FPSLREB Decisions

I.Individual grievance referred to adjudication

1 This decision concerns the termination of the employment of Bonnie Gale Baun (“the grievor”), who was employed as a part-time field interviewer by the Statistics Survey Operations (“SSO or the employer”) of Statistics Canada. The termination of the grievor’s employment was the culmination of a series of events, beginning with her administration of a “Programme for International Student Assessment” (PISA) test at a high school in Kelowna, British Columbia, in May 2009. Events that occurred during the administration of the test led the employer to request a fitness-to-work (FTW) evaluation before permitting the grievor to continue to work in the field. The employer concluded that the grievor did not consent to the FTW evaluation and issued a letter terminating her employment (Exhibit E-36) on August 26, 2009.

2 The employer characterized this as an administrative termination and raised an objection to my jurisdiction to determine the matter. Counsel for the employer, referred to section 209 of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (“the Act”), which reads 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

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

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(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

3 Counsel noted that the employer is designated a separate agency under Schedule V of the Financial Administration Act, R.S.C. 1985, c. F-11.

4 Counsel argued that since the termination of the grievor was not a disciplinary action, paragraph 209(1)(b) of the Act does not apply, and since the grievor only referred her grievance to adjudication under that paragraph, paragraph 209(1)(d) cannot apply either.

5 The grievor argued that the employer’s decision to terminate her was punitive. She said that in the end she had reluctantly consented to the FTW evaluation but that the employer had refused to acknowledge her consent and had proceeded to terminate her employment arbitrarily.

6 The issue in this adjudication is essentially whether the employer was justified in requesting the FTW evaluation and whether the termination was an administrative measure, as opposed to a disciplinary sanction disguised as an administrative measure. In resolving that question, I am not required to decide whether the grievor’s conduct justified the imposition of discipline by the employer. In the course of these reasons, I may find it necessary to comment on the grievor’s behaviour in certain respects, but it must be stressed that I am making no findings as to whether she committed any misconduct worthy of discipline. The only questions are whether there was a basis for the employer’s decision to request the FTW evaluation and whether its decision to terminate the grievor’s employment was strictly an administrative action.

7 It should be noted that when the hearing began in 2012, the employer was represented by John Jaworski. Mr. Jaworski was subsequently appointed a member of the Public Service Labour Relations Board (“the Board”), and at the second phase of the hearing, in 2013, Ms. Clifford replaced Mr. Jaworski as counsel for the employer.

II. Summary of the evidence

8 The employer called a number of witnesses, including some of its employees and teachers and staff from the high school in Kelowna where the grievor administered the PISA test. Counsel asked that the school district employees not be identified by name in this decision, as they are third parties to this dispute. I have complied with that request and have referred to each of those witnesses by an initial.

9 I also wish to make a general observation about the testimony and other evidence in this case. When any discrepancies emerged between the accounts given by other witnesses and her own, the grievor regularly charged those witnesses with lying or with intentionally creating a false picture of what had occurred. The grievor made numerous attempts to persuade me that the witnesses were lying. That same accusation was also made in some of the documents presented at the hearing. These documents were lengthy, but their general tone may be conveyed by the following passage from a letter sent to General Counsel of the Board in September 2010:

I have three values I rely on, liar cheat and thief, and the right to privacy (sic). My union lied to me and did not do their job. So did my employer’s employees. I am wounded and my outlook on life has been altered because I trusted both of them. I am in pain because I have been accused of doing something I did not do and because my employer accused me of being sick when I am not and denied my employment based on that and the lies of the school.

In cross-examination, counsel for the employer proceeded through a list of everyone who had been involved in the events leading up to the grievance and in its handling, including staff members of the Board, and elicited from the grievor the view that all of them were lying.

10 This was a serious allegation, and it would have significant consequences if it were well founded. My view is that caution is called for before accepting that a witness is wilfully misrepresenting events.

11 There are many reasons for differences in the way people describe past events. It may be that, after the passage of time, some events have become merged together in their minds, and they may not be sure on which occasion a particular event occurred or statement was made. It may be that there is a misunderstanding about the intention underlying what participants in the events have said or done. It may be that their perspective on the events was different, and they genuinely remember them happening differently. Whatever the explanation, there are bound to be differences in the way that different witnesses relate the same events. My observation of the witnesses led me to conclude that all of them were attempting to provide accurate accounts of their experiences of the events in question.

12 With respect to the employer witnesses, none had any reason to set up the grievor or to engage in a campaign designed to have her removed from her position. As far as they knew, before the events at issue, she had been a competent employee who was capable of carrying out her responsibilities.

13 As for the school district employees, none had any reason to misrepresent what happened or to wish ill to the grievor, and my conclusion is that their testimonies were sincere. One, Mr. P, had an inclination to use somewhat exaggerated rhetoric on occasion, and I have taken that into account in assessing his evidence.

A. For the employer

14 The first witness called by the employer was Lauren Carter, who at the time of the events at issue was a data collection manager based in Statistics Canada’s Vancouver office. As a data collection manager, she was responsible for overseeing the data collection done by field interviewers. Although the primary focus of her work was the Consumer Price Index (CPI), she was also one of two data collection managers assigned to the PISA tests for Alberta and B.C. and had been involved in every cycle since 2000. Ms. Carter said that there are approximately 220 high schools in those two provinces and that the staff available to her consisted of 4 senior interviewers (who directly supervised the field interviewers) and 35 to 40 field interviewers. Her responsibilities included monitoring the costs involved, handling the initial orientation of interviewers to the PISA test, planning the data collection, assigning field interviewers to conduct the tests, liaising with the provincial ministries of education and reporting to the employer’s Ottawa head office on the administration of the test.

15 The PISA test is an evaluation carried out every 3 years in 65 countries under the auspices of the Organisation for Economic Co-operation and Development and is designed to compare students’ levels of achievement in those countries in mathematics, science and language skills. The comparisons are assumed to provide some basis for measuring educational systems in the different countries. Statistics Canada has the responsibility for administering the test in Canada. Ms. Carter said that between 90 and 120 high schools are chosen randomly in the western Canadian provinces to have their students tested. The choice is made in January of the year of the test. The names of 35 students at each school are randomly selected as test subjects.

16 Once the schools were chosen, Ms. Carter said that she selected the interviewers, each of whom was assigned to administer the test in four to six schools. She viewed it as a plum assignment, as a reward given to good interviewers. She said it was interesting work that was somewhat different from the work interviewers were ordinarily called on to do. One of the data collection managers, on this occasion Mariana Radisavljevic, was sent to the employer’s Ottawa location to be trained on the administration of the PISA test. On her return, she trained the two senior interviewers who had been assigned to the PISA test and who were responsible for training the field interviewers.

17 Between mid-March and mid-April, interviewers are expected to make contact with the schools to set appropriate dates for the PISA test. An interviewer might arrange to see the venue or to go over the list of students selected so that the school officials might identify students who are no longer in attendance or who might need accommodation. The materials for the test are forwarded to the interviewers from the employer in Ottawa in a locked Rubbermaid container.

18 Ms. Carter said that the school is asked to send a letter to the family of each student explaining that the test is taking place. She said that, for different reasons, some parents object to having their children participate, and the turnout varies. If it is sufficiently low, the interviewer may decide that it will be necessary to arrange a second test and will then consult with the school officials. In some circumstances, the provincial ministry of education may become involved in the consultation about whether another test should be done. She said her understanding is that participation by the schools is not voluntary, but she said that the ministry of education may allow them to withdraw in certain circumstances. She said that most schools seem prepared to participate and find it helpful to have an opportunity to compare the achievements of their students with the results from other provinces and countries. The timing of the test does sometimes cause problems. If it is carried out any later than May 15, it is possible that it could conflict with school activities or examinations associated with the end of the school year.

19 When the test is complete, the interviewer completes the paperwork and sends the locked box back to the employer in Ottawa. A tracking system is used to make sure that the material does not go astray.

20 Ms. Carter said that she had not met the grievor but that she was aware of her being on the list of interviewers, and she assigned her to administer the PISA test in four schools in Kelowna. Ms. Carter said that another data collection manager, Ms. Radisavljevic, was responsible for collecting household surveys and oversaw the PISA tests in Saskatchewan and Manitoba. For the household surveys, the grievor was responsible to Ms. Radisavljevic, and for the PISA test, to Ms. Carter. Her direct supervisor in both cases was Shari Armstrong, a senior interviewer.

21 Ms. Carter said that on May 11, 2009 she listened to a number of voice mails left for Ms. Armstrong on Friday, May 8. Two were from Mr. P, the vice-principal of the high school where the grievor was in the process of administering the PISA test, and one was from Ms. B, the school’s principal. The latter was simply a request that Ms. Armstrong call back, but the messages from Mr. P alleged that the grievor was behaving in an unacceptable manner, and one asked that she be removed from the school. There was a further message from the grievor, asking Ms. Armstrong for an opportunity to discuss the events at the high school where, she said, she had been intimidated by school staff.

22 Ms. Carter said that she phoned the grievor to obtain her account of the events. Ms. Carter said that the grievor was initially upset and crying during their conversation but that she calmed down and described the events at the school.

23 Ms. Carter then spoke to Mr. P. She also thought she telephoned Ms. Armstrong, although she did not recall such a conversation. She took extensive notes of her conversations with the grievor and Mr. P. She summarized the voice mails and reproduced her notes of the telephone conversations in an email sent later that day (Exhibit E-5).

24 Since both the grievor and Mr. P testified at the hearing, it is not necessary to summarize at length Ms. Carter’s testimony on the contents of her telephone conversations with them, other than to say that her testimony and notes correspond closely to the versions of the events given by both witnesses.

25 Late in the morning of May 11, Ms. Carter took part in a telephone conversation involving Bonnie Holte, the assistant director based in Statistics Canada’s regional headquarters in Edmonton; Lise Rivais, the director, also based in Edmonton; Noura Taleb, a human resources manager based in Edmonton; Kwong Wong, the regional program manager, based in Vancouver; and Ms. Radisavljevic.

26 Also late in the morning of May 11, Ms. Carter received an email from Ms. Radisavljevic (Exhibit E-1), indicating that the latter had telephoned the grievor and asked her to cease interviewing and that the grievor would continue to be paid, for the time being. Ms. Radisavljevic advised the grievor that a fact-finding meeting would be held in the near future, and the grievor said that she had contacted her bargaining agent representative.

27 Ms. Carter identified an email (Exhibit E-8) dated May 15, 2009, which she had sent to Ms. Taleb. It alluded to conflicts in the information provided by the grievor in her telephone conversation with Ms. Carter on May 11 and in the fact-finding telephone call, which was held on May 14. Ms. Carter proposed investigating the discrepancies. She also indicated that she would be contacting one more person at the school, by whom she meant Ms. G, a teacher involved in the PISA test on May 8, as well as the other schools where the grievor had conducted the PISA test. Ms. Carter made notes (Exhibit E-9) of a conversation with Ms. G on May 19 and of subsequent conversations with officials from the three other schools. She passed her notes to her superiors.

28 Ms. Carter also identified an email forwarded to her on July 24 (Exhibit E-10). In that email, which Ms. Armstrong originally sent to Ms. Radisavljevic on June 1, Ms. Armstrong described a lengthy conversation she had with the grievor on May 6, 2009. In the email, Ms. Armstrong indicated that she had requested an opportunity to meet with the grievor “… due to the strain and lack of communication that has been happening.” The grievor had declined to meet with her, saying she did not have time to socialize, although they did spend a considerable amount of time on the telephone discussing work issues.

29 A fact-finding meeting was held by telephone on May 14, and Ms. Carter subsequently sent Mr. Wong her notes of it (Exhibit E-11). The notes indicate that Mr. Wong, Ms. Holte and Ms. Carter were present, along with the grievor and her bargaining agent representative, Linda Woods. Ms. Carter described the grievor as being emotional at the meeting. In cross-examination, she said she could only interpret what she heard, and the combination of lengthy pauses and the grievor’s voice breaking a lot led her to think the grievor was weeping. The grievor described her experience at the school, and Ms. Carter’s notes summarized the grievor’s account. Near the end, the notes included the statement, “Her treatment at the school was demeaning, degrading, belittling.” The statement seems to have led to a misunderstanding on the part of the grievor, who interpreted it as suggesting that her conduct had been demeaning, degrading and belittling to others. She charged that it was a misrepresentation on the part of Ms. Carter. However, it is clear from the context of the notes that Ms. Carter was just reporting the grievor’s account of events and noting that the grievor had experienced the conduct of others as demeaning, degrading and belittling. No judgment was expressed anywhere in the notes about how the grievor had conducted herself, and I wish to make it clear that I find no basis for the charge that Ms. Carter lied about the grievor’s behaviour in the notes.

30 Ms. Carter was also present in a recording capacity for a second fact-finding meeting, with Mr. Wong and Laura Johnston, a human resources representative. The grievor was present with Sharon Hazelwood, a bargaining agent representative. Ms. Hazelwood read a prepared statement (Exhibit E-12), indicating that the bargaining agent thought the grievor had been dealt with unfairly. Also discussed were the steps the grievor and the bargaining agent had taken to contact the three other schools where she had administered the PISA test.

31 Ms. Carter testified that after this second fact-finding meeting, she had no further involvement in any of the events that resulted in the termination of the grievor’s employment.

32 In cross-examination, the grievor asked Ms. Carter whether she agreed with the use of the term “respondent” in the prepared statement (Exhibit E-12) to refer to schools as well as students. A statement had been made in the course of the first fact-finding meeting that contact from the grievor and the bargaining agent with the schools was a possible infringement on respondent privacy. Ms. Carter said it was her understanding that students were respondents, but the term might also refer to school officials involved in the administration of the test. She did not agree that officials of a school where the test is being carried out can be classified as “members of the public” in the terms of the PISA manuals. Ms. Carter agreed that, in general, the policies related to the test dictate that materials should not be left unattended, but her interpretation of the rules was that an interviewer administering the test could leave the room if the school contact who had been involved in setting up the test were present.

33 Ms. Carter said that she agreed that the grievor was required to follow the rules laid out in the manuals and policy statements concerning the PISA test in order to ensure that the test was conducted under consistent conditions, but she also said it was important from the employer’s point of view for interviewers to remember that they were guests in the school and that a good relationship with the schools had to be maintained. Ms. Carter said that in her experience, only 1 of approximately 1600 schools where she had oversight of the PISA test had failed to complete the test. By the time the test is held, any process involving negotiations between the school and the ministry of education is usually complete, and there have been very few instances of failure on the part of schools to cooperate in the administration of the test.

34 Under cross-examination, Ms. Carter described the process for dealing with members of the public who request information about a survey. She was asked whether she remembered a discussion at the May 14 fact-finding meeting about a circumstance in which the child of an elderly person contacted by the grievor for a survey had telephoned the employer and had asked whether the survey was legitimate. Ms. Carter said she did not remember any such discussion on May 14 but that the employer does receive such calls; children of elderly parents are often concerned about whether their parents are being surveyed without their consent or are being contacted by unauthorized persons. Ms. Carter said that such callers have usually received information from the survey respondents, and it is not a violation of respondent privacy to discuss something with them that they evidently already know.

35 The second witness called by the employer was Ms. Armstrong, the senior interviewer who was the grievor’s direct supervisor. Ms. Armstrong said she had worked for the employer from 1991 until she took a new position in the private sector in January 2012. Ms. Armstrong said that from January to August 2009, she supervised about 15 field interviewers, who would conduct a variety of surveys, mostly in respondents’ homes. Ms. Armstrong said that she was mostly engaged in social survey work, for which she reported to Ms. Radisavljevic. The PISA test was the only survey for which she reported to Ms. Carter.

36 Ms. Armstrong said that the expectation with respect to the PISA test was that the interviewer would advise her of the date, venue and school contact information that had been arranged with a particular school, so she could provide accurate information to the employer in Ottawa. She had no involvement in the actual test. Ms. Armstrong said that she was absent from home over the relevant weekend and that she did not receive the voice mails from Mr. P and Ms. B until the following Monday. She acknowledged that she received two emails from the grievor on her work laptop (Exhibit E-15), although she was unsure as to when she would have seen them. In any case, she did not call the grievor to talk to her after receiving the messages and in fact had no further contact with the grievor after May 8.

37 Ms. Armstrong explained the process for dealing with respondent relations issues. A toll-free number is made available so that respondents and members of the public at large can ask questions or make complaints about Statistics Canada’s surveys. If a call involves a question or complaint about an incident involving a particular interviewer, the call is referred to the data collection manager responsible for that geographical area.

38 Ms. Radisavljevic had referred some instances involving the grievor to Ms. Armstrong. Her general approach was to follow up with the respondent and to try to resolve the issue.

39 Ms. Armstrong alluded to some notes she had made about two such cases in December 2011 (Exhibit E-14). In one, she recalled that the child of a respondent had expressed the wish not to have the grievor contact her parent again, and the case had been transferred to another interviewer. Ms. Armstrong said she did remember talking about one complaint with the grievor, but said she did not remember any talk of the complainant making a death threat against the grievor; of course, that would have had to have been taken seriously, but she had not known of any death threat being made. Her recollection was that the wife of the respondent had been upset because her husband had told the grievor not to come. Ms. Armstrong said that the wife had been quite reasonable when they talked on the phone.

40 Asked about the email she had sent to Ms. Radisavljevic on June 1 (Exhibit E-10) in which she described her discussion with the grievor on May 6, Ms. Armstrong said that she had become concerned that she and the grievor were not communicating effectively. Ms. Armstrong worked out of her home in Salmon Arm, B.C., and she felt that a face-to-face meeting might help to create a more effective working relationship, so she proposed to come to Kelowna to meet with the grievor. The grievor said that she did not have time for socializing, so they proceeded to discuss the outstanding issues over the phone.

41 Under cross-examination, Ms. Armstrong expressed reluctance to speak about whether the high school where the grievor conducted the PISA test on May 8 or other high schools had met the conditions set out in the PISA manual, as she had not been present at any of the tests. She acknowledged that there had not been complaints from the three other schools about the grievor. Ms. Armstrong said that the expectation is that a school will do the best it can to comply with the requirements set out in the manual, although it is not always possible to achieve the ideal. She said that her understanding was that the school was considered a respondent in the case of the PISA test and that interviewers should show respect to officials of the school; she did not think that they fell into the category of being members of the public. She acknowledged that the security of the test materials is important and that the person administering the test should generally not leave the room, but she said that there were circumstances in which the appropriate school contact person could be left in charge of them.

42 The next witness for the employer was Ms. B, the principal of the high school where the grievor conducted the PISA test on May 8. Ms. B had been teaching since 1976 and had been at the high school for the eight years before her retirement. The school had 1700 to 1750 students in grades 10 to 12.

43 Ms. B said her first contact with the grievor came close to the beginning of the test period. Mr. P had asked her to speak to the grievor about some concerns he had, and she went to the room where the test was to be held. She asked the grievor to step into the office attached to the room, which had a window in the door. She indicated that the grievor would still be able to see the students, but the grievor refused. The grievor put her hand up in front of Ms. B’s face and said, “Stop. I don’t need to talk to you.” Ms. B said she and the grievor were 8 to 10 feet apart when this happened.

44 Ms. B said that she then spoke to Mr. P. She told him that they should talk about it in the hallway. Mr. P said he had spoken to Ms. G, the teacher who was assisting the grievor with the PISA test, and had tried to speak to the grievor. Other teachers whose classroom was being used for the test reported that the grievor was rude to them when they tried to retrieve materials from the classroom. They decided that Mr. P should call the employer. Ms. B did not go back into the room or have any further conversations with the grievor. Ms. B described the grievor as being agitated during their interaction. She said the grievor had a book of criteria and seemed to feel her criteria were being compromised in some way.

45 In cross-examination, Ms. B said that although she had seen the PISA manual, she had not read it, as the responsibility for coordinating the PISA test had been with Mr. P. He had come to her office to talk about his concerns, and she had agreed to go to the classroom to see if her intervention would have a calming effect. She said she asked the grievor to step out of the room so that they could have a word in private. She did not want to put the grievor in an awkward position. She understood that the grievor should not leave the test room unattended, but they would have been able to see into the classroom from the attached office. In any case, the grievor refused to speak to her.

46 Ms. B said she had no recollection of any discussion of the grievor threatening her and Mr. P. Nor did she remember the grievor raising the issue of her personal space as a rationale for holding up her hand in front of Ms. B; she did not feel she had been very close to the grievor. Ms. B said she interpreted the hand gesture as meaning the grievor did not want to talk to her. She could see that the grievor was frustrated. Ms. B denied that she was trying to parent the grievor. She was concerned about the grievor’s behaviour and said that it was “not a good experience all around.”

47 Ms. B did not recall leaving a voice mail for Ms. Armstrong or that any representative of the employer called her at a later time. It should be noted that both transcripts and a DVD recording of a voice mail from Ms. B were presented in evidence (Exhibits E-4 and E-5). In that message, she left her name and telephone number and asked Ms. Armstrong to return her call.

48 The employer also called Mr. P, the vice-principal of the high school, as a witness. Mr. P testified that his primary duties were to oversee the progress of a cohort of students as it moved from grade 10 to grade 12, which included handling course planning, coordinating events and dealing with disciplinary matters. He was also responsible for overseeing health and safety issues in the school.

49 Mr. P said that he had been through the PISA test at two other high schools and that he was designated as the PISA test school contact on the occasion at issue. He said that he did review the PISA documentation in 2009 but that he did not take any further steps to complete the documentation. Mr. P said that his first interaction with the grievor occurred through several voice mails in which she said she urgently needed to speak to him. He attempted to return her call, but as she did not have voice mail, he was unable to leave a message. He found it frustrating because he did not know the grievor or the nature of her business with him. When they ultimately made telephone contact, he suggested that she had overstated the matter when she described her messages as urgent. She told him she was unable to have voice mail because she used a family telephone and did not want to compromise the confidentiality of her work. In Ms. Carter’s notes about her conversation with Mr. P about this telephone call (Exhibit E-5), he said that the grievor was crying and hyperventilating, and described herself as a “59-year-old grandma” who did not know anything about high schools.

50 The grievor and Mr. P subsequently had a face-to-face meeting. They discussed possible dates for the PISA test and the process by which students were selected to write it. The grievor also left a package of PISA materials with Mr. P. He decided to delegate his role as school contact to Ms. G, a teacher at the school. Mr. P recalled that although he and the grievor had settled on a series of possible dates for the test, he left the other details, such as the choice of a location, to Ms. G. Mr. P described it as a reasonably pleasant meeting.

51 In cross-examination, Mr. P said that he could not say exactly how the date of May 8 had finally been chosen. He remembered that he and the grievor had discussed several possible dates, and his impression was that the grievor would be able to choose which one should be used.

52 Mr. P made notes on May 11, 2009, of the events that occurred before and on the day of the PISA test (Exhibit E-16A) and provided his recollection of those events. His notes referred to a horrible voice mail the grievor left for Ms. G one or two days before the test was to be held on May 8. Ms. G happened to be away, taking advantage of a professional development opportunity, when the grievor tried to contact her. In the message, according to Mr. P, the grievor yelled at Ms. G. The reason seemed to be that the location of the test had been changed and that the grievor had insufficient knowledge of the number of students who would be writing the test. She left another message later on, apologizing for the tone of the first one and acknowledging that the room number had not been changed.

53 Mr. P testified that Ms. G was distraught about the first message and thought she had done something wrong. She left the course she was attending and returned to the school so that she could phone the families of the students on the PISA test list to remind them of the test.

54 On the day of the test, Ms. G called Mr. P to the classroom in which the test was being held because the grievor was expressing concern with the arrangements that had been made and had some concerns about the room chosen for the test. Mr. P said that it is difficult for a large high school to find a suitable location, since space in the school is always set aside for other uses. The grievor was also concerned that there were insufficient desks for all 35 students on the list. Mr. P said that he felt there were enough desks, as it could not be expected that all the students on the list would show up to write the test. He felt that parents tend to consider examinations for credit as being more important. Only nine students had reported for the test, and in his estimation, it was unlikely that many more would appear. Nonetheless, he arranged for additional desks and dividers to be set up in the room. He said that the grievor asked that an announcement be made to remind the remaining students to come, but he said that it could not be done because of an examination taking place elsewhere in the school. In the end, the PISA test went ahead with the nine students who showed up.

55 In cross-examination, Mr. P said that the classroom chosen for the test was fairly typical and that students are used to writing exams in a space of that kind. He conceded that the student tracking form (Exhibit G-6) did not clearly show how many students would be writing the test, but based on his experience, he was confident that not all 35 students would appear to write it. He said that he did not complete the tracking form; he had given the materials to Ms. G and had asked her to assist with the administration of the test.

56 Asked by the grievor to review the guidelines for administering the test, Mr. P agreed that they indicated that the test materials should not be left unattended. He said that he did not think Ms. B’s request to the grievor to step into the adjoining office would have violated those guidelines, as a window in the office door would have allowed the grievor to view the classroom.

57 Mr. P testified in cross-examination that Ms. G had spoken to him at least once while the PISA test was being administered. She said that the grievor had mocked her in front of the students and that the grievor became upset when Ms. G turned on her computer, as she had forgotten to mute the chime that sounded when she turned it on.

58 The allocation of the room for the PISA test had displaced four teachers who ordinarily had classes scheduled there and had placed restrictions on the work of a behavior education analyst (BEA) who occupied the adjoining office. Mr. P said that three of those teachers reported that the grievor spoke to them harshly when they tried to retrieve materials from the room. In addition, the BEA came to his office in tears, saying she had been screamed at by the grievor.

59 Mr. P spoke about the issues that had arisen with Ms. B, who had gone to the classroom to make a problem-solving effort. The grievor would not speak to Ms. B; Mr. P recalled her as telling Ms. B, “You’re no use to me.” At a later time in the test, the grievor asked to have the air conditioning in the room shut down, as it was making too much noise, and expressed concern that the room had windows to the outside.

60 Mr. P testified that he began trying to reach someone at Statistics Canada as early as 09:18. He left messages for Ms. Armstrong, one at 11:07 and another at 11:37. Recordings and transcripts of them were presented in evidence (Exhibits E-2, E-3, E-4 and E-5). In the first message, Mr. P said in part as follows:

… [W]e’re at the point now where we think somebody needs to come down and remove her from the exam. She’s out of control with our staff. She’s berating people. She’s in our opinion completely unstable and certainly behaving in a way that’s unprofessional.

61 There was more in the same vein, but that excerpt conveys the tone of the message.

62 The second message was lengthier. Mr. P said in part as follows:

…

Just to give you an idea, she’s threatening us that she’s going to phone everybody in the world and complain and file reports and [sic] we’ve been unaccommodating. We’ve been ultra-accommodating to her. We have done everything she’s asked. We were even here at 8:15, when she asked her teacher contact to be here and she didn’t show up for 15-20 minutes after that. She’s told the teacher who’s helping her that she’s not taking any more crap from us, that this job is not something she wants, it was crammed down her throat. She’s crying in front of the students, berating our teachers in front of the students while the exam is going on. This is a room with a pan-handle hallway that goes into it, and there’s the back office. There is a teacher who has to work in that office. It’s absolutely quiet. There’s a little door that opens now and then. She has gone into that room and screamed at that person and said she shouldn’t be in here. She is challenging us that we are destroying the credibility of the test, that we’re going out of our way to be unco-operative to her. I don’t know where to stop. It’s just totally untenable what’s happening here, and we certainly will need to have some follow up with you, and I’m sure she’s going to call you and tell us that we were unaccommodating but, I mean we can’t turn off our air conditioning systems. We can’t not be a school. This is a high school, we have 1500 kids here. We don’t have spare rooms. We had to move 3 classrooms worth of kids out of this room to find her a please [sic] where there would be the least amount of disruption. But we have bells, and we have things that happen in the school. Unfortunately, when she wanted an announcement earlier, we were having French oral exams, this part of their dual [unclear]. We can’t have announcements when students are doing online recorded exams. So, now that those exams are over, the Principal has decided to make an announcement. In any event, she’s demanded that we do a reschedule. We will not for any circumstances reschedule this with this lady.

63 Mr. P said that he was not present when the grievor was interacting with other teachers but that she did raise her voice when she spoke to him and to Ms. B. Reviewing the account he had given to Ms. Carter (Exhibit E-5), Mr. P confirmed that he had seen the grievor crying during the administration of the PISA test. He also agreed that he had tried to keep out of her way, as he felt their relationship was not constructive.

64 When the test ended, Mr. P said he had two further encounters with the grievor. In the first, which took place inside the door of the front office of the school, she said she would not be coming back to the school, and he agreed that she would not. She left and later tried to engage him in further conversation when she returned. He told her she had behaved horribly. In cross-examination, he agreed that he had said he would report the grievor, as he felt it was necessary to bring these events to the attention of the employer. He did not recall accusing the grievor of abusing and harassing Ms. G, although he did not deny that he said she had behaved horribly or that he said that Ms. G felt picked on. The grievor advised him that she had taped their conversation, but he was never provided with a copy of the tape. He said that he had no further contact with the grievor after that.

65 In cross-examination, Mr. P said that he did not think he had ever said that the grievor had had an emotional breakdown, although he did say that she had behaved unprofessionally and that she had been very upset. He agreed that he probably had not expressed concern about the grievor’s state, as his focus was getting her out of the school. He was not sure whether Ms. B had been nearby during either of the final conversations.

66 Ms. G, the teacher who assisted with administering the PISA test, was the next witness for the employer. She testified that she was a non-enrolling teacher, which meant that rather than having responsibility for teaching a subject to a particular group of students, she had more general responsibilities, such as coordinating distributed learning. In May 2009, she had been the career life coordinator, providing students with information about careers and job-shadowing opportunities. She had been teaching for seven years, four of them at the high school at issue.

67 Mr. P had asked her to be the school contact for the PISA test and had provided her with the package of material from Statistics Canada. She followed the outline given in the materials by mailing information to the students being sampled and their parents and by making phone calls. She also understood that she was to be there on the day of the test to assist the Statistics Canada test administrator. She said she had been involved in discussions about where the test should be held, although it was not ultimately her decision. She thought the room chosen would have less disruption than some others because it was at the end of a hallway. She indicated that she had never used the office adjoining the classroom and that she was not sure whether a person seated in the office could see into the classroom, although she thought that a person standing up would be able to see the classroom through the window in the door.

68 Ms. G said that her first contact with the grievor was through a voice mail received a couple of days before May 8. She phoned the grievor back, and they had a brief conversation. The grievor expressed disappointment about the number of students who had confirmed that they would be taking the test. They discussed the layout of the room that had been chosen, and she conveyed to the grievor that the library was not available. After that phone call, Ms. G said she felt bad because she did not have the detailed information with her and could not answer all the grievor’s questions. She felt it necessary to get back to the school and remind the students of the test. She checked her voice mail and found some from the grievor. Ms. G said, “She was upset with me.” The next morning, she had a voice mail from the grievor apologizing for the tone of the earlier voice mails.

69 Ms. G said that the grievor had indicated they should meet at the school at 08:15 but that she and the grievor first met at about 08:30, after which they went to the assigned classroom. The grievor was unhappy about the number of desks, so Ms. G helped to arrange for more desks to be brought in. Ms. G also said the grievor was upset about the windows in the room. Ms. G testified that the windows looked out on a grass space with some tables, which was not used very much. Beyond that was a hedge dividing the grass from a parking lot. Ms. G said she could not recall any students tapping on the window during the test period.

70 When the test started, Ms. G turned on her laptop. When it chimed, the grievor seemed upset, and Ms. G apologized. One of the teachers who ordinarily used the room entered because he had forgotten something, and the grievor was upset by the interruption. She asked for a rolling bulletin board to be put up to block the door, and Ms. G arranged that for her. She did not recall that students who were in a class regularly scheduled in that classroom tried to enter the room.

71 Ms. G said that she had to leave the room once or twice to attend to her responsibilities as one of the first-aid attendants for the school. While returning on one occasion, she met a teacher who had entered the room. He said that the grievor had reprimanded him in front of the students and that the grievor had been yelling at him.

72 She testified that when she returned to the classroom, she was concerned about the grievor’s health. She said that by that time, she knew that the grievor did not want to deal with her, but she had a medical concern, given how upset and anxious the grievor seemed. She said the grievor was not actually crying, although her eyes looked somewhat teary, but she did seem very upset. Ms. G thought she might be having an anxiety attack or even a heart attack. She approached the grievor and asked if she were all right, and the grievor said something to the effect that the assignment had been forced on her and that she would not take any more “crap.” She also said, “You’ve done enough.” Ms. G emailed Mr. P and Ms. B because she was concerned about the grievor. By then, it was near the end of the test. She did not observe the encounters between Mr. P and the grievor in the office, and she did not have any contact with the grievor after the end of the test. She did not recall whether the grievor had said anything about a retest being necessary.

73 Under cross-examination, Ms. G conceded that she was not trained as a doctor and that she could not make a medical diagnosis. However, she said that she was trained as a first-aid attendant to look for signs that might suggest medical intervention was called for, which was the basis on which she approached the grievor and expressed her concerns.

74 Ms. G said that she had not provided information about every student on the student tracking form before the test. She had a limited recollection of the documentation that was included in the package of materials that Mr. P had given to her. She said that she thought the number of students who would be writing the test would not be known until the start of the test.

75 Ms. G said she did review the PISA materials that Mr. P had given her. She did try to follow the instructions, although she could not say whether she had followed the timetable exactly. She did notify teachers, parents and students of the test. She conceded that she had not entered the code on the student tracking form (Exhibits G-5 and G-6) when she heard of parents declining to have their children write the test. She did try to add some further information at the time of the test, when the students were actually there. She said she had tried to perform her role as the school contact and denied that she had deliberately done anything to undermine the success of the test.

76 With respect to the encounter between the grievor and Ms. B, Ms. G said that she thought the grievor and Ms. B were standing quite close together and that the grievor’s hand was possibly a foot from Ms. B’s face. She did not consider that Ms. B showed aggression during the encounter. She heard no comment from the grievor about Ms. B being in her personal space.

77 In cross-examination, Ms. G agreed that the PISA materials indicated that the test was to be scheduled when other events would not conflict with it. She said that she did not think that the school had violated this rule when the PISA test was scheduled at the same time as the French examination, because there was no overlap in the groups of students affected.

78 The next witness for the employer was Mr. Wong, who at the time of these events was a regional program manager for Statistics Canada, based in Vancouver. His duties were focused on managing the data collection activities of field staff in B.C. and the Yukon. A number of data collection managers reported to him, and they, in turn, supervised the senior interviewers and field interviewers.

79 Mr. Wong said he had never met the grievor before the hearing, although she was one of approximately 400 employees within the scope of his responsibilities. He had participated in telephone conference calls that had included the grievor.

80 The events of May 8 were first brought to Mr. Wong’s attention in a phone conversation with Ms. Carter on the morning of May 11. In accordance with standard procedure, Ms. Carter was asked to gather information. Mr. Wong was copied on the email from Ms. Radisavljevic (Exhibit E-1) that indicated that the grievor had been directed not to carry out any further interviews, although he did not make that decision; it would have been made by someone senior to him. Ms. Carter (Exhibit E-5) sent an email to several individuals, including Mr. Wong, which reached him in mid-afternoon on May 11. In it, Ms. Carter summarized her conversations with the grievor and Mr. P.

81 Mr. Wong was also copied on the email chain (Exhibit E-6) in which information was relayed about several respondent relations issues involving the grievor. He received a copy of Exhibit E-9, which contains Ms. Carter’s summarized conversations with Mr. P, Ms. G and officials at the three other schools where the grievor had conducted the PISA test.

82 Mr. Wong sent a letter to the grievor dated May 12, 2009 (Exhibit E-17), advising her that a fact-finding meeting would be convened by conference call on May 14 and that she was entitled to have bargaining agent representation at that meeting. As a result of the discussion at the May 14 meeting, Mr. Wong sent a further letter to the grievor, dated June 8, 2009 (Exhibit E-19). In that letter, he indicated that the employer was concerned about her health and that it was asking for a medical assessment of her fitness to work. Mr. Wong said he and other employer representatives had reached the conclusion on the basis of the information available — the voice mails, the discussion in the first fact-finding meeting, and the notes of the interviews with the grievor and with employees at the school — that there were grounds for concern about the grievor’s medical condition.

83 Enclosed with the June 8 letter was a request, which was to be presented to the physician of the grievor’s choice. It outlined why the employer was asking for an assessment and included a medical form for the physician to complete.

84 Mr. Wong said that the grievor had been placed on leave with pay as of May 11. On June 17, he sent a further letter (Exhibit E-21), reiterating the employer’s requirement that an FTW evaluation be conducted and indicating that she would be placed on leave without pay if she did not agree to the assessment and did not provide the date of a medical appointment by June 19. The letter was prompted by a letter the grievor sent to him dated June 15 (Exhibit E-22), which contained the following:

Further to your letter of June 8, 2009 and request for personal information: I define Privacy as “The right of a person or family to determine when, how and to what extent confidential information is communicated to others.”

I am fit and able to return to work. I thank you for the paid time away from work.

I am not saying I will not provide the medical information you have requested, but before I do (if I do) please provide the following by fax to Linda Woods our union president to my attention:

1. under what circumstances do you ask for this type of information.

2. provide Statistics Canada policy that shows you can ask for this information.

3. provide a copy of our collective agreement and quote the article that allows you to collect this information. How does this apply to me.

85 Mr. Wong could not recall exactly when he received a form from the physician seen by the grievor (Exhibit E-20). The physician was on staff at a medical clinic facility in Kelowna. In answer to the question on the form, “Is the employee fit to work in the environment described previously?”, the physician had written, “I cannot answer this question as I don’t have enough knowledge/expertise concerning this person.”

86 Mr. Wong interpreted what the physician had written as meaning that the physician could not perform the required FTW assessment and that an alternate strategy would have to be followed. On June 29, 2009, he sent a letter (Exhibit E-24) explaining that since the grievor’s chosen personal physician had indicated he could not perform the assessment, the employer was requesting that she undergo an FTW assessment by Health Canada. The letter enclosed a consent form (Exhibit E-35), and she was asked to communicate her consent verbally by July 3 and in writing by July 6.

87 On the morning of July 6, Mr. Wong received a fax from the grievor (Exhibit E-25) in the following terms in part:

I AM Fit to work [smiley face] … a) I will do the Health Canada Fitness to Work not because it is needed, but because I am threatened with my job. b) I consider this harassment. I have been open, I reported honestly, I have pride in my employer, my work and myself. You have not provided a harassment free environment.  

88 Mr. Wong also received a letter from the grievor dated July 7 (Exhibit E-26), asking for a copy of the written complaint from the high school. Mr. Wong provided a reply to the grievor and the bargaining agent on July 24 (Exhibit G-19). The grievor had been provided with notes of the interviews with officials at all four schools where she had administered the PISA test as an enclosure to a letter dated June 26 (Exhibit G-18).

89 To provide a final opportunity to gather information about the events at the school, Mr. Wong sent a letter to the grievor dated July 17 (Exhibit E-28), indicating that a further fact-finding meeting would be convened. The letter advised the grievor that she was entitled to bargaining agent representation at the meeting and that if she decided to forego the meeting, decisions would have to be made based on the information already available. The letter also advised her of the availability of an employee assistance program.

90 Mr. Wong said that two possible dates were suggested for the second fact-finding meeting, and he could not recall whether July 23 or July 24 was chosen. He recalled receiving some of the information about the respondent relations issues (Exhibit E-7), but he could not remember whether those incidents were discussed with the grievor. In cross-examination, he said that the respondent relations issues did not have any direct bearing on the decision to terminate the grievor’s employment; the information had been gathered to shed light on whether her conduct at the school on May 8 was characteristic of her. He said information that an employee is behaving in an uncharacteristic way could raise a health question for a manager or supervisor.

91 In a letter dated August 18 (Exhibit E-30), Ms. Rivais, Director for the Western Region and Northern Territories for Statistics Canada, provided some further material to the grievor and reiterated the direction that she provide her consent to the Health Canada FTW assessment. Mr. Wong said that he knew of that letter and that he was involved in the discussion before it was sent but that the responsibility for sending it rested with Ms. Rivais. He was also informed of the final decision to terminate the grievor’s employment, but it was not his decision.

92 In cross-examination, Mr. Wong said that he had never been involved in a PISA test and that he was not really familiar with it. He was questioned about specific aspects of the PISA guidelines and about how he would interpret them. With respect to the PISA guidelines indicating that materials should not be left unattended, he said that he would not interpret them as meaning that the materials would be unattended if a school representative were present. He expressed the view that the guidelines could not foresee or provide for every possible circumstance. He said no one involved in the process of deciding to terminate the grievor’s employment had ever viewed the location at the school where the test was administered on May 8, 2009.

93 In cross-examination, Mr. Wong said that he did not recall seeing the performance review completed for the grievor in March 2009 (Exhibit G-8). He agreed that, with the exception of a reference to specific training needs, the performance review form indicated that the grievor’s work performance was satisfactory.

94 Mr. Wong said he was not aware of what advice the grievor might have been receiving from her bargaining agent representatives. He did not have direct involvement with the human resources or labour relations aspects of the employer’s relationship with employees. He did think it puzzling that the grievor sometimes seemed to be saying that she was consenting to an FTW assessment and at other times that she was not, but he relied on advice from human resources officers when responding to communications from her.

95 Mr. Wong said he did recall some discussion of a request from the grievor for an incident report concerning the events of May 8, although he could not recall when that took place. His understanding of the general process was that a request for an incident report would usually be dealt with by a field interviewer’s senior interviewer. However, he said that anyone in the chain of responsibility could respond to such a request. Mr. Wong conceded that, in normal circumstances, a senior interviewer should respond to a request for an incident report without judging the circumstances. In this case, as he recalled the discussion of the request for an incident report, human resources advisors advised that the request had been overtaken by the sequence of fact finding and efforts to obtain medical information that had been initiated on May 11.

96 Mr. Wong said that Statistics Canada does provide training to field interviewers about how to deal with threats to their personal safety. They are advised that they should not engage in confrontation and that they should withdraw from the situation when such a threat occurs. Given the nature of the work done by field staff, it is difficult to predict what scenarios might occur, and it is expected that employees will exercise common sense. The employer also has a harassment policy, which permits employees to submit harassment complaints to a harassment prevention coordinator. He said that he could not recall that the grievor had initiated such a complaint.

97 Mr. Wong said that if a respondent or a member of the public makes a threat of violence, it can be dealt with in different ways. An incident report might be an appropriate way to deal with it, but in some cases, the senior interviewer to whom the issue is referred may find out that the field interviewer has already dealt with the situation satisfactorily. Some assessment has to be made of the seriousness of the threat and of the appropriate response.

98 Mr. Wong did not recall a discussion of whether it was appropriate to raise the respondent relations issues in the second fact-finding meeting. However, he said that since it was not a disciplinary meeting, it was appropriate to gather as much information as possible in order to determine what approach should be taken.

99 The final witness called by the employer was Ms. Rivais. From 2008 until three weeks before the hearing, she had been in the position of Director for the Western Region and Northern Territories. Then she became Director, Collection and Planning Division, at the national level. Ms. Rivais’ duties as regional director were to oversee regular data collection activities (such as the “Labour Force Survey”), one-off cost recovery projects and the census, which is conducted every five years. Although in her director role she no longer directly supervised the field interviewers, she had been a program manager at one time and was therefore familiar with the challenges facing field operations staff. She testified that field interviewers are recruited based on geographic requirements and that they are subject to very little day-to-day supervision. They are responsible for setting up their own appointments and determining what routes to use to contact survey participants. She said that field interviewers might be observed on occasion but that monitoring programs are not put in place for all surveys.

100 Ms. Rivais testified that the employer considers field interviewers as the face of Statistics Canada. Its expectations are that field interviewers will treat those they deal with respectfully, that they will act professionally and that they will protect the information they collect. In her view, those expectations apply not only when interviewers are dealing with individual respondents on doorsteps but also when they work with other parties, such as property managers or school authorities. Because participation in surveys is voluntary, the employer places a high priority on maintaining the goodwill of the public. Ms. Rivais said that the employer recognizes that interviewers cannot completely control the environment they work in, and policies are in place to deal with respondents who are reluctant to participate. For example, consideration might be given to having a different interviewer attempt to engage a reluctant respondent.

101 Ms. Rivais said that in the case of the PISA test, the employer’s relationship is with school districts, not directly with schools. If an individual school refuses to participate, this information would be referred to Statistics Canada’s national headquarters in Ottawa and further discussions would be initiated with the school district. In cross-examination, Ms. Rivais acknowledged that some of the arrangements made at the school on May 8 might not have been ideal, but she said that they try to work with schools to create an appropriate environment for the test without placing an excessive burden on the school. She said that the employer relies on schools to suggest arrangements that will be compatible with all its other activities. She said that one of the responsibilities of a field interviewer is to assist school staff in completing the required forms, as they may not understand fully the importance of documentation. She further said that the employer would expect an interviewer to work with the school to arrive at a satisfactory date for the test.

102 Ms. Rivais said she did not interpret the term “respondent” in the interviewer’s manual and other documents about the PISA test as referring only to the individual formally listed as the school contact. She said it is important to work with all members of a school’s staff. She said that specific instructions cannot be given to interviewers about every possible circumstance that might arise, and the employer has to rely on them to exercise their judgment. For example, if an interviewer concludes that there are so many problems with the administration of a test that its results will not be meaningful, the interviewer may decide to shut down the test and report the reasons.

103 According to Ms. Rivais, complaints about field interviewers are very rare. She said there are about 800 field interviewers and there might be about a dozen complaints in a year. It would be very rare to receive more than one complaint about a particular interviewer, which would usually lead to a follow up by the manager.

104 Ms. Rivais testified that the events of May 8 involving the grievor were brought to her attention on May 11. At that time, she became aware that the grievor was a term employee, whose term would end on October 7, 2009, and that her workweek was estimated to be 13 hours. She also became aware that the grievor had been advised to take no further action with respect to any survey work and that the incidents at the school had been investigated to some extent. Ms. Rivais was not involved in the fact-finding meetings but was briefed by other managers about what had occurred at those meetings.

105 In cross-examination, Ms. Rivais said that she had reviewed the accounts of the events given both by school staff and by the grievor. That was how she became aware of the formal request for medical information that Mr. Wong sent to the grievor on June 8, 2009 (Exhibit E-19). She said she understood that as a result of the information gathered during the investigation and the fact-finding meetings, and as a result of their interactions with the grievor, the managers involved had concerns about the grievor’s well-being. She also saw the letter to be given to the grievor’s physician (Exhibit E-20) and agreed both with its description of the background circumstances leading to the request for an assessment and with the description of the workplace factors to which the assessment was to be addressed.

106 Ms. Rivais testified under cross-examination that she had considered the grievor’s account of the events. She said that although a letter of apology was sent to the school in an effort to mend fences, it did not mean that any assumptions had been made about any fault on the part of the grievor. Ms. Rivais was asked if she was aware that Ms. Armstrong, the grievor’s direct supervisor, had instructed the grievor that she was to report exclusively to Ms. Armstrong and not to take any issues to other supervisors. Ms. Rivais said that she was not aware of such an instruction. The employer’s general policy is that if a supervisor is not available, an employee should take a concern to another supervisor.

107 Under cross-examination, Ms. Rivais said that she did not know whether any of the grievor’s supervisors had reported the irregularities with the administration of the PISA test that the grievor had identified. She said that in a case in which irregularities are reported by the person administering the test, the problems are usually reported to the employer in Ottawa, but she was not aware whether that had been done in this case.

108 In cross-examination, Ms. Rivais was asked a number of questions about whether the grievor’s concerns about security for the test and other information were justified. Ms. Rivais confirmed that security is an important concern for the employer and that interviewers are instructed to take steps to ensure that tests and survey documents are secured and are not accessed by others. She acknowledged that if Mr. P was asking for access to the test documents, it was not consistent with policy, although she said that the reasons could have been explained to him. Ms. Rivais also acknowledged that employees are expected not to permit family members and other members of the public to have access to telephone messages in which sensitive information may be relayed. She said that employees are given access to a 1-800 number for that reason, and it was not clear to her why the grievor would not have been able to use such a number. In any case, she did not think a message left on the grievor’s home phone simply asking for a return call would breach any security policy.

109 Ms. Rivais said she also saw the letter dated June 29, 2009 (Exhibit E-24), in which Mr. Wong indicated that because the grievor’s physician had stated that he was unable to provide an assessment, the grievor was required to have an FTW evaluation performed by a Health Canada physician, and that she should provide her consent to such an assessment verbally by July 3 and in written form by July 6, 2009.

110 Ms. Rivais testified that she was familiar with the process for obtaining a Health Canada FTW evaluation. Forms are provided to the affected employee outlining the process, and the employee provides written consent to the evaluation. Ms. Rivais’ understanding was that Health Canada requires that consent be provided before scheduling an appointment with a physician for the employee.

111 Ms. Rivais said that the grievor did not provide the required consent. Ms. Rivais then had the responsibility of deciding what steps to take next, as she was the only person with the authority to terminate the grievor’s employment. Ms. Rivais said that she participated in a telephone conference, which she believed took place on July 24, involving Laura Johnston, the acting human resources manager, Mr. Wong, the grievor, and two bargaining agent representatives, Ms. Woods and Ms. Hazelwood. As she recalled it, the conference lasted between two and three hours. Ms. Rivais said that the objective of the call was to explain the consequences of a refusal to consent to an FTW evaluation. Since Ms. Rivais was not medically trained, she required an assessment from a medical professional to satisfy herself that the grievor was medically fit to continue in her employment. In cross-examination, Ms. Rivais said that she was not making any assumptions about whether a medical assessment would show that the grievor was experiencing a psychological or physical condition for which treatment might be required; she said that the purpose of the assessment was to draw on medical expertise that she did not possess.

112 In the course of the conversation on July 24, the grievor raised a number of specific questions related to privacy concerns, which largely had to do with who would have access to her medical information. Ms. Rivais said the employer representatives undertook to obtain answers from Health Canada to those specific questions. Ms. Rivais said that one page of Exhibit E-30, which she identified as the package sent on August 18 for a final request for the grievor’s consent to the FTW evaluation, contained the answers sent by Health Canada to those specific questions.

113 Ms. Rivais said that during the conversation on July 24, she did her best to explain the reasons for the FTW evaluation and to assure the grievor that the employer would not have access to any personal medical information but would be told only whether the grievor was fit to work and what accommodation she might require. She said that the information about the interactions of the grievor with others before and on the day of the PISA test at the school, as described to her, had raised a concern about the grievor’s medical fitness. Ms. Rivais said that her experience with the grievor during the July 24 telephone conversation confirmed to her that it was necessary to ascertain whether the grievor was fit to work. Ms. Rivais said that she had dealt with many employees over her career and that she had not seen an employee react as the grievor did, which led her to be concerned for the grievor’s well-being.

114 Ms. Rivais said that she did not recall Mr. Wong ever saying in the course of the telephone conference that an FTW evaluation would not be necessary. The grievor asked for permission to introduce as evidence a recording she had made of the conference call of July 24. Counsel for the employer objected. She argued that there can be no reliance on a recording made surreptitiously, as in this case, because of the possibility that a recording made under such circumstances might have been altered. In addition, she argued that there are strong policy reasons for not admitting a recording made without notice to other participants in the conversation. She said a climate of candour is to be encouraged in discussions of labour-management issues, and the desirable level of frankness would unlikely be achieved if parties to a conversation feared that someone might be recording it. She argued that the recording the grievor proposed to introduce was in a different category from the recorded voice mails introduced by the employer (Exhibits E-2, E-3 and E-4) because the person leaving a voice mail expects it to be recorded.

115 The grievor argued that the fact that a conversation was recorded would not increase mistrust among the parties. She said that in fact she did not trust the other participants to recall the conversation accurately, so she felt it necessary to have a record of it.

116 I accepted the argument put forward by counsel for the employer that aside from the concerns about the reliability of a tape recording in a technical sense, there are strong policy reasons for not admitting a recording that has been made surreptitiously by a party to a conversation. Meetings of the kind that occurred on July 24 are of critical importance as efforts to resolve labour-management issues and to exchange information and opinions in a forthright way. I declined to admit the recording.

117 It should also be noted that the grievor revealed it was her custom to record all conversations involving these matters, including conversations with Board staff in Ottawa.

118 At one point in the hearing, it transpired that the grievor had been surreptitiously recording the testimony of Ms. Rivais, and I directed that she desist. The practice of recording conversations without notice to the other participants is certainly consistent with the grievor’s view that all the actors in this sequence of events have been untruthful. As I indicated earlier, such a general characterization of the statements of others is not helpful in the context of this process. The grievance and adjudication process has its own protocols for determining what evidence should be accepted, and it is my view that in this case those protocols provide adequate safeguards for the grievor’s interests.

119 Ms. Rivais testified that she was aware that the grievor had made a complaint to a number of her other supervisors about the August 18 letter, characterizing it as an instance of harassment by Ms. Rivais. In the complaint (Exhibit E-34), the grievor described the letter as threatening her “… with dismissal and insubordination for not completing a return to work evaluation and consenting to have [her] personal information released to all data banks across Canada.” Ms. Rivais said that the letter of August 18 did refer to the possible consequence of termination if the grievor did not consent to the FTW evaluation, but she did not consider it harassment. She also reiterated that she had explained to the grievor that the information collected in the course of the FTW assessment would be retained by Health Canada on a confidential basis and not released to the employer or to anyone else.

120 Ms. Rivais said that the package sent to the grievor on August 18 contained copies of the consent forms she was supposed to return to the employer with her signature, and she identified Exhibit E-35 as the version of the signed form she had seen. In addition to her signature, and the date of August 25, 2009, the form contained a number of notations that Ms. Rivais thought had been added by the grievor.

121 Across the top of the form was written, “I do this involuntarily.” The first printed paragraph included the following statement: “The reasons I have been referred to WHPSP to undergo the Evaluation have been fully explained to me by _________ and provided to me in writing by him/her.” In that statement, the word “not” had been added between “have” and “been fully explained,” and the blank space had been filled with “Statistics Canada, HRSDC or SS Operations.” The following was noted next to that paragraph: “Not explained.”

122 The sixth printed paragraph of the form contained the statement, “I have read the information above or had it explained to me and I understand the nature of a Fitness to Work Evaluation and the uses to which the personal information collected by the WHPSP may be put.” Beside that paragraph was noted, “Not explained to me.” In the next paragraph, there was a blank space to permit the person signing the form to provide an expiry date for the consent. There was no date in the space, but the following was noted under the space: “the date I provide.” Next to that was written, “consent not given.” It should be noted that the grievor contested the assertion that “consent not given” was on the form seen by Ms. Rivais.

123 On the second page, which was headed, “Consent to Release Medical Information,” the grievor provided the name of her personal physician in the space provided. The second paragraph outlined the restrictions on the disclosure of medical information. Beside this paragraph, the following was noted: “You do not have my permission.” Again, the space provided for the expiry of the consent had the notation, “to be disclosed by me.” After the signature lines was noted, “This is done involuntarily.”

124 Ms. Rivais said she concluded that Health Canada would not accept that form as constituting consent to the FTW assessment. She said that she thought the reasons for the assessment had been fully explained to the grievor. Ms. Rivais thought the description of the grievor’s conduct in the document sent to the grievor’s physician asking for an assessment (Exhibit E-20) was fair, and because the grievor’s conduct seemed out of character, Ms. Rivais thought it justified the concern about the grievor’s fitness to work. Ms. Rivais testified that she asked a human resources manager to confirm with Health Canada whether the assumption was correct that it would not consider the form submitted by the grievor as constituting consent, in order to be sure. On receiving verification that Health Canada would not accept the consent form, Ms. Rivais proceeded to compose and send a letter of termination (Exhibit E-36), dated August 26, 2009. The letter cited the grievor’s refusal to consent to the FTW assessment as the reason for the termination.

125 In cross-examination, Ms. Rivais was asked whether the employer had shown adequate concern for the grievor’s health and safety. Ms. Rivais acknowledged that an employee has the right to refuse unsafe work under the Canada Labour Code, but she also said it would be necessary for the employee to provide an explanation of why the work would be unsafe.

126 Ms. Rivais was asked to describe the significance of an incident report. Ms. Rivais explained that generally an incident report is prepared by a supervisor at the request of an employee. Such a report describes an adverse event and indicates what action had been taken in response. Incident reports are forwarded to the employer’s Ottawa location for its records. Ms. Rivais was referred to an incident report (Exhibit G-14) about an occasion in January 2009 when the grievor had fallen on some ice. The report had been completed by Ms. Armstrong, and it indicated that she had advised the grievor to seek medical attention. It also had a section to be completed by the data collection manager (in this case Ms. Radisavljevic), who had added, “no further action required.” Ms. Rivais said her understanding was that no medical treatment had been required on that occasion.

127 Ms. Rivais said she was not aware of an email exchange (Exhibit E-15) involving Ms. Armstrong, Ms. Carter, Ms. Radisavljevic and Ms. Johnston, although she became aware at some point that the grievor was asserting that she had asked for an incident report to be created to describe the events at the school on May 8. Ms. Rivais said that, in general, an employee can request that an incident report be filed. In this case, she said that she thought that those involved were confused because those same events were the subject of an investigation.

128 Ms. Rivais said that the absence of an incident report did not mean that she ignored the grievor’s side of the story; it was one of the things she considered in deciding what steps to take. Ms. Rivais conceded that the grievor had had a sound record as an interviewer before the investigation. With respect to the references in the course of the investigation to earlier respondent relations reports about the grievor, Ms. Rivais acknowledged that the bargaining agent had protested the inclusion of those earlier events in the discussion of the administration of the PISA test. However, Ms. Rivais said that she thought it was appropriate to refer to them as they were part of the employer’s efforts to ascertain whether the grievor had behaved in a manner that was out of character.

129 In cross-examination, Ms. Rivais was also asked about a statement in one of the respondent relations reports from a member of the public that if the grievor returned to her house, that person would kill her. The grievor asked if the employer should have informed her about the threat and taken steps to ensure her safety. Ms. Rivais said that she had no direct involvement in that issue but said that when members of the public or respondents make a complaint, the supervisor handling the complaint has to assess how serious it might be and decide what steps to take. In some cases, the appropriate response is to tell the employee who is the subject of the complaint not to have any further dealings with the complainant. Ms. Rivais admitted that the grievor would normally have been advised of a threat of this nature. She said the reason the complaint was considered relevant was that it shed light on the tenor of the grievor’s dealings with others; however, no one was suggesting that such a threat was warranted.

130 Ms. Rivais testified in cross-examination that she had sent a second-level grievance response to the grievor dated August 28, 2009 (Exhibit G-36). The letter indicated that the bargaining agent had declined to make representations at that stage. She understood it to mean that it wished to advance the grievance to a higher stage without delay. She also understood that the bargaining agent representatives characterized the events that had occurred in a different way than the employer; she said that it is usual for the employer and the bargaining agent to disagree in this way. Ms. Rivais said it was to be expected that the bargaining agent would continue to present a version of events that the employer did not accept, which was consistent with its role as the grievor’s representative.

B. For the grievor

131 The grievor also appeared as a witness. She testified that she began working for the employer in March 2006 and that she was employed on a series of term contracts until August 2009. As a field interviewer, she was involved in a variety of Statistics Canada surveys, including the “Healthy Aging” survey and the “Survey of Household Spending.” Although there had been very few complaints from respondents or members of the public, she did recall one occasion in 2008 when a son had complained about certain questions about income on a survey completed by his elderly mother. She had explained that the questions were normal survey questions and that he could have access to the survey if he wished. The grievor said that the two performance reviews done in 2008 and 2009 had indicated she was doing satisfactory work.

132 The grievor said that she was assigned cases by Ms. Armstrong and that some of them involved surveying in other parts of B.C. by telephone. Ms. Armstrong sometimes assigned her additional or follow-up work to assist other interviewers.

133 The grievor said that she attended training on the PISA test but that she did not consider it very helpful. She said that the PISA test was the hardest survey she had been involved in. She had to do considerable preparation, and she talked to other interviewers about it. She said she did not think Ms. Armstrong had taken the training for the PISA test. Her understanding from reading the manual for the PISA test (Exhibit G-1) was that the rules for the test were very strict and that she had to take great care to ensure that those rules were followed. For example, it was clear that it was important that the test documents not be left unattended, that no copies were to be made of the test and that a response rate of 80% or more of the sample was required.

134 The grievor was assigned to do the PISA test in four schools. She left a voice mail for Mr. P in mid-March and eventually met with him on April 6.

135 The grievor also had some difficulty making contact with the official at another school. Some challenges emerged in making arrangements at that school, but the administration of the test went well. At that school, the test was held in the library, and there were no bells audible during the test. The same practice was followed at the two other schools. Officials at those schools did have some complaints about the rules of the PISA test; for example, there was criticism of the requirement that the students had to sit still once they completed the test and were not able to play games or find other ways to pass the time.

136 The grievor said that at their first meeting on April 6, Mr. P had been aggressive and upset that his school had been targeted for the PISA test. He kept her waiting for 25 minutes and was annoyed when he was informed that she was there. He asked for copies of the test, which she said could not be provided. She left him a copy of the tracking form, which he said he would not have time to complete and would pass to Ms. G. In cross-examination, the grievor was asked why, if she felt so intimidated by Mr. P at that meeting, she had not reported it to her supervisor. She said that she wanted to give him the benefit of the doubt. The grievor further said that she had not sought advice from Ms. Armstrong about any of the frustrations she experienced as she arranged the PISA test at that school.

137 The grievor said she left a message for Ms. G on May 6 and that Ms. G returned the call on May 7. Some confusion arose about the number of the test room. The grievor explained that it was important to provide accurate information in the event that the employer’s quality control representatives decided to check on the test. The grievor asked if the room were the library and was informed that it was not. She instructed Ms. G that other teachers were not supposed to be present during the test. She asked if there were any students whose behaviour might be a problem and asked that enough desks be made available. The grievor asked Ms. G if she knew of any students on the list who would not be writing the test, and Ms. G said she was aware of one student (who was indicated on the tracking form as “not able to write”).

138 In cross-examination, the grievor denied that anything unprofessional had occurred in her conversation with Ms. G or in the voice mails she left for Ms. G. Although she did leave a message apologizing about the confusion that had arisen over the correct room number, she said she did so because she had been in error about the number, not because her conduct had given her anything to apologize about. The grievor denied that she was concerned about not having adequate communication with Ms. G before the test. She said her view was that the test would go ahead or it would not, but it was not her responsibility.

139 The grievor said that the manual supplied to the school made it clear that the school contact — in this case, Ms. G — was responsible for completing the tracking form and entering codes to show the status of each student on the list. It was also the school contact’s responsibility to send letters informing students and their parents that the students had been selected as part of the PISA test sample and to advise teachers of when and where the test would be written. The grievor said that Ms. G made no indication that she would not be ready on the day of the test.

140 On the day of the test, the grievor testified that she arrived at the school at 08:15, the time she had arranged to meet Ms. G. She brought the blue bin containing the test materials. In fact, Ms. G did not appear until about 08:23, and simply said, “I’m [Ms. G], follow me,” and led her to the room. The room set aside for the test was crowded and contained only 16 desks rather than the 35 necessary to accommodate everyone on the list. On one side of the room were windows facing a parking lot. The room was attached to another office with a glass window in the door. The grievor said she asked for more desks, and Ms. G indicated that she was not sure the school could provide more. Ms. G asked Mr. P to come to the room. He suggested the grievor wait until the students arrived and then see if there were enough desks. The grievor responded that she had been informed that one student would be absent. Therefore, she needed 34 desks. Mr. P repeated that he thought there would be only “single digits” of students. Ms. B also came to the room and approached the grievor “aggressively,” according to the grievor. The grievor said she stepped back and asked Ms. B who she was. The grievor told Ms. B that if she had not read the manual, she probably was not aware of the rules, which required that the tests be set out in the order of the students on the tracking form. Mr. P then arranged to have extra desks brought in.

141 The PISA test rules permitted the grievor to delay the beginning of the test for up to 10 minutes to allow latecomers to arrive. She waited the full 10 minutes and then started the test with the 9 students writing it.

142 In the course of the test, some students knocked on the window from outside. One student complained about the noise being made by the fan, and Ms. G went to check on it; she reported that nothing could be done about it. When Ms. G opened her laptop, it made a chiming sound that made the students look up. Three teachers came into the room at different times and were quite aggressive. One of them told the grievor to shut up when she told him he should not have entered the room during the test. Ms. G did not take any steps to inform the teachers they should not be in the room. At another point, some students knocked on the door and said they had a class scheduled in that room; some entered the room. One of the teachers came back a second time to get some materials and informed the grievor that it was his room.

143 The grievor said that she asked Ms. G to post a note on the door, but she refused. The BEA did place a whiteboard across the door with a notice about the test.

144 At one point, Ms. B arrived and asked the grievor to come into the hallway. The grievor said Ms. B had walked up behind her and that she was taken aback. The grievor said she did say “stop” to Ms. B; she also said she put up her hand. She accompanied Ms. B into the office, gathering up the tests not being used by students. The grievor told Ms. B that she did not want to be spoken to in that way and that she could not leave the tests unattended. She testified that she could not see the full test room from the office. She was concerned because the BEA had said that Mr. P was also back in the test room, and given his earlier request to photocopy the test, she was concerned about security. The grievor said that she then walked up to Mr. P and, in a normal conversational tone, told him that if teachers continued to enter the room, she would have to stop the test, and the school would be a failure. Mr. P and Ms. B then left. The test ended at 11:10.

145 At the end of the test, the grievor collected the completed tests and replaced all the materials in the blue bin. She asked Ms. G if she wanted further help with completing the tracking form (Exhibit G-6), but Ms. G said that she had no further information to add. She had added some comments to the form. When the grievor was leaving the school, she encountered Mr. P, who said he thought she had lost it during the test. She returned the materials to the car and then went back into the school to return her parking pass. She took her tape recorder with her and asked to see Mr. P. He and Ms. B came out, and the grievor told them she had been treated badly by the school staff and that she would not return to the school. Mr. P said that he agreed that she would not return. He said that he had heard her voice mails left for Ms. G and thought they were disgusting. The grievor left the school with the recorder still running.

146 The grievor said that she was still rattled. She stopped her car for a few minutes and then went home. She phoned and left a message for Ms. Armstrong and sent an email that same evening stating that she had been treated badly and asking to have an incident report filed.

147 On Monday, May 11, Ms. Carter told the grievor that she was not to do any more work for the present and that all her cases would be transferred to other interviewers. Ms. Carter also outlined the version of events that the employer had received from staff at the school.

148 Later on May 11, a bargaining agent representative, Ms. Woods, arrived at the grievor’s home. She said that she had not initiated contact with Ms. Woods, who said that Ms. Radisavljevic had told her she should call the grievor. The grievor said she was shocked to see a bargaining agent representative because she did not think she had done anything wrong. She disagreed that she had been out of control or that she had yelled at anyone. She felt she had been treated in a demeaning and humiliating way and that school staff had refused to listen to her suggestions. She did tell Mr. P that she would have to shut down the test if there were any further difficulties and that she felt she would have to report the situation to her supervisors. She said that she did say the job was not something she wanted, although she denied that she said it was crammed down her throat. She did not cry in front of the teachers, and she did not yell at them.

149 The grievor said that, in her view, the school had not met the requirements for the PISA test. It had chosen a date when other things were going on at the school — notably, the French oral examinations taking place at the same time — which meant that the library was not available. That in turn meant that the students writing the test were exposed to the sound of bells and other disruptions, like the windows to the exterior and the interruptions from teachers and students entering the room.

150 In the fact-finding meeting of May 14, the grievor said she explained that the school had not complied with the PISA manual and that her actions on May 8 were a reaction to that. At the meeting, the grievor and the bargaining agent representatives asked if there was information about the way the PISA test had been conducted at the three other schools the grievor was responsible for. She and the bargaining agent did contact the three schools to ask about their dealings with her. According to the grievor, the employer was angry that they had made those contacts. The grievor’s view was that the employer ignored the information that had been gathered about the other schools and that it also ignored the bargaining agent’s representations about the way the grievor’s situation had been handled.

151 In cross-examination, the grievor said that although she found it upsetting to relive the events of May 8 and although she felt psychologically harassed, she did not become somewhat distraught during the call on May 14.

152 The grievor said that she never received a clear explanation of why she was not being allowed to work or why a medical assessment was being requested. She said that she had demonstrated her willingness to provide suitable medical information by going to her family physician and that she had reported to the employer that she was fit to work (Exhibit E-22). She said that her interpretation of the term “fit” was that she was suitable as an employee, and she was confident that she had the skills necessary to do the work. She had indicated to Mr. Wong (Exhibit E-25) that she would undergo the Health Canada assessment because she was threatened with losing her job but continued to want an explanation of the reasons for it (Exhibit E-27).

153 Under cross-examination, the grievor said that she had read Mr. Wong’s letter directing that she undergo an FTW assessment (Exhibit E-19) and the document provided to her doctor (Exhibit E-20) and that she did not understand why an FTW assessment was required or what it entailed. She further said that although she indicated to Mr. Wong on July 6 (Exhibit E-22) that she was fit to work, she did not return a signed consent form because she thought it important to consult with the bargaining agent. She acknowledged that she did not provide that explanation to Mr. Wong.

154 In the telephone conference of July 24, the grievor said that all the same events were discussed again. Her recollection was that Mr. Wong said that an FTW assessment would not be required and that Ms. Rivais said that she was unsure about what was required. The grievor said that she felt strongly about the employer having access to her medical information and that she was concerned about it forcing her to consent. She had serious concerns about her privacy.

155 The grievor said that she did not receive from Ms. Woods the pages attached to the package sent on August 18 (Exhibit E-30), which contained the answers from Health Canada to the specific questions about disclosure the grievor raised on July 24. She saw that information only later, when she filed an access to information request in connection with her grievance.

156 In consultation with Ms. Woods and Ms. Hazelwood, the grievor decided to return to her physician and ask him what he thought she would need to do to meet the requirements imposed by the employer. He suggested that undergoing a psychological assessment might meet the employer’s requirements; as he put it, “Let’s try and beat them at their own game.” The grievor saw a psychologist at the Kelowna Health Unit on Friday, August 28.

157 The grievor produced a copy of the consent form (Exhibit G-70), which she said was the version she sent to the employer on August 25. In contrast to the version submitted by the employer (Exhibit E-35), the grievor’s version did not contain the notation, “consent not given,” although it showed all the other notations described earlier in this decision. She said that she was accepting her doctor’s advice to have the psychological assessment done and thought that she was meeting the employer’s requirements, although she was doing it under duress. On the advice of the bargaining agent, she also filed the harassment complaint (Exhibit E-34) dated August 23.

158 The grievor indicated that she received the termination letter (Exhibit E-36) on August 31. She disagreed that she had not provided appropriate consent. She had sent the form from her doctor and had indicated to Mr. Wong in July that she was willing to have the assessment done. She had also sent the signed consent form.

159 In cross-examination, the grievor said that despite the communications from the employer in the period from May 8 to August 31 and despite the conference calls arranged to discuss the issues, she had concluded that the employer had deliberately set her up so that it could terminate her employment. She acknowledged that ultimately she had filed a human rights complaint against the employer (Exhibit E-34), citing as the ground discrimination on the basis of disability.

160 In cross-examination, the grievor indicated that she had received periodic training for her job as an interviewer. She had received a copy of the employee handbook (Exhibit G-11) for her personal use. She acknowledged that it indicated that an employee should “… report workplace issues to the senior interviewer, the data collection manager or the program manager,” but she reiterated that Ms. Armstrong had told her that she should report only to her.

161 Counsel for the employer referred the grievor to an email (Exhibit E-7) in which Ms. Armstrong reproduced her notes about two respondent relations incidents for Ms. Radisavljevic. On the first occasion, which occurred in December 2008, a man had called and complained that his elderly mother had had a conversation with the grievor relating to whether she should follow the son’s advice to enter a care home. Although the grievor could not remember the exact sequence of events, she did remember Ms. Armstrong bringing that incident to her attention. She said that when they were both at a training event, she approached Ms. Armstrong to speak to her about it but that Ms. Armstrong said she did not want to talk about it there, and Ms. Armstrong never gave her any further directions concerning the incident.

162 The second complaint recorded in Ms. Armstrong’s notes was also made in December 2008. The daughter of a respondent called and said her mother had been concerned that someone was trying to scam her for her pension. The daughter said that she had told her mother to call the police if that person (the grievor) showed up again and that she and her husband intended to be with her mother for any return visit. Ms. Armstrong’s notes indicated that she had transferred the file to another interviewer because she did not want the grievor to return to a potentially risky situation. The grievor said that although she remembered the incident, she did not recall whether the file had been transferred or what Ms. Armstrong had told her about the reasons for any transfer.

163 The grievor said that she remembered the interactions that gave rise to the complaints and that she thought that the versions described in Ms. Armstrong’s notes were inaccurate. She did not think she had acted unprofessionally in either case. The grievor also said that she thought that the format of the original notes giving rise to the email (Exhibit E-14) indicated that Ms. Armstrong was keeping track of her in a different way than she did other interviewers because the notes connected with her name were indented. However, she said in cross-examination that she did not know what this meant.

164 Counsel for the employer referred to the email (Exhibit E-15) that the grievor had sent to Ms. Armstrong on the evening of May 8, in which she asked for assistance “in what [she] call[ed] assault and abuse” and alluded to several altercations at the school. The grievor said that the series of events at the school had been very upsetting and that she did consider the treatment she had been subjected to as a form of abuse. In November 2010, she pursued the possibility of filing a workers’ compensation claim (Exhibit G-66). She did not seek medical advice in May 2009.

165 Although she had found the events upsetting, the grievor asserted that her conduct was professional at all times. She denied that she had been teary-eyed during the test, that she had hyperventilated or that she had raised her voice. She said she had done nothing that should have given anyone cause for concern about her health. On the other hand, she said that Mr. P, Ms. B, Ms. G and three other staff members had been rude to her.

166 In a document dated May 5, 2010 (Exhibit E-37), the grievor had outlined her concerns to one of Statistics Canada’s senior managers in Ottawa. Counsel for the employer referred the grievor to a statement in it that Mr. P had falsely accused her of demanding that the school schedule another test. The grievor said that she had made it clear to Mr. P that she would not return to the school. She said that she did not know whether it would be possible for another test administrator to be assigned to carry out an additional PISA test at the school.

167 The grievor said that she took her ethical obligations as an employee very seriously. She understood that she had a responsibility to keep data secure and that she was collecting the data on the employer’s behalf. She acknowledged that in her training she had been instructed that employees were not to retain information collected in the course of performing their duties, but she said that the bargaining agent representatives had advised her to retain copies of the PISA manual (Exhibit G-1) and the tracking forms (Exhibits G-5 and G-6). She denied that she did so because she thought her conduct on May 8 would be called into question. She said that after the test on May 8, she retained the materials for a short time because she thought she might be advised to return to the school to run another test. She did not receive any direction from Ms. Armstrong, so she raised the issue in the May 14 conference call. She then returned the materials to the employer in Ottawa.

III. Summary of the arguments

A. Preliminary issue

168 As a preliminary issue, counsel for the employer made a request to have the tracking forms and the segments of the PISA manuals sealed following the decision in this case. The grievor did not make an argument opposing the request. Counsel’s argument with respect to the tracking forms was that they contain personal information about students at the school where the grievor administered the PISA test on May 8. It is important that the privacy of those individuals, who are third parties in connection with the dispute between the grievor and her employer, be respected. It is also important to the employer’s work that it be able to assure respondents and others whose information comes into its hands that personal information will be handled with the utmost confidentiality.

169 Before deciding on a request to seal exhibits, it is important to consider the tension between denying future access to evidence put forward at a hearing and the open court principles that emphasize the public interest in a transparent adjudicative process. The framework for approaching this issue is laid out in the “Dagenais/Mentuck test,” which draws on the decisions of the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, and in R. v. Mentuck, 2001 SCC 76. In the latter case, which involved a publication ban, the test was outlined as follows at para. 32:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

These questions also provide guidance for the appropriate balancing of interests in relation to a sealing order.

170 I have concluded that the tracking forms (Exhibits G-5 and G-6) should be sealed. They contain personal information about individuals who are not parties to the dispute between the grievor and the employer, and the information was provided with assurances that its use would be restricted to purposes related to the PISA test. The grievor copied the forms and produced them at the hearing without consultation with the employer, which had given the assurances, or with the individuals themselves, and it is difficult to see how their privacy can now be protected in any other way than by sealing the forms.

171 Further, although the parties attach different significance to those documents, there was no dispute between them about the nature of the documents or that the tracking form as completed by staff at the school deviated in certain ways from the directions laid out in the instructions provided by Statistics Canada. In this light, I am unable to identify any prejudice to the public interest or to the grievor’s interest that would arise as a result of a sealing order. Any necessary reference to the documents in the future would be limited to a description of them rather than to specific information contained in them. This protects the privacy of the individual students named in the documents, in my view without creating an unacceptable risk to other interests.

172 With respect to the PISA manuals (Exhibits G-1 and G-2), counsel for the employer’s argument was that they represent proprietary material that is not intended to enter the public domain. I have concluded that although it is true that the employer did not intend for those manuals to become generally accessible, the same can be said of many of the exhibits filed at the hearing, which touch on sensitive human resources and labour relations issues. As the material in the manuals indicates what instructions were given to interviewers and to schools about the administration of the PISA test, they are highly relevant to the issues raised in the grievance. The interest declared by the employer in protecting them as proprietary material does not seem to me to outweigh the interest in open proceedings, and therefore I deny the request for a sealing order for the manuals.

B. For the employer

173 Counsel for the employer reiterated the jurisdictional objection she had outlined in her opening statement. She argued that the decision to terminate the grievor’s employment was not a disciplinary measure and is thus precluded from adjudication under paragraph 209(1)(b) of the Act. Although the letter of termination characterized it as a termination for cause, it did not refer to discipline for misconduct but to the grievor’s failure to comply with the requirements of the administrative process associated with obtaining an FTW assessment. Counsel acknowledged that there are limits to employers’ use of FTW assessments as a tool to examine employee conduct, as noted in Grover v. National Research Council of Canada, 2005 PSLRB 150 (upheld in Canada (Attorney General) v. Grover, 2007 FC 28 and 2008 FCA 97). The Federal Court commented in that case that employees have a strong right to privacy and that they cannot be subjected to medical interventions against their will. However, the Court accepted that employers have obligations to safeguard the health and safety of employees and therefore have a right to ask for medical information if there are “… reasonable and probable grounds to believe the employee presents a risk to health or safety in the workplace.”

174 In Hood v. Canada Food Inspection Agency, 2013 PSLRB 49, the employer had required an FTW assessment for an employee who had exhibited signs of stress. The adjudicator commented as follows at para. 118:

…

… I do not believe that a responsible employer could ignore the signs of stress and instability exhibited by the grievor in the months preceding her suspension on January 8, 2010. Therefore, I find that the employer was justified in requiring that she undergo an independent medical examination to determine her fitness to work.

…

175 In the event that I find that the jurisdictional objection should not be upheld, counsel for the employer argued that I should find that the employer acted reasonably under the circumstances, and I should uphold the decision to terminate.

176 Counsel for the employer said it was clear that the grievor had been a hard-working employee who had a strong sense of personal values. Counsel argued that the grievor’s strong self-image prevented her on occasion from listening to explanations and that it rendered it difficult for her to see the big picture.

177 Counsel for the employer argued that based on the information available after May 8, the employer had a legitimate basis for concern about the grievor’s fitness to work. In her initial email to Ms. Armstrong, she had characterized what had happened as an assault and had expressed considerable distress about the events. The reports from staff at the school suggested to the employer that the grievor’s conduct at the school required further examination. To get some sense of whether her conduct was in character for the grievor, it looked at information about earlier respondent relations complaints. The interaction with the grievor during the May 14 conference call confirmed for employer representatives that they had reason to be concerned about the grievor’s ability to continue working.

178 Counsel for the employer argued that the employer was entitled to assurances that the grievor would be able to continue to function successfully in an environment of limited supervision and in which she was required to interact regularly with members of the public on the employer’s behalf. The employer had to balance the grievor’s right to privacy with its interest in ensuring that she was capable of doing her job, and it was reasonable to choose the option of obtaining an FTW assessment.

179 Counsel for the employer said the evidence showed that the employer had explained clearly to the grievor why the FTW assessment was required and what it would entail. It answered her questions and gave her a number of opportunities to consent to the assessment. Only when she failed to comply with a final request for her written consent was the decision made to terminate her employment. With respect to the consent form the grievor did provide on August 25, counsel noted that even without the notation, “consent not given” (which the grievor denied was present in the version she sent), Ms. Rivais’ testimony was that the form would not have been acceptable to Health Canada as consent.

180 Counsel for the employer argued that the evidence did not support the grievor’s suggestion that the employer had set her up in some way and that termination had been a foregone conclusion. Counsel pointed out that the employer had continued to pay the grievor during the 31⁄2 months before her termination, that it had continued to communicate with her and the bargaining agent, and that it had given her extra time to consent to the FTW assessment.

181 Counsel for the employer argued that if findings of credibility are to be made, the evidence of the employer witnesses should be preferred. The grievor’s evidence that she did not lose her composure at any point on May 8 is not credible; nor is her evidence that nothing in her behaviour could have provoked rudeness on the part of six different staff members at the school.

C. For the grievor

182 The grievor argued that before the events of May 8, the grievor had a record of satisfactory performance, including the successful administration of the PISA test in three other schools. The rules associated with the PISA test were complex and somewhat rigid, and the grievor found that the conditions in which she was expected to administer the test on May 8 departed from those rules and made it difficult for her to proceed. The grievor argued that the staff at the school had not been cooperative and that they had misrepresented her conduct at the time of the test.

183 With respect to the request for an FTW assessment, the grievor said that the reasons for it had never been clearly explained to her but that when the termination occurred, she had been making her best efforts to fulfill the request by sending in the completed consent form and arranging to have a psychological evaluation conducted. She had taken those steps in consultation with the bargaining agent and was surprised when she was terminated in spite of the efforts she had made.

IV. Reasons

184 Before the hearing and again at its outset, the employer raised an objection that I do not have jurisdiction to determine this grievance. Counsel for the employer argued that the decision to terminate the grievor was an administrative measure taken because she did not comply with the requirement to consent to an FTW assessment despite repeated directions from the employer and that it was not a disciplinary measure taken to punish the grievor’s misconduct.

185 As counsel for the employer acknowledged, evidence going to the merits of the claim in the grievance may be relevant in the event that I decide that I do have jurisdiction to determine the matter. In that case, the question would become whether the employer acted reasonably and whether it could meet the burden of showing that it had just cause for the termination.

186 I would say that such evidence might also be relevant in a different context. It may hold clues to the question of whether the employer’s action was administrative or disciplinary. As the adjudicator noted in Grover, cited earlier in this decision, the simple assertion by an employer that a decision was administrative does not make it so. In deciding whether the employer’s action was in fact administrative, evidence relating to the merits of the grievor’s claim may be helpful in deciding whether the employer actually imposed discipline in the guise of an administrative decision.

187 The evidence of the employer witnesses was that when they received information concerning what transpired on May 8 — and it must be remembered that they received information both from the grievor and from staff at the school — they felt it necessary to obtain further information, in order to decide the implications of what transpired. They initiated a fact-finding process, in the course of which they acquired a number of different kinds of information, including descriptions of the events from a number of the participants, among whom was the grievor, respondent relations reports, feedback from other schools, and the grievor’s performance records.

188 On the basis of that information, the employer might have decided that the grievor had been guilty of some act of misconduct that warranted discipline. However, the evidence of the employer witnesses was that they did not choose that option. Instead, they concluded that the grievor’s conduct on May 8 was out of character and that there were grounds for requiring that an FTW assessment be carried out. One assumes that if the FTW assessment had established that there were no medical grounds that might have provided an explanation for the grievor’s conduct, the employer would have returned to a consideration of whether disciplinary penalties should be imposed.

189 The grievor said that after she received notice of her dismissal on August 31, 2009, she concluded that the employer had set her up and that it had used the process for obtaining an FTW assessment to fabricate reasons for terminating her employment. She argued that from the beginning the employer had ignored her version of events, had failed to take her health and safety concerns seriously, and had given undue credence to the tale being told by the staff at the school.

190 Of course, the question of whether it was reasonable of the employer to conclude that the grievor’s conduct on May 8 created the basis for an FTW assessment is at the heart of any decision about whether the termination was a legitimate administrative measure or whether it should be viewed as a wrongful punitive action against the grievor.

191 The grievor attested that nothing in her conduct at the school should have led the employer to question her fitness to work and that, on the contrary, she had been the victim of harassment and abuse at the hands of the school staff.

192 With respect to the conduct of the school staff, it is clear that the interaction between the grievor and the school’s teachers and administrators did not go smoothly, to say the least. There were some apparent deficiencies in the way the school prepared for the PISA test. It does not seem that proper notice was given to the teachers and students who normally used the room where the test was held, which seems to have resulted in some uncivil comments from one or more of those teachers. Mr. P, Ms. B and Ms. G do not seem to have been as conversant with the rules for administering the PISA test as might have been desirable, and it is clear that the grievor, who took those rules very seriously, found it highly frustrating.

193 The grievor testified that in the face of all the frustrations and barriers she encountered in administering the test, she conducted herself at all times professionally and with total composure. She denied that anything about her conduct should have raised any concern on the part of those observing her that she was unwell.

194 Of course, that is inconsistent with the evidence of the three witnesses who did observe the grievor at the school on May 8: Mr. P, Ms. B and Ms. G. To begin with Mr. P, his evidence and that of the grievor suggest that their relationship got off to a rather rocky start and never really recovered. The grievor portrayed him as aggressive and impatient and said that he spoke to her rudely and did not make any serious attempt to cooperate. Mr. P said that the grievor’s demands were unreasonable and that she was unwilling to accommodate the realities of life in the school. He told her that he found her treatment of Ms. G horrible and disgusting and said that the grievor would not be coming back to the school.

195 The nature of that relationship did not provide a sound basis for collegial interchange, but that does not mean that all of Mr. P’s observations about the grievor’s conduct at the school must be ignored. Even taking into account the somewhat exaggerated terms in which Mr. P expressed himself, his description of what the grievor said and did raises questions about whether her demeanour was completely calm and professional.

196 There was some confusion in the evidence as to whether the grievor encountered Ms. B once or twice. However, the evidence was consistent about what happened when they met. Whether or not the grievor said something to the effect of “I don’t have to listen to you,” or “I don’t need you,” it is clear that she put up her hand with a “stop” motion and that she resisted Ms. B’s invitation to speak privately in the office. Ms. B testified that the grievor spoke sharply to her.

197 Ms. B was the principal of the school, and it must be remembered that it was the first time she had met the grievor. There is no reason to think that she had formed any particular impression of the grievor or that she had any ground for misrepresenting the nature of their interaction. She understood that there were some difficulties about the arrangements that had been made for writing the test, and from the suggestions she made, it is clear that she went to the room in an effort to resolve problems and to find a solution that would be satisfactory from the point of view both of the school and Statistics Canada. Although the grievor testified that she made her “stop” gesture to Ms. B because she felt that Ms. B was entering her personal space, she did not convey as much to Ms. B. It is not surprising that Ms. B was taken aback by the grievor’s conduct, and in my view, it was reasonable for her to conclude that the grievor’s reactions in the circumstances were exaggerated and indicative of some underlying problem.

198 Ms. G said that she had found her initial contacts with the grievor somewhat distressing, as the grievor was critical of the steps she was taking to prepare for the test. At the school on May 8, Ms. G had perhaps the most prolonged contact with the grievor and the most extensive opportunity to observe her. Despite the tension that had arisen between her and the grievor, she described the grievor’s demeanour and conduct in measured terms. She said that the grievor was not crying, although she observed that her eyes seemed teary. However, she did seem to be under great stress and was demonstrating signs that Ms. G thought might be associated with an imminent heart attack or some other critical event. She approached the grievor to ask whether she required medical attention and was rebuffed by the grievor, who told her she was fine. In the accounts she gave of the incidents and in her evidence at the hearing, she was consistent in saying that she thought the grievor might be experiencing a crisis of a medical nature.

199 In her testimony, the grievor said that she was offended by Ms. G’s suggestion that there was anything wrong with her. She said that Ms. G was not a physician and that she was in no position to diagnose a medical problem. It should be noted that Ms. G made no claim to be a medical professional. However, she was a first-aid officer at the school and had been trained to identify signs of medical distress.

200 Although Ms. G conceded that she found the grievor somewhat intimidating, she gave her evidence in an assured manner and expressed herself in a balanced way. There was no sign that she had anything against the grievor, and her account of the grievor’s behaviour that led to her expression of concern was credible.

201 In contrast, the grievor’s assertion that she never lost her composure and that she was the one person who behaved in an entirely professional manner throughout is inconsistent with other evidence, including her own. Her evidence was that when she left the school, she was so upset that she found it necessary to stop driving for a period before going home. She also characterized the situation as one of assault and abuse when she wrote to Ms. Armstrong the same day, and it is hard to imagine that she could react to events to which she attached those labels completely impassively. Although she gave rationalizations for the “stop” gesture she made to Ms. B, the brittle nature of her interactions with Ms. G and her forceful response to Mr. P, her testimony confirmed the basic character of those exchanges, and they all suggest that she did not conduct herself in the serene way she claimed.

202 Both Ms. Carter and Ms. Rivais testified that the grievor had seemed under emotional stress when they were party to telephone conversations with her. They said that at some points in the conversations, she seemed to be weeping and seemed distressed, although at other points she was more composed. That experience went some way to confirming their view that an FTW assessment should be sought, as the evident distress of the grievor created concern about her well-being. The grievor denied that she had been crying or distressed on those occasions.

203 In conversations before the hearing aimed at resolving some technical issues, and at the hearing itself, on a number of occasions, the grievor was in tears or expressed herself in highly emotional terms. One must of course be cautious about interpreting the demeanour of a witness under these circumstances. By the time of the hearing, the grievor had initiated a number of different kinds of proceedings, which were at different stages, and it was to be expected that she might find the situation stressful. I have not attached great weight to my own observations of her reactions, but they do seem to undermine her claim that she was able to deal impassively with all the situations she encountered and to lend support to the evidence of those witnesses who described her as reacting in a way that suggested she was under stress.

204 I have concluded that in light of the information available to it at the relevant time, the employer had a reasonable basis for deciding that an FTW assessment was necessary to determine whether the grievor could continue to perform her assigned duties. The evidence does not show that the employer fabricated its reasons for requiring the FTW assessment. It continued to pay the grievor until the time of her termination, it accommodated a series of requests for extensions of the time given to her to provide her consent and it relayed specific questions to Health Canada on her behalf, all of which suggests that its effort to discover whether there was a medical explanation for her conduct was genuine. It should also be remembered that at the time of her dismissal, approximately six weeks remained in her employment term, and the employer would have been under no obligation to renew or extend that term. Had the employer actually been seeking to get rid of the grievor, it might just have waited until the end of the term and dismissed her under circumstances that would have denied her any recourse whatsoever.

205 A second question that arose from the evidence was whether the grievor did in fact provide her consent to an FTW assessment, contrary to the grounds cited for her termination. That question depends in part on an interpretation of the different versions of the consent form that were put forward at the hearing. The employer submitted a version of the consent form signed by the grievor with a note stating, “consent not given.” The grievor provided a version of the form without that note and said that it had not been on the version of the form she had faxed to the employer.

206 Several versions of that form were entered as exhibits or attachments to exhibits. They were all photocopies; therefore, it is difficult to resort to some of the usual techniques for examining documents, such as comparing the ink from different pens. The notation “consent not given” is in handwriting that certainly appears to be consistent with handwriting that the grievor admitted was hers, although that does not provide any proof of when the notation was placed on the form.

207 In any case, I have concluded that the presence or absence of that particular notation in the version of the form sent to the employer is not determinative. Ms. Rivais said that she thought the notation was on the version she saw. However, even without it, she said that it would not have qualified as consent from Health Canada’s point of view. The form had other notations on it, indicating that the grievor was providing it only involuntarily, that a number of things had not been explained to her, that Health Canada did not have her permission for access to certain records and that she would determine the expiry of the consent in the future. In the circumstances, I would agree that that could not be said to be consent to the FTW assessment, and it was clear that without consent, Health Canada would not conduct the assessment.

208 The grievor also said that she had made a last-minute effort to meet the employer’s requirements by undertaking a psychological assessment arranged through her personal physician. Ms. Rivais said that she was unaware that this assessment was being done. There was no evidence that the bargaining agent (which was still representing the grievor at that time) or the grievor ever communicated with the employer before August 26 (the deadline for the consent form) or August 28 (the date of the termination letter) that the assessment was being done.

209 The grievance was referred to adjudication under section 209 (1) (b), which permits referral of “a disciplinary action resulting in termination, demotion, suspension or financial penalty.” In order for me to decide that I have the jurisdiction to determine whether the termination of the grievor was unjustified, I must determine whether the employer’s decision to terminate the grievor’s employment had the character of an administrative decision or whether it was a disciplinary act disguised as an administrative act.

210 In Rosemary Hood v. Canadian Food Inspection Agency, 2013 PSLRB 49, at paragraph 120, the adjudicator described the purpose of discipline by an employer as “both punitive and corrective.” In Joy Theaker v. Deputy Head (Department of Justice), 2013 PSLRB 163, the adjudicator commented at paragraph 32:

… there is no evidence that the employer intended to punish conduct that was unacceptable and culpable. Similar to the situation in the Hood decision, the employer had good reason to request the additional medical information in order to ensure the safe and successful reintegration of the grievor to the workplace.

211 In Theaker, the issue to be resolved was whether characterizing an employee as being on leave without pay following failure to comply with a request for a FTW evaluation constituted disciplinary action. In Hood, the failure to comply with such a request led to the termination of the employee. In both cases, the adjudicators considered the intention of the respective employers and found that there was no indication the employers were intending to “punish” or “correct” the employees on the basis of misconduct. Rather, they took administrative steps based on a legitimate concern about the employees’ fitness to perform their duties.

212 I have reached a similar conclusion in this case. Though in the documentary evidence and oral testimony presented at the hearing before me, there was reference to the actions of the grievor, my view is that these references did not indicate that the intention of the employer was to punish the grievor. The representatives of the employer made considerable efforts to gather factual information and to understand the perspectives of the major players in the events of May 8. They drew the conclusion that the grievor’s conduct on May 8 raised some questions about her well-being, and that they needed further information to decide whether there was a medical explanation for what seemed like anomalous behavior. They acknowledged that they did not possess medical expertise, and, because the grievor’s chosen physician indicated that he was unable to provide the assessment, they requested the grievor’s consent to an assessment by a Health Canada physician. Their intention was to use the medical information to make a determination as to whether the grievor was medically fit to carry out her duties and whether she might require accommodation of some kind.

213 Had the FTW assessment resulted in an indication that the grievor was medically fit to perform her duties, the employer might, of course, have moved to an examination of whether her conduct on May 8 warranted discipline, but such speculative concerns are not relevant to the action the employer actually took. I find that the decision of the employer to terminate the employment of the grievor was a reasonable and legitimate administrative response, based on the information they had at the time, to the failure of the grievor to consent to the FTW evaluation.

214 I have noted that the grievance was referred to adjudication under paragraph 209(1)(b) of the Act, and did not refer to paragraph 209(1)(d). Paragraph 209(1)(d) provides for reference to adjudication by an employee of a separate agency in the case of “demotion or termination for any reason that does not relate to a breach of discipline or misconduct.” Though this provision was not the basis for reference of the grievance to adjudication here, I would comment that the provision would confer on me jurisdiction to consider the legitimacy of the employer’s action in a non-disciplinary context. This would require me, as counsel for the employer argued, to determine whether the employer’s action was reasonable under the circumstances. Had this been the basis for the reference to adjudication, I would have found that the response of the employer was measured and reasonable, and that they took legitimate steps that were within their power to take.  In any event, the only separate agency presently designated for purposes of paragraph 209(1)(d) is the Canadian Food Inspection Agency and not Statistics Survey Operations.

215 With respect to the reference under paragraph 209(1)(b), I have concluded that there is evidentiary support for the employer’s assertion that the termination was an administrative action and that there was a reasonable basis for it. I therefore find that I do not have jurisdiction to determine this grievance, and I will order the file closed.

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

V. Order

217 The grievance is dismissed.

218 I order the file closed.

March 7, 2014.

Beth Bilson,
adjudicator