FPSLREB Decisions

Heard at Montreal, Quebec,
April 29 to May 2, 2014.
(PSLREB Translation)

I. Complaints before the Board

1 On January 22, 2012, the grievor, Gandhi Jean-Pierre, filed a first complaint under sections 190 and 185, subparagraphs 186(2)(a)(iii) and (iv), paragraph 190(1)(g), and subsections 191(3) and 192(1) and (2) of the Public Service Labour Relations Act ("the Act") against Dianne Clément and the Department of Citizenship and Immigration ("the employer"). On April 13, 2012, the grievor filed another grievance against his employer, Ms. Clément and Cathie Giroux, alleging that he had become a victim of reprisals after exercising his recourse.

2 At the hearing, the employer asked that the two complaints be rejected on the grounds that the grievor had already filed a complaint against his union, alleging that it had failed its duty of fair representation by refusing to represent him in a grievance against his supervisor, Mr. Vassallo. On February 24, 2012, the Public Service Labour Relations Board ("the Board") dismissed the grievor's complaint against his union. The Federal Court of Appeal then dismissed his application for judicial review (2013 FCA 223). His application for leave to appeal before the Supreme Court was also dismissed (SCC file 35102). According to counsel, one-and-a-half years after the fact, the grievor was trying to charge the employer with the same facts that were the subject of the Board's decision, which was then upheld by the Federal Court of Appeal. The Supreme Court refused to intervene in this case. As the hearing dealt with the facts covered by the two complaints, it was agreed with the parties that a single decision would cover both matters.

3 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board ("the new Board") to replace the former Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013 c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continued under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2. Further, pursuant to section 395 of the Economic Action Plan 2013 Act, No. 2, a member of the former Board seized of these matters before November 1, 2014, exercises the same powers, and performs the same duties and functions, as a panel of the new Board.

II. Summary of the evidence

4 It must be noted that in addition to the grievor, Maria Bilucaglia, Himmat Shinhat and Cynthia Rebazza testified at his request. However, their testimonies were not given consecutively, to accommodate arrangements they and the grievor had made about the timing of their appearances. Therefore, the testimonies of all the following witnesses are recounted in the order in which they occurred.

5 The grievor testified that since 2002, he has been an immigration officer at the PM-03 group and level with the employer.

6 In his complaint dated January 22, 2012, the grievor alleged that, on October 26, 2011, while he was in an acting position as a pre-removal risk assessment (PRRA) officer at the PM-04 level, Ms. Clément advised him that in light of his performance as a PRRA officer, she would not renew his acting assignment beyond October 28, 2011. Her decision was the subject of one of his complaints. According to him, she decided not to renew his acting appointment as a reprisal because he first filed a grievance on December 9, 2009, against his manager at the time, Mr. Vassallo, and then filed a complaint in March 2010 against his union, which he accused of failing its duty of fair representation by refusing to represent him in his grievance against Mr. Vassallo.

7 It must be noted that on February 24, 2012, the Board dismissed the unfair labour practice complaint against the regional representative of the grievor's union, as indicated in paragraph 2. The Federal Court of Appeal, in FCA file A-91-12, upheld that decision of the Board. The grievor's application for leave to appeal to the Supreme Court of Canada was also dismissed (SCC file 35102).

8 In his other complaint, dated April 13, 2012, the grievor also alleged that Ms. Clément and his supervisor at the time, Ms. Giroux, continued to take reprisals against him by giving negative references about him when he applied for a position with the Canada Border Services Agency (CBSA).

9 It must also be noted that in Jean-Pierre v. President of the Canada Border Services Agency, 2013 PSST 28, the Public Service Staffing Tribunal had the opportunity to decide the entire matter of the negative references that Ms. Clément and Ms. Giroux allegedly provided. The arbitrator dismissed all the grievor's claims.

10 According to the grievor, the events that led Ms. Clément to not extend his acting assignment beyond October 28, 2011, thus forcing him to return to his substantive position at the PM-03 level, occurred as follows. He indicated that he first filed a grievance against Mr. Vassallo on December 9, 2009, who, according to the grievor, had discriminated against him. As his union refused to represent him at the second level of the grievance process, the grievor then filed the complaint against his union as mentioned in the last paragraph.

11 The grievor indicated that things then began to go badly and that Ms. Clément later refused to extend his acting PRRA officer assignment as a reprisal because he had first filed a grievance against his manager, Mr. Vassallo, and then filed a complaint against his union.

12 Despite everything, according to the grievor, like four other colleagues, he obtained an acting PRRA officer position for the period from November 15, 2010, to March 31, 2011 (employer's documents; tabs 1 and 2). He stated that he then realized that management was putting more emphasis on quantity in decisions, to the detriment of quality. He also testified that an employer representative advised him that he was to stop making claims against his employer, which contributed to his sense of isolation within the PRRA. He also stated that at that same time, he advised Ms. Clément that he was having personal problems with his neighbours, which had disturbed him.

13 The grievor stated that although his acting PRRA officer assignment was to end on March 31, 2011, Ms. Clément advised him only a month before that date that his assignment would be extended for six months, i.e., until September 30, 2011 (employer's documents; tabs 7 and 8). According to him, his four other colleagues, who were also in acting PRRA officer positions, on February 15, 2011, were all informed that their acting assignments would be extended, i.e., a month before he was. In addition, they all had their assignments extended for one or two years, while his was extended only for six months. In his opinion, that shows that his employer tried to intimidate him because he had filed a grievance against Mr. Vassallo and because he had filed a complaint against his union.

14 In his testimony, the grievor stated that a coach supervised him for the entire time of his acting PRRA officer assignment. Olivier Perreault was first assigned to him. The grievor stated that Mr. Perreault was difficult and that he used excessive methods. The grievor indicated that he was the only one among his four other colleagues who had an assigned coach. The four other colleagues shared one or two coaches. Jacqueline Schoepfer then replaced Mr. Perreault. According to the grievor, Ms. Schoepfer allegedly indicated to Ms. Clément that he had made a lot of progress in his work.

15 The grievor stated that at a meeting on August 24, 2011, Ms. Clément complained about the quality of his work and prepared a punitive remedial plan that consisted of producing 25 compliant decisions without the assistance of a coach during the period from August 29 to October 21, 2011. She advised him that if the 25 decisions were not compliant, his acting assignment would end on October 28, 2011 (employer's documents; tab 12). According to the grievor, her requirement was unreasonable. He stated that her approach humiliated him and made him ill and that therefore he had to take sick leave.

16 The grievor stated that on his return to work on October 3, 2011, he had to meet with his supervisor, Ms. Schoepfer, and Sophie Andrée Roy, who was replacing Ms. Clément, who was on vacation at that time. They indicated to him that there were problems with his files. He stated that he provided explanations but that nonetheless he was called to meet with the program manager, Mr. Shinhat. According to the grievor, the fact that he was called to meet with Mr. Shinhat, Ms. Clément's supervisor, was unusual, and it clearly showed that he was harassed and profiled. He stated that he met with Mr. Shinhat on October 3, 2011, and that he told him of the discriminatory practices that he had endured from Ms. Clément. According to the grievor, Mr. Shinhat denied that such practices existed and suggested that the grievor contact employee assistance for his personal problems.

17 On October 26, 2011, Ms. Clément met with the grievor to advise him that she would not renew the acting assignment contract beyond October 28, 2011, on the grounds that in the decisions submitted he had not met the performance standards required of a PRRA officer (employer's documents; tab 16). According to him, her decision was groundless. He had personally had two experienced colleagues check all 25 decisions; they had found those decisions compliant. Thus, Ms. Clément's decision resulted in him returning to his PM-03 position as of October 28, 2011.

18 In his complaint dated April 13, 2012, this time against the employer, Ms. Clément and Ms. Giroux, the grievor stated that the fear of reprisals against him proved founded.

19 According to the grievor, after applying for a position with the CBSA, on January 28, 2012, the selection committee advised him that he was not qualified. He had an informal discussion with the CBSA selection committee members on February 28, 2012. They apparently informed him that they had contacted Ms. Giroux, who was then his supervisor at the PRRA. According to him, she apparently gave him a bad reference. She allegedly told the committee that she had advised him that she was not comfortable being a reference for him. According to the grievor, Ms. Giroux never told him that she did not want to be his reference. He stated that she led him to believe that she supported him and that she then caused problems for him with the committee. For him, everything shows that Ms. Giroux was conspiring with Ms. Clément to deliberately cause him problems.

20 The grievor testified that Ms. Giroux never documented her reviews of his rendered decisions and that she could take up to four or five days to give him feedback on his decisions, which delayed issuing them.

21 For the grievor, all those events confirmed that Ms. Clément and Ms. Giroux colluded with the clear goal of hindering his career both with the employer and with other organizations, such as the CBSA.

22 Ms. Bilucaglia testified briefly, at the grievor's request. She has held a PRRA officer position at the PM-04 group and level since 1993. She was not his coach or supervisor and was simply a colleague when he was an acting officer at the PRRA. She indicated that the nature of a PRRA officer's work consists of rendering decisions on requests filed by persons alleging that their health and safety will be at risk if they are returned to their countries of origin. When rendering a decision, a PRRA officer must analyze the facts and consider the applicable legislation. According to Ms. Bilucaglia, it can take from four to six months for an inexperienced person to achieve an acceptable level of performance.

23 Ms. Bilucaglia stated that she reviewed some of the grievor's decisions rendered when he was an acting PRRA officer. According to her, the decisions were compliant, and nothing suggested that the Federal Court could have overturned them. According to her, his decisions were correct and met the requirements.

24 Ms. Clément testified for the employer. She is retired. During the period in question, she was the PRRA director and was at the PM-06 group and level. At that time, she was in charge of about 68 employees, 4 of whom were supervisors, including Ms. Giroux, to whom the grievor reported. Mr. Shinhat was Ms. Clément's supervisor; he held an EX-01 position. In her testimony, she emphasized the importance of PRRA decisions, given that they seriously impact the lives of those filing requests.

25 Ms. Clément also stated that she first met the grievor in 2002, when he was a PM-03 immigration officer. According to her, she then worked five or six years with him, and everything went well. She indicated that he is able to function at the PM-03 level in the operations sector.

26 For Ms. Clément, PRRA officers are an elite group. They must be independent and well-versed in the applicable law. Ms. Clément testified that she implemented a coaching system to help new officers. Thus, after receiving their formal 10-day training, all new PRRA officers are assigned a coach to help and guide them. Before his PRRA officer assignment at the PM-04 group and level, the grievor was a PM-03 in the operations sector under Mr. Vassallo's supervision. On November 15, 2010, the grievor was offered an acting PRRA officer assignment at the PM-04 group and level, as were four of his colleagues, for a term ending on March 31, 2011 (employer's documents; tabs 1 and 2). Ms. Clément indicated that the grievor's secondment agreement stated that at the end of the term, he was to return to his substantive PM-03 position (employer's documents; tab 2, last page).

27 Ms. Clément indicated that when the grievor and his four colleagues began their PRRA officer acting assignments in November 2010, she met with them all and explained the expectations and requirements of the PRRA officer position. They were also all assigned a coach in addition to their immediate supervisors. Thus, after speaking with the grievor's supervisor, Ms. Giroux, Ms. Clément decided to assign Mr. Perreault as a coach for him. She explained that Mr. Perreault was one of the best coaches and that he was both experienced and an exemplary employee.

28 Ms. Clément testified that at the start of the grievor's acting PRRA officer assignment, Ms. Giroux told her during their regular meetings that the grievor was having difficulty and was not meeting set objectives. Ms. Clément also stated that she spoke with Mr. Perreault and that he told her that something that could take 15 minutes to explain with other officers took up to 1.5 hours with the grievor. According to Ms. Clément, Ms. Giroux and Mr. Perreault, as well as Ms. Schoepfer, who had also been a coach for the grievor, reported to her that the grievor did not accept criticism very well and that discussions were always awkward with him (employer's documents; tab 6, pages 2 and 5). Ms. Clément stated that she never gave Ms. Giroux, Mr. Perreault or Ms. Schoepfer instructions about the grievor. According to Ms. Clément, he was treated like his other four colleagues during the acting PRRA assignment. She also stated that Mr. Vassallo never gave her instructions or directives when the grievor joined the PRRA team in November 2010.

29 Ms. Clément also stated that in the past, she terminated or did not extend acting assignments for certain employees who were having difficulties performing as PRRA officers and that, as such, the grievor's case was not unique.

30 When questioned about why, on March 29, 2011, she extended the grievor's acting assignment until September 30, 2011, if he was having performance problems, Ms. Clément explained that she first evaluated all five employees hired in acting positions in November 2010 at the PRRA, including the grievor. She then decided to extend his four colleagues' acting appointments as they had met the requirements. In the grievor's case, she stated that she did not want to extend his acting assignment at first, as she felt that his performance did not meet the necessary requirements (employer's documents; tab 9). However, she indicated that she changed her mind and decided to give him another chance in March 2011. According to Ms. Clément, he was involved in a dispute with his neighbours in February 2011 that required police intervention. In her opinion, that situation surely disturbed the grievor, and for that reason, she decided to give him another chance to prove that he was able to be a PRRA officer. Ms. Clément stated that the extension of the secondment agreement stated that at the end of the term, he would return to his substantive position (employer's documents; tabs 5, 7 and 8, last page). Ms. Clément stated that she personally advised him of his precarious situation and the fact that his acting position was for only six months. According to her, he was not pleased with the situation.

31 Ms. Clément also testified that she met with the grievor on August 24, 2011, to review his performance. She indicated that she had wanted to meet with him, since he was still having performance problems in his acting assignment, five weeks before the end of his term and before leaving on vacation. According to her, he indicated to her at that time that he had problems meeting objectives because his coach took too much time getting back to him, which delayed his decisions.

32 Under the circumstances, Ms. Clément testified that she decided to give the grievor another chance and to again extend his acting assignment, at least until October 28. However, that extension included the following conditions, among others:

• For the period from August 29 to October 21, 2011, the grievor was to be authorized to work alone, without a coach's assistance.
• The grievor was required to produce 25 decisions during the period.
• On October 24, a decision was to be made about possibly renewing the grievor's assignment.
• If the grievor met all the objectives, his acting assignment would be extended to March 31, 2012. If not, his acting assignment would end on October 28, 2011 (Exhibit E, tabs 12, 13 and 14).

33 According to Ms. Clément, the request to produce 25 decisions unassisted during the period from August 29, 2011, to October 21, 2011, was reasonable given that at that stage, the grievor should have been independent.

34 Ms. Clément testified that she decided not to renew the grievor's acting assignment on October 28, 2011 (employer's documents; Exhibit E, tab 16). She stated that she based it on his performance evaluation reports, on her consultations with Ms. Giroux and Ms. Schoepfer, and on the fact that the grievor was unable to produce 25 compliant decisions within the required time (employer's documents; tab 17). Ms. Clément maintained that had he met the final objectives set out in the August 25, 2011, email, she would have renewed his acting assignment.

35 Ms. Clément stated that the complaint the grievor filed against his union had no impact on her decision to not extend his acting assignment. She also emphasized that his grievance against Mr. Vassallo in December 2009 in no way influenced her decision not to renew the acting assignment. According to her, the fact that she offered an initial acting assignment after the grievance was filed, on November 15, 2010, and that she then extended that assignment twice shows that the grievance against Mr. Vassallo in no way influenced her decision of October 28, 2011.

36 Ms. Giroux also testified for the employer. She is the assistant director of the Immigration Section.

37 Essentially, Ms. Giroux testified that at the time of the alleged facts, she was the grievor's supervisor, that she held a PM-05 position and that she reported to Ms. Clément. Ms. Giroux indicated that she was then responsible for a group of approximately 16 employees, including the grievor, who was then an acting PRRA officer.

38 Ms. Giroux stated that her supervisor role at the time consisted of ensuring that everyone understood the objectives to be achieved and had the required training. She was also required to distribute work, answer questions that were more technical and conduct officers' performance evaluations. She stated that to help her with her work, she had coaches to work directly with the officers and that those coaches were responsible for monitoring officers daily.

39 As for the decisions, Ms. Giroux stated that officers were required to make quality decisions in a timely manner. She stated that the standard was not whether the Federal Court upheld an officer's decision but rather ensuring that the decision was properly motivated and that it reflected existing legislation and applicable precedents. For Ms. Giroux, given the fact that PRRA officers' decisions impact people's lives, those decisions must be thorough.

40 Ms. Giroux testified that when the grievor began as a PRRA officer, she met with him at the same time as his other four colleagues. She indicated that everyone was paired with a coach to help them in their daily work. The grievor was paired with Mr. Perreault.

41 Ms. Giroux stated that, like the others, the grievor had about 10 days of training as a PRRA officer. She also specified that he repeated training that he had already received in his substantive position as a PM-03 to further help him (employer's documents; tabs 3 and 4).

42 Ms. Giroux testified that on June 23, 2011, she conducted a performance evaluation of the grievor as a PRRA officer (employer's documents; tab 6). She indicated that she based it on his performance since November 2010 and on her discussions with Mr. Perreault. He also allegedly told her that his meetings with the grievor were often difficult and that what normally took a few minutes with other acting PRRA officers took much more time and was much more difficult with the grievor.

43 Ms. Giroux related that she discussed the contents of that performance evaluation with the grievor on June 23, 2011. According to her, that meeting was long and difficult, and the grievor raised several objections. According to her, he became aggressive at that meeting. She stated that several words in the evaluation needed to be negotiated. As for the evaluation's contents, she stated that for her, he needed to improve his performance; problems still existed with his performance.

44 Ms. Giroux testified that following that performance evaluation, the grievor's performance did not really improve and that he was still not performing at the level expected of a PRRA officer. In her testimony, Ms. Giroux referred to evaluation reports prepared by Mr. Perreault, and later by Ms. Schoepfer, which still showed deficiencies despite some progress (employer's documents, tabs 9, 10 and 11).

45 Ms. Giroux also mentioned that following the agreement between Ms. Clément and the grievor on August 24, 2011, which stated that he would produce 25 decisions without a coach's assistance, she was required, as the supervisor, to review the quality of those 25 decisions. According to her, those decisions by the grievor were still of unsatisfactory quality. As an example, she cited one of his decisions that was still not compliant (employer's documents, tab 17). As for the figure of 25 decisions to be produced in the required time, Ms. Giroux indicated that a PRRA officer normally produces 16 to 18 decisions per month. Thus, in her opinion, it was reasonable to expect the grievor to produce 25 over two months. Ms. Giroux also denied his statement that his decisions were more difficult because he was assigned more "complex" countries. According to her, all countries have particular characteristics, assignments are made based on operational needs, and, to sum it up, the degree of difficulty was certainly no greater for the grievor's decisions. In cross-examination, Ms. Giroux stated that she read the 25 decisions he produced and that she had also read others of his, totalling about 40 to 50.

46 In her testimony, Ms. Giroux also categorically rejected the grievor's suggestion that she did not evaluate his performance favourably because he had filed a grievance against Mr. Vassallo and a complaint against his union. She stated that she was not even aware, at the time, of his grievance or complaint. In the same vein, she also denied that Ms. Clément gave her any directives about evaluating his performance.

47 As for the grievor's allegation that she gave him a bad reference in a CBSA staffing process, Ms. Giroux testified that after his PRRA officer term was not renewed, he asked her to be a reference with the CBSA selection committee's selection process. Ms. Giroux stated that she was surprised by his request, given the past performance evaluations and the fact that he had just been informed that he would not be renewed as a PRRA officer. According to her, he should have known that she would not be able to give him a good reference.

48 Mr. Shinhat testified, at the grievor's request. He indicated that at the time of the events, he held a regional director position with the employer.

49 Essentially, Mr. Shinhat stated that the decision to not renew the grievor's acting PRRA officer position belonged to Ms. Clément. Mr. Shinhat also indicated that although he had been the regional diversity champion in the past, the diversity issue had nothing to do with the decision not to renew the grievor's acting position in October 2011. Mr. Shinhat testified that he was made aware of the grievor's performance problems as a PRRA officer and that, under the circumstances, he felt that there were few alternatives to not renewing the acting appointment, as it was a performance problem. Mr. Shinhat confirmed that with Ms. Clément away, he met with the grievor on October 3, 2011. According to him, the grievor apparently indicated at that time that he felt harassed and that he had been treated differently than had the others. According to Mr. Shinhat, the grievor had not been harassed but instead had a performance problem at the PM-04 level.

50 Ms. Rebazza also testified at the grievor's request. She indicated that she was his supervisor in 2010. At that time, she was at the PM-04 group and level, and he held a position at the PM-03 group and level. Ms. Rebazza testified that nothing "[translation] jumped out" at her in terms of the grievor's performance as a PM-03. She stated that she remembered one situation in which she noted a problem with the quality of his decision.

51 Ms. Rebazza also confirmed that the grievor asked her to be a reference for a PRRA officer position and that she told him she "[translation] would respond based on the information [she] had." She testified that she met with a member of the selection committee for the PRRA officer position and answered the questions that were asked but that she did not take notes.

52 In cross-examination, Ms. Rebazza explained that she had no interest in giving "[translation] bad references" about the grievor, as alleged in paragraph 13 of his complaint dated January 22, 2011. She affirmed that she simply answered the questions based on the information available to her and on her experience. She stated that no one tried to influence her.

III. Summary of the arguments

A. For the grievor

53 Following the testimonies, I allowed the time the grievor asked for to prepare his arguments.

54 The grievor argued that I had to keep in mind that in the context of this case, the reprisals that the employer's representatives made against him were often subtle and that, under the circumstances, I had to give the same weight to circumstantial evidence he provided as I would if it were direct evidence. In support of his claims, he referred me to Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61.

55 The grievor submitted that the testimonies heard and the evidence adduced amply demonstrated that he had always worked very hard and that his performance had always been very satisfactory. He argued that he always had an excellent reputation within the organization and that he had made every necessary effort to maintain that reputation. He referred me to paragraph 108 of the Supreme Court's decision in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.

56 The grievor argued that he began experiencing reprisals from his employer's representatives after filing his grievance against Mr. Vassallo. He emphasized that it was then that Ms. Clément and Ms. Giroux began to consider his performance inadequate.

57 The grievor indicated that although he might have made mistakes while learning as a PRRA officer, those mistakes were made in good faith; they were part of a normal learning curve, and his colleagues also made learning mistakes but were not penalized for them.

58 According to the grievor, the employer's representatives were not neutral in their method of evaluating him. In support, he argued that he had been the only one required to submit his decisions to both a coach and his supervisor and that, in addition, Mr. Perreault had been very severe with him.

59 The grievor also maintained that he was the only one assigned a contract renewal on March 21, 2011, just 11 days before the end of the initial contract, thus causing him psychological stress. Additionally, according to him, he was again the only one required to produce 25 decisions independently as a condition for renewing the PRRA officer contract.

60 According to the grievor, Ms. Clément did not consider the fact that he had to deal with legal obligations outside work and therefore needed "[translation] psychological rest."

61 For the grievor, the fact that Mr. Shinhat, Ms. Clément's supervisor at the time, was involved in his performance management clearly shows the concerted actions of the employer's representatives to harass him.

62 The grievor argued that two experienced colleagues, i.e., Darrin Jacques and Ms. Bilucaglia, each reviewed the 25 decisions that Ms. Clément required of him and validated them all, which Ms. Clément and Ms. Giroux deemed not compliant.

63 In his arguments, the grievor also refuted Ms. Clément's statement that a PRRA officer must be operational after two or three months of experience. For him, a PRRA officer's duties are much more complex and technical; therefore, it is unrealistic to conclude that two or three months of experience is enough.

64 The grievor maintained that neither Ms. Clément nor Ms. Giroux demonstrated his alleged mistakes in their testimonies. According to him, no file was submitted to demonstrate his so-called failures. In addition, although Ms. Giroux indicated that she had read 40 to 50 decisions that he had prepared, she did not document any of them.

65 The grievor emphasized that throughout his PRRA officer assignment, he must have produced about a hundred decisions, only one of which the Federal Court overturned. Thus, management would have incurred minimal risk keeping him as a PRRA officer. Paragraph 47 of Dunsmuir v. New Brunswick, 2008 SCC 9, was cited in support.

66 The grievor maintained that the mistakes that Ms. Clément and Ms. Giroux referred to were of types that courts deem of little importance, which demonstrates that instead, they sought to give him a negative evaluation instead of showing neutrality and impartiality.

67 In closing, the grievor emphasized that the decision not to renew his PRRA officer contract was not justified in fact or in law and that, in addition, Ms. Clément and Ms. Giroux made "[translation] false allegations" to the CBSA that deprived him not only of the PRRA position being renewed, but also a position at the CBSA.

B. For the employer

68 First, counsel for the employer challenged that there was any breach of sections 185 and the following sections of the Act. Counsel maintained that it was up to the grievor to prove the so-called breaches. Referring to paragraphs 62 and 54 of Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37, counsel maintained that the grievor had to demonstrate a link between his assignment not being renewed and one of the prohibitions set out in section 186 and the following sections of the Act, which was not done. Consequently, the reverse burden of proof set out in subsection 190(3) of the Act did not apply, and it was up to the grievor to prove his allegations, which he did not do. Counsel indicated that, nonetheless, the employer decided to submit evidence in the interest of transparency, even though it was not required.

69 Additionally, counsel for the employer argued that in this case, the allegations were related to a staffing decision that was not part of the employer's activities, as set out in section 185 and the following sections of the Act. Thus, it was a staffing action that fell under the deputy head's management rights under, notably, section 29 of the Public Service Employment Act. For counsel, the act of not renewing the grievor's acting assignment was strictly related to the job, and there was no evidence that the employer's representatives exercised reprisals against the grievor (employer's documents; Exhibit E, tab 16).

70 Counsel also noted that by definition, a temporary assignment has an expiry date and that in this case, the managers involved simply chose not to renew the temporary assignment due to the grievor's performance. For counsel, it is even clearer than that, given that every document about the grievor's temporary assignment to the PRRA position mentions very clearly that at the end of the term, he had return to his substantive position (employer's documents, tabs 1, 2, 7 and 8).

71 Counsel emphasized that the grievor's complaints were clearly unfounded, as the acting PRRA position assignment began on November 15, 2010, after he filed his grievance in 2009 and a complaint on March 10, 2010, against Mr. Vassallo and his union, respectively. The fact that the employer granted the grievor acting assignments on several occasions after his grievance and complaint therefore clearly shows that the employer was not attempting to punish him for his allegations. On the contrary, according to counsel, the employer truly tried to help the grievor by giving him several chances.

72 As for the complaint against the union, counsel for the employer stated that it was filed on March 10, 2010. In it, the grievor alleged that his union failed its duty of fair representation by not representing him in his grievance against Mr. Vassallo in 2009. Counsel for the employer indicated that the Board had already dismissed that complaint in Jean-Pierre v. Arcand, 2012 PSLRB 23, and that the Federal Court of Appeal unequivocally dismissed the grievor's appeal in Pierre v. Public Service Alliance of Canada, 2013 FCA 223. In addition, the Supreme Court of Canada refused to hear the application for leave to appeal.

73 Counsel for the employer also argued that any issue connected to references that Ms. Clément and Ms. Giroux allegedly provided to CBSA representatives had already been dealt with before the Public Service Staffing Tribunal in Jean Pierre v. President of the Canada Border Services Agency,2013 PSST 28. Counsel emphasized that in his decision, the arbitrator assessed the case and, particularly in paragraph 22 and the following paragraphs, dismissed the grievor's arguments, concluding that the selection committee's choice to accept Ms. Giroux and Ms. Clément as references was appropriate, that the grievor did not establish that his references were not reliable, and that the selection committee's members did not discriminate against him. According to counsel, I must take account of that decision, which analyzes and deals with certain aspects of the same evidence the grievor adduced in this case, even though it was at a different tribunal. According to counsel, there is no link between the subject of the grievance against Mr. Vassallo and the employer's representatives. Counsel emphasized that there was no evidence that Mr. Vassallo influenced the employer's representatives in any way. On the contrary, Ms. Clément and Ms. Giroux testified categorically that they were not involved in or influenced by the grievance against Mr. Vassallo.

74 Counsel reiterated that there was no evidence supporting that the grievor apparently was a victim of reprisals by the employer's representatives. Thus, the decision to not renew the PRRA officer position assignment was based solely on performance reasons. Even though given considerable support and supervision, he was simply not able to continue to hold a PRRA officer position at the PM-04 group and level.

75 Counsel argued that in the context of an unfair labour practice complaint of the type set out in section 185 of the Act, it is not my role to rule on the merits of the grievor's PRRA officer assignment not being renewed on October 28, 2011. According to counsel, my jurisdiction is limited to concluding whether reprisals were taken against the grievor after he filed his grievance and complaint.

76 According to counsel, the grievor did not understand that he was not automatically entitled to a PRRA officer position. In cases in which managers believe in good faith that an employee's performance is not at the required level, they must take appropriate measures. In this case, Ms. Clément and Ms. Giroux had no choice given the problems with the grievor's performance as a PRRA officer but to not renew his assignment. Not only are the testimonies of Ms. Clément and Ms. Giroux meaningful in terms of his performance problem, but also the reports from the coaches required to rule on the grievor's work clearly indicate performance problems as a PRRA officer (employer's documents; tabs 6, 9, 10 and 11).

IV. Reasons

77 In Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37, the Board ruled that for it to have jurisdiction to hear a complaint and for the reverse burden of proof to come into play, the complaint must first support an arguable case. I have no hesitation dismissing the grievor's two complaints on that basis. I must specify that over the four days of the hearing, and although he had the time needed to present all his evidence, the grievor was not able to prove any link between exercising his recourse and his acting position being terminated or the references provided to the CBSA. In short, he presented no arguable evidence. Therefore, I agree with the employer's argument in paragraph 68 that the reverse burden of proof did not apply.

78 If I am mistaken about the arguable evidence issue and if the initial burden rests on the employer, nevertheless, I conclude that the employer succeeded in demonstrating that its actions (by not renewing the grievor's assignment and by giving negative references) were absolutely not the result of a reprisal and that the grievor was not able to contradict the evidence to that effect.

79 For me, and in this context, in this case, the grievor's acting assignment not being renewed was purely related to his employment. As I will explain, the grievor did not successfully establish a link between his assignment not being renewed and the prohibitions set out in section 185 and the following sectionsof the Act.

80 What I retain from the adduced evidence is that the grievor filed a grievance in 2009 against his supervisor at that time, Mr. Vassallo. Given his union's refusal to represent him in that grievance, he then filed a complaint against the union for failing its duty of fair representation. This Board and the Federal Court of Appeal dismissed that complaint, and the Supreme Court refused to intervene. The grievor then decided to file a complaint, this time against his employer on the grounds that his supervisors, Ms. Clément and Ms. Giroux, carried out reprisals against him to punish him for filing a grievance and a complaint. That reprisal, in his words, was in the form of an acting PRRA officer assignment not being renewed.

81 The evidence revealed that Ms. Clément offered an initial PRRA officer assignment from November 15, 2010, until March 31, 2011. Despite problems with the grievor's performance and despite the employer truly trying to help him by giving him additional help via assigning a coach, his performance continued to not be at the required level for a PRRA officer. Even so, his supervisors nonetheless extended his acting assignment twice, from March 29, 2011, to September 30, 2011, and from September 30, 2011, to October 28, 2011, in the hopes that he could overcome his problems. It seems to me that that is far from the alleged reprisals. On the contrary, I find that Ms. Clément and Ms. Giroux showed patience and empathy toward the grievor. In addition, despite his claim at paragraph 60, there was no evidence that he made any requests for accommodation. I must note that Ms. Clément and Ms. Giroux appeared to me sincere and credible individuals who truly tried to help him. I must also note that not only Ms. Clément and Ms. Giroux observed problems with his work. The evidence also revealed that the coaches assigned to him, particularly Mr. Perreault and Ms. Schoepfer, as well as Mr. Shinhat, also noted problems with his work.

82 In addition, as counsel for the employer noted and although I acknowledge that reprisals can sometimes be very subtle, I asked myself how it could have been alleged that Ms. Clément and Ms. Giroux could have put any kind of pressure on the grievor, when his acting assignments occurred after he had filed his grievance and complaint. I would also add that the employer's witnesses clearly and unequivocally convinced me that they exercised no reprisals against him.

83 At the hearing, the grievor submitted three binders containing many documents to support his evidence. Notably, those documents refer to several letters of appreciation about him and some of his performance evaluations. After receiving those documents, I noted that the vast majority cover the periods before his complaints or, with respect to his performance evaluations, the periods during which he held a PM-03 position, not an acting PM-04 position. In my opinion, those documents provide no evidence that he was a victim of a reprisals by the employer's representatives. On the contrary, those documents support Ms. Clément's testimony that he was able to function at the PM-03 level but that he had difficulty in his acting PM-04 position and that that was the only reason his assignment was not continued.

84 In these two matters, the employer simply exercised its management rights by ending an acting assignment when it became apparent that the grievor could not meet the acting position's requirements. By so doing, the employer simply complied with the terms of the secondment agreement, which stated very clearly that at the end of the term, the grievor would return to his substantive position at the PM-03 level. In addition, in good faith and at the grievor's request, Ms. Giroux also gave references about his performance to the CBSA that she believed were founded. In both cases, there was absolutely no evidence of reprisals or of attempts to hinder the grievor.

85 For all of the above reasons, the Board makes the following order:

V. Order

86 The grievor's complaints are dismissed. I order files 561-02-549 and 561-02-559 closed.

May 26, 2015.

PSLREB Translation

Linda Gobeil,
a panel of the Public Service Labour Relations and Employment Board