me that its witnesses were available but that it would have to assess the situation. After the hearing was adjourned for two-and-a-half hours, the employer decided to not respond to the grievor’s testimony. The parties then presented their arguments, the employer first, followed by the grievor’s argument in reply and a response by the employer.

113 In a termination, whether the employee was on probation or had obtained permanent status, the burden of proof lies initially on the employer, which must justify the reasons for termination. Federal Court jurisprudence in Jacmain v. Attorney General (Can.) et al., [1978] 2 S.C.R. 15, Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), and Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529, suggests that the employer’s burden of proof is not as great for a termination during probation as when an employee has permanent status. Essentially, for a termination during probation, the employer must present evidence that the termination was justified by an employment-related reason. The grievor then must demonstrate that the employer’s decision was abusive or that, to use the usual terms, the employer’s actions were a sham or camouflage or that the employer acted in bad faith. This is a very high standard for grievors to meet.

114 In this case, the employer maintained that Mr. Coulombe had an employment-related reason, the grievor’s performance evaluations, when he decided to terminate the grievor. The employer’s position was that the grievor was on probation, that the performance evaluations were a sufficient warning that it was dissatisfied with his performance, and that, in the absence of an improvement, it had a sufficient, employment-related reason to terminate his employment. That evidence was limited to Mr. Coulombe’s testimony, who decided on termination, and to the production of the grievor’s performance evaluations.

115 However, the grievor’s testimony was supported by a sizeable number of emails, which confirmed his communications with his supervisor. They included the weekly objectives he set for himself and the related results, the assignments and instructions he received from his supervisor about investigations and collecting information, his reports, and the highlights of his meetings with his contacts.

116 As requested, the grievor emailed his objectives to his supervisor once each week. After three weeks, he submitted his results weekly, except when he was off for more than a day or two. On November 21, 2006, his supervisor criticized him for his insufficient productivity. The grievor subsequently submitted between five and seven work objectives each week until the date of his termination. His timely reports indicate that he more often than not exceeded each week’s objectives. No further reference is made to insufficient productivity after November 21, 2006.

117 I noted the following feedback from the supervisor about the weekly objectives and accomplishments. The following is the feedback that the supervisor provided to the grievor’s objectives and accomplishments in emails exchanged between September 25, 2006 and October 2, 2007:

- On October 11, 2006, the supervisor answered: “Go to …”

- On November 21, 2006, the supervisor criticized the grievor for insufficient work.

- On January 12, 2007, the supervisor answered: “That’s fine.”

- On January 24, 2007, the supervisor answered: “You should also check where to find …”

- On February 13, 2007, the supervisor answered: “OK for the interview.”

118 I also reviewed 58 email exchanges initiated by the grievor between September 5, 2006 and October 2, 2007, about his work assignments, with the supervisor’s replies. I noted three instances of negative feedback from the supervisor: on February 2, 2007, about an interview; on February 14, 2007, a criticism about a report’s deficiencies; and on August 31, 2007, a criticism about an interview. I noted that the supervisor answered the grievor’s emails with instructions in a neutral tone and without apparent criticism, even though the supervisor wrote very little. I further noted the following instances of feedback that I consider positive: on October 4, 2006, “Very good Marc …”; on October 31, 2006, “Good report …”; on May 15, 2007, “OK …”; on May 24, 2007, “OK …”; on July 12, 2007, “OK …”; on September 5, 2007, “OK …”; on September 13, 2007, “OK …”; and on September 24, 2007, “OK … ”

119 I believe that the written exchanges reproduced above provide sufficient credibility to the grievor’s allegations that his supervisor did not clearly express his dissatisfaction or ways for the grievor to improve. The grievor contradicted important elements of Mr. Coulombe’s testimony. The grievor’s version of the facts was not refuted.

120 Therefore, the grievor submitted evidence that his termination was arbitrary and, consequently, unjustified. Thus, the burden of proof shifted. To support its position that it had an employment-related reason, the employer had to provide a response to the grievor’s evidence. The employer did not produce that rebuttal evidence.

121 The employer did not explain why the grievor was obliged, unlike other intelligence officers, to create weekly objectives and results. The exchange of emails filed as evidence did not convince me that the grievor’s supervisor was up front with him during the evaluation period. The testimonies of witnesses A and B on the difficult character of the grievor’s supervisor and his severe manner of treating employees was not refuted. I found the regional representative’s testimony about the CSIS’s culture of informal conflict resolution and consultation with the Employee Association before taking severe action more convincing than Mr. Coulombe’s testimony that a senior official at the CSIS had, at some unknown time, asked for a review of his evaluation without it negatively impacting his career, without further clarification.

122 I believe that the grievor’s cross-examination did not draw out the admissions needed to warrant the employer’s decision to terminate him while on probation. On that point, I take account of the fact that the grievor was not represented and that he was up against a team of two attorneys. In some respects, the grievor’s testimony was difficult to follow. However, I can understand that he was intimidated and nervous. Overall, he supported his position about the facts for which he was criticized. The grievor’s testimony was deserving of rebuttal evidence by the employer.

123 Even though this termination occurred during probation, it was a termination all the same. Thus, the employer had to convince me that, on a balance of probabilities, the grievor was terminated for an employment-related reason.

124 Although an “employment-related reason” might seem like a relatively low threshold, the employer had to persuade me nonetheless that its decision was neither frivolous nor arbitrary and that it had a genuine employment-related reason to warrant termination. In this case, the employment-related reason cited by the employer was that the grievor did not have the essential attributes of an intelligence officer because some of his written reports lacked rigour, his work planning and organizing was weak, his judgment was poor, and his interviews were of poor quality. The grievor allegedly jeopardized the credibility and effectiveness of the CSIS and compromised security more than once. However, the grievor contradicted most of the incidents for which he was criticized by citing incidents in which his supervisor had approved of his good work. That is not reported in the performance evaluations but can be found in the email exchanges. Alternatively, the grievor provided reasonable and likely explanations of the incidents for which he was criticized. The following are some examples.

125 According to the performance evaluation for September 5, 2006 to January 5, 2007, the grievor allegedly provided an operational report dated October 12, 2006, which his supervisor criticized because it apparently referred to inaccurate facts. However, in a feedback email dated October 31, 2006, his supervisor congratulated him for a good report. No mention is made in the performance evaluation for that period that another report was acceptable.

126 In the same evaluation, the supervisor criticized the grievor because no work objectives had been set against which he could be evaluated. The grievor testified that the obligation of setting objectives was the manager’s responsibility and that he immediately accepted the objectives that were set for him on October 11, 2006.

127 In the evaluation for September 5, 2006 to January 5, 2007, his supervisor referred to a lack of planning and insufficient productivity, as well as the grievor’s lateness when producing certain reports. The employer did not contradict the grievor’s testimony that changes were made immediately when his supervisor pointed out that he had been slow submitting his reports and a request for authorization. According to the evidence, no further notices of tardiness were issued to the grievor, and insufficient productivity was never mentioned again.

128 In the performance evaluation for January 7 to May 7, with respect to the grievor’s judgment, team spirit and professionalism, his supervisor criticized him for leaving an interview prematurely. The grievor explained the circumstances of his leaving that, in the absence of any further explanation from the employer on the consequences of the interview, was reasonable. The employer did not contradict the grievor’s testimony that, during that same period and before going on sick leave, he made the necessary arrangements with his co-workers for the work to continue in his absence, which demonstrates, at least on the surface, certain qualities of judgment, team spirit and professionalism.

129 In the performance evaluation for January 7 to May 7, 2007, the supervisor criticized the grievor for not obtaining additional information on a subject of interest. In his testimony, the grievor explained that circumstances made him decide not to compromise a future opportunity for communication. The employer did not contradict that explanation, which I consider plausible.

130 In the performance evaluation for January 7 to May 7, 2007, the supervisor admonished the grievor for a lack of planning, team spirit and professionalism because he had failed to inform the supervisor that he was going to an appointment at CSIS offices. However, the grievor testified that, with an email to support his statements, he had indeed notified his supervisor of the meeting in his weekly objectives. The supervisor also criticized the grievor for being absent from the office on a Friday afternoon without notifying him. The grievor testified that his supervisor had instructed him on the day on which he began working as head of the department that he expected an intelligence officer to be in the field and not in front of a computer. Furthermore, it was not refuted that the grievor kept his supervisor informed of his comings and goings by means of his weekly objectives.

131 In the performance evaluation for January 7 to May 7, 2007, the supervisor criticized the grievor for not notifying him of an absence, while the grievor testified and presented documentary evidence that he had indeed notified him of that absence.

132 Another incident reported in the evaluation for January 7 to May 7, 2007, about which a lot seems to have been written, is that the grievor compromised the CSIS’s electronic security measures. His supervisor felt that the grievor had acted poorly. The employer did not explain to me how its security was compromised by that incident.

133 The straw that seems to have broken the camel’s back can be found in the special evaluation for May 8 to September 8, 2007. The grievor conducted an interview. The grievor’s supervisor questioned its accuracy. Without communicating his dissatisfaction to the grievor or allowing the grievor to explain himself, the supervisor and his superior conducted a second interview and obtained another version of the facts. The seriousness and the consequences of the difference between the two interviews were not explained to me. The supervisor concluded that the grievor had performed his job poorly. Before terminating the grievor, Mr. Coulombe asked the grievor’s supervisor to check the other interview reports that the grievor had prepared. His supervisor did not detect any other errors. The grievor testified that his employment had been terminated without providing him an opportunity to clarify the circumstances of that interview. At the hearing, he explained that two interviews are never identical and that, importantly, an interview led by two senior intelligence officers will differ substantially from an interview conducted by a junior intelligence officer. The employer did not contradict that testimony.

134 There are several other examples of the grievor contradicting or at least providing a plausible explanation for the employer’s criticisms. Even though my role does not allow me to substitute my opinion for the employer’s, I must nevertheless render a decision based on the facts presented to me. In this case, I believe that the grievor discharged his burden of proof to demonstrate that the termination of his employment was unjustified. The employer did not convince me to the contrary, on a balance of probabilities. Consequently, I conclude that the employer did not demonstrate a legitimate employment-related reason to warrant terminating the grievor.

135 The following excerpt from Bond v. New Brunswick (Board of Management), 1992 CanLII 2434 (NB CA), (1992) 95 D.L.R. (4th) 733, about an adjudicator’s responsibility for evaluating the evidence presented before him or her is completely apropos:

…

There is no duty on the adjudicator to aid management in the presentation of its case by pointing out the obvious void that her failure to testify will leave. If management proceeds and is unable to establish its case, management must accept the consequences.

Is there a duty, however, on the adjudicator with respect to the grievor and the absence of this key evidence? I think that this was the fundamental concern of the judge on judicial review, that is, procedural fairness and natural justice. In the absence of evidence from this normally essential source, the judge in the Court of Queen's Bench was left to review the adjudicator's decision as founded, in her opinion, solely on hearsay evidence.

I am not prepared to say it was founded “solely” on hearsay evidence, but it is disturbingly close to that mark. In any event, the judge held that the standard of natural justice and procedural fairness had not been met by the adjudicator. I agree. The primary objective of arbitration, to give each party a full and fair hearing following rules of procedure which satisfy that objective, has not been met in this case.

…

X. Conclusions

136 In summary, I conclude that terminating the grievor during probation was abusive for the following two reasons:

(i) by failing to provide him a written notice of shortcomings before terminating him, as promised, the employer failed to respect the policies and procedures that it had instituted under section 8 of its constituent Act, resulting in a defect sufficient to invalidate the termination; and

(ii) in the absence of proof on a balance of probabilities contradicting the grievor’s testimony, the employer failed to discharge its burden to present the necessary evidence of an employment-related reason.

137 For all of the above reasons, I believe that I have the jurisdiction to make the order and to grant the remedies that follow:

XI. Order

138 The grievance is allowed.

139 The grievor’s termination during probation is revoked.

140 If the parties are unable to agree on an appropriate remedy, I will remain seized of this matter for a period of 60 days from the date of this decision.

August 12, 2011.

PSLRB Translation

Michele A. Pineau,
adjudicator