FPSLREB Decisions

Heard at Abbotsford, British Columbia,
December 13 to 15, 2016.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1         Bryan Nadeau (“the grievor”) was employed as a psychologist at the Psychologist Group 2 (PS-02) group and level with the Correctional Service of Canada (“CSC” or “the employer”) in Abbotsford, British Columbia.

2        On May 18, 2011, the grievor filed a grievance with the employer, which stated as follows:

I grieve the employer’s decision to take away my duties I have performed for the last nine years and to significantly change my working conditions. This has caused me tremendous stress and anxiety. I have had to go on medical leave to take care of my health. The change in my duties and working conditions amounts to constructive dismissal.

Corrective action requested:

(1) That my duties be restored and my working conditions revert back to what they were before the changes;

(2) That the employer restore my sick leave benefits;

(3) That I be made whole in every way.

3        The employer denied the grievance at the first, second, and final levels of the grievance process.

4        The grievance was referred to adjudication on May 21, 2014, under ss. 209(1)(b) and (c)(ii) of the Act. In it, the grievor alleged that a disciplinary action occurred that resulted in a termination, demotion, suspension, or financial penalty and that a deployment occurred of an employee in the core public administration under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the PSEA”) without the employee’s consent where consent was required.

5        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 Board”) to replace the former Public Service Labour Relations Board (“the PSLRB”) 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; “the Act”) before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Pre-hearing disclosure of documents issue

6        Before the scheduled hearing, the grievor made a request for the production of certain documents. On November 10, 2016, I made an order that the employer identify to the grievor all documents it intended to rely upon with respect to the hearing of this matter, and I ordered that the grievor’s bargaining agent, which was no longer representing him, immediately deliver to him all documents in its possession relative to this grievance.

7        A pre-hearing conference (PHC) was held in this matter by teleconference on November 29, 2016. At that time, counsel for the employer confirmed that Dr. Robert Roy would attend the hearing and that as such, no summons to witness needed to be issued and served upon him. The grievor requested that Dr. Roy attend the first day of the hearing, as he wished to call him as his first witness, and the employer agreed that it would arrange for Dr. Roy to attend on December 13, 2016.

8        At the PHC, an issue arose with respect to documents that would have been relevant to a process identified as the “Quality Assurance Review” (“QAR”) of the grievor’s work. I ordered the employer to produce those documents to the grievor as soon as possible. The exact number of documents was unknown, and it was anticipated that they would also contain the private and personal information of inmates who might once have been or still were incarcerated. That personal and private information was not germane to the issues before me. 

9        On December 5, 2016, counsel for the employer advised the grievor and the Board that difficulty might arise in producing these documents to the grievor due to the level of information redaction that would be required. On December 6, 2016, I ordered that the employer was to immediately make available to the grievor the documents, relevant to the QAR and subject to my order of November 29, 2016, unredacted, at a CSC location convenient to the grievor in Abbotsford, such that he could review and identify any documents that he believed he would require for the hearing. In addition, I ordered that the employer bring all those documents to the hearing commencing on December 13, 2016.

10        The employer complied with the order of December 6, 2016. However, the grievor did not avail himself of the opportunity to review the QAR-related documents before the hearing. The employer brought them to the hearing on December 13, 2016, and they were available to the grievor to review.

11        None of the QAR-related documents was introduced into evidence.

III. Summary of the evidence

12        The grievor has a master’s degree in experimental psychology from Concordia University (1992) and a Doctorate, also in experimental psychology, from Simon Fraser University (“SFU”) (1999). He does not hold a licence to practise psychology from the College of Psychologists of British Columbia (“the College”), which is the organization that regulates the profession in that province.

13        The grievor commenced his full-time indeterminate employment with the employer in 1999 as a PS-02. Before then, since 1996, he had worked with the employer on a contract basis. His career with the employer was in its Pacific Region and was largely located in or near two correctional institutional reserves, the Matsqui Reserve and the Mission Reserve. The Matsqui Reserve grounds comprise Matsqui Medium-security Correctional Institution, Pacific Institution, and the Regional Reception and Assessment Centre (RRAC). The Mission Reserve grounds comprise both Mission Medium-security Correctional Institution (“Mission”) and Ferndale (now Mission Minimum) Minimum-security Correctional Institution (“Ferndale”).

14        Introduced into evidence were several performance evaluations for the grievor from 1999 to 2009. He testified that they were the only feedback he received while doing his job. In his view, he was considered to be carrying out highly skilled work of high value. A review of his performance evaluations indicated that at times, he met most of his objectives and that at other times, he met and exceeded all his objectives. Some evaluations indicate that the supervisor tasked with carrying out the evaluation could not evaluate the grievor. The evidence disclosed that this was largely due to the fact that those persons who would have been responsible for supervising the grievor had not been in that position for the requisite amount of time to conduct a performance evaluation.

15        At the time of the hearing, Dr. Roy was retired from the public service. He stated that he joined the CSC in 1995 as a PS-02 and that he worked his way through the different psychologist levels to reach the PS-05 level, which is the regional psychologist position. When he left the CSC in January of 2015, he held the position of regional manager of institutional mental health and was responsible in the CSC’s Pacific Region not only for psychologists who worked for the CSC but also for nurses, social workers, and psychiatrists under contract.

16        Dr. Roy has a doctorate in clinical psychology from SFU and is a registered psychologist with the College.

17        The evidence disclosed that Dr. Roy and the grievor have known each other for a long period and that in fact they attended SFU together.

18        Dr. Roy testified that at the material times with respect to the facts that cover this grievance, he was the CSC’s regional psychologist for its Pacific Region. However, he stated that during that time, his role vis-à-vis supervision and line authority over the grievor changed. In or about April of 2010, due to organizational structure changes, line authority over the grievor was transferred from him to whatever institution the grievor was assigned to, and as the regional psychologist, he maintained a functional role ensuring the quality of work of the psychology delivered in the region.

19        Dr. Roy testified that there is a difference between clinical psychology, which is the discipline he studied and worked in, and experimental psychology, which is the discipline that the grievor studied and obtained his master’s and PhD in. Simply put, clinical psychologists receive some different training, in terms of both coursework and practical experience, about dealing with patients. Experimental psychologists are researchers. In addition, to be able to be licensed by the College and to practise treating patients, a clinical psychologist (sometimes referred to as a “clinician”) is required to apply to the College and to satisfy its requirements.

20        Dr. Roy testified that psychologists carry out a number of different tasks at the CSC, including different types of inmate assessments, therapy with inmates, and crisis response. The assessments are done for a variety of purposes, including placing inmates within institutions or determining whether they should be released, along with determining the programs and treatment an inmate may need. It is important that the assessments be done properly, pursuant to accepted methods and standards, and to recognize that errors could result in an inappropriate inmate placement within an institution or institutional setting, inappropriate treatment, release from custody, or retention in custody when the opposite is warranted. If any of that is not done according to recognized standards and practice, it could lead to liability for the employer. Dr. Roy gave examples of the risk associated with an assessment that is not carried out correctly, which could lead to an inmate who should not be released being recommended for release into the community and committing a crime, or an inmate who should be released remaining within the institution when that inmate could or should be released.

21        Dr. Roy stated that assessments are also important vis-à-vis the safety and security of an institution, since an improperly carried out assessment could result in a delay treating an inmate or treating one unnecessarily.

22        Dr. Roy testified that PS-02s are psychologists employed by the CSC who are not registered with a provincial governing body (which is the College in British Columbia). PS-03s are psychologists generally at the same level as PS-02s except that they have obtained their licences from and are registered with a provincial governing body. The distinction within the CSC is that a PS-02’s work has to be reviewed and signed off by a licensed PS-03 or PS-04 psychologist supervisor, while PS-03s sign off their own work because they are licensed.

23        Dr. Roy testified that it is not typical for PS-02s to have PhDs; however, some do.

24        As of January 2010, the grievor was working as a PS-02 at Ferndale and was being supervised by Dr. Evan Lopes, who did not testify.

25        In February of 2010, Pierre Ouellet became the acting chief of psychology at Ferndale and Mission. He has a master’s degree in psychology and is a licensed psychologist with the College. He started his career with the CSC at Dorchester Institution in New Brunswick, in or about 1987. He spent five or six years in New Brunswick before moving to British Columbia, where he worked at several different institutions and with the RCMP. He was that acting chief of psychology until October of 2010.

26        Mr. Ouellet testified that while he was the acting chief of psychology, he was responsible for all psychological services at both facilities. He stated that during a regular workweek, he tried to split his time by spending three days at Mission and two at Ferndale. During that period, Ferndale had two psychologists, of which the grievor was one.

27        A lengthy email chain was entered into evidence. The most recent email in it was dated February 26, 2010, and was from Jamile Amery, a labour relations advisor at CSC Pacific Regional Headquarters. It included emails to and from Dr. Roy, Dr. Lopes, and Mr. Ouellet about the grievor’s work performance. The relevant portions of the emails are as follows:

[Email dated January 27, 2010, at 1:14 p.m., from Dr. Lopes to Dr. Roy, Jamile Amery, and (name omitted):]

As required, here is an account of the meeting that Jamile Amery and I had with Bryan Nadeau. As discussed, Bryan met with the two of us and Jamile kept notes of the meeting. Bryan was approached as a result of concerns regarding assessment writing and was offered some alternative options:

Option 1 was to look at the WP positions which would give him a position that pays better than his present one and would not require him to write assessments. It would require him to take the WP course. It was also indicated that a possible outcome would be a shorter commute to home.

Option 2 as to look at the possibility of upgrading his academic work to be able to provide IMHI. We discussed that he should look at what is required academically as well as university schedules to meet a work/school demand. It was discussed that CSC would look at covering the cost of the courses and try to work with him on a reasonable schedule for him to meet the requirements. He indicated an interest in it. I mentioned that if he could give me a copy of his transcripts I would even take it to a couple of universities and see what they had to say regarding equivalent training. Dr. Nadeau agreed and mentioned that presently he had to meet a couple of emergency demands regarding some final personal issues and that he would then follow-up on the academic offer.

Meanwhile he will continue to write assessments at Ferndale. To avoid any major issues he will write the assessments that are believed to be less of a controversial issue and updates. He will advise when he feels that an assessment does not meet these criteria and the assessment will be transferred from him. Moreover, I will be reading through the material (files) for the purpose of countersigning his assessments.

…

Jamile, please correct if any of the information I gave here is either incorrect or not clear.

…

[Email dated January 27, 2010, at 5:46 p.m., from Jamile Amery to Dr. Roy and Dr. Lopes:]

I believe you captured the options provided to Mr. Nadeau succinctly. I would only add that he had no interest in the WP position as he indicated he would no longer be a PS, nor was he interested in program delivery, however he may elect to change his mind at some point down the road.

I think it is important to note that part of the discussion was also around management’s continued support of Psychologists and the work that they do, including the assessment process. Specifically, we addressed the concerns raised around whether the completed assessments could be challenged as being biased and Evan reiterated that he would be heightening the supervision review component for the employee’s assessments in the short term. I was not aware that there was to be a distinction made between whether the assessment was controversial or not, or that it was to be left to Mr. Nadeau to make that determination. This is a bit problematic because it is not an accommodation we have afforded him to return to his substantive. If this distinction is to be made, I would advise identifying it as an accommodation for a specific period of time until Mr. Nadeau  has regained his confidence in terms of completing assessments which would have been assigned to him had he not been absent from the workplace. To do otherwise would not support the information provided during the meeting wherein we confirmed for Mr. Nadeau that all psychologists are susceptible to having inmates file complaints against them and all assessments are open to be challenged in a courtroom.

…

[Email dated February 26, 2010, at 9:52 a.m., from Jamile Amery to Mr. Ouellet, copying Dr. Roy:]

…

In late January Evan Lopes and myself had a meeting with Bryan Nadeau to discuss a number of issues with respect to his return to the workplace after having been off for an extended period of leave. He did not ask for Union representation and the scope of the discussion was none disciplinary in nature.

To date Regional Labour Relations has been involved in assisting management with the return to work and review of Mr. Nadeau’s concerns as they related to his safety and security as a result of an incident which occurred in Mission Institution in late 2008.  Should you require information with respect to this issue Rob or Evan will be able to provide you with an overview of the case.

I understand form Rob that you are now the A/PS04 supervising psychology at Mission as well as Ferndale Institutions. I have therefore attached the follow up notes from the January 27, 2010 meeting with MR. Nadeau for you to review, and assist you in familiarizing yourself with the past discussions.

…

[Sic throughout]

28        Mr. Ouellet stated that when he arrived at Mission and Ferndale, he met with staff and asked questions such that in his words, he could get to “know the lay of the land; who’s who and how things function”. He said that he met with the grievor and the other psychologist at Ferndale at that time and learned that that there was an undocumented telework agreement in place that permitted them to work from home two days per week. He said that this surprised him, as it was undocumented and was not per the telework policy.

29        Mr. Ouellet sent an email on March 2, 2010, to Dr. Roy with respect to a meeting he had with the grievor in which they discussed educational upgrading. The relevant portions of the email are as follows:

I had a meeting with Bryan Nadeau this morning to discuss his needs in terms of educational upgrading, in view of obtaining registration in BC. Bryan is aware of the support available and is thankful for it but at this point, he has not been able to follow up on this issue. We discussed the opportunity offered by CPBC [the College] to review CSC employees’ applications and to offer them individual advice as to what they require to achieve different registration status. Bryan plans to take advantage of this opportunity and he was strongly encouraged to submit an application at the earliest possible time. Other than that, Bryan talked in general terms about what he has been through these past several months and stated that he still has some personal-family safety concerns given unknown aspects of the situation. He believes that management did not exercise due diligence when first made aware of the relationship between his wife and the inmate. He stated that his Union representative is following up on these issues but would not say one way or the other what could be done to alleviate his concerns. In the end, Bryan was pleasant and cooperative. He indicated the intention to remain in his current position for the foreseeable future. We addressed supervision issues and expectations in a satisfactory manner.

I will continue to follow-up with him with respect to his application to CPBC [College] on a monthly basis.

30        Mr. Ouellet stated that it was his understanding that the grievor would take advantage of the opportunity to achieve licence status with the College. He stated that the CSC had a number of psychologists in this position who went through that process.

31        Mr. Ouellet testified that there were a number of issues with the quality of the grievor’s work. He stated that as the PS-04, he was required to take responsibility for the grievor’s assessments. He signed off on those assessments under his licence. Mr. Ouellet stated that early into his tenure, he realized that the grievor was using outdated norms in relation to testing and outdated terms in relation to how results were communicated in assessments. He stated that the grievor was not aware of policy. Mr. Ouellet’s view was that the work that the grievor was producing was of a sort he would have expected to have seen five to seven years earlier; the work being produced was not updated as it should have been. He stated that there were issues with the grievor’s analysis, which Mr. Ouellet attributed to the grievor’s lack of clinical training. 

32        Mr. Ouellet stated that he spent a considerable amount of time supervising the grievor’s work, adding that the grievor had a lot of catching up to do. He indicated that supervising the grievor was difficult because on the one hand, it is good to encourage employees and to try to ensure their success, but at the same time, there are deadlines and pressures. Inmates have rights, society expects to be safe and not to be put at risk, and standards have to be met.

33        Mr. Ouellet stated that the grievor had difficulty dealing with expectations. He testified that on one occasion, the grievor went on stress leave shortly before a risk assessment was due, which left the employer in a difficult situation.

34        Mr. Ouellet stated that as the PS-04 and as a licensed psychologist, when he signs off on an assessment, he has to accept that the assessment may be challenged in court, and he has to stand behind what is said in it. If something happens, the worst-case scenario being that an inmate is released and commits grievous bodily harm upon someone, he would be questioned about the assessment that recommended the inmate’s release. There are procedures and processes to be followed; if they are not followed, it could lead to liability. 

35        On March 30, 2010, Mr. Ouellet sent another email to Dr. Roy, summarizing his concerns about the grievor as follows:

This is to document my involvement with Dr. Nadeau, in relation with his having submitted a Dr.’s certificate declaring him unable to work until re-assessed on April 30. Dr. Nadeau called [name omitted] and stated that he was away on “stress leave”, which was confirmed in her email to me.

I started acting as senior psychologist for both Mission and Ferndale on February 24^th, 2010. Dr. Nadeau was off on sick leave between the 23^rd and 26^th inclusively. On March 2^nd, I met with the Ferndale Institution staff for the first time as their supervisor. Present were Dr. Nadeau, [names omitted]. Working schedule and telework was discussed as part of that meeting, since both psychologist telework two days per week. During this discussion, I realized they had no formal telework agreements. At that time, I stated that agreements would have to be drafted and submitted for approval, may this be by Dr. Roy’s or Warden Thompson, given talks about psychology governance. Both psychologist assure me that there performance would amply justify continuation of their two telework days per week and I stated that I would support their request based on performance. Despite the change of regime, new expectations (e.g. psychologists attending the ops. Briefings) and review of performance and telework issue, Dr. Nadeau was pleasant and cooperative.

…

After that meeting, I had a one on one discussion with Dr. Nadeau with regards to the plans to have him up-grade his education to meet the registration criteria. Dr. Nadeau was appreciative of the support offered by the cluster but indicated that his personal/home situation had not allowed him the opportunity to do the research. He committed to follow up on this and I suggested he take advantage of the CPBC’s offer to look at CSC’s employees in view of identifying what they would require to meet their registration criteria.

…

We then discuss the telework issue. The day before I had asked [name omitted] to pull a query report about all the documents entered into OMS [Offender Management System] by psychologist Nadeau [names omitted] for the past 3-4 years. These reports indicated that Dr. Nadeau averaged one report per month over the last 3 years, not including the time he was away on personal leave. This was in sharp contract with his earlier statement to the effect that he and [name omitted] would compare very favourably to any other CSC psychologist in terms of performances. It should be mentioned here that the Ferndale psychologists have devoted their time almost exclusively to risk assessments. Their limited involvement with staff and offenders at Ferndale was a concern expressed by the Ferndale Warden, Deputy Warden, and AWI.  Performance issues were discussed at length with Dr. Nadeau. Number of reports per month was the main issue of contention. We agreed that considering all factors (i.e. some reports are time consuming whereas some other cases includes many prior assessment reports and only require short up-dates; Dr. Nadeau’s limited involvement into other duties such as crisis intervention, counselling, consultation with staff.) that an average of 3 and above would be reasonable but that in the end, he would need to account for the use of his time in a manner that is reasonable and defendable to the employer and tax payers. He agreed that from a business standpoint, it would be less costly for CSC to hire contractors if only one report a month is produced by an indeterminate employee. I informed him that I would not be able to justify 2 days of telework per week based on previous performances. I indicated that I would recommend one day per week for a 3 month period, subject to review of his performance. I stated that I would recommend this to allow him to either improve his performance or to divest himself from his teaching/private practice activities occurring on one of his telework days.  

…

[Sic throughout]

36        Mr. Ouellet testified that the Offender Management System (OMS) documents all inquiries and entries made of or into it. The grievor was only carrying out assessments. Mr. Ouellet stated that he went back three years and found that the grievor averaged one assessment per month, which was clearly substandard. He added that psychologists should carry out between two and four assessments per month, depending on their other tasks. Mr. Ouellet stated that the grievor told him that he only had assessments to do, and that the Warden and other staff advised him that the grievor was not attending briefings or case conferences. He pointed out that Ferndale, being a minimum-security institution, did not require a lot of crisis intervention or counselling. He stated that psychologists working at medium- and maximum-security institutions are required to carry out more crisis intervention and counselling work. He stated that the grievor was not doing the work that was expected of a psychologist at an institution.

37        Mr. Ouellet noted that the grievor had work activities outside the CSC. While it was allowed, it was not to interfere with the work at the CSC. Mr. Ouellet confirmed in his evidence what was set out in his March 30, 2010, letter to Dr. Roy. 

38        Mr. Ouellet identified an email he sent on September 21, 2010, to Marie-France Lapierre, who was at that time the acting regional psychologist. He stated that he sent the email to her because he was concerned about the grievor’s competency and about potential liability issues. It stated in part as follows:

…

Bryan Nadeau was hired as a PS-02 many years ago to perform psychology related duties. He reportedly has a PhD in pharmacology but it is my understanding that he has no course work/internship whatsoever in the field of psychology and could never register with any psychology college. So essentially, this would be equivalent to hiring a lawyer or engineer to perform nursing duties under the supervision of a registered nurse, which I don’t believe would fly anywhere.

The CCRA [Corrections and Conditional Release Act] obligates the CSC to provide services that conforms to professionally accepted standards and CD 840 requires that all psychological services be delivered in accordance with professional standards in the community. Would the College sanctions a private practitioner in the community utilizing unqualified/non academically trained individuals to conduct psychology related duties, so long as the psychologist is willing to take professional responsibility for the work done? I can see the training of a testing clerk but where is the limit? How liable would CSC be if an offender was to take Dr. Nadeau to Court? How liable would CSC be if an offender was to commit suicide and an investigation would reveal that Dr. Nadeau had missed crucial clinical factors (which could not be known to the supervisor without a file review and interview)? How do we insure client’s welfare under these conditions?

There are a number of article in our code of conduct that suggest that training, supervising and falsely representing individuals as psychologist when they are not constitutes a violation of the code of conduct. Thus, are registrants in violation of the code of conduct by supervising Dr. Nadeau’s work?

The guidelines for supervision of CSC psychologists refers to “unregistered psychologists”, “psychologists registered for supervised practice”, “psychologists registered for autonomous practice but unfamiliar with forensic or clinical work” and “psychologists experienced and registered for autonomous practice”. Dr. Nadeau does not fit in any of these categories.

I am very concerned about client welfare and liability for the employer.

…

[Sic throughout]

39        Introduced into evidence was an email dated April 9, 2010, from Mr. Ouellet to Dr. Roy, copying Jamile Amery, which sets out his concerns. Mr. Ouellet also testified about the grievor. The email stated as follows:

…

This is to let you know that I decided that Dr. Nadeau’s un-corrected report was not of acceptable quality and therefore, I completed an up-date to Diana Mawson’s report. Dr. Nadeau went off on stress leave the day after our supervision meeting and in order to meet the legal timeframes, I had to complete the report myself. AS I reviewed the referral and the files, I noted that all that was needed was a quick up-date since Diana’s report was barely 2 years old and was very thorough. I also discovered that Dr. Nadeau copied much of Dr. Mawson’s report without identifying that material within quotation marks and therefore, suggesting it was his own material. This is a problem that I will have to address down the road.

I also realized today that the [name omitted] case only required a brief up-date as well but Dr. Nadeau wrote a full report that was not without its issues as well.

I spoke to Evan Lopes and he indicated that Dr. Nadeau’s report were [sic] acceptable to him and he mostly provided assistance with his writing style. Evan stated that according to his PER, he expected 2.5 reports per months from Bryan. He appeared surprised when told that he only produced one per month over the last 3 years.

…

40        Mr. Ouellet stated that he spent a considerable amount of time with Dr. Nadeau reviewing and revising his assessment reports. He categorized them as “marathon sessions”. He recalled telling his supervisor that each stone he overturned was done according to policy. He stated that he spoke to the grievor at length and on many occasions with respect to quality, quantity, professional qualifications, personal suitability, manner of dress, punctuality, and failure to follow protocol.

41        Mr. Ouellet testified that during his tenure as the grievor’s supervisor, the grievor was on leave for a considerable amount of time. I was not provided with specifics as to when he was off work. 

42        In March of 2011, Gregory Fortnum was Ferndale’s acting warden. In that role, he was responsible for all the institution’s operations, including all staff. He stated that at that time, the grievor would have reported indirectly (through an acting PS-04) to Irv Hammond, the assistant warden of interventions, and Mr. Hammond would have reported indirectly to him through the deputy warden. Mr. Fortnum testified that before the fall of 2011, he had had no interpersonal interactions with the grievor.

43        Mr. Fortnum testified that when he arrived at Ferndale that March, the grievor was on leave. According to Mr. Fortnum, the nature of the leave was not clear. He stated that he and Mr. Hammond were trying to gather up-to-date leave information.

44        Dr. Roy testified that in June of 2011, he was alerted to a situation arising out of a court proceeding in which the Court posed a question to the CSC about a specific inmate. He stated that the question puzzled him and others as they did not quite understand what the Court was asking of them. He said he contacted the Crown Attorney responsible for the case, who advised him that the question arose out of an assessment that the grievor had made of the inmate. According to the information the Crown Attorney provided to Dr. Roy, another psychologist had provided a different assessment, and the Court was looking for another CSC assessment. Dr. Roy stated that he reviewed the grievor’s assessment, which he did admit had been signed off by another psychologist, and determined that it did not meet the standards that it should have met for either the CSC or for a psychologist licensed by the College.

45        Dr. Roy stated that this led the inmate’s legal counsel to raise questions about the grievor’s competency and to question whether there were mistakes in other assessments. He stated that this led him, at upper management’s request, to undertake the QAR of the grievor’s assessments.

46        Mr. Fortnum testified that in the summer of 2011, it was brought to his attention that inmates had expressed concerns about the grievor’s qualifications to make recommendations on their liberty. According to Mr. Fortnum, this raised a question of liability of the CSC if the grievor was underqualified or did not have proper supervision. Mr. Fortnum stated that he participated in the consultation with CSC National Headquarters on this issue, which was the impetus for the QAR. He stated that he was not personally involved in the QAR process as it was delegated to Dr. Roy and Mr. Hammond.

47        Dr. Roy stated that he consulted with a colleague, Dr. Diane Mawson, as to how to conduct a review of the grievor’s assessment work. There was no precedent, so they devised a process based on their review of the “College of Psychologists of British Columbia, Code of Conduct” document. Dr. Roy, Dr. Mawson, and three other psychologists conducted the QAR.

48        Dr. Roy testified that the QAR review team initially gathered 60 of the grievor’s assessments for review. Fifteen were immediately excluded as the inmates were either dead or no longer in the federal correctional system, thus leaving 45 assessments. He stated that all the assessments that they reviewed contained several deficiencies, which indicated that they would have fallen short of industry standards. Of the 45, five had not been signed off by a licensed psychologist, per CSC policy. Dr. Roy confirmed that given the findings, the 40 assessments that had been signed off by a licensed psychologist should not have been.

49        According to Dr. Roy, the problems with the assessments stemmed from the fact that the grievor, while he had a psychology degree, did not have the coursework and training of a clinical psychologist, which was of the type most relevant to the work being done by psychologists at the CSC. Dr. Roy stated that while the grievor certainly could continue to do assessments, he should be subject to closer supervision, and that some of the deficiencies identified by the QAR could be rectified only by skills and knowledge training (i.e., coursework).

50        Dr. Roy stated that he reviewed all 45 assessments that were part of the QAR. He explained that many of the problems or deficiencies they contained did not lead to any problems because subsequent assessments done by other psychologists on the same inmates had been carried out and had caught those deficiencies. He stated that in the end, only three assessments had to be redone, as they were still considered within their “shelf life”.

51        On October 28, 2011, Dr. Roy wrote to Mr. Fortnum with respect to Dr. Nadeau’s academic credentials. He stated in part as follows:

In February I reviewed Dr. Nadeau’s academic transcripts. I communicated my findings to Mr. Irv Hammond and Ms. Mary Danel in an email dated 2011-02-08. In this regard, I reported that Dr. Nadeau’s academic background fell far short the BC College of Psychologists requirement for licensure. AS a result, if Dr. Nadeau was to have applied to the College at that time, his application would have been rejected. I also concluded that to meet the College’s educational requirement Dr. Nadeau would need to complete considerable coursework. It is also likely that he would be required to complete a supervised practicum and/or internship.

The above notwithstanding, it should be noted that the educational requirement from the [current] PS-02 National Generic Statement of Merit Criteria (SOMC) is as follows:

Graduation with a Master’s degree from a recognized university with acceptable specialization in clinical, forensic, or counselling psychology with a requirement for academic residency (excluding programs taught primarily on-line or by other means of distance learning, unless American Psychological Association (APA) – and/or Canadian Psychological Association (CPA) – approved.

Specific coursework at the graduate level in one or more of the following areas: abnormal behavior/psychological assessment, and/or psychological interventions.

Based on Dr. Nadeau’s transcripts, it would appear that he does not meet either of these criteria. In this regard his graduate degrees are not in clinical, forensic, or counselling psychology. Rather, they are in experimental psychology - and as a result, his graduate program did not include coursework in abnormal behavior, psychopathology, psychological assessment, and/or psychological interventions.

At the time Dr. Nadeau was hired the existing SOMC was not in effect. If it was, would have been screened out of the selection process.

…

52        Mr. Fortnum testified that after the receipt and review of that letter, he, Dr. Roy, and Mr. Hammond had several discussions with respect to the grievor, potential liability to the CSC, and a return-to-work plan. Mr. Fortnum stated that by then (late October or early November of 2011), management was unclear on the grievor’s leave status. He stated that it had received much correspondence over the spring, summer, and early fall about why he could not return to work, for different reasons. However, as of then, he was on unauthorized leave, as the CSC did not have an up-to-date sick leave certificate. The grievor’s absence from the workplace made it difficult for the management team to determine an appropriate course of action to gather a complete picture on what the grievor could or could not do, which was complicated by the fact that he was working elsewhere.

53        Mr. Fortnum stated that in September of 2011, he received an email that disclosed that while the grievor was away from his work at the CSC, he was teaching courses at the University of the Fraser Valley (“UFV”) as follows:

September 6, 2011, through December 5, 2011:

Tuesdays	10:00 a.m. to 12:50 p.m.
Wednesdays	13:00 p.m. to 15:50 p.m.
Fridays	13:00 p.m. to 15:50 p.m.

54        Mr. Fortnum stated that he was curious how the grievor was able to work at the UFV yet was not coming to work at Ferndale. The grievor had been on authorized sick leave with pay until September 11, 2011, which was the date on which the grievor’s doctor had stated that the grievor was fit to return to work.

55        Dr. Roy testified that he reported the QAR findings in an email dated November 10, 2011, to Mr. Hammond, which stated as follows:

…

Each report was assessed according to 15 criteria appearing in the Assessment section of the Code of Conduct of the College of Psychologists of British Columbia. In addition, reviewers were free to make narrative comments on areas of concern outside the identified criteria. In short, Dr. Nadeau’s reports were evaluated by a panel of experts with reference to prevailing industry standards.

The Reviewing Team consisted of four Chief Psychologists (and me). Our results indicated that almost all of Dr. Nadeau’s reports contained several deficiencies. In numerous cases, the deficiencies were of sufficient magnitude that the entire report could be judged to fall short of industry standards. From a liability perspective, the bulk of these reports were co-signed by Dr. Nadeau’s supervisor. Therefore, any accountability for the quality of the work would fall to the PS4. That said, a number of hardcopy reports did not contain a PS4 signature. This calls into question whether the PS4 actually reviewed these reports. This issue will need to be investigated further.

The Reviewing Team (unanimously) concluded that for the last five years, Dr. Nadeau’s work fell short of industry standards. Performance issues aside, the Team had significant concerns about Dr. Nadeau’s knowledge and skill. As you are aware, Dr. Nadeau has a Ph.D. in experimental psychology. As a result, he would not have taken coursework in Psychopathology, Personality, or Assessment (which is a requirement of today’s SMOC). Neither would he have had the opportunity to receive clinical or counsellor training through practicum or internship experiences. A review of Dr. Nadeau’s graduate school transcripts confirmed this. That said, it should be recognized that Dr. Nadeau was hired in 1999, predating today’s SOMC. This also predated the SOMC’s predecessor, the PS Statement of Qualifications. In consultation with HR at RHQ and NHQ, it would appear that at the time Dr. Nadeau was hired, there was no national standard. Therefore, it was suggested that Dr. Nadeau was probably hired according to the Treasury Board’s generic qualification; a Masters Degree in Psychology (of any type – experimental, clinical, counselling, etc.). Given Staffing’s policy of purging Personnel Files of all data older than five years, it would seem that verifying this is not possible in Dr. Nadeau’s case. Therefore, the only reasonable conclusion is that Dr. Nadeau was hired [legitimately] according to CSC’s standards at the time of his hiring.

The above notwithstanding, Dr. Nadeau presents with a number of serious competency deficits. In the opinion of the Reviewing Team, a number of these deficits can be remedied quickly through close and consistent supervision. Other deficits will require skills training, while still others will require academic coursework. In this regard, the Reviewing Team identified the following plan:

1. Close and consistent supervision: It is not possible to provide this at Ferndale because the PS4 is not on-site. In addition, the PS4 position is not staffed by a substantive incumbent. In addition, the breadth and magnitude of the PS4’s duties preclude her from providing Dr. Nadeau with the degree of supervision he requires. In this regard, RRAC would be an optimal placement for Dr. Nadeau. In consultation with RRAC, they have agreed to take Dr. Nadeau on a permanent basis.
2. Skills Training: Dr. Nadeau will need to participate in workshops and seminars on risk assessment, test administration and interpretation, and report writing. These activities can be funded through salary slippage and through Professional Development funds about to be allocated from NHQ.
3. Coursework: While Skills Training is essential, Dr. Nadeau will need to acquire the foundational knowledge to understand how to apply them. As note [sic] above, Dr. Nadeau has not completed coursework in Psychopathology, Personality, and Assessment. These courses can be obtained from local universities or online. They can also be funded through salary slippage and by funds arriving from NHQ.

In the opinion of the Reviewing Team these measures will likely address the deficiencies noted in Dr. Nadeau’s work. It should be noted, however, that this will be a long-term project. More importantly, this plan will require Dr. Nadeau’s assent and co-operation. There will also be a need to measure his performance to ensure that he applies the above-noted knowledge and skill in his everyday work activities. Failing this, it is my opinion that Dr. Nadeau should not be permitted to remain in the PS group - and if alternative employment cannot be found, I recommend that senior management consider terminating him by virtue of unsatisfactory performance. 

Going forward, it is my recommendation that Dr. Nadeau transfer to RRAC where his duties will be restricted to the completion of risk assessments. His direct supervisor will be Dr. Diana Mawson. For site-level line concerns, he will report to Ms. Ingrid Winkler, Assistant Warden of Interventions. It is further recommended Dr. Nadeau meet with me on the day he returns to work. The purpose of this meeting is to brief him on the significance and magnitude of our concerns, and to emphasize the need for him to participate in the proposed solution. I am prepared to travel to RRAC for this meeting.

It is my hope that this message will assist you in your interactions with Dr. Nadeau. If you have any questions or concerns, please do not hesitate to contact me.

…

56        On November 18, 2011, Mr. Fortnum wrote to the grievor, stating as follows:

…

This letter directs your return to work at 0800 hours on Monday November 28, 2011. You will now report to the Regional Reception and Assessment Centre (RRAC). A representative from RRAC will meet you at the principal entrance. The rationale for your relocation is that as a PS 02, there is a requirement for close and consistent clinical supervision. This is particularly relevant in light of quality concerns recently identified in your work (see below). In this regard, it has been determined that the intensity of supervision you require cannot be provided to you at Ferndale. Failure to report will be considered as an unauthorized absence. Please ensure that you have your Correctional Service of Canada identification with you.

While you were away, concerns arose about the quality of your work. In response, a Quality Assurance Review (QAR) was conducted on several of your risk assessment reports. The QAR determined that there were quality concerns with many of them. This has prompted several case management reviews to determine if your assessments were utilized as the primary risk assessment document in the granting of temporary absences or conditional releases. Given the CSC’s mandate regarding public safety, the importance of these case management reviews cannot be understated.

Upon arriving at RRAC you will meet with Dr. R. Roy, Regional Psychologist, Dr. D. Mawson, and a Sr. Management representative from Ferndale to discuss the QAR findings and develop a supervision/learning plan. After that you will meet with Dr. Mawson to discuss your performance objective and job expectations.

…

57        Mr. Fortnum was asked about the grievor’s work location being the RRAC as opposed to Ferndale. He stated that there was a discussion about how to address the concerns raised in the QAR with respect to the grievor’s abilities and the potential liability issues for the CSC. He understood that the grievor could not qualify as a licensed psychologist with his current training; however, he also understood that the grievor had agreed to participate in training such that his skills would meet the required standard. Management was, however, limited in what it could do without the grievor’s input as it did not know if he had medical or mental-health limitations. The best plan that it had at that point was to get him back to work at the RRAC under supervision and then discuss with him how to get him the education and training he needed.

58        Dr. Roy testified that wherever the grievor worked, due to the fact that he was not licensed by the College, he had to be supervised in a manner that required a licensed psychologist to sign off his work. The difficulty with keeping the grievor at Ferndale was that the necessary level of supervision was unavailable, while the RRAC had a more stable level of supervision.

59        The grievor did not report to work at the RRAC on November 28, 2011, at 08:00 as instructed in the letter of November 18, 2011.

60        On November 29, 2011, Mr. Fortnum again wrote to the grievor. In it, he referred to an email the grievor sent to Dr. Roy dated Friday, November 25, 2011, which alluded to the fact that the grievor had advised Dr. Roy that he was not able to report to work as directed. The November 29, 2011, letter stated as follows:

…

I am now in receipt of your email to Dr. Rob Roy dated Friday November 25th, stating you are not able to report as directed and will not be available for at least another three weeks.

Although you did not provide a reason for your unavailability, you attached a physician’s note stating “for medical reasons, Dr. Nadeau will be unable to work at the Correctional facifilites for the next three weeks.

I am aware that you have been employed at the University of the Fraser Valley since September 06, 2011teaching two courses (i.e. Introduction to Psychology I & II) each Wednesday & Friday PM and that your current classes continue until at least December 5, 2011 (see attached).

I have approved your sick leave without pay up to and including September 11, 2011 which is the date Sun Life determined you were able to return to work. This is the same date your physician, Sr. Siu, advised you were able to return to work. AS you have not supplied medical evidence supporting your absence from September 2 to November 23, 2011, this period is considered an unauthorized leave of absence.

Please note that I will not be approving further sick leave until your physician provides me with an explanation as to why you are unable to work for CSC but are capable of working for UFV. Specifically, I require verification there is a medical condition (not what the medical condition is) which prevents you from returning to CSC, but still enables you to work for UFV.

I am, once again, directing you to report for work at the RRAC at 0900 hours on Thursday December 01, 2011. As I outlined to you in my previous letter, the purpose of the meeting with Dr. Roy is to discuss the findings of the Quality Assurance Review and to develop a supervision/learning plan. Although this meeting is not disciplinary in nature, should you feel more comfortable, you may bring a representative with you.

Failure to report will again be considered an unauthorized absence and may also result in disciplinary measures up to and including termination.

…

[Emphasis in the original]

[Sic throughout]

61        The grievor did not report to work as instructed on December 1, 2011.

62        On December 1, 2011, Mr. Fortnum wrote to the grievor again. This letter was identical to the November 29 letter except that in the seventh paragraph of the earlier letter, Mr. Fortnum had instructed the grievor to report to work at the RRAC at 9:00 a.m. on Thursday, December 1, 2011. In the later letter, he instructed the grievor to report to work there at 8:30 a.m. on Wednesday, December 7, 2011.

63        Mr. Fortnum testified that on December 2, 2011, he telephoned the grievor and left a voice message for him at his home. He also instructed his assistant to email the grievor at his personal email address, on his behalf, which she did. The email stated as follows:

…

I have made 2 attempts this week to have letters delivered to your home address and I am unable to confirm whether you have received or reviewed either. Therefore, I am sending you this email and ask that you call me as soon as possible (i.e., cell [number omitted]) so I can ensure you are aware of the time sensitive and protected content of the letters.

I left you a VM at home as well a few minutes ago on this same subject and I look forward to hearing from you. Please feel free to call me over the weekend.

…

64        Mr. Fortnum confirmed that he received an email response from the grievor on December 3, 2011, which advised him to contact the grievor’s legal counsel, which he did. He asked the grievor’s counsel to get in touch as soon as possible to discuss the letters he had sent to the grievor.

65        On December 6, 2011, the grievor’s legal counsel wrote to Mr. Fortnum. Included as part of the material sent was a note from a doctor and from the grievor’s treating psychiatrist. Both notes indicated that the grievor was to be off work for three weeks. Mr. Fortnum replied on December 12, 2011, and indicated that the CSC would wait until the grievor’s lawyers advised it on his behalf that he was able to meet and discuss a return-to-work plan.

66        Mr. Fortnum testified that the medical information received before the letter from the grievor’s lawyer had stated that the grievor was fit to return to work as of September 12, 2011. There was no information with respect to a disability or an accommodation request. 

67        Mr. Fortnum stated that he had no further involvement with the grievor as he left his position in January of 2012.

68        Corinne Justason was the deputy warden of Ferndale starting in the summer of 2012. She stated that when she arrived in her position, the grievor was absent without leave (“AWOL”). She stated that there was no current doctor’s note or certificate on file; nor was there anything to confirm that he could or could not return to work. She noted that the steps she took to try to get the grievor back to work included corresponding with him and his legal counsel and having a discussion with his treating psychiatrist.

69        According to Ms. Justason, the grievor’s psychiatrist had requested a Health Canada (“HC”) assessment be done before the grievor returned to work. Ms. Justason stated that the CSC does not usually use HC for assessments, preferring to use a family or treating physician as they are better placed at assessing their patients because they are primary caregivers. What the employer wants to know is if the given employee is fit to return to work, not his or her ailment. The employer would provide the primary caregiver information about the work and work location to assist in the assessment.

70        Ms. Justason stated that the plan was to get the grievor to come back to work unless there was some reason he could not. She corresponded with him by a letter dated August 27, 2012, to which the grievor responded by email on September 4, 2012. In that email, he confirmed that he wished to meet with the employer as soon as possible to discuss matters concerning his current and future employment. On that point, he asked her to contact his lawyer to set up a time and date that suited everyone. He also asked for details about the QAR and stated that any meeting had to address the CSC’s refusal to provide an HC assessment.

71        Ms. Justason emailed the grievor back on September 5, 2012, stating that written communication with his lawyer was not feasible given the short timelines and that she had attempted to contact his lawyer on multiple occasions on that day and on the previous day, to no avail. She stated that she was happy to meet with the grievor that week but that since he was AWOL, he needed to report to work. She instructed him to report on September 10, 2012. She further stated that the QAR was an issue separate and apart from his absence that could be discussed upon his return to work.

72        On September 6, 2012, the grievor emailed a response to Ms. Justason, stating that he was unaware that he was AWOL and that he would see his doctor the following week. The grievor suggested the meeting be postponed until he could see his doctor. In the final paragraph of his email, he wrote as follows:“If you wish to state, in writing, that you intend to fire me if I cannot attend the meeting on Monday September 10^th 2012 at 10:00 am with doctor’s note in hand in spite of my best efforts to comply, then all further contact is to be taken with my lawyer.”

73        Ms. Justason replied later that day, stating that if she had been unclear in her previous correspondence, she would clarify that two distinct issues were unresolved, of which one was his work status of being AWOL. She confirmed to him that the last requested and approved leave was sick leave that expired on December 22, 2011. She stated that despite it, he had been placed on uncertified sick leave until March 31, 2012, and had been advised in June and July of 2012 that this uncertified sick leave had expired. She went on to direct the grievor to report for work on Monday, September 10, 2012. She then identified the second issue, which was the type of work that he would be assigned when he returned. To do that, the QAR had to be discussed, and a learning and supervision plan had to be developed, with his input.

74        On September 9, 2012, the grievor provided a note from his treating psychiatrist, written on a prescription pad, which stated as follows:

July 20, 2012

          Re Bryan Nadeau

          To whom it may concern.

I cannot state whether or not Mr. Nadeau was fit or unfit to work from April 1^st 2012 with Corrections Canada because I am unaware of the duties and obligations of his position. Hence the request for an assessment by Health Canada.

…

[Emphasis in the original]

75        On September 9, 2012, upon the receipt and review of that note, Ms. Justason emailed the grievor and advised him that she had received the note and that its author was misinformed as the grievor was not awaiting an HC assessment. She further advised him that the note did not certify any leave or excuse him from the scheduled return to work on September 10, 2012.

76        After sending her email to the grievor, Ms. Justason exchanged emails with his counsel. On September 14, 2012, she sent his counsel a letter that stated in part as follows:

…

As Mr. Nadeau has been advised previously, it is incumbent on the employee to request leave from the employer and to provide any required documentation in support of such a request.  We have received approximately twelve notes from Mr. Nadeau’s primary care provider(s) since 2010/12/14 whereby the author(s) determined that Mr. Nadeau was not fit to return to work. It is noted that the authors made their determinations in the absence of a Health Canada Assessment or information provided by the CSC. Most recently, on  2012/07/20 Dr. [name omitted] explained that he could not state whether or not Mr. Nadeau was fit or unfit to work and recommended a referral to Health Canada because he was “unaware of the duties and obligations of his position” despite being able to determine fitness on a number of occasions previously.

While there has been a request to refer Mr. Nadeau to Health Canada for an assessment, we remain confident that Mr. Nadeau’s primary care giver remains the most appropriate person to determine whether Mr. Nadeau  is fit to work or not. Health Canada assessors depend on information from the primary care giver and information provided by the CSC regarding work descriptions etc. The CSC is the appropriate source of the information that Dr. [name omitted] is seeking. As noted in my letter to Mr. Nadeau dated 2012/08/27, we will provide his primary care giver the information regarding his employment with the CSC if Mr. Nadeau provides the appropriate consent. To date Mr. Nadeau has not provided this consent.

At this time, Mr. Nadeau remains absent without leave and it is our expectation that he return to work as instructed. As you advised that Mr. Nadeau was attending an appointment with his Psychiatrist on 2012/09/11, we require correspondence from his Psychiatrist by end of day September 19, 2012.

As noted in previous correspondence and a number of voice mails, I remain available to meet with yourself [sic] and Mr. Nadeau.

77        On September 11, 2012, a CSC compensation advisor sent the grievor an email, about the new Health Services collective agreement, which dealt with a change to the severance payment provision. The change provided employees with an option to cash out their accumulated severance pay before leaving the public service. The email advised the grievor that Compensation Services had estimated the amount he had accumulated and that it wanted to know whether he wanted the quote sent to him by email or by regular mail.

78        On September 19, 2012, the grievor’s legal counsel appears to have emailed Ms. Justason, with a copy of the September 11, 2012, email attached, and to have stated that the grievor accepted the CSC’s repudiation of the employment contract, the repudiation allegedly being apparent in the decision to issue severance to the grievor as contained in the September 11, 2012, email.

79        On September 20, 2012, Ms. Justason responded, stating as follows:

The email sent below by Mr. Nadeau’s compensation advisor is a standard email being sent to all members of the recently signed Health Services Collective Agreement. This email is sent to ensure that the party is aware of a change and to provide them with information. Because Mr. Nadeau is not at work, there was a need to confirm the manner in which he prefers to receive the information. The email was not meant to be, and did not imply, a repudiation of contract.

We have not received any correspondence from Mr. Nadeau’s Psychiatrist as was required by the end of day yesterday. Mr. Nadeau remains absent without leave. He is directed to report to the Correctional Service of Canada as follows:

          Date:  September 25, 2012

          Time: 1030 AM
          Chilliwack Boardroom (Third Floor)
          Regional Headquarters – Pacific
          Unit 100- 33991 Gladys Ave

80        Ms. Justason and counsel for the grievor attempted to schedule a meeting for October 5, 2012, but it did not occur. Ms. Justason stated that she finally was able to reach the grievor’s legal counsel by telephone and that they spoke; the call was held sometime between October 5 and 19, 2012. She testified that she explained to his legal counsel that the grievor could not just stop coming to work; either he had to return to work or provide acceptable documentation from a doctor setting out why he could not. She stated that the outcome of the call was that the grievor’s counsel was to attempt to obtain the grievor’s consent to allow the CSC to speak with his doctor. She stated that she did obtain that consent and that she did have a telephone conversation with the grievor’s psychiatrist. 

81        Ms. Justason testified that she explained to the psychiatrist what the CSC needed and the HC assessment process. She stated that at the end of the conversation, the psychiatrist told her that he did not need any further information, that the grievor was not ill, and that he was fit to return to work.

82        Ms. Justason added that after that conversation, she wrote to the grievor on November 19, 2012, summarizing the situation from the employer’s perspective from June 2012 forward. She also stated as follows:

…

As your Psychiatrist has confirmed that you are fit for duty, you are directed to report to the Correctional Service of Canada as follows:

          Date: November 29, 2012

          Time: 1000

          Location: Office of the Regional Psychiatrist
          Regional Headquarters – Pacific
          Unit 100- 3391 Gladys Avenue
          Abbotsford,BC

…

You remain absent without leave. As noted previously, failure to report for duty as described above will continue to be considered an unauthorized absence and may also result in termination.

83        Ms. Justason testified that the grievor submitted a letter of resignation. An undated letter of resignation was attached to a copy of a letter dated December 7, 2012, which the Acting Warden of Ferndale sent to the grievor, accepting his letter of resignation, which indicates that it was received in her office on November 28, 2012.

84        In cross-examination, the grievor said that he and his treating psychiatrist disagreed on whether he could return to work. He stated that he had not been sure that he could manage going back to work at that time.

IV. Summary of the arguments

 A. For the employer

85        The employer submitted that throughout this matter, it acted reasonably. Its submission was set out in the following three parts:

1. The grievor had the onus to prove that a constructive dismissal occurred, and he failed to discharge it.
2. The allegation that the grievor’s duties were changed falls within the rights of management under the Financial Administration Act (R.S.C., 1985, c. F-11; “the FAA”).
3. The Board has no jurisdiction.

i. The grievor had the onus to prove that a constructive dismissal occurred, and he failed to discharge it

86        Potter v. New Brunswick Legal Aid Services Commission,2015 SCC 10, sets out the test for constructive dismissal. It has the following two parts:

1. that an express or implied contract term has been breached; and
2. that the term that was breached was sufficiently serious to constitute a constructive dismissal.

87        Section 12 of the FAA forms part of the terms and conditions of the contract of employment. Paragraphs 12(1)(a) and (b) grant the employer authority over the learning, training, and development requirements of persons employed in the public service and fix the terms by which the learning, training, and development may be carried out.

88        At paragraph 37, Potter provides that the first step of the analysis with respect to determining constructive dismissal is that the court must determine objectively whether a breach of contract occurred. It further states that the following is necessary to do this:

[37] … it must ascertain whether the employer has unilaterally changed the contract. If an express or an implied term gives the employer the authority to make the change, or if the employee consents to or acquiesces in it, the change is not a unilateral act and therefore will not constitute a breach. If so, it does not amount to a constructive dismissal. Moreover, to qualify as a breach, the change must be detrimental to the employee.

89        There can have been no breach of the contract if a term and condition of the contract allowed the employer to do what it did. The employer submitted that its actions of altering some duties with respect to the grievor’s tasks fell within s. 12 of the FAA. As such, there could not have been a breach, as the Supreme Court of Canada set out in Potter.

90        The employer referred me to Hassard v. Treasury Board (Correctional Service of Canada), 2014 PSLRB 32, in which the PSLRB questioned whether the concept of constructive dismissal has any place in the public sector. It stated that constructive dismissal is a creature of the world of common-law employment contracts between individual employees and their employers, which usually have a collection of express and implied terms. At paragraph 176, the adjudicator points out that the public-sector employment contract differs significantly since for the most part it is governed by statutes, regulations, and collective agreements that spell out the terms of employment in great detail and that govern or limit the rights and obligations of both employers and employees. At paragraph 177, that decision provides that an employer’s right to demote is in fact part of the employment contract. Therefore, a demotion cannot constitute a fundamental breach of the contract.On that point, the employer also referred me to Cameron v. Deputy Head (Office of the Director of Public Prosecutions), 2015 PSLREB 98, and Wercberger v. Canada Revenue Agency, 2016 PSLREB 41.

91        Alexander v. Deputy Head (Public Health Agency of Canada),2015 PSLREB 64, aff’d 2016 FCA 132, sets out the principle that fundamental to a case of alleged constructive dismissal is that the facts as set out, at their core, must establish that a termination of employment occurred that arose from a fundamental breach of the employment contract. The employer submitted that when the grievor filed his grievance in the present case, he was on leave. The employer made it clear that he was required to return to work and presented him with several options to return to work, albeit that some of the duties might have been different.

92        The employer submitted that based on the jurisprudence, there was no unilateral change to the terms and conditions of the employment contract, as what occurred was within its rights under s. 12 of the FAA.

ii. The allegation that the grievor’s duties were changed falls within the rights of management under the FAA

93        Management has the right to assign duties. The employer submitted that management exercised that right and that it did so fairly and reasonably.

94        Synowski v. Treasury Board (Department of Health), 2007 PSLRB 6, states that the employer has the authority to assign duties. That assignment does not somehow give the Board jurisdiction in situations in which it otherwise does not have any. Section 7 of the Act is worded similar to the wording of s. 7 of its predecessor legislation, the Public Service Staff Relations Act (R.S.C., 1985, c. P-35), and recognizes the employer’s right and authority “… to determine the organization of those portions of the federal public administration for which it represents … or to assign duties to and classify positions and persons employed in those portions of the federal public administration.” On that point, the employer also referred me to Tuckett-Reddy v. Treasury Board (Correctional Service of Canada),2011 PSLRB 125.

95        The employer submitted that some contradictory facts have been put forward with respect to the quality of the grievor’s work product. Warman v. Deputy Head (Correctional Service of Canada),2012 PSLRB 103,addresses situations in which there might be conflicting reports of a level of performance. Sometimes performance is viewed as positive, and other times as negative. Not everyone may have the same opinion of performance with respect to the same tasks. However, that does not mean that if problems are identified with the work of an otherwise satisfactorily performing employee that they should be ignored and not fixed. The fact that a performance problem is not identified in a performance appraisal or evaluation does not mean that it does not exist.

96        Evidence was led that the grievor was on sick leave over portions of time relevant to the grievance. Theaker v. Deputy Head (Department of Justice),2013 PSLRB 163, stands for the proposition that it is within the employer’s rights to request medical information and to use it with respect to a reintegration-to-work plan for an employee.

97        The grievor alluded through his evidence that issues of procedural fairness arose surrounding the QAR of his work. On that point, the employer referred to Baker v. Minister of Citizenship and Immigration,[1999] 2 RCS 25823, which sets out a test for procedural fairness that has, at minimum, five elements that are weighed on a sliding scale. Applying that test to the grievor’s situation at the CSC, the employer submitted that the level of procedural fairness he was entitled to vis-à-vis the QAR of his work was on the low end of the spectrum. The QAR was a review of the quality of his work and was leading to a training plan and was not a performance plan that was leading to terminating his employment.

iii. The Board has no jurisdiction

98        Wray v. Treasury Board (Department of Transport),2012 PSLRB 64, sets out what is required for the Board to have jurisdiction. Paragraph 22 states that adjudicators derive their jurisdiction solely from the Act. As applied to individual grievances, the Act limits jurisdiction to only the interpretation of a collective agreement provision (s. 209(1)(a)); a disciplinary action resulting in a termination of employment, suspension, demotion, or financial penalty (s. 209(1)(b)); or, for employees in the core public administration, a demotion or termination of employment for unsatisfactory work performance or other non-disciplinary reasons not covered by other legislation or for a non-consensual deployment (s. 209(1)(c)).

99        The reference to adjudication (Form 21) that the grievor filed states that he referred his grievance to the Board under ss. 209(1)(b) and (c)(ii) of the Act. Paragraph 209(1)(a) references disciplinary action, while s. 209(1)(c)(ii) references deployment without consent.

100        Cameron addresses allegations of disguised discipline. In such cases, there must be an intent to punish or to correct culpable behaviour. When one looks at the facts surrounding the grievor and the evidence surrounding the employer’s intent, there was no culpable behaviour to correct or intent to punish; the employer’s stated intent was to improve the grievor’s performance. When an allegation of disguised discipline is raised, the burden falls on the grievor to prove it on a balance of probabilities. In this case, the grievor has not satisfied that burden. On that point, the employer also referred me to Browne v. Treasury Board (Revenue Canada - Customs, Excise and Taxation), PSSRB File Nos. 166-02-27650 to 27661 (19971201), [1997] C.P.S.S.R.B. No. 133 (QL), and Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2010 PSLRB 130.

101        Rogers v. Canada Revenue Agency,2010 FCA 116, stands for the proposition that a financial loss does not equate to a financial penalty. The fact that the grievor was taking sick leave did not equate to a financial penalty.

102        Bahniuk v. Canada Revenue Agency,2005 PSLRB 177, addresses allegations that actions taken by the employer were in bad faith. Bad faith itself does not grant an adjudicator jurisdiction. 

103        It is also well settled that there is no jurisdiction under s. 209 with respect to issues of performance assessment ratings. On that point, the employer referred me to Tudor Price v. Deputy Head (Department of Agriculture and Agri-Food),2013 PSLRB 57, Spacek v. Canada Revenue Agency, 2007 PSLRB 115, and Veilleux v. Treasury Board (Public Service Commission), PSSRB File No. 166-02-11370 (19820729),[1982] C.P.S.S.R.B. No. 126 (QL).

104        Stevenson v. Treasury Board (Department of Employment and Social Development Canada),2016 PSLREB 17, and Mutart v. Deputy Head (Department of Public Works and Government Services), 2013 PSLRB 90 (upheld in 2014 FC 540), stand for the proposition that once an employee has voluntarily resigned, that action is under the PSEA and not under the Act.

105        During the course of the grievor’s case, discrimination was alluded to. Burchill v. Attorney General of Canada, [1981] F.C. 109 (C.A.), holds that the grievor was not entitled to alter his grievance and raise a new issue at adjudication that was not raised earlier in the grievance process. Nowhere in the grievance is discrimination alleged, and there is no evidence that discrimination was raised at any stage of the grievance process.

106         What happened to the grievor is that in some respects, his work performance had come into question, which led to management raising concerns. His clinical interventions, based on his educational background, brought up management’s good-faith concerns about liability and led it to conduct the QAR. The QAR was intended to be, and in the employer’s submissions was in fact, fair and transparent; it was designed to determine if the grievor’s work product met the standards of the College for practicing psychologists. While the grievor might not have been governed by the College, his work product was, because those who reviewed it were governed by the College, as was the employer.

107        The employer developed a plan to resolve the grievor’s skills gap and to bring those competencies that were not up to standard up to an acceptable standard. However, the plan did not fit into the grievor’s plans, but that does not mean that it was not fair to him. It was to deal with his skills gap.

108        There is no evidence that the employer’s actions were in anyway arbitrary or capricious to the grievor. It had to follow his work more closely. While the grievor might have found this frustrating and demeaning, it is not evidence of discipline; nor is it evidence of a deployment. There is no evidence of a change of duties.

109        The grievor took sick leave. At the end of the day, he voluntarily resigned in the face of a direction to return to work, all while being represented by both a bargaining agent and legal counsel.

110        The employer submitted that even if I accept everything that the grievor has stated as true, he has not met his burden of proof of establishing that there has been a constructive dismissal or that I have jurisdiction under s. 209 of the Act.

B. or the grievor

111        The grievor referred me to Potter.

112        The grievor submitted that he did not have to prove his job was taken away as a whole, just that he went home with no pay.

113        The grievor was stripped of his duties, was sent home, and had to apply for his job. He had no choice but to consider that he had been constructively dismissed.

114        The grievor was never told that he could come back to work. He was suspended, but for that to be valid, it had to be based on legitimate work reasons.

115        The grievor referred me to Chan v. Dencan Restaurants Inc.,2011 BCSC 1439, in which the British Columbia Supreme Court held that the employee, who had resigned voluntarily after being criticized for his performance and threatened with dismissal, had been wrongfully dismissed and was entitled to damages. The grievor submitted that he resigned because he was under duress. He received a letter from Ms. Justason that stated that his work might not be in an institution.

116        The grievor referred me to paragraphs 106 and 107 of Potter,which state as follows:

[106] I would suggest that in most cases in which a breach of an employment contract results from an unauthorized administrative suspension, a finding that the suspension amounted to a substantial change is inevitable. If the employer is unable to show the suspension to be reasonable and justified, there is little chance, to my mind, that the employer could then turn around and say that a reasonable employee would not have felt that its unreasonable and unjustified acts evinced an intention no longer to be bound by the contract. Any exception to this rule would likely arise only if the unauthorized suspension was of particularly short duration.

B.       Repudiation by the Employee

[107] Because I have concluded that Mr. Potter was constructively dismissed, the question whether the bringing of his action for constructive dismissal amount to a resignation does not arise. The contract had already been repudiated by the Board.  Although the courts below both ruled on this issue and submissions were made on it in this Court, it would in my view be inadvisable to reach any conclusions with respect to the resignation of an employee in the absence of circumstances requiring me to address the issue.

117        The grievor submitted that the PS-02 position was withheld from him. The review was extremely lengthy, and he should have been deemed qualified. His removal should not have taken as much time as it did.

118        With respect to paragraph 107 of Potter, it is fair for the grievor to assume that a constructive dismissal had already occurred. Therefore, he committed no repudiation, as his job was no longer available to him.

119        The grievor submitted that the evidence demonstrated that if he had not agreed to move to the RRAC, he would have been terminated. The employer intended to move or terminate him, which is evidenced by Dr. Roy’s emails. The employer was telling the grievor to accept the change to [his] working conditions or leave.

120        The employer could not say it is in the collective agreement, bargained in good faith and then say that things are outside of the collective agreement. It could also not apply the collective agreement in bad faith.

121        The grievor referred me to an unidentified “Commentary” on a decision of an arbitrator dated April 28, 2011, about Greater Toronto Airport Authority v. Public Service Alliance of Canada, Local 0004 (2010), 191 L.A.C. (4th) 277). At paragraph 3, the unknown author states that that arbitrator ruled as follows:

… a collective agreement is one of those contracts that is intended to provide the employee with a psychological benefit and security. That finding means that an employer who treats employees harshly and in bad faith can be dinged with high damages for mental suffering, since the very purpose of the contract is to help protect employees from psychological harm… .

122        The grievor submitted that the document entitled, “College of Psychologists of British Columbia, Code of Conduct”, provides for a duty of good faith and that that duty applied to the QAR undertaken with respect to him.

123        The grievor submitted that Dr. Roy and Dr. Mawson were not unbiased as he had previous reporting relationships with them.

124        The grievor showed that of the 45 reports (of which there is no evidence as to how they were selected), only 2 had deficiencies that needed correcting, and yet recommendations were made to transfer him to a job for which he needed higher supervision.

125        The employer submitted that the QAR was undertaken out of a corporate-wide concern, yet out of all the employer’s psychologists, only the grievor was subject to one.

126        The grievor was the senior PS-02 and had a right to his job. The employer had no right to move him.

127        The conclusions in the QAR were not logical since only 2 errors were found out of 45 reports.

128        The grievor referred me to paragraph 133 of Hassard. He was entitled to grieve; Hassard does not dismiss the right to grieve. He submitted that under paragraph 179 of that decision, whether a particular employer action amounted to a termination or demotion under s. 209(1)(b) of the Act is a question of law that in turn depends on the facts; it is a question of substance, not form.

129        The grievor referred me to paragraphs 83 and 85 of Potter, stating that even an administrative suspension has to be justified. The employer sent him home for paperwork, and it required him to apply for the same job, which was neither reasonable or justified.

130        With respect to Baker, the grievor referred me to the same sections that discuss procedural fairness that the employer submitted.

131        As relief, the grievor seeks the following:

1. damages amounting to a loss of salary for six years as well as all benefits that would have accrued, including vacation leave;
2. damages of $300 000.00 for loss of promotion and pay increases over the six-year period or for loss of work as a registered psychologist;
3. aggravated damages for his psychiatric care in the amount of $250 000.00;
4. punitive damages in the amount of $500 000.00, which is reflective of the harm done and a penalty for ongoing malicious conduct;
5. pre- and post-judgement interest;
6. his adjudication costs;
7. an apology; and
8. a reference.

 C. The employer’s reply

132        The grievor submitted that he was suspended. This is not borne out by the evidence, which disclosed that, by and large, he had been either on sick leave or AWOL. His reference to being sent home was long before any of the employer’s actions that are the subject of this grievance. Suspension is not referenced anywhere in the grievance and is outside the scope of the original grievance based on the principle enunciated in Burchill.

133        The submission that Dr. Roy suggested that a termination of employment was appropriate is not exactly accurate. He did not have line authority over the grievor. It was strictly a recommendation along the lines of something that should be considered.

134        The grievor’s submission that he was told he was not competent in his position is not accurate. The evidence disclosed that the employer was concerned about his ability to carry out certain tasks required in his job; he was not going to be removed from his job.

135        With respect to the submissions on paragraph 181 of Potter, which discusses a repudiatory breach, they do not apply to the facts of this grievance and have no place in the federal statutory regime.

V. Reasons

 A. Request to seal documents

136        The grievor submitted as evidence copies of emails that he exchanged with his supervisors, who were reviewing his assessments. They were entered as Exhibit G-2, Tab C, and were numbered C1 through C106. Their subject matter involved inmates and their behaviour as assessed by the grievor. The inmates, their behaviour, their illnesses, or their peculiarities are not the subject matter of this grievance and have no bearing on this hearing or its outcome. The documents were proffered by the grievor as he believed that they demonstrated evidence of his competence and ability.

137        In Basic v. Canadian Association of Professional Employees,2012 PSLRB 120, at paras. 9 through 11, the PSLRB stated as follows:

[9] The sealing of documents and records filed in judicial and quasi-judicial hearings is inconsistent with the fundamental principle enshrined in our system of justice that hearings are public and accessible. The Supreme Court of Canada has ruled that public access to exhibits and other documents filed in legal proceedings is a constitutionally protected right under the “freedom of expression” provisions of the Canadian Charter of Rights and Freedoms; for example, see Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII).

[10] However, occasions arise where freedom of expression and the principle of open and public access to judicial and quasi-judicial hearings must be balanced against other important rights, including the right to a fair hearing. While courts and administrative tribunals have the discretion to grant requests for confidentiality orders, publication bans and the sealing of exhibits, it is circumscribed by the requirement to balance these competing rights and interests. The Supreme Court of Canada articulated the sum of the considerations that should come into play when considering requests to limit accessibility to judicial proceedings or to the documents filed in such proceedings, in decisions such as Dagenais and Mentuck. These decisions give rise to what is now known as the Dagenais/Mentuck test.

[11] The Dagenais/Mentuck test was developed in the context of requests for publication bans in criminal proceedings. In Sierra Club of Canada, the Supreme Court of Canada refined the test in response to a request for a confidentiality order in the context of a civil proceeding. As adapted, the test is as follows:

…

a. such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

b. the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

…

138        The subject matter of this hearing was whether the grievor was constructively dismissed and hence terminated from his position with the CSC. The information in the documents with respect to the inmates and their personal issues, illnesses, or behaviour were not relevant to the hearing. However, the documents were proffered as evidence during the course of the hearing as a submission by the grievor to determine a question he submitted to me about the grievance. 

139        These documents contain information that should not be in the public domain. There is a serious risk to the privacy of the inmates named in them, who are not party to these proceedings, and their personal circumstances are irrelevant to the matter before me. Therefore, I order the documents sealed that were submitted and marked as Exhibit G-2, Tab C, and as documents C1 through C106.

B. Jurisdictional question

140        The employer objected to my jurisdiction to hear this matter, submitting that it did not fall within s. 209 of the Act. Given the nature of the grievance, which is an allegation of constructive dismissal, it was not possible to hear the evidence on the objection without hearing the evidence on the merits of the grievance. As such, I heard all the evidence and reserved on the question of jurisdiction.

141        To be within the jurisdiction of the Board under s. 209 of the Act, a grievance must fall within certain criteria. The grievor’s bargaining agent, who ceased to represent him by the time the hearing proceeded, referred the grievance to adjudication under both s. 209(1)(b) of the Act, submitting that it arose from disciplinary action that resulted in a termination of employment, demotion, suspension, or financial penalty, and s. 209(1)(c)(ii) of the Act, submitting that he was subject to a deployment in the core public administration under the PSEA without his consent when it was required.  While he did not do so, the grievance could have also been referred to adjudication under s. 209(1)(c)(i) of the Act, that addresses termination of employment or a demotion under s. 12(1)(d) of the Financial Administration Act, for unsatisfactory performance. 

142        Section 241(1) of the Act provides that no proceeding under the Act is invalid by reason only of a defect in the form or a technical irregularity.  When you read the grievance, it is possible that the grievor’s bargaining agent may have meant to refer the grievance also under s. 209(1)(c)(i) of the Act, and, as such, I shall address the jurisdictional question as if that section was meant to have been used.  

143        For the reasons that follow, the employer’s objection to jurisdiction is allowed, and the grievance is dismissed.

144        The grievance was filed on May 18, 2011. In it, the grievor alleged that he was constructively dismissed from his PS-02 position with the CSC. The grievance stated as follows:

I grieve the employer’s decision to take away my duties I have performed for the last nine years and to significantly change my working conditions. This has caused me tremendous stress and anxiety. I have had to go on medical leave to take care of my health. The change in my duties and working conditions amounts to constructive dismissal.

…

145        I will deal first with the reference to adjudication under s. 209(1)(c)(ii) of the Act. This section deals with deployments that require consent. Nothing in the grievance suggests that a deployment with or without consent occurred. The allegation is that the grievor was constructively dismissed, which suggests that the employment relationship was severed. For this reason alone, the grievance could not have been referred to adjudication under s. 209(1)(c)(ii).

C. Sections 209(1)(b) and (c)(i)

146        If it is to fall under s. 209(1)(b) of the Act, the grievor must establish that he has suffered either a termination of his employment, a demotion, a suspension, or a financial penalty andthat the act of either terminating him, demoting him, suspending him, or financially penalizing him arose out of a disciplinary action of the employer. It is insufficient to prove that he was terminated from his employment, demoted, suspended, or financially penalized unless the grievor establishes that that action was disciplinary. If it is to fall under s. 209(1)(c)(i) of the Act, the grievor must establish that he has suffered either a termination of his employment, or a demotion for unsatisfactory performance.

147        The grievor alleged a constructive dismissal, which the Supreme Court of Canada discussed in Potter, at paras. 30 through 33. They read as follows:

[30] When an employer’s conduct evinces an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or changes made by the employer, or treating the conduct or changes as a repudiation of the contract by the employer and suing for wrongful dismissal… .

[31] The burden rests on the employee to establish that he or she has been constructively dismissed. If the employee is successful, he or she is entitled to damages in lieu of reasonable notice of termination… .

[32] … There are two branches of the test that have emerged. Most often, the court must first identify an express or implied contract term that has been breached, and then determine whether that breach was sufficiently serious to constitute constructive dismissal… .

[33] However, an employer’s conduct will also constitute constructive dismissal if it more generally shows that the employer intended not to be bound by the contract… .

148        For me to have jurisdiction, the grievor had to establish that, on a balance of probabilities, the employer’s action constituted a termination of employment (as that is what he alleged, a constructive dismissal) and that it was done for disciplinary reasons (s. 209(1)(b) of the Act), or for alleged unsatisfactory performance (s. 209(1)(c)(i) of the Act).

149        The specific allegation that the grievor made that amounted to the constructive dismissal was the removal of certain duties that he was carrying out over the period of nine years, which were taken away from him, and that his working conditions were significantly changed. Therefore, on a balance of probabilities, he had to prove that this happened, which would coincide with the first part of the test enunciated in Potter about the express or implied term of the contract that has been breached. 

150        For the moment, I will set aside the issue of whether the grievor’s working conditions and duties amounted to express or implied terms of his employment contract. I am doing so because there is absolutely no evidence whatsoever before me that the employer removed certain duties or significantly changed his working conditions.

151        The only evidence of the grievor’s work duties and working conditions before me was that he was a PS-02 psychologist who worked in an institutional setting for the CSC writing assessments. I was provided with absolutely no evidence of his specific work, a work description, or any evidence of how he carried out his duties, either before or after the point at which he alleged his duties were taken away and significantly changed, or of what duties were changed or taken away.

152        I heard a significant amount of evidence about issues surrounding the quality of the grievor’s work product, which was described, in some respects, as being below the standard of a College-licensed psychologist. This was largely attributed to the fact that the course of study that the grievor had completed for his university post-graduate studies was in the area of experimental psychology as opposed to clinical psychology; the latter being the area prevalent in the assessment and treatment of patients.

153        The evidence I heard with respect to the grievor’s performance pre-grievance (May 18, 2011) came almost exclusively from Mr. Ouellet, who supervised the grievor from roughly February to October of 2010. His evidence was that the grievor’s knowledge and training had gaps that, in his opinion, were a problem and could have led to potential liability for the employer.

154        During the time frame of Mr. Ouellet’s supervision, his concerns with respect to the quality of the grievor’s work product were discussed with both the grievor and functional and line managers. A plan was formulated and discussed with the grievor and with functional and line managers that would have had the grievor upgrade his knowledge and training. From the evidence before me, it appears that the grievor agreed with this plan.

155        The exact details of the grievor’s work history were sketchy at best. From what I could gather, he had spent the majority of his career as a PS-02 at the CSC at Ferndale; however, he had also worked at the RRAC. His PS-02 work at Ferndale comprised doing inmate assessments, which was also the work he did when he was at the RRAC. All the assessments he conducted had to be reviewed and signed off by his supervisor as the grievor was not a licensed psychologist. This was the case whether he was at Ferndale or at the RRAC and was so both pre-grievance and post-grievance.

156        The grievor was on leave for a considerable time from 2010 onward. I was not provided with the specifics of his leave, and the details of the total amount of time he was at work and off work were limited. From what I could gather from the evidence, at some point in the spring of 2011, he went on sick leave and remained either on certified sick leave, uncertified sick leave, or was AWOL until he resigned from the CSC in November of 2012. 

157        I heard a significant amount of evidence about the QAR. It took place after the grievance was filed and after the grievor went on sick leave in 2011, after which he did not return to work. Its results were produced to management and the grievor in the fall of 2011.

158        Given that the QAR process and results production took place well after the grievance (1 year to 18 months later), I fail to see the relevance of the QAR, its process, or its results to the grievance, as the grievor had, long before then, already alleged that he had been constructively dismissed. In any event, the QAR results affirmed what had already been determined in 2010 by Mr. Ouellet and others, and agreed to by both the grievor and management, which was that an upgrade of the grievor’s education and skills were required for him to be able to meet the standards necessary for a PS-02.

159        The grievor submitted that he did not have to prove that his job was taken away, just that he went home with no pay. This is incorrect. He had to prove that on a balance of probabilities he was constructively dismissed and that, if he proved it, the constructive dismissal fell within s. 209(1) of the Act. He failed to do so.

160        The grievor submitted that he was stripped of his duties and was sent home and that he had to apply for his job. There is absolutely no evidence that this happened. The evidence before me disclosed that he voluntarily left on sick leave while he and management representatives were discussing a plan to upgrade his training and education to bring it in line with College and CSC requirements.

161         The grievor submitted that he was sent home and was never told he could come back to work; this is false. Several letters sent over an extended period specifically instructed him to return to work, which he did not do.

162        The grievor submitted that he was suspended. Again, there is absolutely no evidence of a suspension. The evidence before me disclosed that he voluntarily left on sick leave while he and management representatives were discussing a plan to upgrade his training and education to bring it in line with College and CSC requirements.

163        The grievor submitted that he was a senior PS-02, that he had a right to the job, and that the employer had no right to move him. The evidence did not disclose that the employer had demoted him or actually moved him. The terms and conditions of his employment were set out in the relevant collective agreement and relevant statutes and regulations. The FAA provides that the employer has the right to assign duties. Section 7 of the Act, as well as predecessor legislation governing the Board’s predecessors (the PSLRB and the Public Service Staff Relations Board (“PSSRB”)), set out that assigning duties does not somehow give the Board jurisdiction where it otherwise does not have any (see Synowski and Tuckett-Reddy).

164        The grievor submitted that per Hassard, he was entitled to grieve. While he might have had the right to grieve, under s. 208 of the Act, this did not give the Board jurisdiction to hear the referral to adjudication of the grievance under s. 209. A significant body of jurisprudence of this Board, the PSLRB, and the PSSRB holds that while many employer actions may be subject to grievances, not all are subject to adjudication.

165        As there is no evidence that the grievor was terminated from his position and in fact the evidence established the opposite; nor has he established that he has had duties removed such that a constructive dismissal (assuming it exists in the federal public sector) could be established the grievance does not fall within either s. 209(1)(b) or (c)(i) and as such I am without jurisdiction.

 D. Process

166        As the grievor was acting on his own behalf, I explained to him the hearing process. I did this both during the PHC and again at the outset of the hearing. 

167        I explained that since the grievor was alleging that a constructive dismissal had occurred, he would be required to lead his evidence first by calling any witnesses and introducing any documents through them. I explained that he would be required to ask his witnesses all his questions and that after he was done, counsel for the employer would then have an opportunity to ask those witnesses questions. I explained to him the concept of re-examination. I explained that once all his witnesses had completed their testimony, the employer would have the opportunity to call its witnesses, and the process of questioning them would be the same. I also explained to the grievor that for documents to be introduced into evidence, they had to be introduced through a witness or be agreed to by the employer. I also explained to him that he would be allowed an opening statement as well as closing arguments, once all the evidence was complete.

168        In addition to my comments at the PHC and the outset of the hearing, on its website, the Board has a section for unrepresented parties acting on their own behalf. 

169        At the outset of the hearing, the employer provided me with a brief of documents, and the grievor provided me with two briefs of documents. I accepted both briefs with the usual proviso that only documents that were identified in the normal course of the hearing by a witness would be retained as evidence and that at the end of the evidence portion of the hearing, any documents contained in the briefs would be removed and returned to the parties, unless they agreed that the documents could remain. At the close of the evidence, several documents were removed from the exhibit briefs as they had not been identified by any witnesses and had not been agreed to be entered by the parties.

170        The grievor chose to call as witnesses Dr. Roy and Mr. Fortnum. As set out earlier in this decision, Dr. Roy had functional responsibility for the grievor as the chief regional psychologist and Mr. Fortnum as the warden of Ferndale. The grievor chose to call and question them. Their evidence largely was not helpful to him and was supportive of the employer’s position. 

171        The grievor had indicated during the PHC and at the outset of the hearing that he would not testify. After some prompting from his spouse, who was assisting him at the hearing, and after I informed them (yet again) that any documents in the briefs not identified by a witness and not agreed to by the employer would not be in evidence, the grievor took the witness stand and gave evidence. 

172        The grievor testified for a very short period and largely introduced documents that included his performance appraisals and certain other health-care related documents dated 2012. He did not testify whatsoever as to the alleged events referred to in his grievance. Without any evidence with respect to the allegations contained in the grievance, the grievor failed to establish the very bare bones of his case that would have given me jurisdiction, namely, that he was constructively dismissed and in essence terminated from his employment.

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

VI. Order

174        I am without jurisdiction.

175        The grievance is dismissed.

April 10, 2017.