FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Jocelyne Lavoie (“the grievor”) was an employee of the Canada Revenue Agency (“the employer” or “the Agency”). She was hired as a contract collections officer on May 28, 2007. On November 2, 2007, while on probation, the employer informed her that it was terminating her employment as of November 16, 2007 under paragraph 51(1)(g) of the Canada Revenue Agency Act (CRAA). The employer provided as the reason for her rejection the fact that she had not achieved the performance objectives required for her position “[translation] despite everyone’s efforts.”

2 In its letter of rejection, the employer informed the grievor as follows of her right of recourse to challenge its decision:

[Translation]

…

As provided in paragraph 8.1.7 of the Staffing Program, you are entitled to request individual feedback from the undersigned within seven (7) calendar days of the date of this notice after which, if you consider it necessary, you may request a decision review from Ms. Pauline Bachant, Assistant Director, Client Services and Collections, within seven (7) calendar days of your individual feedback response.

The forms to be completed for your request are available on Infozone …

…

[Emphasis added]

3 The grievor exercised her right to individual feedback, which she received on November 22, 2007 from Ms. Bachant. On January 22, 2008, Ms. Bachant refused to review the decision to reject the grievor on probation. On February 28, 2008, the grievor filed two grievances, one contesting the employer’s decision to reject her (PSLRB File No. 566-34-2990) and requesting reinstatement in her duties and the other contesting the employer’s decision review letter (PSLRB File No. 566-34-2989). The second grievance is worded as follows:

[Translation]

I object to the employer’s decision review letter, which refers to the Staffing Program. I note that training and probationary employment procedures were not followed.

4 The grievor’s requested corrective measures in that grievance reads in part as follows:

[Translation]

I request that I be reinstated in my job retroactive to November 16, 2007 and that I receive full and complete training in accordance with the procedure. I request that I be re-evaluated on probation in accordance with the procedure.

…

5 On February 13, 2009, the Assistant Commissioner, Human Resources Branch, dismissed the two grievances on the grounds that, under subsection 208(2) of the Public Service Labour Relations Act (PSLRA), the grievor could not file a grievance against a rejection on probation. The grievor referred her two grievances to adjudication on July 8, 2009.

II. Employer’s objection

6 The employer argued that the Public Service Labour Relations Board (PSLRB) did not have jurisdiction to hear the grievor’s grievances under subsection 208(2) of the PSLRA, which prohibits filing a grievance if another administrative procedure for redress is provided under any Act of Parliament. The employer explained that, under subsection 54(1) of the CRAA, the Agency had developed and administered its own staffing program, which included an administrative recourse process for employees, and that that program provided a means for resolving all staffing matters. According to the employer, the probationary period is an integral part of staffing.

7 The employer submitted further that the probationary period was part of section 8-1 of its Staffing Program (“the Staffing Program”). The grievor used that process, and consequently, she was unable to use the grievance process. In support of its position, the employer cited Johal v. Canada Revenue Agency, 2008 FC 1397, 2009 FCA 276.

8 For the grievance about the letter reviewing the decision to reject the grievor on probation, the employer stated that the grievor did not have the right to file a grievance contesting the administrative recourse offered to her, which was the review of the employer’s decision. The employer cited Dhudwal et al. v. Canada Customs and Revenue Agency, 2003 PSSRB 116, in support of its position and, specifically, paragraph 25, at which the adjudicator states that “… the manner in which the administrative procedure is provided cannot be grieved. This is a matter for judicial review in the Federal Court.”

A. Grievor’s response to the employer’s objection

9 First, the grievor responded that the Staffing Program and its “Annex L,” the [translation] Directive on Staffing Recourse (“the Directive”), do not cover a grievance about a probationary period. She stated that section 53 of the CRAA deals with the employer’s ability to make appointments, namely, selecting, evaluating, hiring and placing those persons necessary to conduct its business, while section 54 deals with the recourse offered under the staffing process. According to the grievor, the probationary period has little significance in the Directive because evaluation standards, procedures and conditions are not stipulated. The grievor argued further that, since the CRAA is silent on that matter, contesting a rejection on probation was excluded from the exclusive recourse process set out in the Directive. The grievor stated that the previous version of the Directive, dated September 19, 2007, applied in this case and not the January 31, 2008 version on which the employer relied. In support of her position, she cited Dhudwal et al. and Lundin v. Canada Customs and Revenue Agency, 2004 PSSRB 167.

10 The grievor pointed out that the title of the January 31, 2008 version of the Directive was changed to read, [translation] Directive on Staffing and Evaluation Recourse. The grievor also argued that its content had been changed to expand the scope of the Staffing Program. She referred to the fact that the table of types of recourse, entitled “[translation] Staffing Process in Question” in the September 19, 2007 version, was changed to “[translation] Type of Staffing Measure” in the January 31, 2008 version. The grievor pointed out that, in the January 31, 2008 version, a new section about post-appointment situations had been added to the table of recourse that included, among other things, the rejection on probation of a permanent or temporary employee.

11 Second, the grievor argued that the Staffing Program, even if it dealt with post-appointment situations such as rejections on probation, did not automatically and specifically exclude recourse to the grievance and adjudication process set out in subsection 208(2) of the PSLRA. Indeed, the grievor made a distinction between the administrative recourse that applied to a staffing matter and the recourse for rejection on probation. She pointed out that the redress available under the Directive is not proportional to the ultimate consequence of termination. Consequently, the recourse provided under the Directive was not an administrative procedure for redress within the meaning of subsection 208(2).

12 Third, the grievor stated that the Directive was not recourse that allowed for real redress. On that point, the grievor argued that the Directive did not provide access to an independent third party to hear complaints of rejection on probation. The grievor believes that an internal process is not impartial because the person providing the feedback was involved in the rejection decision and has no interest in reversing his or her own decision. The grievor argued that adjudication was the only appropriate recourse in the circumstances. She pointed out that the alternative, which was to ask for judicial review of the internal decision review, was not favourable to her because of the costs, long delays and legal fees, not to mention the burden of proof when the matter involved a disguised disciplinary measure. The grievor argued that the Directive did not provide for explicit corrective action, excluding adjudication, and reiterated that the recourse provided for staffing matters could not be expanded to include events occurring after the staffing process.

13 As for the grievance about the employer’s review letter, the grievor stated that she was contesting the letter itself and not the review recourse. She submitted further that the corrective measures sought in her two grievances were complementary; one asked for reinstatement in her duties, and the other asked that the reinstatement be conditional on a probation with “full and complete” training, following the standards and procedures.

B. Employer’s reply to the grievor’s response

14 Citing Hureau v. Treasury Board (Department of the Environment), 2008 PSLRB 47, the employer reiterated that, given that an administrative procedure for redress existed, the PSLRB did not have jurisdiction to hear the grievor’s grievances. The employer pointed out that the administrative recourses provided by the Staffing Program had their legal basis in subsections 53(1) and 54(1) of the CRAA. The employer cited Johal and explained that, when it created the CRAA, Parliament intended to create a complete labour relations regime to deal with all staffing matters. The probationary period and rejection during that period were essential elements of a single process. For that reason, the administrative recourses provided must be considered fully integrated into that process.

15 The employer argued that the Federal Court’s decision in Johal remained relevant even though it had been set aside by the Court of Appeal. It also argued that the circumstances that led to setting aside the trial court’s decision did not apply in this case. Furthermore, it submitted that the complainants in Johal did not have access to recourse under the Agency’s Staffing Program because only preferred status employees had recourse under a directive. In this case, following her rejection on probation, the grievor had access to an administrative procedure for redress through individual feedback and the decision review, of which she availed herself.

16 The employer cited Jacmain v. Canada (Attorney General) et al., [1978] 2 S.C.R. 15, in support of its position that an employer has considerable latitude to decide to terminate an employee on probation, and Hartley v. Treasury Board (Solicitor General), PSSRB File No. 166-02-17326 (19880308), in support of its position that an employer must be able to fully evaluate a probationary employee. The employer referred to Alberta v. Alberta Union of Provincial Employees, 2008 ABCA 258, for probation’s key role for both employees and employers.

17 The employer argued that, during a probationary period, an employee does not have access to the same level of procedural fairness as an employee with permanent status. Therefore, the employer has considerable latitude in its evaluation (see Palmer & Snyder (2009), Collective Agreement Arbitration in Canada, at 630).

18 Relying on Swan and McDowell v. Canada Revenue Agency, 2009 PSLRB 73, and on Malette v. Canada Revenue Agency, 2008 PSLRB 99, the employer argued that the administrative recourse created by the Directive remained outside an adjudicator’s jurisdiction because it involved only staffing matters.

19 Finally, the employer submitted that the only recourse for the grievor was an application for judicial review to the Federal Court, as stated in Dhudwal et al.

20 For those reasons, the employer asked for the dismissal of the grievor’s grievances.

III. Reasons

21 The grievances that are the subject of this reference to adjudication raise the following two questions:

• Is rejection on probation part of what is commonly called “staffing”?
• Does the recourse provided in the Directive for rejection on probation represent an administrative procedure for redress under any Act of Parliament?

A. Is rejection on probation part of what is commonly called “staffing”?

22 The employer stated that rejection on probation (and its recourse) is covered by the Staffing Program. The grievor argued that the Staffing Program does not cover rejection on probation and that the employer cannot simply add it if the legislation does not provide it.

23 Section 50 of the CRAA stipulates that the Agency is a separate agency under the PSLRA, while subsection 51(1) states that it exercises the following responsibilities with respect to human resources management:

51. (1) The Agency may, in the exercise of its responsibilities in relation to human resources management,

(a) determine its requirements with respect to human resources and provide for the allocation and effective utilization of human resources;

(b) determine requirements for the training and development of its personnel and fix the terms and conditions on which that training and development may be carried out;

(c) provide for the classification of Agency positions and employees;

(d) determine and regulate the pay to which persons employed by the Agency are entitled for services rendered, the hours of work and leave of those persons and any related matters;

(e) provide for the awards that may be made to persons employed by the Agency for outstanding performance of their duties, for other meritorious achievement in relation to those duties and for inventions or practical suggestions for improvements;

…

(h) determine and regulate the payments that may be made to Agency employees by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment; and

(i) provide for any other matters that the Agency considers necessary for effective personnel management, including terms and conditions of employment not otherwise specifically provided for in this subsection.

…

[Emphasis added]

24 The questions of appointments and recourses for appointments are dealt with as follows in subsections 53(1) and 54(1) of the CRAA:

53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.

(2) The Commissioner must exercise the appointment authority under subsection (1) on behalf of the Agency.

54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.

[Emphasis added]

25 The grievor submitted that the employer’s authority under subsection 53(1) of the CRAA is limited to selecting, evaluating and placing persons necessary to conduct its business, while section 54 is limited to the redress offered under the same process. In other words, she argued that the probationary period and, consequently, rejection on probation are not included in the concept of staffing.

26 The employer responded to that argument by stating that the probationary period and rejection on probation are elements that complete the staffing process. As follows, article 8.0 of the Staffing Program provides for post-appointment situations, including the probationary period:

[Translation]

8.1 Probationary period

8.1-1  The length of a probationary period at the CRA is as follows:

(a) A 12-month probationary period applies to all initial full-time or part-time appointments of an individual appointed from outside the CRA.

…

8.1-5  At any time during the probationary period and when justified, an authorized person may terminate an employee after providing appropriate notice.

8.1-6  The notice period will be two (2) weeks or, in the case of temporary employees, the remainder of the period of employment if less than two weeks.

8.1-7  An employee rejected on probation ceases to be an employee of the CRA at the end of the notice period, which begins on the day on which the authorized person communicates that notice in writing to the employee. Under exceptional circumstances, the authorized persons may award a lump sum in lieu of notice.

8.1-8  Employees rejected on probation have access to individual feedback followed by a decision review, in accordance with the CCRA Directive on Evaluation and Staffing Recourse.

27 The term “staffing” is not defined in the Staffing Program or in the Directive. To decide whether the probationary period and rejection on probation are part of staffing, I analyzed what comprises the concept of staffing from the statements in the Staffing Program and from external interpretation sources.

28 The employer’s Staffing Program, created on September 19, 2007 and in effect at the time of the grievor’s termination, states as follows:

[Translation]

Revenue Agency

Staffing Program

…

1.1-3  The Canada Revenue Agency Act (s. 53 of the CRAA) confers on the Commissioner the authority to make appointments and to delegate that authority to managers or other appropriate persons (s. 37 of the CRAA).

…

1.3 CRA staffing principles

1.3-1  The Staffing Program is governed by the staffing principles set out in the summary of the corporate plan (s. 49 of C-43). The CRA has the authority to appoint the persons it deems necessary to the proper conduct of its business (s. 53 of C-43)…

…

3.0 Delegation and accountability framework

3.1     Delegation of authority

3.1-1  The Commissioner is authorized to make appointments.

3.1-2  The Commissioner may authorize any person (referred to as “authorized persons”) to exercise the appointment authority or to make appointments under section 53 of the CRAA on behalf of the Commissioner (s. 37 of C-43).

…

[Emphasis added]

29 The Dictionnaire canadien des relations du travail (Dion) defines “staffing” as follows (this definition has also been adopted by the federal government’s terminology bank, Termium Plus):

[Translation]

A process including all the administrative actions taken to fill a vacant position in an administrative unit. Staffing includes certain activities that fall under personnel management, such as employee selection, placement, development and mobility.

[Emphasis added]

30 My view is that subsections 53(1) and 54(1) of the CRAA refer to the following management activities associated with recruiting and developing human resources: the selection of candidates and their hiring, integration, development and mobility.

31 Accordingly, in response to the first question, the act of rejecting an employee on probation is not part of what is commonly called “staffing.”

B. Does the recourse provided in the Directive for rejection on probation represent an administrative procedure for redress under any Act of Parliament?

32 If rejection on probation is not part of staffing, then the Directive has no legal basis and cannot be an “…administrative procedure for redress …under any Act of Parliament.”

33 Under subsection 208(2) of the PSLRA, an adjudicator’s jurisdiction is excluded as follows when an administrative procedure for redress is provided under any Act of Parliament:

208.(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

34 In other words, if another administrative procedure for redress exists, a grievor cannot file a grievance, and an adjudicator cannot hear it, since filing a grievance is a prerequisite to any reference to adjudication, as set out as follows in section 225 of the PSLRA:

225. No grievance may be referred to adjudication, and no adjudicator may hear or render a decision on a grievance, until the grievance has been presented at all required levels in accordance with the applicable grievance process.

35 Subsection 54(1) of the CRAA deals with the question of recourse in the following terms:

54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.

[Emphasis added]

36 That subsection raises the following two questions: (a) does the phrase “…including the appointment of, and recourse for, employees” limit the scope of the administrative recourse provided in subsection 54(1) of the CRAA only to appointments? And (b), does the Agency’s administrative procedure for redress meet the criteria developed in the case law for “real redress”?

37 For the first question, my opinion is that, given the earlier analysis of what comprises the concept of “staffing” and the following reasons, the meaning of subsection 54(1) of the CRAA cannot be expanded as the employer would like to include an administrative procedure for redress for rejection on probation.

38 As do the staffing matters provided for in subsections 53(1) and 54(1) of the CRAA, subsection 51(1) provides separately as follows measures that the Agency may take in disciplinary and non-disciplinary matters:

51. (1) The Agency may, in the exercise of its responsibilities in relation to human resources management,

…

(f) establish standards of discipline for its employees and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct and the circumstances and manner in which and the authority by which or by whom those penalties may be applied or may be varied or rescinded in whole or in part;

(g) provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed by the Agency and establish the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part…

39 Subsection 51(2) of the CRAA, which deals with the penalties that may be imposed, does not provide for any form of recourse in the case of a termination, which is explicitly provided for in subsection 54(1) as follows with respect to the Staffing Program:

51. (2) The Commissioner must apply the penalties, including termination of employment and suspension, under paragraph (1)(f) and provide for termination or demotion under paragraph (1)(g) on behalf of the Agency.

40 Therefore, my view is that paragraph 51(1)(g) and subsection 51(2) of the CRAA, which deal specifically with termination and suspension, take precedence over subsection 54(1), which addresses the staffing context. Although the word “including” is not restrictive, its juxtaposition with the words “the appointment” implies that the administrative procedures for redress in question in that subsection are limited to those included in the concept of staffing. I believe that, as the adjudicator decided in Lundin, the Directive serves only to establish that an employee rejected on probation can request individual feedback and a decision review. It does not prevent an employee from filing a grievance contesting his or her rejection on probation. On that point, the adjudicator in Lundin stated the following at paragraphs 75 and 77:

[75]   As clearly set out in the letter of rejection on probation (Exhibit E-2), Mr. Lundin was rejected on probation under paragraph 51(1)(g) of the CCRA Act. The provisions for establishing a recourse mechanism under the Act (subsection 54(1)) appear after the specific provisions for termination and refer directly to the appointment of employees. There is no recourse mechanism established under paragraph 51(1)(g). This does not mean that the employer cannot include rejection on probation in a staffing recourse mechanism, or that employees cannot use it to address concerns about their rejection on probation. “Individual feedback” under the policy is characterized in the directives as serving a dual purpose of recourse and career development and it may, in some cases, serve a useful purpose for both the former employee and the employer. However, the fact remains that the recourse mechanism was not created under the section of the CCRA Act that governs rejection on probation, and the inclusion of rejection on probation under this staffing recourse mechanism does not prevent the filing of a grievance.

…

[77]   The CCRA staffing program (Exhibit E-8) sets out the employer's policy on probation (at section P8.0) and states that employees rejected on probation have access to individual feedback followed by decision review, in accordance with the CCRA directive on Recourse for Staffing. The policy statement on probation does not state that an employee cannot file a grievance against a rejection on probation; it merely states that employees rejected on probation “have access to” individual feedback followed by decision review. If the right to grieve were intended to be removed, the policy would have made this explicit.

41 As for the second question, which is whether the administrative procedure for redress established by the Agency meets the criteria developed by the case law for “real redress,” I have carefully reviewed the case law cited by the employer.

42 In Johal, the Federal Court ruled that Parliament intended to provide the Agency with the authority to create an exclusive regime to deal with staffing matters and that its intention was not to submit those matters to the grievance process set out by the PSLRA and the collective agreement. In that case, the applicants requested a review of a decision about an appointment that was made without a competition. (As mentioned earlier, the Federal Court of Appeal set aside the Federal Court’s decision.) A similar decision was made in Anderson v. Canada Customs and Revenue Agency, 2003 FCT 667 (cited in Johal in support of that decision). The Federal Court dismissed the challenge of the applicant who had been excluded from the selection process for a team leader position. However, Anderson made the following distinction between the relative importance of a staffing process and termination:

[42]  Turning to the third factor, the importance of a decision of this type to an individual is significant on a personal level. However, a decision as to whether one meets the pre-requisites for a position does not impact upon a person to the same extent as a decision where the right to continue in employment is at stake. An applicant generally has no right to fill a new position, and may apply for the same or a different position in the future. When one is found not to meet the relevant pre-requisites what is lost is the right to be assessed against the qualifications for the position, along with all others who meet the pre-requisites for the position.

[Emphasis added]

Unfortunately, the Federal Court did not elaborate on its thinking about that distinction beyond that paragraph.

43 The employer cited the following decisions:

• Hureau: The grievor filed a staffing grievance about obtaining an internal position rather than using the complaint process provided under the Public Service Employment Act.

• Swan and McDowell: The grievors complained about having access to neither an official feedback process nor the opportunity for review with respect to a staffing process.

• Malette: The grievor contested the selection board’s decision to refuse his readmission to a staffing process.

• Dhudwal et al.: Based on an evaluation made during the staffing process, it was determined that the grievors were not qualified.

None of those decisions deals with rejection on probation. Therefore, they are not useful in addressing the present question.

44 In addition to the proportionality of the recourse, another criterion established under the case law deals with the nature of the recourse that the employee might obtain.

45 In Sagkeeng Alcohol Rehab Centre Inc. v. Abraham, [1994] 3 F.C. 449 (T.D.), the Federal Court found that, with respect to the Canada Labour Code, the other administrative procedure for redress “…cannot be based on a different cause of action or provide a lesser remedy than the procedure under the Code.” The Court added as follows:

…

In my view, it must be demonstrated, by the party seeking to rely on paragraph 242(3.1)(b), that under another statutory provision, there exists a procedure for aggrieved parties to pursue a claim for unjust dismissal and obtain a remedy the same as an adjudicator could grant under subsection 242(4) of the Canada Labour Code. The applicant has not demonstrated this to be so.

While duplication of proceedings should be avoided, and paragraph 242(3.1)(b) appears to have been enacted for that purpose, (perhaps among others), I am certain that Parliament did not intend that aggrieved parties should be forced to run the risk of their unjust dismissal claim being prejudiced by application of this provision. For paragraph 242(3.1)(b) to apply, the alternative procedure for redress must be clearly duplicative.

…

[Emphasis added]

46 In Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354 (C.A.), the Federal Court of Appeal (Strayer, J.) cited the previous extract and added the following:

…

While not questioning the result in that case [Sagkeeng Alcohol Rehab Centre Inc.] …I have some reservations as to his analysis of the meaning of “a procedure for redress” of a “complaint” as referred to in the statute. I believe that the complaint (i.e. the factual situation complained of) must be essentially the same in the other “procedure for redress”. But I doubt that the remedies have to be as good or better under the other provision in order to oust the jurisdiction of the adjudicator under paragraph 242(3.1)(b). That paragraph does not require that the same redress be available under another provision of the Canada Labour Code or some other federal Act. What it requires is that in respect of the same complaint there be another procedure for redress. The point is even clearer in the French version which simply requires that there be “un autre recours”. I do not believe that for there to be a “procedure for redress …elsewhere” there must be a procedure which will yield exactly the same remedies, although no doubt that procedure must be capable of producing some real redress which could be of personal benefit to the same complainant.

…

[Emphasis in the original]

47 In Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 (C.A.), the Federal Court of Appeal expressed its agreement as follows:

…

[12] …The Trial Division agreed, dismissing the application for judicial review relying on the Byers Transport case, explaining …:

From the words of [Justice Strayer in Byers, infra] it appears that the administrative procedure for redress referred to in subsection 91(1) does not have to be identical to the grievance procedure mandated by the PSSRA. In addition, the remedies given in the two procedures do not have to be identical; rather the party should be able to obtain “real redress” which could be of benefit to the complainant. All that is required under s. 91(1) is the existence of another procedure for redress, where the redress that is available under that procedure is of some personal benefit to the complainant.

…

[Emphasis in the original]

48 In Johal, the Federal Court of Appeal also referred as follows to Byers:

[35] Accordingly, the appellants are not barred by the text of subsection 208(2) from presenting their grievance under subsection 208(1). As Justice Strayer stated in Byers (at para. 39), for a remedy provided under another statute to exclude a person from presenting a grievance under subsection 208(1) “the procedure must be capable of producing some real redress which could be of personal benefit to the complainant” (emphasis added).

[Emphasis in the original]

49 In summary, although the administrative procedure for redress need not be identical to the grievance process and although the corrective measures do not have to be the same, there must be real redress that is of the same type as provided under the grievance process and that benefits the employee.

50 The Directive in force at the time of the grievor’s rejection made the following distinction with respect to the proportionality of the recourses provided under its policy: “[translation] The type of recourse offered is proportional to the nature and importance of the staffing decision, as described in the following table …” However, the table does not refer to rejection on probation.

51 In the Program’s provisions, the Directive provides for individual feedback and decision review in the following circumstances:

[Translation]

Individual feedback applies to such measures as:

• contract extensions;
• rehiring of temporary employees;
• temporary lateral transfers; and
• the prerequisites phase of the selection process.

…

The decision review process applies to such circumstances as:

• acting appointments (more than 6 months);
• permanent lateral transfers;
• promotions by reclassification;
• promotions within a learning program; and
• the evaluation phase of the selection process to individuals whose concerns were not addressed by the individual feedback process.

52 Those provisions make no mention of rejection on probation. Moreover, section 3 of the Directive states that the decision review process is limited to reviewing whether the employee was subject to arbitrary treatment. The term “arbitrary” is defined as follows in the Directive:

[Translation]

The word “arbitrary” is defined as follows: “In an unreasonable manner, done capriciously; not done or acting according to reason or judgment; not based on rationale or on established policy; not the result of a reasoning applied to relevant considerations; discriminatory (i.e., difference in treatment or denial of normal privileges to persons because of their race, age, sex, nationality, religion or union affiliation.)”

[Emphasis in original]

53 Nothing in the Directive indicates that the person reviewing the decision has the authority to reinstate the employee. The authority of the reviewer is limited to the following:

[Translation]

(a) Individual feedback

…

Will take the necessary corrective action, if applicable, including allowing the employee to remain a candidate for the selection process in question.

(b) Decision review process

…

Must restrict the remedy to the actions required to correct the error made during the staffing action or the phase of the selection process.

54 The corrective measures found in the Directive and the authority given to the persons concerned appear to me clearly related to the process of selecting candidates and their hiring, integration, development and mobility. The “correction of an error” does not necessarily change the outcome. Therefore, my view is that the Directive’s administrative procedure for redress does not deal satisfactorily with rejection on probation in terms of the recourse for redress, the review limited to the question of arbitrary treatment of the grievor and the lack of real redress similar to that of the grievance process.

55 Accordingly, I find that the Agency’s administrative procedure for redress was not designed to replace the grievance process in the case of rejection on probation. The grievor had the right to file a grievance to contest her rejection on probation and to refer it to adjudication.

56 As stated earlier, the review letter grievance is about training and probationary employment procedures. It states the following among its requested corrective measures: “[translation] I request that I … receive full and complete training in accordance with the procedure. I request that I be re-evaluated on probation in accordance with the procedure …”

57 The training and re-evaluation procedures to which the grievor refers in that grievance are set out in the Staffing Program and Directive. Therefore, it is clear to me that that grievance is about a staffing matter and that the grievor used the recourse provided. Accordingly, under subsection 208(2) of the PSLRA, I find that I do not have jurisdiction to hear that grievance.

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

IV. Order

59 For PSLRB File No. 566-34-2989: the grievance is dismissed.

60 For PSLRB File No. 566-34-2990: the grievor had the right to file a grievance and to refer it to adjudication.

61 The adjudicator will set the terms and conditions for deciding the grievance.

July 14, 2011.

PSLRB Translation

Steven B. Katkin,
adjudicator