FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Miguel Cornejo Ruiz (“the grievor”) was employed as a telephone examiner, classified CR-04, for the Department of Foreign Affairs and International Trade Canada (“the respondent” or “the employer”) for a specified term of one year, from November 3, 2008 to November 3, 2009. He was subject to a one-year probationary period. In a letter dated March 18, 2009, the employer rejected him on probation, alleging that he failed to adhere to his management’s expectations for his conduct in the workplace and noting his incompatibility with management. He received two weeks’ compensation in lieu of notice.

2 The grievor filed a grievance against the rejection on probation on April 3, 2009. The grievance was dismissed at the third level of the grievance process on December 23, 2009 and was referred to adjudication on January 21, 2010.

3 On July 2, 2010, the employer filed an objection to the jurisdiction of an adjudicator of the Public Service Labour Relations Board (PSLRB) to hear this grievance on the grounds that the grievor’s employment was terminated under section 62 of the Public Service Employment Act (PSEA), S.C. 2003, c. 22, ss. 12, 13, and that paragraph 211(a) of the Public Service Labour Relations Act (PSLRA), S.C. 2003, c. 22, specifically precludes the PSLRB from assuming jurisdiction over any grievance about a termination of employment made under the PSEA.

4 The grievor responded to the employer’s objection to jurisdiction on July 19, 2010. He argued that the rejection on probation was in fact a disciplinary termination and that, therefore, the PSLRB has jurisdiction. The adjudicator initially assigned this file determined that it could not be determined solely on the basis of written submissions and directed that it be set down for a hearing that would deal with both the objection to jurisdiction and the merits of the matter. I was subsequently assigned by the Chairperson of the PSLRB to conduct that hearing.

II. Summary of the evidence

5 The parties presented an agreed statement of facts (Exhibit E-1) with a book of seven documents (Exhibit E-2), which was admitted on consent. In addition, Geneviève Paradis, who was at the relevant time Acting Director, Corporate Services Bureau, testified on behalf of the employer. The grievor testified on his own behalf.

6 The agreed statement of facts (Exhibit E-1) indicates that the grievor was hired to be a telephone examiner. His acting manager was Ms. Louise Sabourin, who reported to Ms. Paradis, and his immediate supervisor was Mr. Xavier Girard. When he was hired, the Standard of Conduct for employees of Passport Canada (Exhibit E-2, tab 7) was given to him and explained.

7 According to the agreed statement of facts (Exhibit E-1), on February 19, 2009, the grievor failed to attend a mandatory training course. Mr. Girard and Ms. Sabourin met with him on February 24, 2009, to discuss his failure to attend the training. They told the grievor that a medical certificate was required to explain his absence from the course.

8 Several days later, the grievor gave Mr. Girard a certificate from a dentist’s office that stated that the grievor had a dental appointment on February 19, 2009. However, the grievor explained that that date was incorrect, as the appointment in fact took place several days before February 19, 2009. The grievor said that he felt sick after the dental appointment, which was why he did not attend the training. According to the agreed statement of facts (Exhibit E-1), Mr. Girard told the grievor that the certificate was insufficient to explain his absence from a mandatory training course. Ms. Sabourin and Mr. Girard confirmed to the grievor in a meeting on March 10, 2009 that the medical certificate was unsatisfactory, and that, in the future, he was to advise management of any conflicts in his schedule and provide a detailed message if he was to be absent from work, and that he had to reschedule the training course. He was told that failing to follow those instructions could result in his rejection on probation. After that meeting, the grievor advised Mr. Girard that he was unable to provide a medical certificate because he would not risk having his personal medical records opened.

9 As described in the agreed statement of facts, on March 13, 2009, Mr. Girard discovered that the grievor was performing work that he was not assigned. Mr. Girard told the grievor that he was not to change assignments without first discussing it with his supervisor. Later that same day, Mr. Girard discovered that the grievor was working outside his assigned seating area. Mr. Girard told the grievor that he must return to his assigned area for his next shift.

10 The grievor told Mr. Girard that he was allergic to the people whom he sat beside in his assigned area but was unable to provide a detailed explanation. Mr. Girard asked him to provide a medical certificate explaining the nature of his allergies so that he could be accommodated, as there was no such information on his personnel file and he had had no previous problems.

11 According to the agreed statement of facts, on March 17, 2009, Mr. Girard again found the grievor working in a seating area outside the area to which he had been assigned. The grievor told him that he believed that he was bothering the employees in his assigned area, but Mr. Girard had received no complaints. Mr. Girard told the grievor that he was insubordinate and ordered him to return to his assigned seating area. However, the grievor did not, and the second time that Mr. Girard found him working outside his assigned seating area, the grievor told him that he was allergic to his co-workers and to Mr. Girard. He also asked that Mr. Girard not approach him and that Mr. Girard deal with him only through email. Mr. Girard told the grievor that, as his supervisor, it was necessary for him to have verbal contact with the grievor. He also told the grievor to return to his assigned seating area. However, the grievor did not and was again discovered sitting in an area outside his assigned seating area by Mr. Girard. Mr. Girard advised the grievor once more that he was being insubordinate.

12 A meeting was held later on March 17, 2009 between the grievor, Ms. Sabourin and Mr. Girard. According to the agreed statement of facts, the grievor was told that his actions were insubordination and that he had to work in the area to which he was assigned. The grievor left the meeting before it was over, despite being warned that he again was being insubordinate. The grievor acknowledged that he was aware that he could be disciplined for insubordination but stated that he wished to leave the meeting. In response, he was told to return to his desk.

13 The grievor did not return to his desk. Ms. Sabourin found him sitting at a desk outside his assigned seating area a half-hour after he left the meeting. When told to return to his assigned seat, he refused. When told that his actions constituted insubordination, he stated that he understood and asked to be escorted to his locker since he knew that his employment was being terminated.

14 On March 18, 2009, the grievor attended a meeting with Mr. Girard and Ms. Sabourin. According to the agreed statement of facts, he was told that he was being rejected on probation because of his insubordination and his incompatibility with management. He was given a letter dated March 18, 2009 from Ms. Paradis which set out the grounds for his rejection on probation (Exhibit E-2, tab 1).

15 Ms. Paradis testified that she based her decision to reject the grievor on probation on three grounds, which were his failure to attend the mandatory training with no valid excuse, the fact that he worked on tasks not assigned to him without authorization, and the fact that he repeatedly sat in a work area to which he was not assigned, in spite of warnings that his behaviour constituted insubordination.

16 Ms. Paradis explained that it was important that employees sat in their assigned seating areas because the workspace was very large, and there were a number of available areas. To ensure effective supervision it was necessary to have employees seated in one area. However, she acknowledged that the assigned work areas differed according to the tasks being done. Employees were able to choose their desks within their assigned seating area as long as they remained within the perimeter of the assigned area.

17 Ms. Paradis testified that the employer was concerned about the grievor’s behaviour because it took place over a number of weeks, because the incidents varied and because the grievor was given an opportunity to correct his behaviour and chose not to.

18 The grievor explained that he had strong allergic reactions to the people sitting in the work area to which he was assigned. He was constantly sneezing, and his eyes watered. However, he could not provide any medical information or a medical certificate about his allergies. He explained that he was not sure what triggered the allergies. He also explained that he believed that it was important to produce a specific number of files and that moving to another workspace helped him work.

II. Summary of the arguments

A. For the employer

19 The employer reiterated its objection to my jurisdiction to hear this grievance. The evidence established that the grievor was on probation, that he was paid in lieu of notice and that his termination was based on employment-related reasons. The grievor did not dispute any of the facts presented at the hearing. For an adjudicator to take jurisdiction in a case involving a rejection on probation, there would have to be evidence of bad faith or discrimination or other such grounds. But, in this case, there is no evidence that the rejection on probation was for anything other than the reasons given to the grievor by the employer.

20 The grievor was rejected on three grounds. First, he did not attend a mandatory training course without proper notice and without a valid explanation. Further, he refused to provide a medical certificate to explain his absence. Second, he did work that he had not been assigned, without permission, and third, he refused on a number of occasions to sit in the seating area to which he had been assigned, despite being told to. He knew that he was being insubordinate and continued to refuse to follow instructions.

21 Those incidents explain why the employer felt that the grievor was unsuitable. The purpose of probation is to allow the employer to assess the suitability of employees. In this case, the grievor was not suitable. An adjudicator cannot substitute his or her own opinion for the employer’s assessment. The employer established its expectations and made them known to the grievor. The grievor was given an opportunity to change his behaviour, and he did not.

22 The employer argued that it met the burden of showing that there was an employment-related reason for the rejection on probation. It exercised its right under section 62 of the PSEA. The evidence was not contested, and there was no evidence of bad faith or camouflage. The grievor simply disagrees with the rejection. That is not sufficient grounds for an adjudicator to take jurisdiction in such a case.

23 The employer cited Carbray v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 76, and Ducharme v. Deputy Head (Department of Human Resources and Skills Development), 2010 PSLRB 136, and provided copies of Dyck v. Deputy Head (Department of Transport), 2011 PSLRB 108; McMath v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 42; Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134; Canada (Attorney General) v. Penner, [1989] 3 F.C. 429; Archambault v. Canada (Canada Customs and Revenue Agency), 2005 FC 183; Rousseau v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 91; Currie v. Deputy Head (Department of Fisheries and Oceans), 2010 PSLRB 10; Maqsood v. Treasury Board (Department of Industry), 2009 PSLRB 175; Bilton v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 39; and Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529.

24 The employer asked that the grievance be dismissed for lack of jurisdiction.

B. For the grievor

25 The grievor argued that the PSLRB has jurisdiction to verify the reasons for a rejection on probation and to determine whether it was a sham or a camouflage. He requested that the fairness principle be applied.

26 The grievor said that he was suitable. He argued that he did not have to prove his allergies and acknowledged that he had no medical information to support his claim that he had allergies. He argued that he should have been granted accommodation. He said that although he had been advised to comply with the employer’s direction, he did not, for his own protection.

27 The grievor said that he was not able to provide evidence to support allegations of bad faith or discrimination, even though he believes that the employer discriminated against him and that it acted in bad faith.

IV. Reasons

28 This is a grievance against a rejection on probation made under section 62 of the PSEA. There is no dispute that the grievor was a probationary employee and that he was given pay in lieu of notice. As set out in the letter of termination, the grounds for the rejection on probation were that the grievor failed “. . .to adhere to management’s expectations in terms of acceptable standards of conduct in the workplace” and that he was not compatible with his work environment, particularly with management. Uncontradicted evidence was adduced that the grievor engaged in a course of behaviour over a number of weeks that the employer characterized as insubordination. He failed to attend a mandatory training course without providing an acceptable explanation, he carried out tasks without authorization that were not assigned to him and he would not sit in his assigned seating area despite repeated requests from the employer. He was made aware of the employer’s expectations but did not meet them.

29 The grievor challenged the rejection on probation on the grounds that he suffered from allergies in the workplace and that he should have been accommodated, but was not. However, he presented no evidence in support of this allegation and did not dispute any of the facts presented by the employer. He argued simply that the rejection violated the fairness principle.

30 The employer argued that I am without jurisdiction to hear this grievance. The jurisprudence is clear that to take jurisdiction in a rejection on probation case, there must be evidence of bad faith or discrimination that would call into question the grounds for the termination. In this case, the employer argued, there was simply no evidence that the rejection on probation was for any reason other than the employment-related reasons given to the grievor.

31 I agree. The grievor signed the agreed statement of facts, which set out all the employer’s reasons for its decision. There was no evidence that would in any way suggest that the rejection on probation was for reasons other than those set out in the letter of termination, and the grievor acknowledged that he did not have any such evidence.

32 Section 62 of the PSEA gives a deputy head the authority to terminate the employment of a probationary employee at the end of the notice period established by regulation. It is uncontested in this case that the grievor was a probationary employee and that he was paid in lieu of the required notice.

33 For a grievance to be adjudicable, it must fall within the ambit of the PSLRA. Specifically, it must engage one of the grounds set out in section 209 of the PSLRA and, further, must not be caught by section 211, which specifically precludes the adjudication of grievances about terminations of employment made under the PSEA. However, the case law has long held that an employer cannot avoid adjudication by invoking rejection on probation when there is no valid employment-related reason for the termination of employment. As held as follows in Tello at paragraph 110:

[110] If a deputy head terminates the employment of a probationary employee without any regard to the purpose of a probationary period – in other words, if the decision is not based on suitability for continued employment – that decision is one that is arbitrary and may also be in bad faith. In such a case, the termination of employment is not in accordance with the new PSEA.

34 The burden is on the grievor to prove that the rejection on probation was a sham or a camouflage designed to hide the fact that the termination was not for a valid, employment-related reason. As noted in Tello at paragraph 112, “[t]he burden is on the grievor to show the deputy head’s contrived reliance on the new PSEA or that the rejection on probation was a sham or a camouflage.”

35 The grievor did not discharge that burden in this case. He presented no evidence to suggest that there was any contrivance or sham. He did not challenge the employer’s characterization of the facts. He did not present any evidence or argument that would allow me to find that the rejection on probation was for any reason other than an employment-related one. For those reasons, I must find that I do not have jurisdiction to hear this grievance.

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

V. Order

37 I order this file closed.

April 3, 2012.

Kate Rogers,
adjudicator