FPSLREB Decisions

I. Individual grievance referred to adjudication

1 The grievor, Benoît Plamondon, worked for the Department of Foreign Affairs and International Trade (“the deputy head” or “the employer”), beginning in November 1989. He held a foreign service officer position at the FS-03 group and level. On January 21, 2009, the employer terminated his employment for unsatisfactory performance.

2 The following extracts from the letter of termination sent to Mr. Plamondon on January 21, 2009 summarize the key elements:

[Translation]

…

Management has reported numerous performance problems during your years of service with the department. Specifically, since October 2003, as a result of very close monitoring of your performance, management has informed you of specific problems with your performance.

…

In April 2007, given that your performance was still unsatisfactory despite earlier measures, management offered you a final opportunity to correct your deficiencies and to demonstrate your ability to perform the duties of your substantive position by putting in place a formal performance improvement program. When that program was established, you were clearly informed of the possible consequences of failing to improve your performance. Moreover, throughout that process, management constantly supported you in the execution of your duties.

In December 2007, at the end of your performance improvement program, and because your performance did not significantly improve, you were informed that you did not meet the requirements of your substantive position and that, consequently, the department was planning to terminate your employment for unsatisfactory performance.

…

3 On January 28, 2009, Mr. Plamondon filed a grievance contesting his termination and requesting reinstatement in his position. On April 28, 2009, not satisfied with the employer’s response at the final level of the grievance process, he referred his grievance to adjudication under subparagraph 209(1)(c)(i) of the Public Service Labour Relations Act (“the Act”).

4 Section 230 of the Act defines the role of an adjudicator in a case of termination for unsatisfactory performance. It is worded as follows:

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

II. Summary of the evidence

5 The employer adduced 31 documents in evidence. It called Frank Ruddock, Martin Charron, Patrick Riel, Heidi Kutz and Martial Pagé as witnesses. During the time covered by their testimonies, they all worked for the employer. Mr. Ruddock supervised Mr. Plamondon from October 2003 to November 2004, Mr. Charron from November 2004 to July 2005, Mr. Riel from February 2006 to July 2007, and Ms. Kutz for a short time in summer 2007.

6 For clarity, I have summarized the evidence adduced by the parties in chronological order and not in the order in which it was introduced at the hearing.

A. October 1989 to June 1999

7 In October 1989, a few months after completing his bachelor’s degree in business administration, Mr. Plamondon was hired by the employer in a development position as a foreign service officer at the FS-01 group and level. In October 1990, the employer informed Mr. Plamondon that he had successfully completed his probationary period. He was then appointed to a rotational position, which meant that he could have been assigned, for different lengths of time, to positions in Canada or abroad in one of the several countries in which the employer has employees.

8 During his first 10 years of service, Mr. Plamondon was assigned, among other tasks, to foreign service officer duties with respect to relations that Canada maintains with the United States, the Benelux countries, Jamaica and certain West African nations. Some of his assignments covered a typical geographic region, while others involved more general operational and administrative tasks. During the assignments, Mr. Plamondon was required to analyze significant amounts of information, summarize that information, write briefing notes and reports, make recommendations, and perform diplomatic duties. Mr. Plamondon also helped draft a memorandum to Cabinet. In other assignments, he performed more administrative duties.

9 According to Mr. Plamondon, his superiors were always satisfied with his performance, and his performance evaluations during the time in question did not indicate any particular problems.

B. July 1999 to October 2003

10 From July 1999 to July 2001, Mr. Plamondon was assigned to the Canadian embassy in Mexico. In addition to performing the typical duties of a consular officer, he was responsible for managing the human resources program for 75 locally employed staff. Those duties included managing several human resources management processes, including attendance, hiring, classification and compensation. That assignment was to have ended in October 2001, but the ambassador asked the employer’s headquarters to repatriate Mr. Plamondon in July 2001.

11 In December 2000, Mr. Plamondon was promoted to the FS-02 group and level. However, his duties remained the same. In January 2001, the employer evaluated the performance of his first year working at the embassy in Mexico. All the comments in that evaluation are positive about meeting deadlines and his judgment and about his ability to manage his workload, analyze information, and communicate effectively verbally and in writing. In July 2001, the employer evaluated the performance of the second year of his assignment to Mexico. Overall, the comments were the same as or similar to those of the previous evaluation report. However, the employer wrote that Mr. Plamondon had to discuss sensitive matters with management before taking action or sending correspondence or messages to staff. According to Mr. Plamondon, that comment was not justified because it was based on a single incident in which he suggested to the ambassador that he not move forward with a staffing action that did not comply with the rules and procedures governing ethics and conflicts of interest.

12 Mr. Plamondon’s Mexico assignment was supposed to end in October 2001. However, he was repatriated to Ottawa in July 2001. According to him, the decision to end his assignment early came from the ambassador’s intervention because he no longer wanted Mr. Plamondon with him at the embassy in Mexico. Mr. Plamondon asked in vain for the ambassador to reconsider his decision. Mr. Plamondon was not assigned any work from July to October 2001.

13 Between October 2001 and October 2002, Mr. Plamondon was assigned to the Francophonie Affairs Division. He evaluated projects, wrote briefing notes, prepared ministerial visits and performed other foreign service duties. No document was adduced at the hearing about Mr. Plamondon’s performance during that period.

14 From October 2002 to September 2003, Mr. Plamondon worked as a policy officer in the International Crime and Terrorism Division. The director, Terry Cormier, evaluated Mr. Plamondon’s performance. Mr. Cormier determined in his overall evaluation that Mr. Plamondon had to improve his performance. Mr. Cormier wrote specifically that Mr. Plamondon had difficulty identifying and evaluating relevant elements and drawing appropriate conclusions. He also wrote that Mr. Plamondon had difficulty meeting deadlines and following up on things. Mr. Plamondon did not deny reading the report but did not sign it. He indicated to Mr. Cormier that he disagreed with the report’s content, but he did not challenge it via a grievance or in any other way.

C. October 2003 to November 2004

15 Given the employer’s perceived problems with Mr. Plamondon’s performance in his earlier assignment, in October 2003 the employer assigned him only part of the tasks normally performed by an employee at the FS-02 group and level. Under the supervision of Mr. Ruddock, Pan-African Affairs Coordinator, Mr. Plamondon’s first task was to update documents on the website about the 45 countries of sub-Saharan Africa. According to Mr. Ruddock, Human Resources paid Mr. Plamondon’s salary at that time, rather than the division for which he worked. The duties in question had been created especially for Mr. Plamondon under a program designed for employees experiencing performance problems. The purpose of the program was to place employees under the supervision of experienced colleagues, who could better identify the source of the performance issues and intervene when necessary.

16 A work plan was drawn up for Mr. Plamondon and was given to him at the start of his assignment. He agreed with its content. Mr. Ruddock also provided him with detailed instructions about his specific expectations for the 45 documents to be written. The employer also provided Mr. Plamondon with a coach to help him improve his writing abilities. According to Mr. Plamondon, the coach’s support was short-lived because that individual quickly realized that Mr. Plamondon did not need any help with his writing. Earlier, in July 2003, Mr. Plamondon had asked to take a few days of writing training at the University of Ottawa. The employer never acted on his request.

17 On May 7, 2004, Mr. Ruddock prepared an interim evaluation of Mr. Plamondon’s performance containing information that he said he discussed with Mr. Plamondon. He gave Mr. Plamondon a copy of the evaluation on May 11, 2004. However, Mr. Ruddock did not use the employer’s evaluation form. According to Mr. Ruddock, Mr. Plamondon’s performance during that time was largely satisfactory except for difficulties meeting deadlines, taking initiative and maintaining a normal work pace.

18 According to Mr. Ruddock, Mr. Plamondon did not perform all the duties normally assigned to an officer at the FS-02 group and level. Despite that fact, his productivity was low during part of the period in question. At the May 11, 2004 meeting, the employer informed Mr. Plamondon that, if his performance did not improve to the level expected of an employee at the FS-02 group and level, other options might be considered, including a secondment to another department or a demotion.

19 Mr. Ruddock wrote Mr. Plamondon’s final performance evaluation in January 2005. The comments were generally comparable to those of the May 2004 evaluation. Mr. Ruddock added that Mr. Plamondon had difficulty distinguishing essential information from less important information when writing documents. Under cross-examination, Mr. Ruddock admitted that he did not receive from human resources specialists any formal methodology or standards for assessing Mr. Plamondon’s performance. He testified that Mr. Plamondon did not agree with most of the negative comments in the evaluation. However, he did not file a grievance or complaint to challenge the content or to request a re-evaluation.

D. November 2004 to July 2005

20 At the end of November 2004, Mr. Plamondon was assigned to the Central America and Antilles branch under the supervision of Mr. Charron, who was also an FS-02. In October 2004, Sue Ann Gervais, from Human Resources, informed Mr. Charron that Mr. Plamondon would be assigned to his section and that he was to supervise him. Ms. Gervais then explained to Mr. Charron that Mr. Plamondon had experienced performance difficulties in past assignments. Mr. Charron did not have access to Mr. Plamondon’s older evaluations. Ms. Gervais asked him to assign Mr. Plamondon the duties normally assigned to an officer at the FS-02 group and level. During the first weeks of the assignment, Ms. Gervais and Mr. Charron discussed with and explained to Mr. Plamondon the purpose of the assignment, which was to assess his ability to function satisfactorily in an FS-02 position. In addition to supervising Mr. Plamondon, Mr. Charron also supervised a junior officer classified at the FS-01 group and level and a trade officer classified at the CO-02 group and level.

21 Around April 15, 2005, Mr. Charron prepared an interim report assessing Mr. Plamondon’s performance. He stated that he discussed its content with Mr. Plamondon. However, Mr. Plamondon stated that Mr. Charron had shown him a copy of the report but that he had not been open to discussion. Mr. Charron testified that he had discussed Mr. Plamondon’s performance issues with him throughout the evaluation period. In the report, Mr. Charron wrote that Mr. Plamondon regularly needed more time to complete his assigned tasks than an experienced officer normally would. He provided specific examples, with which Mr. Plamondon expressed disagreement in his testimony. Mr. Charron also wrote that it was often necessary to apply pressure to Mr. Plamondon for him to meet deadlines and that it was difficult to assign him several tasks at the same time. According to Mr. Charron, one of the factors explaining Mr. Plamondon’s failure to meet deadlines was his tendency to expand his area of research beyond the topic to be covered, sometimes including superfluous or useless information in the prepared material. Mr. Charron also testified that, in certain situations, Mr. Plamondon was provided detailed instructions about the expected content. Mr. Plamondon did not file a grievance or object in any way to the content of the April 15, 2005 performance report.

22 In July 2005, Mr. Charron left his position. He wrote a report on Mr. Plamondon’s performance from April 15, 2005 to July 22, 2005. Mr. Charron testified that the information contained in that report was discussed informally and on an ongoing basis with Mr. Plamondon even though the report was not given to him during the time in question. Mr. Plamondon testified that he did not receive a copy of that report until March 2006. In it, Mr. Charron noted a number of Mr. Plamondon’s positive accomplishments. He also wrote that Mr. Plamondon continued to carry out superfluous research as part of his work and to experience problems working in an environment with a large amount of easily accessible information. Mr. Charron also wrote that Mr. Plamondon seemed unable to differentiate between essential and irrelevant information, to perform tasks within a reasonable time and to demonstrate the initiative and judgment normally expected of an officer at his level. Mr. Plamondon did not file a grievance or contest in any way the content of the July 2005 performance report after receiving it in 2006.

23 Mr. Charron testified that, for the eight months he supervised Mr. Plamondon, Mr. Plamondon performed substantially below the level expected of an FS-02 officer. Under cross-examination, Mr. Charron admitted that he did not use formal standards to assess Mr. Plamondon’s performance. It should be noted that FS-02 positions were reclassified to the FS-03 group and level in 2005. Thus, since 2005, Mr. Plamondon held a position at the FS-03 group and level.

E. August 2005 to September 2007

24 After Mr. Charron left, Mr. Plamondon worked unsupervised until Mr. Riel arrived. Mr. Riel supervised Mr. Plamondon from February 2006 to July 2007. From the beginning of August 2007 to the end of September 2007, Ms. Kutz and Ms. Wayand supervised Mr. Plamondon.

25 In his testimony, and in the documents adduced at the hearing, Mr. Riel described Mr. Plamondon’s performance issues. Mr. Riel stated that he discussed the performance issues with Mr. Plamondon on an ongoing basis. Each shortcoming was followed by a discussion or a written message to identify the issue and the solution. According to Mr. Riel, Mr. Plamondon’s main problems were his lack of judgment, his failure to meet deadlines and to manage priorities, his end products being of poor quality, and his tendency to include irrelevant information.

26 Mr. Riel discussed Mr. Plamondon’s performance with him on April 28, 2006. He explained to him that he did not always meet his deadlines and that he often submitted documents at the last minute. Mr. Riel also informed Mr. Plamondon that his documents were too long, too anecdotal, poorly written, and full of errors and irrelevant information. Mr. Riel testified that he met with Mr. Plamondon at the end of August 2006 and informed him that the employer might take action against him if his performance did not improve. In his testimony, Mr. Riel mentioned several delays in Mr. Plamondon’s work after August 2006.

27 In an effort to correct Mr. Plamondon’s performance deficiencies, the employer established a performance management plan (PMP) for April 12, 2007 to July 4, 2007. A copy of the plan was given to Mr. Plamondon and was discussed with him at the beginning of the period in question. According to Mr. Riel, Mr. Plamondon signed the document in front of him. However, the copy of the document adduced at the hearing was not signed. Before the PMP was implemented, Mr. Plamondon was temporarily assigned to Georgetown for three weeks in March 2007 to a position involving mainly logistics and administration. According to the information Mr. Riel received and to Mr. Plamondon’s testimony, Mr. Plamondon’s performance during that assignment was very good.

28 The plan begins with a description of Mr. Plamondon’s performance difficulties between April 2006 and March 2007. It then states the employer’s expectations for the covered period, including meeting deadlines set by superiors, following up on files with clients, considerably improving the quality of the written product, including concise and relevant information in written documents, and showing initiative to resolve problems. The PMP included a weekly meeting to monitor Mr. Plamondon’s performance and a monthly performance evaluation. According to Mr. Riel, the weekly meetings were held on Fridays. The PMP also states that the employer is able to take additional action, up to and including termination for unsatisfactory performance, should Mr. Plamondon not achieve the expected performance level.

29 On June 5, 2007, Mr. Riel provided written feedback to Mr. Plamondon about his performance under the PMP. Mr. Riel pointed out that, although Mr. Plamondon had met the vast majority of his deadlines, some deadlines had been missed. Mr. Riel also wrote that the quality of the work had often been inadequate, even though there had appeared to be fewer superfluous details. Mr. Riel acknowledged that Mr. Plamondon was making an effort but concluded that he had not really been assessed as an employee at the FS-03 group and level. According to Mr. Riel, Mr. Plamondon was not at that time able to satisfactorily perform the duties of an FS-03 because there were many deficiencies in his work. He stated that Mr. Plamondon was performing below the level of a new employee at the development level.

30 On July 27, 2007, Mr. Riel provided Mr. Plamondon with a second written report on his performance under the PMP. That feedback covered the six weeks of work since the June 5, 2007 report. Mr. Riel stated in the report that Mr. Plamondon had met the due dates. However, according to Mr. Riel, the quality of the written communications had been mediocre and had been at a level unacceptable for an FS-03. In addition, one of the instructions given for revising the Web pages had not been followed. Furthermore, the information on the Web pages was not consistent and contained many errors. Mr. Riel also pointed out that Mr. Plamondon made errors of judgment, and on that point, he referred to notes sent directly to the Privy Council Office or inappropriately to several parties without going through the normal communication channels. Mr. Riel recommended to Mr. Plamondon that he focus on his strengths to examine his options and reorient his career. In response to Mr. Riel’s feedback, Mr. Plamondon wrote to him, stating that he acknowledged his shortcomings but that he believed that he deserved a better overall assessment. However, he did not object to Mr. Riel’s evaluation by filing a grievance or in any other way.

31 After Mr. Riel left in July 2007, Ms. Kutz directly supervised Mr. Plamondon for three weeks in July and August 2007. Ms. Kutz was the director of the section in which Mr. Plamondon worked. Then, in September 2007, Ms. Wayand supervised him; she reported to Ms. Kutz. Ms. Wayand did not testify at the hearing. The employer adduced evidence of Mr. Plamondon’s final performance evaluation under the PMP, which covered April 13, 2007 to September 30, 2007. According to Ms. Kutz, a human resources employee prepared that document. Ms Kutz, Mr. Riel and Ms. Wayand collaborated on it. However, Ms. Kutz was the only person to sign it. That evaluation generally identified the same deficiencies in Mr. Plamondon’s performance as the earlier evaluations. Ms. Kutz concluded that Mr. Plamondon was unable to demonstrate during the period in question that he was able to carry out the duties of an employee at the FS-03 group and level. Mr. Plamondon testified that he did not learn of the existence of that evaluation until 2011 and that he was never given a copy of it.

F. October 2007 to January 2009

32 From the evidence adduced, I am unable to determine what Mr. Plamondon did between October and December 2007. However, it is clear that, between December 2007 and January 21, 2009, the date of his termination, the employer did not assign him any duties. According to Mr. Pagé’s testimony, the employer paid Mr. Plamondon during that period without assigning him work so that he would find a position in the department or elsewhere. At that time, Mr. Pagé was responsible for assigning rotational employees. He met with Mr. Plamondon in December 2007 and informed him that the PMP had not produced the desired results. Then, in early 2008, he told Mr. Plamondon that he did not meet the requirements of his position, that his salary would continue to be paid for three months and that he had to find another job. The employer provided him with an email address and a Blackberry and allowed him to retain his work access card. The three months passed. Mr. Plamondon retained that status until January 2009.

33 The employer offered Mr. Plamondon coaching to assist him in his search for a new job. According to him, the assistance offered by the employer was limited to some advice and explanations about electronic tools, such as Publiservice. After that, Mr. Plamondon was left on his own to find a job. He met with several directors, attempting to obtain a position. According to him, human resources personnel allegedly told one of the directors that he could not hire Mr. Plamondon. Also, in January 2008, Mr. Plamondon believed that he was unable to obtain an assignment abroad with Canadian Heritage because of the intervention of Mr. Pagé, who allegedly blocked his candidacy. Mr. Pagé explained that, for such temporary assignments with other departments, he makes recommendations to the department. In Mr. Plamondon’s case, Mr. Pagé admitted that he did not recommend him because of his past performance issues.

III. Summary of the arguments

A. For the employer

34 The legal framework for an adjudicator’s jurisdiction in cases of terminations for unsatisfactory performance is clearly defined in section 230 of the Act. Under that framework, the adjudicator’s jurisdiction is not to decide whether the employer made the correct decision by terminating Mr. Plamondon’s employment but rather to determine whether it was reasonable for the employer to consider his performance unsatisfactory. On that point, the employer referred me to Raymond v. Treasury Board, 2010 PSLRB 23.

35 The evidence adduced revealed that it was reasonable for the employer to consider Mr. Plamondon’s performance unsatisfactory. In his evaluation of Mr. Plamondon’s performance, Mr. Cormier noted problems with analysis and meeting deadlines. He raised those problems with Mr. Plamondon. Subsequently, Mr. Ruddock noted the same problems, along with Mr. Plamondon’s difficulty distinguishing important and unimportant information. He discussed those deficiencies with Mr. Plamondon. Later, Mr. Charron observed substantially the same issues with Mr. Plamondon’s performance and discussed them with him.

36 Mr. Riel also observed weaknesses in Mr. Plamondon’s performance. In April 2007, under supervision first by Mr. Riel and then by Ms. Kutz and Ms. Wayand, the employer established and then implemented a PMP for Mr. Plamondon. The PMP was discussed with him, and he was clearly informed of the expected results.

37 For four years, the employer raised Mr. Plamondon’s performance problems and tried, in vain, to help him resolve them. It then gave him over a year without work so that he could find another position. He did not find one, and the employer decided to terminate him.

38 Considering the evidence adduced, the adjudicator’s jurisdiction, which is limited to determining whether it was reasonable for the employer to consider Mr. Plamondon’s performance unsatisfactory, and the jurisprudence for this type of case, it is clear that the adjudicator must dismiss the grievance. The employer also pointed out that it had no obligation to demote Mr. Plamondon or to make any effort to help him find another job. The adjudicator does not have jurisdiction to examine that question. The employer also referred me to the document entitled, Foundation Framework for Treasury Board Policies.

B. For Mr. Plamondon

39 Although section 230 of the Act sets out an adjudicator’s jurisdiction, employees are still entitled to fair treatment. Furthermore, the adjudicator must consider the fact that Mr. Plamondon is an employee with 18 years of service with the employer.

40 The employer was obliged to act fairly, without discrimination and in good faith toward Mr. Plamondon. As mentioned in Raymond, the employer was required to set appropriate performance standards and to communicate them clearly to Mr. Plamondon. It was also required to provide him with training and mentoring to achieve the set standards. Those requirements are not new, and they apply to this type of termination. On that point, Mr. Plamondon referred me to Yellowknife (City) v. Public Service Alliance of Canada (2010), 192 L.A.C. (4th) 347.

41 The employer adduced evidence that Mr. Plamondon’s supervisors were unsatisfied with his performance, but it did not adduce the standards or specific criteria used to reach that conclusion. Indeed, according to several witnesses, no such criteria existed. In the absence of specific criteria to evaluate performance, the employer could not conclude in good faith that Mr. Plamondon’s performance was unsatisfactory. Reaching such a conclusion required clear performance criteria communicated to the employee.

42 The other shortcoming in the employer’s evidence is that none of the witnesses was able to comment on Mr. Plamondon’s final performance evaluation or to provide an overall evaluation of his performance for the few years of the period covered by the employer’s evidence. Indeed, each supervisor’s evaluation was limited to the time he or she supervised Mr. Plamondon.

43 Before the incident with the ambassador to Mexico, the employer considered Mr. Plamondon’s performance satisfactory and that he had all the skills to do his work. From then on, the employer put his performance under the microscope but without any specific criteria.

44 The employer was obliged under its own policy to make an effort to find a position for Mr. Plamondon, which it did not do. It simply gave Mr. Plamondon a Blackberry and an electronic address and left him to sort it out for himself. It also did not make any effort to find him a position at a lower level. Mr. Pagé even prevented him from accessing a position at Canadian Heritage. On that point, Mr. Plamondon referred me to the employer’s document entitled, Guidelines for Demotion/Termination of Employment for Unsatisfactory Performance.

45 Therefore, Mr. Plamondon’s grievance should be allowed, and the adjudicator should order his reinstatement in his position with compensation for the financial losses he has suffered since his termination.

IV. Reasons

46 For this case, which deals with the termination of an employee for unsatisfactory performance, my jurisdiction as an adjudicator is set out by the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA), and by section 230 of the Act.

47 The FAA provides the employer with the authority to terminate an employee when it is of the opinion that the employee’s performance is unsatisfactory. Section 230 of the Act sets out the jurisdiction of an adjudicator hearing a grievance dealing with a termination for unsatisfactory performance. For clarity, I again reproduce section 230, as follows:

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

48 Under such a legal framework, the adjudicator’s role is to determine, based on the evidence adduced, whether it was reasonable for the employer to deem the employee’s performance unsatisfactory. Should the adjudicator find that the employer was reasonable in its assessment of the employee’s performance, the adjudicator must dismiss the grievance. For example, the adjudicator cannot decide that the employer’s decision to terminate the employee rather than demote him was not justified or reasonable or that the employer failed in its obligations by not helping the employee find another position. Should the adjudicator decide that the employer’s assessment of the employee’s performance was reasonable, then the adjudicator’s jurisdiction is exhausted.

49 As the employer argued in Raymond, the adjudicator’s role is comparable to a higher court sitting in judicial review that examines the reasonableness of submitted decisions. Therefore, under section 230 of the Act, an adjudicator should intervene only if the employer’s performance assessment is unreasonable within the meaning given to that concept in the context of a judicial review. The Supreme Court of Canada commented as follows about the meaning of the reasonableness of a decision at paragraph 47 of Dunsmuir v. New Brunswick, 2008 SCC 9:

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

50 Therefore, I must decide whether, based on the evidence adduced, the employer’s conclusion that Mr. Plamondon’s performance was unsatisfactory was one of the possible acceptable conclusions to which it could have arrived. That does not mean that it could not have arrived at a different conclusion but rather that the conclusion was possible. To conclude that the conclusion or decision was reasonable, it must have been justified and made transparently and intelligibly.

51 I agree with the adjudicator in Raymond that an assessment of an employee’s performance apparently made in bad faith, arbitrarily or in a discriminatory manner, or in a manner unrelated to the position, cannot be deemed reasonable. Moreover, to conclude that an employer reasonably assessed an employee’s performance, the employer must necessarily have informed the employee of the appropriate performance standards and have provided him or her with the tools, training or mentoring to achieve those standards.

52 Given those legal considerations, and based on the evidence adduced before me by the parties, I find that it was reasonable for the employer to deem Mr. Plamondon’s performance unsatisfactory. The employer’s decision was justified and was made transparently and intelligibly. Therefore, I dismiss Mr. Plamondon’s grievance against the employer’s decision to terminate his employment.

53 It appears that Mr. Plamondon performed satisfactorily from 1989 to 2001. The first problems appeared in 2001. His supervisor at the embassy in Mexico criticized him for not discussing sensitive matters with him. I will not consider that criticism because Mr. Plamondon denied acting improperly in that situation, and the employer did not call any witnesses to contradict him.

54 The real problems began in 2002-2003. In his performance evaluation, Mr. Cormier found that Mr. Plamondon had difficulty identifying relevant elements, drawing appropriate conclusions, meeting deadlines and following up. In 2004, in an initial evaluation, Mr. Ruddock concluded that Mr. Plamondon had problems meeting deadlines, taking initiative and maintaining a normal work pace. In a second evaluation, Mr. Ruddock noted substantially the same deficiencies and mentioned that Mr. Plamondon had problems distinguishing essential from less important information. Mr. Plamondon did not contest those evaluations. Nothing indicates to me that their information is not valid.

55 In 2004-2005, Mr. Charron identified virtually the same problems as Mr. Ruddock had about Mr. Plamondon’s performance, and he informed him accordingly. Mr. Charron’s opinion was that Mr. Plamondon took too long to carry out his duties, had problems meeting deadlines and often included superfluous information in his analyses. From February 2006 to March 2007, Mr. Riel observed that Mr. Plamondon did not always meet deadlines and that he wrote documents that were too long and that contained anecdotal information and poor quality content.

56 In April 2007, the employer developed a PMP that included specific objectives to be achieved; if they were not, it specified that it might take action against Mr. Plamondon, including termination. From April 2007 to July 2007, Mr. Riel was responsible for implementing the plan. He noted that Mr. Plamondon improved with meeting deadlines, but Mr. Riel observed that Mr. Plamondon’s written communications were mediocre, sometimes he did not follow instructions and he made errors in judgment. Ms. Kutz and Ms. Wayand then took over for the last months of Mr. Plamondon’s assignment. Given the short time for which they supervised him Ms. Wayand not testifying at the hearing and the evaluation report prepared for that period never being discussed with Mr. Plamondon, I will not consider the evidence adduced by the employer for the period from the end of July 2007 to the end of September 2007. However, that does not change my findings in any way.

57 To summarize, between October 2002 and July 2007, the employer noted problems with Mr. Plamondon’s performance. Mr. Ruddock, Mr. Charron and Mr. Riel all testified that, between 2003 and 2007, they regularly discussed with Mr. Plamondon his performance problems and that they regularly shared their expectations with him. It is true that the employer did not produce evidence of specific, detailed performance standards that Mr. Plamondon did not meet, and it did not necessarily have to. Submitting his work on time, meeting deadlines, respecting the hierarchy, submitting error-free documents, distinguishing important from less useful information during analyses and following instructions when preparing documents are all performance standards regularly communicated to Mr. Plamondon. Those are obvious standards that do not need to be written down or set out in documents or to be the object of detailed evaluation criteria. It was enough for his supervisors to remind Mr. Plamondon that they needed to be respected, which they regularly did.

58 Mr. Plamondon worked for about 10 years with no performance problems. I determined from that that he received the necessary training to be successful at his work, especially since, in his testimony and in the arguments, he did not mention that he lacked the training to provide satisfactory performance. Nor did he indicate that his performance problems resulted from tools or mentoring that were inadequate for his work. Indeed, the evidence was to the contrary.

59 Mr. Plamondon argued that the employer made no efforts to find him another position, in accordance with the Treasury Board policy. Examining that issue exceeds my mandate, which is to examine whether it was reasonable for the employer to decide that Mr. Plamondon’s performance was unsatisfactory. I have already responded in the affirmative to that question.

60 [60]  For all of the above reasons, I make the following order:

V. Order

61 The grievance is dismissed.

July 13, 2011.

PSLRB Translation

Renaud Paquet,
adjudicator