FPSLREB Decisions

I.   Individual grievance referred to adjudication

1 The grievor, Roch Dupont, was a prosecutor, classified LA-02, employed by the Office of the Director of Public Prosecutions (more commonly referred to as the Public Prosecution Service of Canada and in this decision as “PPSC” or “the employer”) in Calgary, Alberta. On August 12, 2009, he filed a grievance concerning his performance appraisal. It read as follows:

I wish to grieve my PREA for fiscal year 2008-2009 as it fails to recognize my accomplishments for the year under review and unfairly finds fault with my performance. This was in most cases with out [sic] giving me an opportunity to explain my conduct of the files or issues which are discussed in the PREA.

I wish to grieve the Objectives set out for the current fiscal year as too restrictive and unnecessarily restrictive in my ability to perform my duties.

2 The grievor requested as corrective action that the performance appraisal be amended to reflect his accomplishments, that the overall rating be changed, that the objectives set out in the appraisal be less restrictive and that they cease to remain in effect after a reasonable period.

3 The grievance was heard at the second level of the grievance process on December 17, 2009. In the response, dated February 19, 2010, the employer, although satisfied that the overall assessment was accurate, agreed to make note of the grievor’s successful handling of certain files during the appraisal period and agreed to exclude a reference to particular events in the same period for the purpose of the performance rating. The employer also agreed to modify the grievor’s work plan. As a result, the employer considered that the grievance was partially allowed. A hearing at the final level of the grievance process took place on June 15, 2010 and a response dated July 23, 2010 was issued. The employer denied the grievance on the basis that the grievor had serious performance shortcomings that were accurately set out in the performance appraisal.

4 On August 18, 2010 the grievor referred his grievance to adjudication under paragraphs 209(1)(b) (c) and (d) of the Public Service Labour Relations Act (PSLRA). However, since he was not an employee of a separate agency designated under subsection 209(3), he subsequently deleted the reference to adjudication under paragraph 209(1)(d).

5 On November 12, 2010, the employer filed an objection to the jurisdiction of an adjudicator of the Public Service Labour Relations Board (PSLRB) to hear the grievance at adjudication. The employer made further submissions on it objection to jurisdiction on January 18 and February 24, 2011. From all the employer documents, it was clear that the employer objected to jurisdiction of the PSLRB to hear the grievance on the grounds that grievances against the contents of performance appraisals are not adjudicable because they are a management right falling under section 7 of the Financial Administration Act, R.S.C., 1985, c. F-11. The employer further objected that, although referred to adjudication under paragraphs 209(1)(b) and (c) of the PSLRA, the grievance did not contain any allegations of disciplinary action, termination or demotion. Citing Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), the employer contended that the grievor could not have referred the grievance to adjudication relying on those paragraphs as it would have changed its essential character. The employer asked that the objection to jurisdiction be dealt with through written submissions.

6 The grievor responded to the employer’s objection by stating that the PSLRB had jurisdiction because the grievance specifically addressed his constructive dismissal and demotion to a lesser position for clearly disciplinary reasons. The grievor also noted in passing that, as a result of the poor appraisal, he received a financial penalty. The grievor opposed the employer’s request that the matter be dealt with by written submissions.

7 Initially, I determined that the matter could proceed by way of written submissions. However, after reviewing the parties’ submissions, it was clear that an oral hearing would be necessary to resolve certain factual differences between the parties. I specifically asked that the parties be prepared to present evidence and arguments concerning what was argued during the internal grievance process, given the employer’s reliance on Burchill, as well as evidence and arguments on whether the performance appraisal was a disciplinary action resulting in a financial penalty.

8 The matter was scheduled to be heard in Calgary, Alberta, on May 23 and 24, 2012. On May 11, 2012, the grievor advised the PSLRB that, for health reasons, he was not able to attend the hearing and asked that the matter be dealt with through written submissions. The employer objected to the grievor’s request on the grounds that I had already ruled that a hearing was necessary to resolve the factual differences between the parties.

9 Absent an agreement on the facts, the parties were advised that the hearing would proceed as scheduled. The grievor responded by stating that the hearing could proceed but that he would not be present because of his health. The PSLRB Registry Office reminded him that, if he did not attend the hearing, I could dispose of the matter on the evidence and representations made at the hearing without further notice to him. He was also told that the hearing would proceed as scheduled, unless he requested a postponement and supported it with a medical certificate. The grievor did not request a postponement. In fact, by email dated May 15, 2012, he confirmed that he would not be present and that the hearing should proceed without him as his health was more important to him.

10 The hearing convened in Calgary on May 23, 2012. The employer was present, but the grievor did not appear. The employer moved for an immediate dismissal of the grievance on the ground that the grievor was not present. I ruled that, because the parties had already filed submissions on the grievance and because the employer had the burden of proof concerning the objections to jurisdiction on the record, I would not grant an immediate dismissal. Instead, I asked the employer to present evidence and argument on its objection to jurisdiction.

II.  Summary of the evidence

11 The employer called one witness, Wes Smart, Chief Federal Prosecutor for the PPSC in Alberta, and entered one document into evidence.

12 Mr. Smart has been Chief Federal Prosecutor for Alberta since 2003 and was in the position in 2009, when this grievance was filed. He explained that he normally hears grievances at the second level of the grievance process. In this case, no first-level hearing was held because the grievor wanted to skip the first level and have the grievance heard at the second level.

13 The second-level hearing was held on December 17, 2009. Mr. Smart met with the grievor and his union representative, Craig Henderson, in a private room in the PPSC Calgary office. Mr. Smart testified that the process was relatively informal to allow the grievor to make all the points that he wanted to make. Mr. Smart took detailed notes of the meeting, which were adduced in evidence as Exhibit E-1.

14 Mr. Smart testified that, during the second-level hearing, the grievor focused on his belief that the appraisal was inadequate because it failed to address his accomplishments during the review period, contained an unfair criticism of his work performance without proper warning during the period and because it established unnecessarily restrictive work objectives. During the hearing, the grievor made a general opening statement and then addressed specific points. He also presented a number of documents, which Mr. Smart believed were intended to demonstrate that the grievor had done his job well. Mr. Smart testified that no suggestion that the appraisal was disciplinary was made during the hearing. The hearing was solely a discussion of the appraisal and was completely work-related.

15 Following the hearing, Mr. Smart took a number of steps to deal with issues that were raised by the grievor. He addressed the grievor’s work objectives to make them more flexible. He also believed that it was necessary to help the grievor develop skills as a prosecutor, so he changed the grievor’s reporting relationship to facilitate that goal.

16 Mr. Smart testified that he interviewed a number of people and that he reviewed the grievor’s files before responding to the grievance. He upheld the grievance in part because the appraisal referred to issues outside the review period. He also felt that it was important to recognize some of the grievor’s accomplishments.

17 Mr. Smart’s notes, research and response to the grievance were copied to the PPSC’s labour relations office. He also talked to Brian Saunders, Director of Public Prosecutions, who would respond to the grievance at the final level. Although Mr. Smart was not present at the final-level hearing, he testified that he spoke to Mr. Saunders about it after the fact and was told that the issue of discipline was not raised.

18 Mr. Smart testified that the purpose of the performance appraisal process is to provide feedback to employees about the quality of their work. It is also designed to address needs for training or development. The process is intended to be a direct and ongoing exchange between the employee and supervisor throughout the year, culminating in a formal written document that summarizes how the employee performed through the year and that sets out objectives for the future. The process is not intended to be, and is not, disciplinary.

III. Summary of the arguments

A. For the employer

19 The employer argued that the onus of proof rested on the grievor to establish that he raised the question of discipline during the grievance process. The grievor did not satisfy that burden. Because the grievor was not present at the hearing, the only evidence presented on the grievance was that of the employer. The employer argued that, based on Burchill alone, the preliminary objection should be upheld and the grievance dismissed. In support, the employer cited Baranyi v. Deputy Head (Canada Border Services Agency), 2012 PSLRB 55.

20 The employer argued that, in cases in which a grievor has failed to appear for the adjudication hearing, some adjudicators have supported dismissing the grievance on the grounds that the grievor abandoned the grievance. Synowski v. Deputy Head (Department of Health), 2007 PSLRB 63, and Jeewanjee v. Treasury Board (Canadian International Development Agency), 2007 PSLRB 109, were cited as examples of that position. The employer argued that this grievance should be dismissed on the same basis.

IV. Reasons

21 The grievance before me alleges that the grievor’s performance appraisal failed to recognize his accomplishments throughout the appraisal period, was unfair and imposed unduly restrictive objectives. On its face, since it does not explicitly refer to disciplinary action or to demotion or termination for unsatisfactory work performance or deployment, the grievance does not appear to fall within the parameters of an adjudicator’s jurisdiction, as set out in subsection 209(1) of the PSLRA, which provides in part as follows:

209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

…

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required …

…

22 The employer objected to my jurisdiction to hear the grievance on the grounds that it did not allege discipline, demotion or termination for unsatisfactory work performance and that the grievor’s attempt to refer the grievance under the provisions of subsection 209(1) of the PSLRA was an attempt to alter the nature of the grievance that had been presented “… up to and including the final level of the grievance process …” Citing Burchill, the employer argued that the grievor could not change the essential character of the grievance. The evidence led by the employer supported this submission.

23 In my view, the onus then fell upon the grievor to demonstrate that his grievance falls within the confines of paragraphs 209(1)(b) and (c) of the PSLRA. On its face, it appears solely to concern the content of his performance appraisal and not a disciplinary action resulting in a financial penalty or a demotion or termination for unsatisfactory work performance. Had the grievor been able to demonstrate that he had argued that the appraisal constituted a disciplinary action resulting in a financial penalty throughout the grievance process, he might well have satisfied the requirement set out in subsection 209(1) of the PSLRA and overcome the employer’s jurisdictional objection based on Burchill. He would still have had to prove that the performance appraisal was disguised discipline that resulted in a financial penalty or a demotion or termination for unsatisfactory work performance, as alleged in his referral to adjudication.

24 The grievor’s failure to attend the adjudication hearing meant that he was not able to satisfy the burden of proof. The only evidence before me was that of the employer to the effect that it understood that the grievance was about issues with the performance appraisal and not issues of disciplinary action that resulted in a financial penalty and that, furthermore, the appraisal was not intended to be and was not disciplinary in nature. Given the grievor’s failure to discharge the burden of proof, I must dismiss the grievance.

25 Although I did not grant the employer’s request for an immediate dismissal of the grievance when it was clear that the grievor would not be present at the hearing, on reflection it seems to me that I could have done so on the grounds that the grievor had clearly abandoned his grievance. He provided the PSLRB’s Registry Office with a clear statement that he did not intend to be present at the adjudication hearing, rather than seeking an adjournment, knowing full well the implications of that decision. In my view, this would have been an appropriate case in which to determine that he had abandoned his grievance, and I could have dismissed it immediately on that ground. I agree with the cases cited by the employer, Synowski and Jeewanjee, which dismissed grievances on that basis.

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

V. Order

27 The file is closed.

August 9, 2012.

Kate Rogers,
adjudicator