FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Julie Ricard ("the grievor") was hired on June 6, 2011, as a senior long room clerk, classified CR-04, at the Canada Border Services Agency (CBSA or "the employer"), Northern Ontario Region, location in Lansdowne, Ontario. On April 12, 2012, she was rejected on probation, and her employment was terminated.

2 The grievor filed a grievance on May 14, 2012, against the termination of her employment on April 12, 2012. That grievance read as follows:

I grieve that my termination with respect to the letter referencing "Rejection on Probation" dated April 12, 2012 was in fact excessive disciplinary action based on a flawed and incomplete fact finding investigation during which my Charter Rights were violated by the employer's representative, Chief of Operations: M. Pergunas; that this decision was in fact wrongful dismissal; and further that the employer failed to comply with its own disciplinary policy, failed to comply with its own policies against the abuse endured by the grievor, failed to comply with its own policies to ensure a culture of integrity and professionalism, and failed to identify and correct a poisoned work environment in which the grievor was forced to work; and further, that the Chief of Operations: Mark Pergunas failed in his duties to provide and foster a work environment free from harassment as required by the Code of Conduct section K" and provided by the ethics code for the Public Service of Canada; and further, that the employer's representative Superintendent: J. Wylie failed to perform his duties in regards to the application of the Performance Management Action Plan and that the employer failed to comply with Article 56 (1) & (2) of the Collective Agreement.

3 As corrective action, the grievor requested the following:

I request that my position of administrative assistant (CR04) be re-instated. I also request that any and all salary that has been lost since my dismissal be re-instated. Furthermore, I am requesting compensation for the stress, pain and suffering this has caused myself since my dismissal and to be made whole.

[Sic] throughout

4 The grievance was dismissed at the final level of the grievance process on November 29, 2012. It was referred to adjudication on January 30, 2013. On February 13, 2013, the employer filed an objection to the jurisdiction of an adjudicator of the Public Service Labour Relations Board (PSLRB) to hear the grievance, on the grounds that section 211 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA)prohibits the reference to adjudication of a grievance against a termination of employment made under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12 and 13; PSEA), such as a rejection on probation. The employer further contended that the grievance did not fall within section 209 of the PSLRA and therefore was not adjudicable. The employer requested that the grievance be dismissed without a hearing.

5 On August 9, 2013, the grievor provided a detailed response to the employer's objection to jurisdiction. In part, she alleged that she did not receive proper training and that the person who was largely responsible for her training turned against her, leading to conflict in the office that was not properly addressed. She stated that she was never given formal assessments of her work. She stated that she was called to a fact-finding interview about allegations that she threatened her supervisor, but she was not afforded the right to counsel or union representation. She alleged that her employment was terminated because of the alleged threats and not because of poor performance, and she contended that the termination constituted wrongful dismissal.

6 I believe that it is important to make a few general observations about the conduct of the adjudication. At the opening of the hearing held November 19 to 22, 2013, the grievor's husband acted as her representative. However, in the afternoon of the second day of the hearing, following the conclusion of the employer's case and after the first of the grievor's witnesses had testified, Mr. Paul Ricard advised me that he did not feel competent to continue as the grievor's representative. He asked for an indefinite postponement to allow the grievor to obtain counsel.

7 I did not grant the request for an indefinite postponement. In my opinion, the grievor should have made such a request before the hearing began and not after the employer had already concluded its case. A postponement midway through the hearing would have caused unnecessary delay and expense for the parties. After some discussion, the grievor advised that Wanda Hogan, a friend who had been present throughout the proceedings, would take over her representation.

8 I explained to the grievor that she would not be permitted to recall the employer's witnesses for further cross-examination because she had already been given a full opportunity to cross-examine them. I also explained that she would not be permitted to introduce evidence for the purpose of impeaching those witnesses if they had not been given an opportunity to address it during their testimony.

9 Despite some guidance on the hearing process, the grievor experienced considerable difficulty and frustration presenting her case. Although the employer was restrained in its objections, and some latitude was granted to allow the grievor to present her case in the manner that she wished, it was necessary to explain to her and her representatives on a number of occasions that the rules of evidence and procedure could not be stretched to the point where they ceased to apply.

10 I raise these points because I believe that it is important to note that the grievor made a decision before the start of her hearing to be represented by someone who is not an expert in the field of labour relations or law. Adjudication hearings before the PSLRB are quasi-judicial in nature. While it is not necessary to be represented by a lawyer or labour relations expert, the process is adversarial in nature, and the rules of evidence and natural justice apply. The fact that the grievor chose not to be represented by counsel did not entitle her to a suspension of those rules.

II. Summary of the evidence

11 The employer called Mark Pergunas, Elizabeth Hall and Jeff Wylie to testify and introduced 15 documents into evidence. The grievor testified and called Marlene Maloney to testify. She introduced five documents into evidence.

12 At the relevant time, Mr. Pergunas was Chief of Operations, CBSA, Northern Ontario Region, at the Port of Lansdowne, which is an international border crossing at the Thousand Islands Bridge, Ontario. He explained that when he started in his position of Chief of Operations at Lansdowne in May 2011, two clerical positions, classified CR-04, were vacant, for which a staffing process had already begun. He reviewed the list of qualified candidates with the out-going Chief of Operations and conducted interviews. The grievor was one of two candidates selected to fill the vacancies, and a letter of offer of an indeterminate CR-04 position was sent to her on June 6, 2011 (Exhibit E-1). According to the letter of offer, the grievor was subject to a one-year probationary period that started on the first day of her appointment.

13 In cross-examination, Mr. Pergunas explained that although he interviewed the grievor, it was solely for the purpose of confirming her competency. He felt that he did not need to conduct a full interview because she was on a list of pre-qualified candidates. He said that after meeting her, he concluded that she would be a good fit; therefore, she was offered the position.

14 The grievor explained that about three years before being appointed to the position, she had applied to a competition for an administrative assistant position, had been tested and found competent, and therefore had been placed in the pool of qualified candidates. She stated that when Mr. Pergunas called her about the job, she was enrolled in a course at St. Lawrence College, and she had to decide whether to continue with the course or accept the job. She said that she was concerned because the interview with Mr. Pergunas had not been formal, and she wanted to be sure that he considered her qualified. She said that they discussed her qualifications for the position briefly and that they discussed the job duties. She stated that he assured her that he was satisfied she was qualified.

15 Mr. Pergunas said that he recognized that the grievor would require some training for the position, so he put a number of initiatives in place to assist her. In particular, he assigned Mr. Wylie to oversee her training. In cross-examination, he acknowledged that he did not personally develop a training plan for the grievor and that he could not remember if he assigned Mr. Wylie or anyone else to oversee her training as soon as she started.

16 Mr. Wylie was the administrative superintendent at the Port of Lansdowne at the relevant time. In that role, he was responsible for scheduling, administering leave, and coordinating and scheduling training. The grievor reported directly to him, and her desk was outside the door to his office in the area known as the "long room."

17 Mr. Wylie identified the work description for an office assistant, classified CR-04, which would have applied to the grievor (Exhibit E-10). The grievor introduced a copy of the same work description, which she signed on October 27, 2011 (Exhibit G-5). Mr. Wylie explained that the grievor's main duties were ordering uniforms and supplies, maintaining seizure files, keeping files of the evidence gathered by border services officers in seizures, collecting statistical data and transcribing it for the "G11," which was a ledger, and sending it to regional headquarters, and collecting and entering gun count data.

18 Traditionally, the office assistant in the grievor's position also did data entry for time sheets and performed some functions relating to data collection on the arming of border services officers, but Mr. Wylie testified that for most of her tenure in the position, the grievor did not perform those tasks. Mr. Wylie explained that when the grievor began her position, he did not want to overwhelm her; therefore, not all the duties of the position were assigned to her right away. In cross-examination, he explained that his intention had been to assign her new tasks, such as responsibility for the time sheets, once she was trained to do them.

19 Both Mr. Pergunas and Mr. Wylie testified that, as a matter of general practice, all the other employees in the long room assisted in training new employees, under the direction of the superintendent. Ms. Maloney, who was also a long room clerk at the relevant time, confirmed that when she started her job in the long room, she received on-the-job training but no formal training. Ms. Maloney testified that in her experience, many people were available to ask for help. Mr. Wylie explained that because the job contained different elements, different employees had the expertise necessary to help train new staff. He also explained that responsibility for the grievor's initial training would have been at the district level and that he assumed responsibility for the specific on-the-job training only following her initial training.

20 Mr. Wylie stated that the grievor had stepped into a vacant position and that the person she replaced, Michelle Liddy-Brooks, was no longer working on-site. Arrangements had been made for Ms. Liddy-Brooks to return to the long room to assist the grievor when she first started the job, but the arrangements fell through due to unforeseen circumstances. Because Ms. Liddy-Brooks was not available to provide on-the-job training when the grievor started, Mr. Wylie explained that instead Hilda Laroque and Ms. Hall provided her with one-on-one training. They both had experience in different aspects of the job. An information technology (IT) person was also available to help the grievor with any computer issues that she might experience.

21 In cross-examination, Mr. Wylie stated that he had been trained to be a trainer. He acknowledged that he did not initially develop a training plan for the grievor and that he did not assign a specific trainer to help her but that instead he asked different employees to assist her, depending on the task. He did not know whether the employees assigned to assist the grievor, such as Ms. Laroque, were trained to be trainers.

22 At the relevant time, Ms. Hall worked at the CBSA's Intelligence Division as an administrative assistant in a contract position. However, between 1989 and 2007, she had worked at the Port of Lansdowne as an administrative assistant to the chief of operations and had handled payroll and human resources tasks. Ms. Hall began working in the Intelligence Division in June 2011. Almost as soon as she started, she was asked to return to Lansdowne for a few hours a week to help train the grievor and Maureen Mangan, who was appointed to the second vacant office assistant position a few weeks after the grievor was appointed to her position.

23 Ms. Hall testified that although she had never worked in the position occupied by the grievor, she had done parts of the job. For the most part, she concentrated on trying to get the grievor certified on the Corporate Administrative System ("the CAS"), which the grievor needed in order to perform portions of her job. Between the end of June and September 2011, she assisted the grievor whenever she had spare time. She explained that over the summer of 2011, she did not have a lot of time for the grievor because she had started a new job. Furthermore, there were problems with the CAS, which made it difficult for the grievor to learn portions of her job. However, by the end of October 2011, the problems with the CAS were resolved. In cross-examination, Ms. Hall acknowledged that those problems were so frustrating for her and the grievor that she wrote a memo to the system administrator, who acknowledged that there was a problem with the system.

24 Between October and November 2011, Ms. Hall spent two to three weeks sitting with the grievor, helping her learn the modules that she needed to perform her duties. Ms. Hall testified that by the end of October 2011, she thought that the grievor had learned enough about the CAS that she could perform the job duties relating to it.

25 The grievor testified that when she first started in her job, the other office assistants working in the long room were very helpful. On her first day, they showed her around, introduced her to other staff and showed her the binder that the previous office assistant had left to help her learn the duties of the position. Ms. Laroque was very helpful and explained to her what she would be doing. Because she did not have computer access for the first three weeks that she was in the job, much of what Ms. Laroque told her was theoretical, and a lot of her time was spent reorganizing files, books and binders.

26 Once the grievor obtained computer access, she began training on the CAS. She explained that the CAS is a DOS-based computer program that she needed for her job in order to order uniforms, supplies or forms that were protected, among other things. The CAS program has many rolls or pages. Each roll applies to a specific function. Once she was certified as having successfully completed the training for a specific roll, she was given access to it.

27 The CAS training was done online. The grievor stated that she took the training twice because it was complicated. Ms. Hall worked with her and Ms. Mangan on the CAS training, and she and Ms. Mangan also undertook two days of training on how to order uniforms using the CAS with Ms. Liddy-Brooks in Prescott, Ontario. Because of the problems that she experienced with the CAS, she did not have full access to the system until October 2011. However, she acknowledged in cross-examination that she had access to the basic CAS rolls by July 2011.

28 Until the end of August 2011, Ms. Laroque worked with the grievor to help her learn the duties of the position, and the grievor believed that their working relationship was positive. However, the grievor testified that at the end of August, the relationship changed. She explained that Ms. Laroque invited both her and Ms. Mangan to her home for dinner but asked them not to tell the other office assistants in the long room about the invitation. Ms. Mangan declined the invitation immediately, but the grievor did not want to disappoint Ms. Laroque, so despite her discomfort over the invitation, she waited a day or two and then declined the invitation. The grievor testified that Ms. Laroque's demeanor toward her changed after that incident and that she would no longer answer the grievor's questions or help her.

29 The grievor testified that at some point in August 2011, Ms. Laroque also became angry with her over a statistical report that the grievor was to prepare. The grievor had not been able to find the proper form for the report and had adapted another form. The grievor stated that Ms. Laroque was not satisfied with the sheet that she used and demanded that the grievor find the proper form. Following that incident, Ms. Laroque refused to work with her or to help her and complained that the grievor had raised her voice to her. The grievor testified that, in fact, it was Ms. Laroque who had raised her voice.

30 In cross-examination, the grievor acknowledged that Ms. Hall and Ms. Liddy-Brooks worked with her, providing on-the-job training and assistance. She stated that her relationship with Ms. Liddy-Brooks was good and that she was very helpful. In response to a question from me, the grievor stated that Ms. Mangan, who started work three weeks after the grievor, received training that was similar to the training given to her.

31 Mr. Wylie testified that from his observations over the summer of 2011, the grievor seemed to start well in her job. The staff was generally happy with her efficiency in ordering uniforms, and she appeared happy and pleasant. However, as more duties were assigned to her, it became apparent that she found it more difficult to perform her functions, and she began to blame others for mistakes that she was making. Then she began to have problems with her co-workers.

32 In October 2011, Mr. Wylie prepared a performance assessment for the grievor (Exhibit E-11). He testified that he prepared it because it was becoming evident to him that she was having difficulty performing her duties, and he wanted to be sure that she was aware of his expectations. On page 6 of the performance assessment, he identified the specific duties that she was assigned. He explained that he set out those specific duties to provide her with guidance, that he gave the document to her personally and that he gave her an opportunity to review it before she signed it.

33 In cross-examination, Mr. Wylie acknowledged an email exchange that he had with Mr. Pergunas about the grievor's performance (Exhibit G-1). He agreed that on October 3, 2011, he felt that the grievor appeared to be learning her job.

34 Mr. Pergunas stated that he kept in touch with Mr. Wylie and that as the summer progressed, he began to hear concerns about the grievor's interactions with other staff, about the pace at which she learned new tasks and about the difficulties that she was experiencing with some tasks.

35 On November 28, 2011, Mr. Pergunas summarized some of his concerns with the grievor's performance and suitability for the position in an email to Mr. Wylie (Exhibit E-2). He explained that he wanted to ensure that Mr. Wylie was aware of the range of concerns and that he was addressing them. The list of issues that he identified was prepared as a result of a number of ongoing discussions he had had with Mr. Wylie and other superintendents at Lansdowne and was an attempt to summarize all the concerns expressed about the grievor.

36 Mr. Pergunas stated that he provided general instructions to Mr. Wylie in the November 28, 2011, email. He explained that he did not want to give more specific direction because he thought that it would be premature to reach any particular conclusions and because he was also not sure that some of the elements that he had identified as issues were, in fact, valid. However, he felt that it was important to ensure that Mr. Wylie was aware of the full range of issues that had been identified. He asked Mr. Wylie to confirm that he was looking into the issues identified, and he asked that Mr. Wylie provide him with another assessment by mid-December 2011.

37 Although Mr. Wylie confirmed to Mr. Pergunas that he would look into the issues raised in the email of November 28, 2011, in fact, he did not provide any feedback to Mr. Pergunas until January 2012. Mr. Pergunas told him that he wanted a proper assessment done of the issues facing the grievor, and when he received the email, he reviewed the list of concerns to ensure that it was accurate. He did not think that the final item on the list was a concern, so he corrected that with Mr. Pergunas. Other than the final item, Mr. Wylie believed that the list correctly identified the grievor's problems.

38 Mr. Pergunas testified that although Mr. Wylie reported to him that the grievor seemed to have made progress in some areas, such as with ordering uniforms, he was not seeing the level of improvement that he felt appropriate, in light of the training provided. Although the grievor's relations with other staff had improved somewhat, she was still experiencing frustration that flared into anger at times, and she seemed unwilling to accept responsibility for her performance problems.

39 In cross-examination, Mr. Pergunas stated that he was not responsible for, or in control of, the grievor's performance plan, although he recalled aspects of it. He stated that it required her to try to get along with her colleagues and to perform certain tasks. He said that he did not have a direct, day-to-day reporting relationship with the grievor. He received oral updates on her performance and updates from Mr. Wylie.

40 On January 11, 2012, Mr. Wylie met with the grievor and her union representative to discuss performance issues. Mr. Wylie's notes of the meeting were introduced as Exhibit E-12. He testified that he wanted to explain to the grievor the issues that had been noted and to identify the improvements that had to be made. He advised her that if no significant improvement were made, rejection on probation was possible. In addition to the meeting, he gave the grievor a written performance assessment, which was introduced as Exhibit E-13. He stated that when he prepared that document, he tried to make some positive comments because he did not want to be negative all the time.

41 At the meeting, Mr. Wylie identified a number of areas of concern with the grievor's performance: her G11 statistical gathering, following instructions, completion of forms, interactions with co-workers and accepting responsibility. He stated that the problems concerning gathering statistical data related to accuracy. Some statistics were not entered correctly; others were missing. He explained that it was a recurring issue and that it was of particular concern to him because if the grievor did not do it correctly, he had to correct it.

42 The grievor also did not follow instructions. As an example, Mr. Wylie stated that Mr. Pergunas instructed her to order a maternity uniform. She did not order it. Instead, she sent Mr. Pergunas the Internet link so that he could order the uniform himself. Mr. Wylie stated that she should have known how to do it herself but that she did not do it.

43 Concerning the grievor's interactions with co-workers, Mr. Wylie testified that he received a complaint from an IT technician working with the grievor. Mr. Wylie was told that the grievor had accused the IT technician of removing something from her computer that she needed for her work. At a meeting held to discuss the issue, the IT technician expressed concern because the grievor had brought the union local president to assist her. The IT technician believed that it was an unnecessary escalation of a relatively minor issue.

44 Mr. Wylie was also concerned about the grievor's relationship with Ms. Laroque, who had been training her. He explained that Ms. Laroque complained to him and refused to work with the grievor. In fact, he stated that she complained to him that she was frustrated to the point that she did not want to come to work.

45 Mr. Wylie explained that the grievor's failure to accept responsibility for her actions was a recurring issue that he identified in the meeting with her and her union representative. He said that when the grievor was confronted with problems, she always blamed someone else. As an example, he stated that when Ms. Hall tried to help the grievor with the CAS, the grievor contradicted her instead of following her advice.

46 As part of his plan to assist the grievor, Mr. Wylie testified that he intended to take a more active role in monitoring her work and therefore included in the January 11, 2012, performance appraisal his intention to monitor her work weekly. In cross-examination, he explained that by using the word "monitoring," he meant providing instruction and clarification as well as meeting with her, but he did not recall that he specified how often he intended to meet with her. He testified that he met with the grievor frequently but that not all the meetings were documented.

47 In cross-examination, Mr. Wylie acknowledged that the grievor was not given a formal written performance improvement plan. However, he stated that she was provided with clear, unequivocal instruction and that she was well aware of what was expected of her.

48 On January 27, 2012, Mr. Wylie again met with the grievor and her union representative to provide feedback on her performance. The notes of that meeting were introduced as Exhibit E-14. At that meeting, they again discussed problems with the G11 data collection and concerns about the grievor's failure to take responsibility for her actions. In cross-examination, Mr. Wylie stated that when he learned that in fact she had not made all the errors on the G11 that he had initially ascribed to her, he wrote a note on the bottom of the page (Exhibit E-14) to acknowledge that fact. However, she still made mistakes on the G11. For example, Mr. Wylie noted that she had entered 25 000 into the column for pedestrian traffic, which was clearly wrong. That mistake could be ascribed only to the grievor.

49 On March 29, 2012, Mr. Wylie met with the grievor and her union representative concerning her work performance. The notes of that meeting were entered as Exhibit E-15. Mr. Wylie testified that at an earlier meeting, he had asked the grievor for a list of her job duties and the time that she spent on each so that he could properly assess her workload and determine what support she needed. However, despite his instructions, the grievor did not prepare the list.

50 At that meeting, Mr. Wylie told the grievor that she would be assigned the responsibility for keeping track of ammunition and guns by entering the numbers into the CAS. In addition, she would also be assigned the responsibility for the keying portion of the time sheets. Mr. Wylie testified that the clerk in the grievor's position traditionally did these duties but that they had been assigned to other clerks while the grievor was learning her job. It was his intention to return the duties to her. He testified that he had spoken to Ms. Hall about providing the grievor training to perform the duties in question.

51 Mr. Wylie also testified that at the March 29 meeting, he raised a number of performance issues with the grievor, including her failure to correct a problem relating to setting up a client identification number despite receiving a number of emails about it, her accidental disclosure of personal employee information to a large number of staff and problems with her responsibility to input information on credit card accounts.

52 The grievor testified that she was never placed on a performance improvement plan. She did not recognize the Probationary Period Assessment Process (Exhibit G-2) and said that it was not used in assessing her performance. She stated that she was not given a valid job description when she first started working as a senior long room clerk and that she did not meet her direct supervisor right away. She stated that her supervisor outlined the performance expectations and goals for the first time in October 2011, almost five months after she started work. She testified that she did not meet with her supervisor monthly and that no action plan was developed for her.

53 The grievor stated that when she met with Mr. Wylie in October 2011, he said nothing about performance problems and did not suggest a performance improvement plan. She testified that she could not understand why Mr. Pergunas was concerned about her performance to the extent that he felt it should be monitored, and she stated that the first time she became aware that the employer had concerns about her performance was in January 2012.

54 The grievor stated that she was not sure that every meeting that she had with Mr. Wylie about her performance was documented, but after January 11, 2012, he never gave her any indication that her job was in jeopardy. She stated that she was stunned at receiving a negative appraisal at the meeting on January 11, 2012, because she thought that she was doing a good job. She stated that by the end of January 2012, she felt that her performance was improving.

55 However, in response to a question from me to clarify a point, the grievor acknowledged that she knew that there were concerns about her performance after she had been in the job for about six months. She also acknowledged that some, but not all, of the concerns were legitimate and stated that her problems were because of a lack of training. She also acknowledged that she had been well aware that her job was on the line.

56 The grievor testified that to her knowledge, she had no problems getting along with anyone other than Ms. Laroque. She testified that she worked well with Ms. Mangan and Ms. Hall. Ms. Hall testified that she believed that her working relationship with the grievor was fine and that she did not have any cross words with the grievor. She stated that she witnessed no animosity toward the grievor and that the atmosphere in the long room seemed healthy to her when she was working there.

57 However, Ms. Maloney testified that the atmosphere in the long room was very bad when the grievor started to work there and that, in her opinion, the grievor was treated badly. She testified that the grievor was shunned and that no one helped her. Despite that, Ms. Maloney testified that the grievor remained positive and pleasant. In cross-examination, Ms. Maloney acknowledged that she had filed a harassment complaint that had been dismissed.

58 In cross-examination, Mr. Pergunas was also asked about incidents of harassment and bullying in the long room. He acknowledged that there were some concerns in the summer of 2011 about the interactions between the clerks in the long room. He stated that the superintendents were asked to monitor the situation and to ensure that any problems were corrected. Some of the incidents that were brought to his attention involved the grievor, but she was not the only person involved.

59 On Friday, March 30, 2012, Ms. Hall and Ms. Mangan were working in Ms. Mangan's office on the year-end time sheets. Ms. Hall testified that they had to enter all the information into the system before the end of the day because it was the end of the fiscal year, and therefore, they were very busy. At about 14:30, the grievor came in to the office and stated that she had been told that she would require training on how to do the data entry on the time sheets because she would be responsible for performing that function in the future. Ms. Hall testified that she told the grievor that she was not able to assist her that day but that she would train the grievor the following week. Ms. Hall asked the grievor to leave because she and Ms. Mangan were very busy.

60 Ms. Hall testified that the grievor would not leave when asked. Instead, the grievor complained about the fact that Mr. Wylie had asked her to take over the responsibility for the time sheets and stated that Mr. Wylie had told her she was not to ask questions any more. Ms. Hall suggested that the grievor had misunderstood Mr. Wylie and stated that the grievor could always ask questions.

61 Ms. Hall testified that the grievor continued to stand in the office and that a few moments then passed. Then the grievor said, "I am going to get a gun and I am going to shoot him. I am going to kill that bastard." Ms. Hall understood that the grievor was referring to Mr. Wylie because she had just been talking about him. Ms. Hall testified that the grievor began to mumble something that she could not hear clearly and then left.

62 Ms. Hall testified that she was upset by the grievor's statement but that she and Ms. Mangan did not discuss it until the end of the day, when they were driving home together. They had both heard the grievor clearly and did not think that it was a joke but they did not know what to do about it. After some consideration, they decided to speak to Mr. Pergunas the following week. Ms. Hall testified that they thought that the grievor was reacting to the stress of having to take on the data entry task for the time sheets. She stated that she and Ms. Mangan decided to speak to Mr. Pergunas about having someone else do the time sheets.

63 On April 4, 2012, Ms. Hall and Ms. Mangan spoke to Mr. Pergunas. Ms. Hall testified that he asked them to fill out security incident reports, which were entered as Exhibits E-8 and E-9. Ms. Hall testified that she and Ms. Mangan prepared separate reports and that they worked on one together.

64 In cross-examination, Ms. Hall confirmed that she believed the threat was directed against Mr. Wylie and that she did not believe that it was intended as a joke. When asked why, if she thought that the threat was serious, she waited so long to report it, Ms. Hall explained that she and Ms. Mangan wrestled with what they would do. They did not know whether the grievor would act on the threat, and they did not want to get her into trouble. Ms. Hall stated that she did not know the grievor that well but that she had never seemed aggressive.

65 Mr. Pergunas testified that after Ms. Hall and Ms. Mangan reported the incident to him, he requested that they fill out security incident reports. He then called Mr. Wylie to make him aware of the incident. Although Mr. Wylie was concerned about the threat, he told Mr. Pergunas that he did not believe that the grievor would act on it. Instead, he was more concerned about Ms. Hall and Ms. Mangan because they had to work with the grievor. He was concerned about how the grievor would react to them once she became aware that they had informed Mr. Pergunas about her threat. Mr. Pergunas also testified that Mr. Wylie said that he did not want to work near someone who had made such an outrageous threat.

66 Following his discussion with Mr. Wylie, Mr. Pergunas contacted the Human Resources (HR) section and the District Director for advice on the next course of action. He then prepared a report outlining the action plan he developed, which was entered as Exhibit E-3. According to the action plan, Mr. Pergunas was to hold a fact-finding interview with the grievor, who would be entitled to bring a union representative as a witness. Following the fact-finding interview, Mr. Pergunas would make the appropriate recommendations to the District Director, which could include a recommendation for rejection on probation. Mr. Pergunas testified that his plan of action was approved.

67 The fact-finding interview was held on April 5, 2012. Mr. Pergunas' notes of that interview were entered as Exhibit E-4. He testified that two union representatives accompanied the grievor. After he read the security incident reports prepared by Ms. Hall and Ms. Mangan about the incident to the grievor and her representatives, the union representatives asked to have the fact-finding interview suspended because of their concern about the potential for criminal charges. They wanted the grievor to have an opportunity to obtain counsel. Mr. Pergunas testified that he was not certain about the grievor's right to be represented by counsel at a fact-finding interview and therefore adjourned the interview briefly to obtain advice from HR.

68 Mr. Pergunas testified that HR advised him that the grievor had no right to counsel at a fact-finding interview. He repeated that information to the grievor and her representatives but told the union representatives that he would allow them to be involved in the interview and that he would give them some latitude. He also told the grievor that he could not force her to answer questions but that he would base his recommendations following the interview on the information that he had gathered.

69 Mr. Pergunas testified that when initially questioned about the threat that she was alleged to have made, the grievor stated that she could not remember exactly what she said. She recounted her frustration with Mr. Wylie's instructions to her and stated that she believed that he was not being supportive of her. She told Mr. Pergunas that if she made such a statement, it was only a joke, which she would have made because she was frustrated. Mr. Pergunas testified that he found the grievor's statements contradictory and that it seemed to him that she was trying to justify making the alleged statement. He stated that as the interview proceeded, she stated that if Ms. Hall and Ms. Mangan said that she made the statement, then she made it, but that she had not actually been serious. At another point in the interview, she stated that she was frustrated with the performance improvement process and that if she made the alleged threat, it was only because of the stress that she had been experiencing.

70 After the fact-finding interview, Mr. Pergunas wrote down his notes and then reviewed them with the District Director and HR. Although he was not certain about the date, he also prepared a recommendation that the grievor be rejected on probation (Exhibit E-6), which he sent to HR. On April 12, 2012, a letter from the Regional Director General was sent to the grievor, in which she was rejected on probation (Exhibit E-7). Mr. Pergunas testified that that letter was consistent with his recommendation.

71 Mr. Pergunas testified that after the fact-finding interview, he reviewed the employer's Policy on Violence in the Workplace (Exhibit E-5). He stated that he became concerned that he had not met all his responsibilities under that policy. Furthermore, under the Comptrollership Manual (Exhibit G-3), he had an obligation to report a threat or alleged threat to the police. He consulted with his superiors, who advised him that he had an obligation to report the grievor's threat to the police. He stated that he was told that it was not up to him to determine whether it was a legitimate threat but that, rather, it was up to the police to decide that question. Therefore, he advised the local police, who then initiated their own investigation.

72 In cross-examination, Mr. Pergunas acknowledged that he waited several days before contacting the police. He also acknowledged that the grievor was not sent home immediately after the information about the threat was presented to him. Instead, she was assigned to a different office. He stated that he felt that moving her from the office where Mr. Wylie, Ms. Hall and Ms. Mangan worked was sufficient. He explained that he did not want to be too extreme in his response because initially, he was simply not sure what to do. He testified that in retrospect, he would probably send an employee home in those circumstances. However, he did not believe that he was putting anyone at risk by allowing the grievor to work in a different location.

73 Mr. Wylie testified that he was contacted by the Ontario Provincial Police, which conducted the investigation into the alleged threat. He also spoke to a Crown attorney after the investigation was completed. He was told that the Crown was prepared to go ahead with charges but was asked if he would accept a settlement that would reduce the charges if no further incident occurred. He agreed to the settlement.

74 The grievor testified that she did not make the alleged threat; nor did she admit to making the threat at the fact-finding interview. She testified that she did not know what the fact-finding interview was about before she went to it and that the union representatives with her advised her to answer all the questions. She testified that the meeting was loud and that Mr. Pergunas frightened her. For that reason, she answered all the questions.

75 In cross-examination, the grievor reiterated that she did not make the alleged threat. She testified that she, Ms. Mangan and Ms. Hall were discussing the time sheets because she was worried about having to take over responsibility for them. Ms. Mangan invited her to come into the office to watch what she was doing on the time sheets. Ms. Hall was putting things away at that point. The grievor stated that when she voiced her concerns about having to do the time sheets, Ms. Hall told her that she would be there to help her because Mr. Pergunas had already asked her to help the grievor, which the grievor had not known. The grievor testified that she then told Ms. Hall that the responsibility for doing the time sheets made her nervous because she did not want to make a mistake. The grievor testified that Ms. Hall then said, "What does fucking Jeff Wylie know about entering time sheets." According to the grievor, that was the end of the conversation.

76 The grievor stated in cross-examination that the security incident reports prepared by Ms. Hall and Ms. Mangan were lies. Although she stated that she had good relations with both women, she stated that they were not telling the truth about the threat that she was alleged to have made.

77 When cross-examined about the fact-finding interview, the grievor stated that she did not admit to making the threat, even as a joke. She stated that the notes of the interview were not accurate and that she had never seen them before. She testified that Mr. Pergunas told her that she was required to answer all his questions and that she had no rights. In response to a question from me, the grievor testified that she could not remember exactly what she said in the interview but that she offered an apology only because she was coerced. She acknowledged that she had agreed to a peace bond to resolve any potential criminal charges arising from the incident and that it remains in place.

III. Summary of the arguments

A. For the employer

78 The employer reiterated its objection to the jurisdiction of a PSLRB adjudicator to hear this grievance at adjudication. The grievor's termination of employment was a rejection on probation. Subsection 62(1) of the PSEA provides that the employer may terminate the employment of an employee on probation at the end of the notice period set out in the regulations. Section 211 of the PSLRA provides that terminations of employment made under the PSEA cannot be referred to adjudication.

79 The employer stated that Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), provided a summary of the state of the law on rejection on probation under the Public Service Staff Relations Act, R.S.C.1985, c. P-35. In that case, the Court held that once there is evidence that the employer terminated the employee in good faith on the ground that the employee was not suitable for the position, an adjudicator of the Public Service Staff Relations Board (PSSRB) could not assume jurisdiction over a grievance against the termination. In Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134, which was decided under the PSLRA, the adjudicator analyzed the impact of the changes to the statutory regime and held that the changes did not significantly alter the approach that adjudicators had taken in the past in rejection-on-probation cases. However, under the new PSEA, the burden of proof has shifted to grievors to demonstrate that their rejection on probation was a "sham" or a "camouflage" or a contrived reliance on the PSEA, rather than a bona fide dissatisfaction with their suitability for the position in question.

80 The grievor's appointment to the office assistant position was subject to a 12-month probationary period, which began on June 8, 2011, and was scheduled to end on June 7, 2012, as established by Exhibit E-1. Her employment was terminated on April 11, 2012, when she was rejected on probation. Exhibit E-7 sets out the reasons for the rejection on probation and identifies in particular her performance and overall behaviour.

81 The letter rejecting the grievor on probation (Exhibit E-7) noted that she had been placed on a performance action plan. She contended that there was no actual document labelled "performance action plan" and that that fact undermined the rejection on probation. However, meetings were held with her on January 11 and January 27, 2012, which were documented in Exhibits E-12, E-13, E-14 and E-15. Those meetings represented, in fact, a performance action plan and process, which was followed from January 11, 2012, forward.

82 Based on the principles currently established in the case law, the only issue remaining to be determined is whether the employer acted in good faith when it determined that the grievor was not suitable for her employment as an office assistant. On the evidence, it is clear that the employer did act in good faith. The testimony established that the employer tried to help the grievor meet the expectations required of her. Ms. Laroque and Ms. Hall provided her with one-on-one training, and Ms. Liddy-Brooks was available to help her by phone and email. There was clear evidence that the grievor was given both formal and informal training to help her learn the job. Ms. Maloney testified that she had only received on-the-job training, so the grievor's training did not deviate from the norm. Furthermore, the grievor testified that Mr. Wylie told her that he wanted to help her succeed in the job. The documentary evidence bears that out.

83 The employer argued that when evidence about the incident on March 30, 2012, conflicted, its evidence was more reliable and credible. The statements given by Ms. Hall and Ms. Mangan (Exhibits E-8 and E-9) were submitted in close proximity to the incident. Similarly, the fact-finding report (Exhibit E-4) was also prepared in close proximity to the date of the interview. There is no dispute that the grievor had two union representatives with her at the fact-finding interview. There was evidence that Mr. Pergunas told the union representatives that he would give them some latitude to participate in the fact-finding interview because of the seriousness of the allegations.

84 The grievor's version of the event lacks credibility. She offered no reason that Ms. Hall, Ms. Mangan or Mr. Pergunas would have manufactured or lied about the incident. Furthermore, there is no evidence that the grievor or her union representatives challenged the fact-finding report on the basis that the grievor was intimidated into admitting to something that in fact she did not do.

85 The March 30, 2012, incident demonstrated the grievor's lack of suitability to carry out the duties of the position. Mr. Pergunas testified about the presence of guns and ammunition in the workplace, and he explained that senior management viewed the incident as serious enough to warrant reporting it to the local police. The incident was also an example of the employer's concern, expressed as early as November 2011 by Mr. Pergunas (Exhibit E-2), that the grievor lacked "emotional control."

86 There is no evidence to demonstrate that the employer made the decision to reject the grievor on probation for any reason other than suitability or that it acted in bad faith. Mr. Pergunas testified that it was a difficult decision for him to make, especially given his respect for the grievor's husband, who is a border services officer, and his concern for the grievor and her family.

87 The grievor suggested that because the process outlined in the employer's Probationary Period Assessment Process (Exhibit G-2) was not followed, management's decision to reject her should be invalidated. However, a similar argument was made and rejected in Kagimbi v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 19. The adjudicator in that case held that such guidelines are not legally binding and are simply meant to guide managers in their work. The employer argued that similar reasoning is applicable in this case.

88 The employer also cited Fell v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 2, and Smith v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 126. Those decisions established that a performance management process does not have to be perfect and that failing to provide a formal assessment to a probationary employee does not vitiate a rejection on probation.

89 The employer stated that the grievor had failed to meet her burden of proving that the rejection on probation was a sham or a camouflage or was made in bad faith. Therefore, it asked that the grievance be dismissed on the grounds that the PSLRB does not have jurisdiction over the matter.

B. For the grievor

90 The grievor stated that from the day that she started her employment as an office assistant in the long room at Lansdowne, she faced a number of hurdles. She did not have computer access immediately and was not given a job description, and the training that she was supposed to receive was not provided. Despite that, she took it upon herself to learn the job and to maintain some working function until she was trained in the job that she was hired to do. Furthermore, for the first five months of her employment, the employer did not raise any performance issues with her.

91 Although the employer contended that a performance improvement plan was in effect, in fact, none was. Although the Probationary Period Assessment Process (Exhibit G-2) is not mandatory, it is a tool designed to help probationary employees and to help management guide probationary employees. It was not followed in the grievor's case. Had it been used, perhaps the grievor would have been more successful.

92 The employer raised its concerns about performance for the first time around Christmas 2011, when Mr. Wylie had a conversation about it with the grievor. He first provided a written performance assessment to the grievor on January 11, 2012 (Exhibit E-13). Only page 6 of that document was relevant to the grievor, because the document used was designed for border services officers. It indicated that a performance improvement plan was necessary, but none was ever put in place.

93 The next written performance appraisal was on January 27, 2012 (Exhibit E-14). In that appraisal, Mr. Wylie identified that he was concerned only with mistakes that the grievor made on the G11 ledger and with her failure to take responsibility for her mistakes. However, at the bottom of the form, he noted that she was improving and that she had not made all the errors on the G11 ledger.

94 The grievor testified that following that appraisal, she thought that her performance was improving. She heard nothing more of concern until March 29, 2012. No one approached her between January 27 and March 29, 2012, to set out her deficiencies or to help her improve.

95 The grievor stated that much focus was placed on the allegation that she had threatened Mr. Wylie. However, she testified that she did not make the threat. She has no criminal convictions and no criminal record. She testified that at the fact-finding interview, she felt intimidated into admitting to something that she had not said. Even though the employer contended that Mr. Pergunas granted her union representatives great latitude at the fact-finding interview, in fact, his notes of the interview state that they were only to be witnesses. If that was a mistake in his notes, then what other inaccuracies do they contain?

96 Mr. Pergunas testified that he took the alleged threat seriously and that he followed the process set out in the Comptrollership Manual (Exhibit G-3). However, that documentjust sets out guidelines. Furthermore, although Mr. Pergunas stated that he viewed the situation seriously, he did not report it immediately. He chose to do his own fact finding, and he chose to relocate the grievor to another location, which just happened to be where all the guns in the port of entry are housed.

97 The grievor contended that she was not terminated based on performance problems that were largely clerical errors and typos. The use of performance issues and the allegation of the threat were just tools to justify her termination. The real reason for her termination started long before those issues arose. She suggested that Mr. Pergunas was prejudiced against her based on hearsay. Even though he did not supervise her and was not involved in her performance management, he took a serious interest in her performance. The email that he sent to Mr. Wylie on November 28, 2011, concerning her performance reveals detailed knowledge about her and lists a number of concerns. Since even Mr. Wylie testified that the last concern that Mr. Pergunas listed never happened, it seems that Mr. Pergunas may have been prejudiced against her.

98 The grievor stated that her termination was made in bad faith, and therefore, a PSLRB adjudicator can take jurisdiction in this matter.

C. Employer's rebuttal

99 The employer stated that the grievor's allegation that Mr. Pergunas intimidated her to the extent that she admitted to something that she did not do is very serious. Therefore, it is notable that she did not actually put the question to Mr. Pergunas when he testified and did not give him an opportunity to address it.

100 The employer also noted that Mr. Pergunas' notes from the fact-finding interview do contain a reference to the latitude that he gave the union representatives, contrary to the grievor's statement in argument.

IV. Reasons

101 The grievor was appointed to the position of senior long room clerk, classified CR-04, at the Port of Lansdowne, on June 6, 2011, subject to a 12-month probationary period (Exhibit E-1). On April 12, 2012, she was rejected on probation (Exhibit E-7) on the grounds that her performance and overall behaviour did not meet the requirements of the position (Exhibit E-7), in accordance with subsection 62(1) of the PSEA. She was given two weeks' pay in lieu of notice.

102 The grievor filed a grievance against the rejection on probation on May 14, 2012. Among other things, she alleged that her termination of employment was, in fact, a disciplinary action resulting in a wrongful dismissal that was based on a flawed fact-finding investigation in which her rights were violated. She also alleged that the employer failed to comply with its own policies, failed to correct the poisoned environment in which she worked, failed to provide a harassment-free workplace and failed to apply properly a performance improvement plan.

103 The grievance was denied at the final level of the grievance process on November 29, 2012, and was referred to adjudication on January 30, 2013. On February 13, 2013, the employer filed an objection to jurisdiction on the grounds that the grievor was rejected on probation under section 62 of the PSEA, and therefore a PSLRB adjudicator does not have jurisdiction because section 211 of the PSLRA prohibits the reference to adjudication of a grievance against a termination of employment made under the PSEA.

104 The jurisdiction of a PSLRB adjudicator to hear grievances at adjudication is set out in subsection 209(1) of the PSLRA, which provides 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

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

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

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

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

(ii) deployment under the Public Service Employment Act without the employee's consent where consent is required; or

(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.

105 Paragraph 211(a) of the PSLRA prohibits the referral to adjudication of a grievance pertaining to a termination of employment under the PSEA. It provides as follows:

211. Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

(a) any termination of employment under the Public Service Employment Act … ..

106 The PSEA provides for rejection on probation in section 62, which states as follows:

62. (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

(a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or

(b) the notice period determined by the separate agency in respect of the class of employees of which that employee is a member, in the case of a separate agency to which the Commission has exclusive authority to make appointments,

and the employee ceases to be an employee at the end of that notice period.

(2) Instead of notifying an employee under subsection (1), the deputy head may notify the employee that his or her employment will be terminated on the date specified by the deputy head and that they will be paid an amount equal to the salary they would have been paid during the notice period under that subsection.

107 Decisions of the PSLRB and its predecessor, the PSSRB, as well as numerous decisions from all levels of the courts on judicial review, have considered at length the jurisdiction of both Boards to consider grievances that, at face value, concern rejection on probation. Much of that case law has been encapsulated in Tello, one of the seminal decisions following the passage of the PSLRA into law. What is clear from the case law is that an employer cannot characterize a termination of employment as a rejection on probation to avoid adjudication, and therefore, an adjudicator is entitled to examine the matter to determine the real basis for the termination. As the Federal Court of Appeal wrote in Penner:

…

… an adjudicator seized of a grievance by an employee rejected on probation is entitled to look into the matter to ascertain whether the case is really what it appears to be. That would be an application of the principle that form should not take precedence over substance. A camouflage to deprive a person of a protection given by statute is hardly tolerable….

…

108 Penner and other decisions arising from the PSSRB examined the question of an adjudicator's jurisdiction on the basis of the legislation in existence at the relevant times. There was general agreement that although an adjudicator could make a determination that a termination was genuinely a rejection on probation, once the employer established a real cause for the rejection on probation, the adjudicator's jurisdiction ended. Quoting Smith v. Treasury Board (Post Office Department), PSSRB File No. 166-2-3017 (19771007), the Federal Court of Appeal in Penner wrote the following:

…

In effect, once credible evidence is tendered by the Employer to the adjudicator pointing to some cause for rejection, valid on its face, the discharge hearing on the merits comes shuddering to a halt. The adjudicator, at that moment, loses any authority to order the grievor reinstated on the footing that just cause for discipline has not been established by the Employer.

…

109 In 2005, the legislative framework changed. Under section 28 of the former PSEA (R.S.C., 1985, c. P-33), rejection on probation was "for cause." Under section 62 of the new PSEA, the requirement that the rejection on probation be "for cause" was removed. Tello examined in detail the implication of that legislative change and concluded that it changed the burden of proof but did not otherwise alter the substance of the approach to rejection on probation taken by adjudicators and the Federal Court. The adjudicator held as follows at paragraph 112:

…

… the provisions of the new PSEA have changed the burden of proof for cases involving the termination of employment of probationary employees. The deputy head no longer has the burden of proving a legitimate employment-related reason for the termination of employment, apart from providing the letter of termination which sets out the reason for its decision. The burden is on the grievor to show the deputy head's contrived reliance on the new PSEA or that the rejection on probation was a sham or a camouflage. A termination of employment not based on a bona fide dissatisfaction as to suitability (or for no legitimate "employment-related reason") would be a contrived reliance on the PSEA, a sham or a camouflage.

…

110 At the hearing of this matter, the employer led its evidence of the employment-related reasons for the rejection on probation first, as though it carried the burden of proof. There was no dispute that the grievor was on probation at the time of the termination or that the employer paid her in lieu of notice, as set out in section 62 of the PSEA. Therefore, although the employer presented its case as though it carried the burden of proof, it fell to the grievor to prove that the rejection on probation was not based on a genuine dissatisfaction with her suitability for the position but was, in fact, a "… contrived reliance on the PSEA, a sham or a camouflage," in the words of the adjudicator in Tello. For the reasons that follow, I do not believe that she met that burden.

111 The essence of the grievor's argument was that she was not properly trained, that the performance improvement plan developed to assist her did not conform to the employer's guidelines, and that the employer relied on an incident that she denied occurred, following a flawed investigation. The grievor stated that she was not rejected on probation for a few mistakes and typos but because Mr. Pergunas was prejudiced against her and that he used manufactured reasons in bad faith to justify her termination.

112 The evidence before me established that the training given to the grievor followed the same format as the training generally given to new clerical staff. Mr. Wylie testified that once the initial training was completed, new clerical staff generally received on-the-job training, which was arranged for the grievor. Although Ms. Liddy-Brooks, the person that the grievor replaced, was no longer on-site, the grievor testified that she provided assistance and guidance, as did Ms. Hall and Ms. Laroque. Ms. Maloney testified that when she started her job, she also received on-the-job training, and that there were many people to ask for help. Therefore, there is no evidence to support the grievor's suggestion that her training was in any way inferior or inadequate and certainly no evidence to support an allegation of bad faith in her training.

113 The evidence before me also established that the employer began to have concerns about the grievor's performance in October 2011. Mr. Pergunas testified that he started to hear concerns about the pace of her learning as early as the summer of 2011. Mr. Wylie testified that at the beginning of October, the grievor appeared to be learning her job. In an email to Mr. Pergunas dated October 3, 2011, he stated that the grievor was not "perfect" but that she was learning (Exhibit G-1). However, as more work was assigned to her, it became more difficult for her to perform as expected.

114 Mr. Wylie met with the grievor on October 17, 2011, to outline her performance expectations. Further meetings were held with her to identify performance concerns on January 11, January 27 and March 29, 2012. At each meeting, the grievor was accompanied by a union representative. The employer's concerns ranged from mistakes she made reporting statistical data to her failure to follow instructions to problems with her interactions with other staff and to her inability to accept responsibility for her mistakes. Mr. Wylie gave specific examples of some of the issues she encountered in his notes of his meetings with her and in his testimony at the adjudication hearing.

115 Both Mr. Wylie and the grievor testified that other unrecorded meetings were held to discuss her work performance. The grievor acknowledged that she was aware of the employer's concerns, and she acknowledged that some, but not all, of those concerns were legitimate. She also testified that she knew that she could be rejected on probation.

116 The grievor argued that the employer did not follow its guidelines on assessing probationary employees. However, as noted in Kagimbi, guidelines are just guidelines. They are not binding. As the Probationary Period Assessment Process states, it is a tool to assist employees and managers. Furthermore, while the time frames and forms set out in it might not have been followed, the substantive requirements were followed. The grievor was made aware of the employer's expectations. She was given training. She was given regular feedback and performance appraisals.

117 The grievor also argued that typos and clerical errors did not justify her rejection on probation, and therefore, the employer's reliance on them amounted to bad faith. Even if that was an accurate characterization of the employer's concerns, it must be said that it is not up to an adjudicator to review the standards set by employers to assess the work performance of probationary employees as long as those standards genuinely relate to employment-related suitability. In my opinion, clerical errors and typos are clearly related to an assessment of employment-related suitability. However, in this case, the so-called "clerical errors and typos" included data collection and reporting, completing forms accurately, and completing tasks according to instruction.

118 In fact, the employer's concerns amounted to much more than typos and clerical errors. The evidence from Mr. Wylie and Mr. Pergunas was clear that there was a serious concern about the grievor's ability to get along in the workplace. Mr. Pergunas testified that he heard complaints from staff about the grievor's interactions with others. Mr. Wylie gave a specific example of a complaint about the grievor's interaction with an IT technician. There was evidence about the grievor's troubled relationship with Ms. Laroque. It seems clear to me that there was some basis to the concern about the grievor's interpersonal relationships that was identified and addressed with her on several occasions. In my view, the employer is entitled to consider not just work performance but also general suitability when assessing a probationary employee, provided that the assessment is made in good faith.

119 A probationary period is designed to give an employer time in which to assess a new employee's suitability for a position. For that reason, probationary employees do not enjoy the same job security as permanent employees do. Both Penner and Tello make it clear that the assessment of an employee's suitability is not limited to work performance or production but may also relate to character or general suitability. In McMath v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 42, the adjudicator held that even in cases of culpable misconduct that would normally give rise to a disciplinary response, the employer can choose to reject a probationary employee on probation if the misconduct leads to concerns about the employee's suitability. As noted as follows in Fell,at paragraph 113:

… it is not the role of an adjudicator to second-guess an employer's judgment about what conduct on the part of a probationary employee should be considered relevant to an evaluation of the suitability of the employee for long-term employment, or to decide how much weight should be attached to particular incidents….

120 There is no doubt that the employer's decision to reject the grievor on probation was influenced by the incident that occurred on March 30, 2012, when she was alleged to have made a threat against Mr. Wylie. The alleged threat was made in the presence of Ms. Hall and Ms. Mangan. Ms. Hall testified that the grievor said, "I am going to get a gun and I am going to shoot him. I am going to kill that bastard." Ms. Hall also testified that because of the context, she assumed that the threat was directed at Mr. Wylie.

121 In cross-examination, Ms. Hall was questioned as to whether she misheard or misunderstood the grievor or whether the statement could have been a joke. Ms. Hall was steadfast in her evidence as to what she heard, and she was clear that she did not believe that it was meant as a joke. At no time in cross-examination did the grievor suggest to Ms. Hall that she was lying about the alleged incident.

122 In her evidence before me, the grievor claimed that both Ms. Hall and Ms. Mangan lied about the alleged threat. She testified that she never said what they alleged she said. She offered no explanation as to why Ms. Hall and Ms. Mangan would lie about such a matter and acknowledged that she got along well with both of them.

123 The grievor also claimed that Mr. Pergunas's fact-finding interview was flawed. She testified that she was coerced into making statements. She also testified that the notes of the interview were wrong and that she did not make the statements recorded in the notes. She stated that she had never seen the notes before.

124 I do not find the grievor credible. She had an opportunity to question Ms. Hall about the veracity of her statement and did not. Instead, her questions focussed on whether the threatening statement was meant as a joke, since Ms. Hall did not take it seriously enough to report it immediately. The grievor also had an opportunity to question Mr. Pergunas about the coercion that she said she experienced in the fact-finding interview. She did not. She had an opportunity to question him about the fact that she was not given copies of the notes from the fact-finding interview. She did not. It was not until she testified before me that she made those claims, and that testimony was a departure from her previous statement. Two union representatives attended the fact-finding interview. It seems unlikely to me that they would have allowed her to be coerced, and I note that neither testified before me. Given all those facts, I have difficulty believing the grievor.

125 I find that the grievor made the statement ascribed to her by Ms. Hall. Only the grievor really knows whether she meant it as a joke. In my opinion, the question is not relevant. An employer must take seriously any statement that amounts to a threat of violence in the workplace. The notion that an employee could take a gun into the workplace to shoot someone is no longer as far-fetched as it ought to be, and employers cannot take the risk when confronted with such a threat. Protecting employees is a paramount and legitimate concern. In the circumstances, although the employer could have taken disciplinary measures against the grievor for the incident, as noted in McMath, it did not act in bad faith when it chose rejection on probation.

126 The letter rejecting the grievor on probation (Exhibit E-7) identified the grounds for the rejection as being "performance and overall behaviour." I find that the employer established employment-related issues with the grievor's performance and overall behaviour that went directly to her suitability for continued employment as a senior long room clerk. I also find that the grievor did not meet her burden of establishing that the employer's grounds for the rejection were a contrivance, sham or camouflage designed to avoid adjudication. Nor did the grievor satisfy me that the employer acted in bad faith. Therefore, I must conclude that I do not have jurisdiction to hear this grievance against the grievor's rejection on probation and, therefore, the objection to jurisdiction is allowed.

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

V. Order

128 I order the file closed.

July 21, 2014.

Kate Rogers,
adjudicator