FPSLREB Decisions

I.  Individual grievances referred to adjudication

1 Scott Mazerolle (“the grievor”) was employed by the Department of Citizenship and Immigration (“the respondent” or “the employer”) in the Foreign Service Development Program (FSDP or “the program”) as a foreign service officer, classified FS-01, when his employment was terminated on July 13, 2009, for unsatisfactory work performance.

2 The grievor filed a grievance against the termination of his employment on July 31, 2009. He also filed two other grievances on July 31, 2009, one alleging a violation of article 25 (“Leave without pay for the care of immediate family”) of the collective agreement between the Treasury Board and the Professional Association of Foreign Service Officers (PAFSO) for the Foreign Service group, expiry date June 30, 2007 (“the collective agreement”), and the other alleging a violation of article 29 (“Leave without pay for relocation of spouse”). It should be noted that this collective agreement, although expired, was the collective agreement in force when the grievances were filed because a new collective agreement was not signed until January 25, 2010. All three grievances were filed at the third level of the grievance process and were referred to adjudication on June 9, 2010. The employer’s response to the grievances was issued on July 27, 2010, after the grievances had been referred to adjudication. All three grievances were denied.

3 After the hearing of this grievance, Plamondon v. Deputy Head (Department of Foreign Affairs and International Trade), 2011 PSLRB 90, was released. Because Plamondon dealt with similar issues, I invited the parties to make submissions on its application to this case. Those submissions were made orally in a teleconference held on September 28, 2011.

II. Summary of the evidence

4 Denise Defoy, Senior Analyst, Workforce Management; Catherine Bailey, Deputy Immigration Program Manager, Canadian Consulate, Buffalo, New York; Ninon Valade, Program Manager, Canadian Embassy, Vienna, Austria (currently on a leave of absence); Sharon Chomyn, Director General, Case Management Branch, and Barbara Deiner, Regional Manager, Human Resources, International Region, testified for the employer, and the grievor testified on his own behalf.

5 The employer adduced, on consent, an exhibit book containing 78 documents, and the grievor adduced, on consent, an exhibit book containing 23 documents. For ease of reference, I will summarize the evidence, including the relevant documents, first for the grievance against the termination of employment and then for the grievances against the denials of the leave requests. I will present the evidence chronologically rather than in the order in which the witnesses at the hearing presented it.

A. Background

6 The FSDP was put into place in 1998 as a way to ensure that the visa officers who deliver Canada’s immigration program abroad are well trained and effective. Ms. Defoy, who was FSDP Coordinator between 2005 and 2009, testified that between 5000 and 8000 candidates generally applied each year for the program and that the employer frequently interviewed as many as 600 applicants to obtain 20 successful candidates.

7 Between 1998 and 2005, the program was five years in length. In 2005, following changes to the collective agreement, it was shortened to three years. The first year of the program is a combination of classroom and on-the-job training, including a six-week overseas training assignment. The classroom portion of the training includes a course on the Immigration and Refugee Protection Act, S.C. 2001, c.27 and its regulations, as well as orientation courses and a course on supervising in the public service. Candidates generally begin their first overseas posting in the summer following the first year of training, which is normally for two years. When the program was shortened to three years, participants who had completed three or more years were assessed and, if they met the requirements of the program, were promoted. The remaining participants were put on the three-year schedule.

8 Ms. Defoy explained that participants in the program are classified FS-01, which is a training classification. Once candidates graduate from the program, they are automatically promoted to the FS-02 level, which is the first working classification level for foreign service officers. She explained that foreign service officers are not attached to particular positions but are part of a pool and that they agree to be assigned wherever they are needed. They must agree to be rotational, meaning that they must agree to be posted overseas.

9 Because the FSDP is a training program, regular performance assessments are scheduled. When it changed to a three-year program, the regularly scheduled assessments were done for the 0- to 12-month period, the 12- to 24-month period and the 24- to 36-month period. In addition, assessments might be made outside the standard period if participants change assignments, supervisors or are sent on a training assignment abroad outside the normal schedule. The performance assessments done by supervisors are reviewed by an appraisal review committee (ARC) for each appraisal period, and the ARC prepares an overall assessment of the period.

10 Ms. Defoy explained that program participants have a standard learning plan and established performance standards (Exhibit E-1, part 2, tab 2). The performance of participants is closely monitored. If a problem appears, she checks with the supervisor and meets with the participant, one‑on‑one. These meetings are intended to ensure that the participant is aware of the performance deficiencies and to set up a plan for improvement. She indicated that performance problems cause more concerns for a participant in the final year of the program, as opposed to the first year.  All participants are aware that poor performance results in disqualification.

11 The FSDP “Pay Plan” sets out the terms and conditions of the program, including disqualification. The version of the document in use in 2003, when the grievor was hired into the program (Exhibit E-1, part 2, tab 1), provided that two or more less than fully satisfactory ratings in an assessment period or failing to be promoted at the end of the program would result in disqualification. The document stated that participants not on probation would be entitled to priority status within the public service. 

12 FSDP participants are provided with copies of the FSDP “Pay Plan” on entering the program. Ms. Defoy testified that, when the program changed in 2005, a new version of the document was created that reflected the changes. The grievor testified that, although he received an emailed letter advising him of the changes (Exhibit G-1, tab E), he did not receive a copy of the new program pay plan setting out the new conditions of employment. The offer of employment that he received in August 2003 (Exhibit E-1, part 1, tab 1) included a summary of the terms and conditions of employment. The grievor testified that he understood from that summary that, were he found unqualified, the employer would endeavour to find him a position for which he was qualified and that, if it could not find an alternate position, his employment would be terminated.

13 The grievor was hired into the FSDP in August 2003. He explained that it was his second time being hired into the program. In 2000, he joined the program but was unable to pass the language requirements after language training and was disqualified in 2002. Through the assistance of his former assignment officer, he obtained alternate employment in the employer’s Litigation Management Section in June 2002, and worked there until September 2003, when he again entered the FSDP. 

14 Because the grievor did not meet the required level of bilingualism when he was accepted into the program in 2003, he went on French language training again in September 2003. He was successful and achieved the required level of bilingualism in March 2005. At that point, he was able to begin the training program.

B.  March 2005 to March 2006

15 Between March 2005 and September 2005, the grievor worked in the Geographic Division (RIO) for his first assignment in the program, and from October to December 2005, he attended the required training course in acts and regulations. After completing the course, he returned to the RIO until January 2006, when he went on his first overseas assignment. A performance appraisal (Exhibit E-1, part 2, tab 5) of the assignment in the RIO prepared by a supervisor who did not testify at the hearing was generally positive.

16 The assignment in the RIO was followed by a six-week overseas assignment between January and February 2006 at the Canadian Embassy in London. Ms. Defoy testified that it was her practice to touch base with the participants’ supervisors when they were on training assignments overseas. When she talked to the grievor’s supervisor in London, she learned that things were not going well. Although the issues were vague, the supervisor told Ms. Defoy that the grievor was not working with the other officers or mixing with them. That was considered a problem because the foreign service is both a job and a way of life, and mixing with other officers is a way to learn. Ms. Defoy testified that it became apparent from the performance appraisal that the grievor was having difficulties.

17 The London performance appraisal was adduced in evidence (Exhibit E-1, part 2, tab 6), although the supervisor who prepared it did not testify. Detailed comments were made about the grievor’s work performance that clarified some of the issues. In particular, it noted that he had difficulty managing or organizing his caseload, difficulty conducting visa interviews and difficulty making appropriate decisions. The supervisor concluded as follows:

Scott did not demonstrate a level of enthusiasm for the work or motivation to learn that is normally expected in a trainee: I specifically note that there were occasions when Scott appeared to be reluctant to request or accept advice from colleagues (officers), or at least did not evince appreciation or acknowledgement. Most of the time, however, he was observed to be willing to call on support staff for guidance on aspects of processing or office procedures.

That Scott did not interact a great deal with colleagues, and rarely appealed to them with questions or for guidance does not demonstrate a great motivation to learn, given that this is a primary way of acquiring local knowledge necessary to the job.

18 The grievor acknowledged that he received feedback during the London assignment but stated that no-one told him of the concerns about his performance until his final week, when his performance appraisal was prepared. He noted that, at that point, he had only a couple of days left to correct the concerns that had been brought to his attention.

19 The grievor returned to Canada at the end of February 2006, following the end of the overseas assignment, and was assigned to the RIO again. In early March 2006, the ARC, composed at that time of Ms. Defoy, Ms. Barbara Diener, Regional Manager of Human Resources, and a Mr. Chubak, who did not testify at the hearing, reviewed the grievor’s performance for the period between September 8, 2003 and March 10, 2006 (Exhibit E-1, part 2, tab 7), although the appraisal indicated that the 0‑18 month standard of review was being applied. The ARC review noted the problems that the grievor had encountered in London. In spite of the generally favourable comments on the RIO performance appraisal, the ARC concluded that his overall performance for the period was unsatisfactory because the actual ratings on the RIO appraisal (Exhibit E-1, part 2, tab 5) were not as glowing as the narrative. That led the ARC to conclude that the RIO appraisal was simply “OK”, while the London appraisal was “significantly worse” than the RIO appraisal.

20 Ms. Defoy testified that she considered the poor appraisal from London significant because the work in the overseas mission was the real test of how a participant would do in the job and was quite different from the work at headquarters. She stated that she did not feel that she was jumping on the grievor prematurely but felt that the problems had to be dealt with quickly. She testified that it was her role to advise participants about the culture of the workplace and about how to behave on a posting. She noted that a demonstrated lack of enthusiasm could impact a participant’s judgement, teamwork and interpersonal relations, which are assessed competencies.

21 As a result of the concerns Ms. Defoy identified, a meeting on March 21, 2006, was set up with the grievor, Ms. Defoy and Ms. Ninon Valade, Director of Personnel at that time, to discuss his performance. Ms. Valade testified that his performance came to her attention first because of issues of punctuality and later because of the poor performance appraisals from London and from the ARC. She believed that concern was warranted, and she wanted to be certain that he understood the employer’s expectations. She felt that he needed to overcome his shyness and interact with his colleagues, as that would help him. She considered that working abroad was much more demanding than working at headquarters because of the volume of work and that he needed to be able to deal with it and to put a system in place.  She felt that he needed to take some responsibility for proposing his own learning plan to develop the skills that he needed.

22 Because of Ms. Valade’s concerns about the grievor’s performance, she did not feel that he should be sent on the overseas posting that would normally have been the next phase of the FSDP. She explained that she did not believe that she could take a chance sending him abroad on a posting because she lacked confidence in his ability to make effective decisions and handle emergencies. Instead, she believed that he should have one more year of training in Ottawa, with two overseas training assignments.

23 The grievor testified that he was disappointed that he would not be sent on the scheduled overseas posting to Manila, in the Philippines. He felt that the extra year in Ottawa would not be especially helpful since the focus of the foreign service officer position was overseas work. He was also worried about how he would explain spending an extra year in Ottawa to his colleagues. Nevertheless, he said that he accepted the decision.

C. April 2006 to July 2007

24 From the end of April until the end of June 2006, the grievor was on leave without pay to care for his immediate family. On his return, he was assigned to work in the Training Section at headquarters. He worked there from the end of June until mid‑October 2006, from the end of November 2006 to the end of January 2007, and from March to July 2007. In the intervening periods, the grievor was sent to Ghana and New York for training assignments. Two performance appraisals were completed for his work in the Training Section, one for the period between June 2006 and January 2007 and the other for the period between January and July 2007. 

25 Those two performance appraisals were adduced in evidence, although the supervisor who prepared them did not testify. The first (Exhibit E-1, part 2, tab 10), for the period up to January 2007, was not positive. Problems were identified with the grievor’s decision making and judgement, his ability to manage his workload and meet deadlines, and his ability to work collaboratively, among other things. The supervisor commented that she “… did not get the impression that Mr. Mazerolle overtly displayed interest in the various tasks he had to do.”

26 From October 16 to November 23, 2006, the grievor had a training assignment in Accra, Ghana. Ms. Defoy chose the assignment. She testified that it was chosen because the manager at that post was known to be good and would not change posts during the assignment, so it would be stable.

27 The grievor testified that he thought that assignment had gone well. He had listened to the criticisms of his work and had tried to follow the advice. He had socialized, asked questions and had tried to demonstrate enthusiasm. He felt that his efforts had paid off, as he received what he thought was a good appraisal. Ms. Defoy testified that, from her perspective, the assignment and the appraisal were fairly positive. The appraisal from Accra (Exhibit E‑1, part 2, tab 8), indicates that, in each area of competency identified, the grievor’s ratings had improved from earlier appraisals. In some areas, he received ratings of “exceeds”, and in most other areas, he received ratings of “proficient.” The supervisor’s comments were positive, indicating that the grievor was “pleasant to work with,” worked “on his own initiative,” “clearly demonstrated desire to complete work and put in extra time,” and “sought advice and information from colleagues to enhance existing knowledge.”

28 The grievor’s New York training assignment was from January 29 until March 2, 2007. Ms. Defoy testified that that assignment was chosen because he had asked for an assignment that would allow him to return to Ottawa each weekend because of family needs. New York had the only visa office with direct air links to Ottawa.

29 The grievor testified that he received feedback and constructive criticism during the assignment in New York from the deputy program manager, and as a result, he felt that he was doing well and that he would receive a good appraisal. However, on his return to Ottawa, he was disappointed when Ms. Defoy told him that the appraisal was okay but not great.

30 Ms. Defoy testified that she spoke to the manager of the New York office, who told her that the grievor was trying but that he was not “there” yet. The manager told her that the grievor had difficulty saying no and difficulty explaining his reasons for decisions during interviews. The performance appraisal (Exhibit E-1, part 2, tab 9) completed for the New York assignment indicated that he was still developing in many areas but also noted that his performance improved during the assignment. The manager noted that increased exposure to the work would give the grievor the confidence and skills that he needed to perform well in the job.

31 Ms. Defoy testified that she expected more from the grievor because it was not his first overseas assignment but his third. She said that, although he met some of the required competencies, he did not meet enough of them. From the appraisal, it seemed that he was not outgoing, did not organize his work well and was not really proficient. She said that she expected him to meet the same level of performance as other officers who had only one overseas assignment. He did not.

32 On March 28, 2007, the grievor met again with Ms. Defoy and Ms. Valade to review his performance over the past year and to discuss his upcoming overseas posting to Warsaw, Poland. Ms. Valade testified that she wanted to be clear with him that the upcoming posting was still part of the program and that his performance would still be assessed. She stated that the reviews from the overseas assignments to Accra and New York had been mixed. She was concerned that the grievor did not really demonstrate enthusiasm for the job and asked him if it was really the job for him. She stated that she never really got the sense that he enjoyed the job. She believed that, to succeed, he would have to put his heart into it and demonstrate enthusiasm and initiative.

33 Ms. Defoy testified that Warsaw was chosen as the grievor’s next posting because the employer believed that it would be a good posting for him, based on the size of the post and the experience of the supervisor. Furthermore, as the grievor’s spouse was also a foreign service officer, it had been arranged that she would also be posted to Warsaw. Ms. Defoy explained that, after the meeting with Ms. Valade, it was decided that the grievor would go to Warsaw in recognition of the fact that he had progressed.

34 Ms. Valade testified that it was not uncommon to discuss a proposed posting with the proposed supervisor to ensure that he or she was willing to accept the trainee. The supervisor would be sent a list of what the employer wanted the trainee exposed to, as well as the reports required. In this instance, Ms. Valade felt that the Warsaw posting was good for the grievor because the supervisor there, Ms. Catherine Bailey, was a good manager who took the time to train employees and because Warsaw was a small, full-service office, so he would obtain valuable experience.

35 Ms. Bailey testified that she was contacted before the grievor was assigned to the post and was asked if she would be willing to take on the task of supervising him. She was told that his performance on his temporary duty assignments had not been fully satisfactory and that he had problems with workload planning. Ms. Valade advised her to speak with his former supervisor in the RIO, which she did. As a result of that conversation, she concluded that she could work with the grievor and agreed to the posting.

36 Between the grievor’s New York assignment and his posting to Warsaw, he returned to the Training Section to complete his assignment there. The second appraisal (Exhibit E-1, part 2, tab 11) completed for the remainder of that assignment, from mid-January to the end of July 2007, was largely positive. His ratings improved. Although there were still some “developing” ratings, the supervisor noted that “Mr. Mazerolle has definitely improved his attitude towards work. He has joined group discussions, sought out colleagues’ advice and adapted his working methods to those of the group.”

D. August 2007 to December 2008

37 The grievor started work on August 8, 2007, the morning after he arrived in Warsaw. The Warsaw post was small, with three Canadians working on immigration. Although that post had been responsible for processing all the visa applications for the region, between 2006 and 2009, visa requirements had been lifted for most of the Baltic countries, and the post’s workload had been drastically reduced. The grievor was assigned to work in the non-immigrant section, responsible for, among other things, applications for work permits, travel documents and study permits, which the post continued to process, as well as supervising four locally-engaged staff.

38 Ms. Bailey testified that problems with the grievor’s performance began to emerge within a short time of his arrival. She testified that he seemed to have difficulty managing his workload, working as part of a team and applying the law. She said that, although she believed that it was to be expected that new officers would experience some difficulty and would need some refinement and training, it was generally reasonable to expect that improvement would come with time. However, that was not her experience with the grievor.

39 At the end of October 2007, Ms. Bailey provided a detailed narrative assessment of the grievor’s work performance to Ms. Defoy, which outlined her concerns (Exhibit E‑1, part 1, tab 10). She testified that Ms. Defoy had asked for information about the grievor’s progress, for which that email was a response. She testified that the gist of the email was that, although the grievor was meeting competencies in some areas, he had problems in other areas. She testified that, although he was courteous and bright, it was difficult to motivate him. She felt that he was shy. As a result, he stayed in his office. Because he did not socialize with the other staff, he was thought unfriendly and patronizing. She noted that one of the duties of a foreign service officer is to represent the country, which requires a certain level of socializing. She also noted that his completion time on certain projects was quite slow. Further, she noted that he was not organized, which affected his ability to finish his work in a timely fashion. She noted that he did not seem to own his space, as there was nothing personal in his office, which gave a sense that he was not part of things. She also noted that his punctuality was a problem in the beginning and that she had to speak to him about it.

40 On November 9, 2007, Ms. Bailey met with the grievor to review her concerns. She testified that she believed that the meeting went well. They discussed strategies, managing his workload and his production. She explained her expectations. In particular, she explained that she was concerned not just about the number of applications that he processed but that he develop in all aspects of the job. She told him that the job was not just about churning out visa applications but that it was also about networking, alliance-building and the like. She testified that she was quite hopeful after the meeting. She emailed her meeting notes to Ms. Defoy (Exhibit E-1, part 1, tab 11).

41 In January 2008, Ms. Bailey prepared a formal performance assessment for the grievor for the period between August 8, 2007 and January 16, 2008 (Exhibit E-1, part 2, tab 12). For the most part, the appraisal was fairly positive, but it identified weaknesses in three areas of assessment. In particular, the appraisal noted that the grievor still had problems with time management, was still developing his role as part of a team and was still developing his approach to networking.

42 On January 31, 2008, the ARC, composed at that time of Ms. Defoy, Ms. Diener and Mark Eichhorst, the grievor’s assignment officer, met to review the grievor’s performance appraisals for the period between March 10, 2006 and January 18, 2008 (Exhibit E-1, part 2, tab 13). The ARC appraisal noted that the review was the scheduled 36-month review, covering an almost two-year period. Overall, the ARC considered that the grievor’s performance was satisfactory. Ms. Defoy testified that the review was a mixed report in that he had improved in some areas but not in others. The ARC felt that he was still developing.

43 Ms. Defoy testified that she emailed the grievor on February 4, 2008 (Exhibit E-1, part 1, tab 13), summarizing the ARC’s review. She advised him that he would need to demonstrate his proficiency in the core competencies of critical thinking and action management on his last appraisal. She also advised him that he needed to complete 12 months of an overseas posting before he could graduate. She noted that he would complete 12 months overseas on August 7, 2008, and therefore, the ARC would review his final performance appraisal at the end of summer 2008.

44 Ms. Bailey prepared another performance appraisal (Exhibit E-1, part 2, tab 14) for the grievor in May 2008. She met with him on May 9, 2008, to give him a copy of the draft appraisal and to discuss her concerns. She testified that it was a frank conversation. In an email to Ms. Defoy on May 12, 2008, in which she summarized her conversation with the grievor (Exhibit E-1, part 1, tab 14), Ms. Bailey observed that, in many respects, he was operating at a clerical rather than an officer level. She testified that, in her view, an officer would have a more sophisticated and complex understanding of the legislation, while someone at the clerical level would simply process applications. She explained further that, even though the post’s workload had decreased, he was still having difficulty completing his tasks. She testified that, although he was always pleasant and seemed to try hard, he did not demonstrate much initiative and was not consistent.

45 However, by the time Ms. Bailey sent the performance appraisal to Ms. Defoy, (Exhibit E-1, part 2, tab 14) she felt that her meeting with the grievor had been effective. She noted that, since then, he had made significant improvements and that were she to reassess his performance, she would score him at the proficient level in all areas. In her view, he was performing at the FS-02 level. She stated that, if he continued to work at that level, his next appraisal would show him proficient in all areas.

46 By August 2008, the grievor’s performance seemed to have slipped. Ms. Bailey testified that she believed that he should have been demonstrating more sophistication in his work than he seemed able. Furthermore, in preparation for what was expected to be his final appraisal as an FSDP participant, she asked him to provide input for the appraisal at the end of July 2008. He did not until after the deadline, which she noted was a regular problem for him (Exhibit E-1, part 1, tab 16). Reviews of his work indicated problems to the extent that Ms. Bailey wrote in an email to Ms. Defoy on August 19, 2008 that, although she had thought that the grievor was able to deal competently with the workload, she was no longer sure. She testified that he was doing more interpretation than was permissible. She testified that she continued to take time with him because she still felt that he was working conscientiously and that he could overcome his problems. She said that she sincerely would have liked him to graduate. Nevertheless, she testified that, over the next few months, problems continued. Although she did not want to send him a barrage of emails about his performance, she still had to send instructions and give advice and guidance on processing and controlling his caseload.

47 Ms. Bailey’s August 2008 appraisal (Exhibit E-1, part 2, tab 15) noted weakness in each area assessed. A detailed narrative that accompanied the appraisal provided concrete examples of some of the issues encountered during the period of the appraisal. Ms. Bailey made it clear that, in her opinion, the grievor was not capable of being anything more than a processing officer, which was not sufficient. She noted his lack of initiative and drive, his failure to work collaboratively and his time‑management problems.

48 The grievor, offered an opportunity to review and comment on a draft of the appraisal before it was submitted, noted that he found that the year had been difficult (Exhibit E-1, part 1, tab 16). He felt that he had less time in which to prove himself as he had been posted overseas for only one year, while others in the program had two years abroad before their final assessments. He testified that he found the constant monitoring and assessment of his work during that period soul-destroying and noted that it had affected him.

49 After receiving the August 2008 performance appraisal, the ARC assessed the grievor’s performance (Exhibit E-1, part 2, tab 16). In all areas but one, Ms. Defoy, who wrote for the ARC, noted that the grievor had not met the required standard. The written comments in the appraisal indicated that the ARC believed that he did not have the potential to work at the FS-02 level, which would be the requirement if he graduated. However, somewhat surprisingly, the ARC determined that his performance for the period was satisfactory.

50 Although Ms. Defoy did not believe that the grievor had met the required standards to graduate from the FSDP, she believed that she had no choice but to graduate him because he had not been given sufficient warning that he would not graduate (Exhibit E-1, part 1, tab 17). On August 20, 2008, she advised him that he would graduate only because she had failed to give him notice that he would not graduate. She was unequivocal in telling him that his performance was not satisfactory, and warned him that, as an FS-02, the bar would be set even higher. She also advised him that, had he not graduated, his options would have been to take leave without pay to remain at the post or to return to headquarters to look for a job in another area (Exhibit E-1, part 2, tab 19).

51 The grievor testified that he was relieved that he graduated from the program. He thought that he would finally shake off the bad reputation that he believed he carried from his London assignment. He thought that the constant monitoring and criticism would finally end. Even though he understood that his nomination was because of a technical problem, he said that he was satisfied because he believed that it would remove the burden of ongoing performance assessment.

52 Despite Ms. Defoy’s notice to the grievor that he would graduate from the program, his nomination was not processed. Ms. Defoy testified that she had made a mistake and had spoken too soon. Ms. Diener, who was the regional manager of human resources and a member of the ARC at the relevant time, testified that, when the decision to graduate the grievor was first made, it was done solely because he had not been given fair warning of the consequences of not meeting the performance standards. She explained that it was thought that he would have to be graduated to the FS-02 level because of the failure to warn him but that she was concerned that he would be set up for failure because he would not be able to meet the higher performance standard required of an FS-02. In November 2008, she had a change of heart. On reviewing his file, she felt that she could not sign the letter of promotion because he simply did not meet the performance objectives. Instead, she believed that the better option was to extend him as an FS-01 and give him another year in the program, with set objectives and a performance management plan to assist him. She proposed that the ARC meet to review his performance and to determine whether he should be nominated for promotion.

53 On November 26, 2008, Ms. Defoy called the grievor to tell him that he would receive a letter from the director, Ms. Chomyn, which would clarify his status. She explained that the ARC had not recommended his nomination to the FS-02 level because he had not demonstrated his competence.

54 The letter from Ms. Chomyn (Exhibit E-1, part 1, tab 26) clearly set out the reasons for the decision to not graduate the grievor from the FSDP. Instead, he would remain in the FSDP to the end of his scheduled posting period in Warsaw, which was July 2009. That would afford him the same two-year opportunity abroad as other FSDP participants. At the same time, he was to receive the same workload that other participants received in the third year. Additionally, he was to be subject to a performance improvement plan (PIP) and mentoring from his supervisor. At the end of June 2009, his performance would again be assessed. The letter indicated that, were he unsuccessful in meeting the competencies required to graduate, his posting would be ended immediately, and he would be returned to Canada, where the employer would try to help him find alternate employment. Were no alternate employment found, his employment would be terminated for unsatisfactory performance.

55 The grievor testified that he was devastated to learn that he was not graduating and that he would instead be put on close monitoring and a PIP.  He had heard nothing about his status since August, when he was told that he would graduate. No performance appraisals had been done, and no indication had been given that the employer intended to backtrack on its decision to promote him to the FS-02 level, so the news came out of the blue and was very demoralizing.

E. December 2008 to July 2009

56 The grievor signed the PIP (Exhibit E-1, part 1, tab 30) on December 15, 2008, following clarification (Exhibit E-1, part 1, tab 29) that he was required to achieve ratings of “proficient” in all aspects of the FS-01 competencies assessed to be successful. The PIP set out the objectives that he needed to meet and established the indicators that would be used and the dates by which he was required to accomplish the objectives. The PIP also clarified that, if the performance objectives were not met, his participation in the program would end. It explicitly provided that, in the event that he were disqualified, his posting in Warsaw would end, and he would be given three months at headquarters in Ottawa to find alternate employment. If he did not, his employment would be terminated.

57 The PIP required that the grievor’s performance be formally assessed every four weeks. In fact, appraisals were done on January 16, 2009 (Exhibit E-1, part 2, tab 17), February 20, 2009 (Exhibit E-1, part 2, tab 18), March 20, 2009 (Exhibit E-1, part 2, tab 19), April 30, 2009 (Exhibit E-1, part 2, tab 20), May 29, 2009 (Exhibit E-1, part 2, tab 21) and June 26, 2009 (Exhibit E-1, part 2, tab 22). Ms. Bailey clarified that he would be assessed according to the FS-01 standard, as she had initially thought that the FS‑02 standard might be used (Exhibit E-1, part 1, tab 25).

58 Ms. Bailey testified that each appraisal produced a different result. She noted that she tried to approach each appraisal with fresh eyes, rather than with preconceived notions about how the grievor was performing. Nevertheless, she was clear that she expected him to improve in all areas. He did not. Other than the January and March 2009 appraisals, which were uniformly good, deficiencies were noted in each following appraisal. Organizing and managing his workload seemed his biggest problems, as he consistently failed to achieve proficient ratings in those areas.

59 Ms. Bailey testified that she was quite aware that the grievor was feeling vulnerable and acknowledged that the PIP might have been somewhat demoralizing. She explained that she did not consider sending him to courses or other forms of training because she was not aware of any such resources and, in any case, since the post was in Poland, there would have been a language issue. She believed that her guidance and mentoring should have been sufficient to correct his problems.

60 The grievor testified that, from his perspective, the monthly appraisal regime was harsh and unrealistic. He felt that he could never make a mistake because everything he did was so carefully scrutinized and reported. As a result, his work slowed down, and his confidence evaporated.

61 By May 2009, it had become increasingly clear that it was likely that the grievor would not meet the FSDP requirements. In an email exchange between herself, Ms. Defoy and Ms. Diener about his work performance (Exhibit E-1, part 1, tab 35), Ms. Bailey noted that her major concerns were his lack of initiative and drive.

62 A decision was also reached in May 2009 to reduce the staff complement in the Warsaw mission because changes in visa requirements had significantly lessened its workload. As a result, the grievor was advised that no matter the decision on his graduation, his posting in Warsaw would end in summer 2009 (Exhibit E-1, part 1, tab 37). Although he advanced arguments as to why his posting in Warsaw should be extended (Exhibit E-1, part 1, tab 37), the employer felt that, even if he graduated, his performance was not strong enough to allow him to be assigned to what would be a two-person office (Exhibit E-1, part 1, tab 33).

63 Ms. Bailey’s final assessment of the grievor’s work performance (Exhibit E-1, part 2, tab 22), completed June 26, 2009, contained a lengthy narrative assessment (Exhibit E-1, part 2, tab 23), which outlined her concerns and gave specific examples of some of the issues that she had identified. Both the appraisal and the narrative were copied to the grievor, who advised that he wished to respond to some of the concerns raised before any final decision was made.

64 At the end of June 2009, the ARC, composed of Ms. Defoy, Ms. Diener and Mr. Eichhorst, met to review the grievor’s performance for the period from November 10, 2008 to the end of June 2009 (Exhibit E-1, part 2, tab 24). The ARC concluded that he did not meet the required standards in three of the seven areas of competency required to graduate from the FSDP. In particular, it was noted that he had difficulty managing deadlines and workloads, which was the same problem he had in his first year of the program. In the end, the ARC found that the grievor’s performance during the entire remedial period was unsatisfactory.

65 The grievor had asked for the opportunity to provide input to the ARC and to comment on his appraisals before any final decision was made about his future in the program.  Although he had said that he would provide his comments before the ARC was to meet at the end of June, he did not. Ms. Defoy noted that failing to meet deadlines was one of his major deficiencies (Exhibit E-1, part 1, tab 43). A conference call was scheduled for July 9, 2009, to allow the grievor and the ARC to discuss the appraisals and to give him an opportunity to address the issues.

66 The grievor provided his comments in writing shortly before that call (Exhibit E‑1, part 1, tab 45) and provided further comments later (Exhibit E-1, part 1, tab 47). He testified that he was not able to provide his comments earlier because of the large number of files on his desk. In his written comments, he noted that, among other things, the constant monitoring and criticism of his work made his work environment very stressful. He also believed that the critique of his work was unduly negative and that it failed to account for the context and circumstances surrounding the identified problems. In his written comments to the ARC, he questioned whether anything that he did would ever satisfy his supervisor and stated that he hoped that the negative appraisals were not simply an attempt to justify terminating his employment.

67 The grievor was advised during the conference call on July 9, 2009 that, although no final decision had been made, it was likely that the ARC would not recommend that he graduate. He was told that, in the event that he did not graduate, he would be given the option of returning immediately to Canada for three months on salary to look for other employment, or he could choose to remain in Warsaw with his spouse, who also worked there. If he chose to remain in Warsaw as his wife’s following spouse, his employment would be terminated.

68 The ARC met following the conference call and considered the grievor’s comments and further comments from Ms. Bailey. In the end, the ARC decided that he should not graduate from the program. He was advised of its decision in a conference call on July 13, 2009 that included, among others, Ms. Chomyn, the director of personnel for the International Region at that time, Mr. Eichhorst and Ms. Defoy. During the call, the grievor was again given the choice of returning immediately to Ottawa for three months of employer-assisted job searching or of having his employment terminated immediately, so that he could remain in Warsaw with his family as his wife’s following spouse.

69 The grievor testified that the conference call was very difficult. He found the requirement to make a decision on whether to return to Ottawa very stressful. He was not given much time to decide, as the employer wanted an answer within hours. He could not imagine how he could leave his family. He felt that he was being asked to abandon his family to accept the employer’s help in his job search. It seemed to him that all that was being offered was three months’ salary, an office, a phone, a computer and travel back to Ottawa, though not back to Warsaw from Ottawa. He testified that he did not understand why it was so urgent that he make a decision right away.

70 The grievor also testified that he was confused as to why he was not being offered the opportunity to take leave without pay so that he could remain in Warsaw for the duration of his wife’s posting and then take advantage of the employer’s offer of assistance to search for alternate employment. He testified that he believed that leave without pay was an option because Ms. Defoy had mentioned it earlier. Ms. Defoy acknowledged in her testimony that she had set out options for him in August 2008 in the event that he did not graduate and that those options included leave without pay (Exhibit E-1, part 1, tab 19).

F. Leave without pay

71 The grievor testified that he became aware in September 2008 that his posting in Warsaw was only for two years. He had thought that it was for three years, to coincide with his wife’s posting, written on his posting confirmation form (PCF) (Exhibit G-1, tab F), which was issued in May 2007, before he was posted to Warsaw. When he discovered that his posting was for two years, he noted on his posting preference form (PPF) (Exhibit G-1, tab G) that, although he was not planning to take a leave of absence without pay, everything depended on whether his posting would be extended. If not, he noted that he would apply for leave without pay for the temporary relocation of a spouse.He testified that he reaffirmed his request for leave without pay for the temporary relocation of a spouse in early November 2008 in an email exchange with his assignment officer.

72 On June 30, 2009, the grievor repeated his request for leave without pay for the temporary relocation of a spouse because the employer confirmed that his posting in Warsaw would end in summer of 2009 as a result of organizational restructuring. The grievor emailed his request to his assignment officer (Exhibit E-1, part 1, tab 41), in which he asked to be advised of the formal process to be followed to request the leave and indicated that he understood that he would have to submit a leave form.

73 Ms. Chomyn testified that foreign service officers typically submit leave requests by email, which are approved by phone or return email. However, she expected that a written record of the request would always be made, which would set out the type of leave requested, the date of the leave and the time requested.

74 The grievor repeated his request for leave without pay during the discussions that ended with the termination of his employment. On July 10, 2009, he emailed Ms. Defoy (Exhibit E-1, part 1, tab 48), reminding her that she had told him a year earlier that leave without pay would be an option if he did not graduate to the FS-02 level and asking that his request be approved. In the teleconference on July 13, 2009, between the grievor, Ms. Chomyn and others, he repeated his request for leave without pay for the relocation of a spouse. The grievor testified that he could not understand why leave without pay was not an option.

75 Ms. Chomyn testified that, although she was aware that the grievor had mentioned asking for leave without pay for the relocation of a spouse, he never submitted a formal request. She believed that he had been advised that he was not entitled to the leave because his spouse had not relocated but was in Warsaw with him. She testified that he also never formally submitted a request for care and nurturing leave.

76 Ms. Chomyn testified that the grievor’s requests at the end of June and the beginning of July 2009 for leave without pay were not granted because they were made after the decision had already been made to terminate his employment. She felt that it would not have been tenable to keep the grievor on strength and on leave without pay, solely for the purpose of allowing him to return to Ottawa to job search at the end of his wife’s posting. It would have been problematic to terminate his employment so long after the event, and it would have made staffing difficult.

III. Summary of the arguments

A. For the employer

77 The employer argued that paragraph 12(1)(d) of the Financial Administration Act, R.S.C. 1985, c.F-11 (FAA)gives the deputy head the authority to terminate the employment of an employee because, in the opinion of the deputy head, the employee’s performance is unsatisfactory. Subsection 12(3) requires that the termination of employment be for cause.

78 Section 230 of the Public Service Labour Relations Act (PSLRA) limits the jurisdiction of an adjudicator inquiring into a demotion or termination for unsatisfactory performance. If an adjudicator finds reasonable the opinion of the deputy head that an employee’s performance was unsatisfactory, the adjudicator must find that the demotion or termination of employment was for cause.

79 The employer argued that the case law under the former Public Service Staff Relations Act (PSSRA), such as Nnagbo v. Treasury Board (Public Works and Government Services Canada), 2001 PSSRB 1, has been supplanted by Raymond v. Treasury Board, 2010 PSLRB 23, which is the first decision under the PSLRA to consider a termination for unsatisfactory performance. In Raymond, the adjudicator found that not all the criteria developed under the PSSRA to assess the validity of an employer’s opinion on performance carried over into the PSLRA. 

80 In particular, the employer submitted that Raymond held that factors not related to assessing performance are not relevant and should not be considered by an adjudicator, including such factors as whether the employee was advised in writing that his or her employment could be terminated, whether the employer made an effort to find alternate employment and whether an approved leave of absence could have been substituted for the termination or could have deferred the termination. Such factors are not rationally linked to assessing performance and therefore cannot be considered by an adjudicator when determining the reasonableness of the deputy head’s opinion of the employee’s performance.

81 The adjudicator in Raymond held that those elements that carry over from the PSSRA relate solely to assessing performance. The adjudicator considered that an employer’s assessment of performance could not be considered reasonable were it conducted in bad faith. Nor could it be considered reasonable if the employee did not have appropriate standards of performance, if those standards were not properly communicated to the employee or if the necessary tools, training or mentoring necessary to meet the standards were not provided.

82 The employer argued that section 230 of the PSLRA does not allow an adjudicator to substitute his or her opinion for that of the employer; nor does it allow an adjudicator to substitute a penalty for termination.  Citing Dunsmuir v. New Brunswick, 2008 SCC 9, the employer argued that deference is owed to the decision maker and that a decision should be considered reasonable if it fell within the range of acceptable outcomes. Given that, an adjudicator should not substitute his or her opinion for that of those who actually knew what was required of an employee in the particular position.

83 The employer submitted that any suggestion that there was bad faith in its assessment of the grievor’s performance does not bear scrutiny. He does not appear to be questioning the actual assessment of his performance. No evidence was adduced that the assessment was unreasonable. The performance assessment was not manipulated. All witnesses for the employer testified that they wanted him to succeed, and all provided feedback, advice, mentoring and training. No evidence suggested a conspiracy or a hidden agenda to get rid of him or that he was set up to fail. 

84 The employer contended that the evidence of the confusion over the grievor’s supposed graduation did not support a finding of bad faith. The fact that he believed that everything would be fine because he would be graduated does not negate the fact that he still had performance problems and that his performance would still be monitored and measured against higher standards.

85 The employer submitted that the grievor was subject to appropriate standards of performance that were clearly communicated to him. The standards were the same for all participants in the training program. The employer’s expectations were communicated through orientation sessions, in-class training, appraisals and feedback. If the grievor was confused about what was expected of him, he could have asked, but he did not.

86 The grievor also received the training, tools and mentoring required to meet the standards of performance. In fact, he was given more time and more training opportunities than other participants in the program, as he had six years of training, including language training, orientation sessions and in-class training. He was given three overseas training assignments, while other participants received only one. He was given constant feedback and the support of a supervisor who made every effort to help him. If he felt that other training was required, he had an obligation to seek it.

87 The employer contended that the grievor’s letter of offer of employment, which stated that he would be entitled to priority status to find other employment in the public service if terminated from the FSDP, was a mistake. The Public Service Employment Act S.C. 2003, c. 22, ss. 12, 13, does not provide for priority status in such circumstances. The grievor was aware that his participation in the program would end were his performance unsatisfactory. The employer contended that he was offered an opportunity to return to Ottawa from his posting for three months to look for alternate employment. For personal reasons, he chose to turn that offer down.

88 The employer argued that, in any case, an employer’s failure to warn an employee of the consequences of unsatisfactory work performance or to look for alternate employment for an employee whose work performance is unsatisfactory are not factors rationally linked to assessing performance, therefore, they cannot be considered by an adjudicator.

89 As for the grievances against the denial of leave without pay for the temporary relocation of a spouse and the denial of leave without pay for the care of immediate family, the employer argued that they are moot. The grievor’s employment was terminated on July 20, 2009, and no leave survives termination of employment. Nor would the granting of that leave have prevented the termination of the grievor’s employment.

B. For the grievor

90 The grievor noted that, when he was hired in 2003, he was given a valid contract that set out the terms and conditions of employment, including a provision that dealt with disqualification from the FSDP. That provision set out alternatives to termination from the public service in the event that participants were not successful in the program. Although the employer suggested that the provision that promised that it would endeavour to provide alternate employment in the event of disqualification was made in error, the grievor accepted the offer of employment containing it, which gave the provision the status of a contractual obligation.

91 The grievor’s first 10 months in the program were relatively positive. He received a reasonable assessment from his first assignment in the RIO. Only when he was sent on his first overseas training assignment in London did problems seem to emerge. The grievor noted that, although he received daily feedback, he was not aware that there were serious concerns about his performance until the end of the assignment, when he could not do anything to rectify the situation.

92 The grievor argued that the concerns about his performance in London were not a balanced look at his overall performance. Nevertheless, as a result of that assessment, he was subjected to constant scrutiny and close monitoring. He stated that he was not questioning the individual assessments, the standards that were set or even the fact that he was struggling, but rather, he questioned the overall assessment of his performance.

93 The grievor was held back from his first overseas posting and was sent on two more training assignments. He received one excellent appraisal and one good appraisal but was still being monitored and repeatedly informed about his weaknesses. Furthermore, the evidence showed that, before he finally went on his overseas posting to Warsaw, his future supervisor was informed about his work and record, which meant that he went on the posting with a cloud hanging over him. In his opinion, it was bad faith on the part of the employer to influence his first impression by telling his new supervisor of earlier performance issues.

94 The grievor argued that, despite the concerns, the ARC’s assessment of his performance for the period of March 2006 to January 2008 (Exhibit E-1, part 2, tab 7) indicated that he was fully proficient and that, subject to the completion of his overseas posting, his time in the program was complete. In August 2008, despite some performance concerns, he was told that he would graduate. That this was later called an error does not change the fact that everyone behaved as though he had graduated and had been promoted to the FS-02 level. That appointment could be revoked only through a staffing appeal or by the deputy head, which did not occur.

95 The employer backtracked on the grievor’s appointment and imposed a strict PIP. The grievor argued that it constituted bad faith on the part of the employer. Furthermore, the PIP did not offer any measures beyond close monitoring to assist him. No offers were made of more training courses or anything else, even though courses were available.

96 The grievor contended that the ongoing performance monitoring during that period was simply a concerted effort to correct the employer’s mistakes by finding grounds to terminate him. The purpose of the monitoring was more to document his failings than to help him overcome them. He acknowledged that he had difficulty sustaining the required level of performance because of the constant monitoring and pressure and suggested that no one could have stood up to the level of scrutiny directed at him.

97 The grievor argued that the circumstances of the termination of his employment demonstrated the employer’s bad faith. Its demand that he choose between an immediate termination of employment and three months’ assistance to find alternate employment, which depended upon his immediate return to Ottawa, was unreasonable and insensitive. The employer knew that he could not accept the offer of assistance to find alternate employment because of his family circumstances, so by making him an offer that he could not accept, it acted in bad faith. The grievor cited Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, for the proposition that employees are at their most vulnerable when the employment relationship terminates and therefore need the most protection, which requires employers to operate transparently and in good faith.

98 The grievor argued that Raymond cannot be interpreted in the manner suggested by the employer. Suggesting that an adjudicator can consider only appraisals and feedback assessing performance entirely removes due process. It cannot be suggested that Parliament would limit due process. Managers should not be given free rein to show that their decision was reasonable simply because they filled out appraisals and gave feedback, thus removing jurisdiction from adjudicators. That would result in absurdity and would set very low standards, as it would confirm that employees could be terminated without due process and it would render employment contracts, such as the one signed by the grievor, null and void.

99 The grievor argued that, instead, section 230 of the PSLRA sets out how to find cause and places the burden of proof on the employer. The purpose of that section is simply to limit the review of the minutiae of performance indicators rather than to rob an employee of the due process required to determine a reasonable assessment of performance. The requirement to search for alternate employment is one facet of due process required before a termination of employment can be considered reasonable. That requirement is found in Treasury Board policy, the common law and the grievor’s own contract of employment.

100 The Raymond decision held that certain factors set out in the Nnagbo decision cannot be carried over from the PSSRA under the PSLRA in their entirety but that others can be carried over. Factors such as bad faith, failing to establish appropriate standards of performance, failing to communicate standards of employment, and failing to provide appropriate tools and training were considered by the adjudicator in Raymond to carry over into the analysis of terminations for unsatisfactory work performance under the new PSLRA.

101 The adjudicator in Raymond did not consider certain factors from the Nnagbo decision, such as the requirement to provide a written warning and the requirement to search for alternate employment, simply because the grievor in Raymond was demoted rather than terminated, and those factors did not apply. Given that fact, Raymond is not determinative on those elements, as the adjudicator did not need to consider them for the demotion before her.

102 It is clear that employees need to know the potential consequences of poor performance through written warnings and that they need to know of the efforts made to find them alternate employment. Those factors are rationally linked to assessing performance. If they are not considered, the assessment cannot be found reasonable. The grievor’s employment contract, Treasury Board guidelines and the common law have all adopted factors similar to those specified in Nnagbo. The grievor cited Goodyear Canada Inc. v. United Steelworkers of America, Local 818 (1997), 48 CLAS 320, in support of the assertion that the common law considers the factors well accepted. He argued that, therefore, Raymond must be interpreted in a manner consistent with those factors.

103 The grievor stated that, although he was told that his participation in the FSDP would end were his performance unsatisfactory, he was not told that his employment in the public service would end. In fact, the possibility of alternate employment was always held out. He was never given any written warning that his employment could be terminated.

104 The employer failed to provide reasonable alternate employment, failed to provide written warning that termination was possible, and failed to provide or suggest tools, training courses or other means that would assist the grievor. The expectations of his performance were confused, as even Ms. Bailey was not always clear as to the standard to apply. He cited O’Leary v. Treasury Board (Department of Indian Affairs and Northern Development), 2007 PSLRB 10 (affirmed in 2008 FC 212); and Morissette v. Treasury Board (Department of Justice), 2006 PSLRB 10, in support of the proposition that failing to consider the required factors undermined the assessment of his performance.

105 The grievor contended that the FAA provides that it is incumbent on the employer to ensure that public money is not wasted. The employer indicated that the training of a foreign service officer is expensive. Therefore, it should have looked for alternate employment for him so that the skills he attained could be put to use elsewhere. The employer did not.

106 The assessment of the grievor’s performance cannot be considered reasonable. Reasonableness lies in demonstrating that everything that needed to be done was done. In this case, it was not. Termination should have been a last resort, following due process. His performance was assessed only as it applied to the program, not as it applied to his performance as an employee. Given that fact, the termination of his employment was improper and should not stand.

107 Concerning the leave applications, the grievor argued that he first raised the question of leave without pay in correspondence between August and November 2008 when it appeared that his posting in Warsaw were not be extended. He also made it clear in his discussions with his assignment officer in November 2008 that he wanted leave without pay if his posting in Warsaw were not extended. It was clear from the correspondence that he wanted leave without pay to begin on the day on which his posting was cut short.

108 The grievor’s requests for leave without pay were not made at the last minute. Even had they been, Ms. Defoy had suggested to him that he would be eligible for leave without pay if he were not graduated. He relied on that information. The employer ignored the grievor’s requests for leave, rather than dealing with them. Both types of leave requested were non-discretionary, so the employer should have granted them.

109 Even if it is determined that the grievor requested the leave only in the two weeks before the termination of his employment, leave without pay was still an option. His employment was not terminated; rather, he was terminated from the program. Leave without pay would have been a way to ensure that he had priority status.

110 The grievor asked that he be reinstated to the FS-02 level, effective August 2008, when he was advised that he had been promoted, with back pay and interest and no loss of benefits, until another position can be found for him on his return to Canada, less any money earned from employment in the relevant period.

111 Alternatively, the grievor asked to be reinstated to the FS-02 level until the date the position was eliminated and then to be placed on leave without pay for the relocation of a spouse or the care of immediate family until his wife’s posting in Warsaw ends and he can return to Canada. He asked to be placed on the priority list for one year following his return to Canada, and he asked that the employer provide him with assistance in his employment search, including but not limited to access to an office and email, the circulation of his resume and the provision of references, as well as the assistance of an employment coach.

112 The grievor also asked for damages in the amount of $10 000 for pain and suffering and compensation of $1383 for the cost of his plane ticket from Poland to Ottawa to attend the hearing.

C. Employer’s reply

113 The employer asked that the question of remedy be dealt with separately, after a decision on the merits is issued.

114 The employer stated that the continuous monitoring of the grievor’s performance was intended to assist him and that it was measured. The performance appraisals all showed some level of concern with his performance.

115 The employer did not act in bad faith when it terminated the grievor.  Ms. Chomyn was businesslike, not insensitive, because he was slow to respond to the employer’s request for a decision. There was no doubt that the employer would have been open to options.

116 The suggestion that failing to find the grievor alternate work made the assessment of his performance unreasonable is a big leap in logic. The wording of section 230 of the PSLRA makes it clear that the requirement to find alternate employment is not rationally linked to an assessment of performance. Nevertheless, despite the fact that the employer had no duty to find alternate employment for him, it offered to bring him to Ottawa for that very purpose.

117 The employer argued that the grievor made no valid leave requests and that, in any case, leave requests presuppose that he was an employee. The employer stated that the fact that he thought that leave without pay would be an option in the event of termination is not relevant as it is not connected to an assessment of performance and is not evidence of bad faith.

IV. Submissions on Plamondon

A. For the employer

118 The employer argued that Plamondon is consistent with the language of the PSLRA and that it should be followed. If there is any distinction between this case and Plamondon, it is that in this case clear performance standards were established and followed, whereas in Plamondon,explicit performance standards were not always clear. Therefore, this case is even stronger than Plamondon.

119 The employer reiterated that section 230 of the PSLRA sets out very explicit language about assessing performance. Separate and distinct steps are required to form a reasonable opinion about an employee’s work performance.

B. For the grievor

120 The grievor argued that there is a particular process that must be followed when assessing an employee’s performance, that it must be carried out in good faith and that it must be reasonable. It is generally accepted that the process of assessing an employee’s work performance requires that the employer establish performance standards, provide training and mentoring as required, and warn of the consequences of poor performance. Furthermore, the employer’s own policies require that it search for alternate employment before making a decision to terminate an employee due to performance issues. Additionally, the grievor’s contract of employment makes the same promise.

121 The grievor argued that, for the employer’s assessment of his performance to be found reasonable, it had to have been carried out within the parameters of its own policies, which include the obligation to search for alternate employment. In Raymond, which was the first case to consider unsatisfactory work performance issues, it was clear that the employer conducted a search for alternate work, because the grievor in that case was demoted rather than terminated.

122 Although Plamondon recognizes that the deputy head’s opinion has to be reasonable and that it has to follow due process, itdoes not analyze or consider what would make an assessment of work performance reasonable. The adjudicator erred when he found that he did not have the jurisdiction to consider whether the employer should have demoted rather than terminated an employee for poor performance or whether the employer failed in its obligation to search for alternate employment. Failing to search for alternate employment is bad faith. The employer had other options but chose to not consider them.

V. Reasons

123 The grievor was employed as a foreign service officer classified FS-01 in the FSDP, which was a developmental program created to train the foreign service officers who implement Canada’s immigration program at Canadian missions abroad. His employment was terminated on July 13, 2009, for unsatisfactory work performance. The grievor alleged that the termination of his employment was without just cause. Specifically, he alleged that the employer failed to follow due process and that it acted in bad faith, both when assessing his performance and when deciding to terminate his employment, rather than help him search for alternate employment. He alleged that, among other things, the employer could have, and should have, granted him leave without pay until he was in a position to return to Ottawa to search for alternate employment. In addition to the grievance against the termination of his employment, he grieved the denial of two requests for leave without pay.

124 An adjudicator examining a termination of employment for unsatisfactory work performance is limited in jurisdiction by section 230 of the PSLRA, which provides 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.

125 Section 230 of the PSLRA has been in effect only since 2005, when the PSLRA was proclaimed in force. As a result, it has not been the subject of much jurisprudence. Nevertheless, it has been considered. Raymond, a 2010 decision of an adjudicator of the Public Service Labour Relations Board (“the Board”), and Plamondon, a 2011 decision, both tackled the question of the meaning of the section directly. Both decisions reached the same conclusion. The reasonableness of the employer’s assessment of performance is the issue that an adjudicator must examine, not the reasonableness of the decision to terminate or demote. The consequence, as noted in Raymond, is that I am limited to one of two conclusions. Either the assessment that the grievor’s performance was unsatisfactory was reasonable, or it was not. If it was reasonable, I must find that there was cause, and I then cannot interfere with the decision to terminate the grievor’s employment. If it was not reasonable, the termination will be overturned. No other conclusion is possible.

126 Raymond and Plamondon represent a departure from earlier approaches to non‑disciplinary terminations for unsatisfactory work performance. Although adjudicators acquired the jurisdiction to hear cases concerning non-disciplinary terminations for such issues as incapacity or unsatisfactory work performance only in 1993, a body of jurisprudence developed that established criteria to determine whether a termination of employment for unsatisfactory work performance was reasonable. The most succinct statement of those criteria is found in Nnagbo, a decision of the former Board that predates section 230 of the PSLRA. In that case, it was held that an employer seeking to terminate the employment of an employee for unsatisfactory work performance must demonstrate that it acted in good faith, established appropriate performance standards that were clearly communicated to the employee, provided the necessary training, tools and guidance to meet the required performance standards within a reasonable period, warned the employee in writing of the consequences of failing to meet the required standards, and must demonstrate that the employee actually failed to meet the standards of performance.

127 Considering the criteria set out in Nnagbo in light of section 230 of the PSLRA, the adjudicator in Raymond noted that some related more to the deputy head’s decision to terminate employment for unsatisfactory work performance than to the actual assessment of performance. The adjudicator held as follows that only the criteria applicable to assessing performance would be relevant under section 230:

…

131… I do not see how it would be possible to find that it was reasonable for a deputy head to consider the performance of one of his or her employees unsatisfactory if the evidence showed the following:

• the deputy head or the supervisors who assessed the employee’s performance were involved in a bad faith exercise;
• the employee was not subject to appropriate standards of performance;
• the employer did not clearly communicate the standards of performance to the employee that he or she was required to meet; or
• the employee did not receive the tools, training and mentoring required to meet the standards of performance in a reasonable period.

…

128 I believe that Raymond, which was followed in Plamondon, sets out the appropriate criteria for determining the reasonableness of the deputy head’s opinion that the grievor’s performance was unsatisfactory. Therefore, I will measure the reasonableness of the deputy head’s assessment of the grievor’s performance against those criteria.

129 Dealing first with the question of whether the assessment of the grievor’s performance was a bad faith exercise, I note that, between 2005, when he began the substantive portion of his training, and 2009, when his employment was terminated, 15 performance appraisals were completed. Of them, six appraisals were prepared by the five supervisors of his different training assignments in the two years before he began his overseas posting in Warsaw. The remainder were prepared by Ms. Bailey, his supervisor in Warsaw. All the appraisals were adduced in evidence on consent. No evidence was adduced that the grievor challenged or grieved any of them when he received them. In fact, he did not challenge in any meaningful way the contents of the appraisals at the hearing. Furthermore, the ARC reviewed each appraisal. No evidence was adduced and no suggestion was made that the ARC was in any way biased or unreasonable in its reviews of the grievor’s performance.

130 The grievor stated that the individual performance assessments were not as much a concern as the overall performance assessment. He contended that the employer concentrated unduly on appraisals that were considered less than proficient rather than taking a more balanced approach and looking at his overall performance. He argued that the employer’s concentration on his deficiencies rather than his strengths was motivated by bad faith. In particular, he alleged that bad faith was demonstrated first in the close monitoring, frequent appraisals and scrutiny that followed him after his assignment to London, second, in Ms. Bailey being warned that he had performance issues before he arrived in Warsaw, which caused her to be biased against him, and third, in the attempt to cover up the mistake made with his graduation in August 2008.

131 With respect to the grievor’s allegation that bad faith motivated the constant scrutiny and frequent appraisals, it must be noted that he was a participant in a developmental training program that included classroom training, short-term overseas assignments and a two-year overseas posting. In addition to training, mentoring and frequent feedback, regular performance appraisals were a feature of the program. Ms. Defoy testified that appraisals are done at regularly scheduled intervals and that, in addition, appraisals are done if a participant changes supervisors or is sent abroad on a training assignment outside the normal schedule. She testified that the performance of participants is closely monitored so that performance deficiencies can be identified and corrected. Every appraisal of the grievor was reviewed by the ARC, which analyzed them and provided an overall performance assessment. No evidence suggests that the ARC was biased against him or that it was unfair in its review of his performance appraisals. 

132 In the performance appraisals conducted between January 2005 and July 2007, before the grievor began his overseas posting in Warsaw, concerns emerged, even on the appraisals that could be considered positive. As an example, most of the appraisals raised issues with his ability to manage his workload effectively. Under the analytical or critical thinking part, four of the five appraisals identified problems. Several supervisors identified problems with networking, teamwork and collaboration. Two of the five supervisors questioned his level of enthusiasm and engagement in the work. Performance issues continued to arise during his posting in Warsaw. As a result, his performance was monitored.

133 The close monitoring complained of by the grievor is built into the program, given that it is a training program. As I noted, Ms. Defoy testified that the purpose of that close monitoring is to pinpoint performance deficiencies, to bring any problems to the attention of the participant and to develop a plan for improvement. It is difficult to conclude that the monitoring in the grievor’s case arose from any other intention. I do not find any bad faith in the performance monitoring that he experienced.

134 The grievor also alleged that Ms. Bailey’s attitude toward him was biased from the outset because, even before he arrived in Warsaw, she had been told that he had performance problems. He argued that it amounted to bad faith and that it tainted her assessments. I do not agree. Although it is certainly true that Ms. Bailey was told of the grievor’s performance problems when she was asked to accept his assignment in Warsaw, nothing in the evidence suggested that that information was intended to influence her or that it did in fact influence her assessment.

135 Ms. Valade testified that it was not an unusual practice to discuss with a manager a proposed candidate for a posting or training assignment, as it gives the manager some idea of the training necessary and of the reports required. Ms. Bailey testified that, as a result of her conversation with the grievor’s former supervisor, she concluded that she could work with him. Nothing in her testimony or in any other evidence presented suggested that she approached the task of supervising him with anything other than diligence and an honest desire to help him succeed. Ms. Bailey’s evidence was that she tried to approach each appraisal with fresh eyes, rather than with a preconceived notion of how he was performing. Nothing in her testimony, or in any other evidence before me, suggested that she was biased against him or that the appraisals were anything other than her honest assessment of his performance.

136 The grievor also alleged that the employer’s overall conclusion that his performance was unsatisfactory was tainted because it was trying to cover up its mistake with respect to his supposed graduation in August 2008. He argued that he had, in fact, been promoted to the FS-02 level and that the employer then backtracked from it several months later, even though it had no authority to revoke his appointment in that manner. He argued that withdrawing the appointment and imposing a strict PIP constituted bad faith.

137 There can be no doubt that Ms. Defoy told the grievor that he would be promoted. She acknowledged as much in her testimony, and documents confirm it (Exhibits E-1, part 1, tab 17, and part 2, tab 19). Ms. Defoy testified that she made a mistake. She believed that, because he had not received a written warning that he would not graduate, she had no choice but to promote him. In her evidence, she acknowledged that it was a mistake. However, according to the evidence of Ms. Diener, the promotion was not processed. Reviewing the letter of promotion, she had second thoughts because she believed that the grievor would not be able to perform successfully at the FS-02 level.

138 Although it is clear that the employer retreated from the promise of promotion, no evidence was presented that supported the grievor’s allegation that he had actually been promoted to the higher level, such as a certificate of appointment or pay stubs, and Ms. Diener testified that the promotion to the FS-02 level was never processed. Given that fact, I cannot find that the employer engaged in an improper revocation of appointment. Nor am I convinced that any attempt was made to cover up the mistaken notice to the grievor that he would be promoted by imposing a PIP designed for him to fail. In fact, Ms. Diener’s evidence was that she felt that promoting him to the FS-02 level when he was struggling to succeed in the FSDP would have surely resulted in his failure.

139 The grievor can have been under no illusion that the employer was satisfied with his performance. Ms. Defoy advised him that the only reason that he would be promoted was that she failed to give him notice. She was clear that his performance was not satisfactory. In his testimony, he acknowledged that he knew that the only reason he was to be promoted was a technicality. It is difficult to understand why he felt that promotion to a higher level would end the employer’s scrutiny and performance monitoring, when it clearly felt that he had not met the performance expectations of the lower classification level.

140 The grievor argued that the PIP that was put in place following the decision to not promote him was simply a way to document his failings for the purpose of supporting terminating his employment, rather than a genuine attempt to help him. In essence, he argued that, in the last six months of his employment, the employer was simply engaging in a bad faith exercise through intense performance monitoring and constant criticism.

141 I do not find that the PIP and the assessments conducted by Ms. Bailey in the last six months of the grievor’s employment were motivated by bad faith. In my view, the imposition of the PIP was consistent with the approach that the employer had taken with him almost from the beginning of his participation in the program. After a poor appraisal on his London assignment, his overseas posting to Manila was cancelled, and additional assignments, both in headquarters and overseas, were designed to give him more exposure and experience so that he would be better prepared for the more taxing work of an overseas posting.

142 The continuation of the grievor’s participation in the program and the imposition of the PIP between January and July 2009 were consistent with that approach. Furthermore, in August 2008, he argued that he had only one year in an overseas posting, while the rest of the participants had two. By continuing his participation until summer 2009, the employer ensured that he had the same experience, opportunity and workload as the rest of the participants (Exhibit E-1, part 1, tab 26). No evidence suggests that Ms. Bailey approached the supervision of the grievor during the period of the PIP any differently from her earlier assessments of his performance, although they were done monthly under the PIP.

143 Performance problems were consistently identified over the course of the grievor’s participation in the FSDP by more than one supervisor. It is true that there were a few good performance assessments. The ARC’s review of his performance for the period between March 2006 and January 2008 (Exhibit E-1, part 2, tab 13), for example, rated it as satisfactory. However, in the written notes that accompanied that appraisal, and in an email to him about it (Exhibit E-1, part 1, tab 13), Ms. Defoy was somewhat less positive, noting that, although he had improved, some performance issues still remained. As she expressed it in the email, the grievor was on “the road to meet all competencies,” as opposed to having already met them. Furthermore, despite the promising assessment, he did not seem to be able to maintain satisfactory performance for any length of time.

144 Given the facts, I do not find any bad faith in the assessment of the grievor’s performance. Nothing in the evidence suggests that his supervisors were biased against him or that their assessments of his performance were unfair or unreasonable.

145 Having found no evidence of bad faith or bias, the next questions are whether the grievor was subject to appropriate standards of performance and whether they were communicated to him. In my opinion, the evidence is clear that he was subjected to the same standards of performance (Exhibit E-1, part 2, tab 2) as all FSDP participants. Furthermore, as Ms. Defoy testified, a standard learning plan existed for all FSDP participants. All participants were aware of the employer’s expectations through the Foreign Service performance indicators (Exhibit E-1, part 2, tab 2), through their performance appraisals, and through meetings to set and review performance objectives with their supervisors and Ms. Defoy, when issues warranted her intervention. In addition, the PIP developed for the grievor (Exhibit E-1, part 1, tab 30) clearly set out the employer’s performance expectations for the period between January and July 2009.

146 In the grievor’s circumstances, there can be no doubt that he understood the employer’s performance expectations. That was, after all, the purpose of the performance monitoring and mentoring that was a particular feature of the program. In addition to meetings and feedback from his supervisors and Ms. Defoy, the grievor also had two meetings with Ms. Valade in the first two years of his participation in the program that were intended to clarify the employer’s expectations.

147 I find that the grievor was subject to appropriate standards of performance and that he was well aware of the employer’s expectations. That leaves the question of whether he received the tools, training and mentoring necessary to meet the required standards of performance in a reasonable period.

148 The FSDP is a structured training program with a standard learning plan. The grievor, like all participants, was required to take certain courses, such as a course on applying the legislation and regulations, and to go on several overseas training assignments. Because his performance issues became evident after his first overseas training assignment, he was given an extra year at headquarters and two additional overseas training assignments. Although most participants spent three years in the program, he spent four. Ms. Defoy and Ms. Valade both testified to the care taken when choosing appropriate overseas assignments for him. Warsaw was considered a good assignment for him, for example, because Ms. Bailey was known as a good teacher.

149 The grievor alleged that, when it became clear that he was struggling, the employer should have offered him additional training and courses. Ms. Bailey testified that she did not consider sending him on other training courses because she was not aware of the resources in Warsaw. She noted that there would have been language difficulties, since the grievor did not speak Polish, and courses in Warsaw would have been in Polish. Furthermore, she felt that her guidance and support should have been enough to help him. No evidence suggested that he asked for additional courses. It was, in my view, incumbent on him to take some initiative if he felt that courses over and above the training being provided through the FSDP were necessary. He did not. No suggestion was made that he asked for specific courses that the employer refused to consider.

150 In my opinion, the employer made every effort to ensure that the grievor had the necessary training to succeed in the program. The fact that this training was a combination of courses and on-the-job mentoring and guidance does not negate the effort that went into it or the value that could be taken from it.

151 Measured against the criteria set out in Raymond, I conclude that the deputy head’s assessment of the grievor’s performance was reasonable. However, he argued that the deputy head’s opinion could not be considered reasonable if due process was not followed. Where an employer ignored its own policies, rules and procedures, it is not possible to find that due process is followed. In particular, the grievor argued that the offer of employment made to him, the terms and conditions of employment for employees in the FSDP and the employer’s policy all set out the promise that, in the event that an employee was disqualified from the program because of unsatisfactory work performance, the employer would endeavour to find alternate employment. That was not done in the grievor’s case, in spite of the employer’s available options.

152 The grievor also argued that he was not aware that his employment in the public service could be terminated for unsatisfactory performance. Although he understood that his participation in the FSDP could be terminated as a result of unsatisfactory performance, he believed that the promise to find him alternate employment meant that his employment in the public service would continue. The grievor argued that the employer’s failure to search for alternate employment meant that it did not follow due process and therefore that it acted in bad faith.

153 There is no doubt that the provision on disqualification in the terms and conditions of employment for the FSDP and other documents, as well as Treasury Board policy, indicate that the employer will explore the possibility of alternate employment before deciding to terminate employment for unsatisfactory work. Whether the offer to bring the grievor back to Ottawa on salary for three months and to provide him with an office and a computer to conduct his own search would have satisfied that requirement is questionable. Nnagbo suggests that it would not. Furthermore, in the highly charged atmosphere that surrounded the grievor’s termination, giving him just a few days to sort out how to deal with the fact that his family was also in Warsaw seems unduly harsh. The grievor was bright, and the employer had invested a great deal of time and effort in training him. Surely, he had skills that could have been put to use, even though he was not suited to the job of foreign service officer. It seems a shame that he was not afforded a real opportunity to find alternate employment within the employer.

154 Despite my unease with the manner of the grievor’s termination, I believe that the issue falls outside of the scope of an adjudicator’s jurisdiction under section 230 of the PSLRA, as it relates solely to the decision to terminate his employment and not to the assessment of his performance. Although he argued that Parliament could not have intended this result, I must be guided by the language of the PSLRA, which is clear. As I have already indicated, section 230 provides that if I find that the deputy head’s opinion of the grievor’s work performance was reasonable, I must find that the deputy head had cause to terminate the grievor’s employment. There are no other elements in that equation. I have found that the deputy head’s assessment of the grievor’s performance was reasonable. Therefore, I must find that the termination of his employment was for cause, which means that his grievance against the termination of his employment must be dismissed.

155 The grievor filed two grievances against the denial of leave without pay. One is about the denial of leave under article 25 of the collective agreement and the other is about the denial of leave under article 29. Unlike most cases involving leave requests, no copies of the leave forms were submitted in evidence. Ms. Chomyn testified that foreign service officers generally make leave requests by email and that they are usually approved by phone or return email. However, Ms. Chomyn also testified that she would have expected a written record of the request that set out the type of leave requested, the date of the leave and the time requested.

156 The evidence is minimal for the grievor’s application for leave without pay for the care of immediate family. In fact, other than a passing reference to the possibility of parental leave were his posting in Warsaw terminated early, made in an email in November 2008 (Exhibit G-1, tab T, page 10), no documentation supports his contention that he requested leave for this purpose until July 13, 2009, after he had been informed that his employment would be terminated.

157 The evidence concerning an application for leave without pay for the relocation of a spouse is almost as sparse. The grievor mentioned it as a possibility in May 2008 on his PPF if his posting in Warsaw ended before his wife’s posting. The grievor reaffirmed that possibility in November 2008 in an email exchange with his assignment officer. In neither situation was a formal request for leave made by him or denied by the employer.

158 On June 30, 2009, the grievor again raised the possibility of leave without pay for the relocation of a spouse in an email to his assignment officer (Exhibit E-1, part 1, tab 41), when he learned that his Warsaw posting would be cut short. In the email, he asked if any processes were required to formally request the leave and indicated that he understood that he would need to submit a leave form. The email suggests to me that, until that point, no formal request for that leave had been made.

159 The grievor repeated his requests for leave without pay in the discussions leading up to the termination of his employment. There is no doubt that, when he made his requests, his intention was to postpone the termination of his employment. He believed that, were he on leave without pay until his family was able to return to Canada, he would be able to take advantage of the employer’s offer to help him search for a new job. In the conversations and emails that took place around the termination of his employment, he indicated that either leave without pay for the relocation of a spouse or leave without pay for the care of immediate family would serve his purpose. Ms. Chomyn testified that the employer would not entertain his requests because it believed that it would have been untenable to keep him on strength and on leave without pay for the duration of his wife’s posting. There were concerns that it would complicate termination at the end of the leave and that it would have made staffing difficult.

160  I do not believe that the evidence supports the suggestion that the grievor made a formal request for leave without pay at any time before the conference call on July 13, 2009, when the employer advised him that his employment would be terminated if he chose to not return to Ottawa immediately to search for new employment. Until that point, all he had done with respect to a request for leave without pay was to signal the possibility that he might apply for leave for spousal relocation. The closest that he came to actually making a request was on June 30, 2009, when he asked to be told the process for formally applying for leave.

161 Furthermore, I do not believe that the employer is obligated to consider a request for leave without pay made in the shadow of a termination of employment, for the purpose of avoiding termination. Nor would being on leave without pay have prevented or precluded the employer from terminating the grievor’s employment for unsatisfactory performance. Accordingly, I cannot find that the employer violated either article 25 or article 29 of the collective agreement. However, even if a formal leave request had been made and denied, the grievances against the denial of leave without pay would be moot, since I have dismissed the grievance against the termination of employment.

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

VI.Order

163 The grievance against the termination of the grievor’s employment for unsatisfactory work performance is dismissed.

164 The grievance against the denial of leave without pay pursuant to article 25 of the collective agreement (“Leave without pay for the care of immediate family”) is dismissed.

165 The grievance against the denial of leave without pay pursuant to article 29 of the collective agreement (“Leave without pay for the temporary relocation of spouse”) is dismissed.

January 17, 2012

Kate Rogers,
adjudicator