FPSLREB Decisions

Heard at Toronto, Ontario,
January 19 to 22 and July 5 to 8, 2016.

REASONS FOR DECISION

I. Introduction

1        Tre Grant (“the grievor”) referred three individual grievances against the Correctional Service of Canada (“the employer”) to adjudication. They arose from a series of events that culminated with his employment being terminated due to unsatisfactory performance. He grieves his termination and has filed two additional grievances alleging he was harassed and discriminated against based upon his race, in breach of his collective agreement. Mr. Grant self-identifies as a black male.

2        For the reasons set out below, I find that it was reasonable for the employer to reach the conclusion that the grievor’s performance was unsatisfactory. Over the course of nearly two years working as a corrections program officer, the grievor experienced significant challenges delivering his programs to required national standards. His quality reviews (QR), conducted by regional specialists showed significant deficiencies in his work. Consequently, his termination grievance is dismissed.

3        While the harassment grievance sheds light on two matters that show the grievor’s senior manager, Dave Pisapio, to have exercised extremely poor judgement by intervening in matters that most managers would know not to, I am not able to find these unfortunate incidents as valid grounds to award the grievance.

4        However, I do find a third very unfortunate incident caused again, by Mr. Pisapio to be grounds to award the racial discrimination grievance. The grievor suffered significant adverse and differential treatment upon being put on administrative leave shortly before his employment was terminated. The respondent could offer no justification for this deplorable treatment the grievor suffered.

II. Background

5        The harassment and discrimination grievances allege a breach of the anti-discrimination provision found in Article 19 of the of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group, which expired on June 20, 2014 (“the collective agreement”). The grievances were referred to adjudication under s. 209 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”).

6        The third matter before me is the termination grievance referred to adjudication under s. 209(1)(c)(i) of the Act, which deals with employees terminated for unsatisfactory performance. The termination grievance is dated January 22, 2013 (and bears file number 566-02-9507), and the other two grievances are dated December 20, 2012 (file numbers 566-02-9509, about race-based discrimination, and 566-02-9508, about race-based harassment).

7        In a memorandum of settlement concluded prior to the hearing of the grievances, the parties agreed that the racial discrimination grievance can only deal with the events of December 20, 2012. The harassment grievance is limited to events that occurred between November 15 and December 20, 2012, inclusive.

8        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”). These grievances are continued pursuant to the authority of the relevant Parliamentary enactments related to them.

III. Facts

9        Before joining the employer, the grievor enjoyed four years of employment with the Government of Canada as a passport officer in the then Department of Foreign Affairs and International Trade. His uncontradicted testimony indicates that he was successful in that position. He testified that he began to look for other opportunities in the public service for career advancement reasons, culminating in his appointment in October 2010 by the employer as a corrections program officer at the WP-4 group and level, delivering treatment and rehabilitation programs to criminal offenders.

10        Upon completing his training and being deemed ready to start work, the grievor was assigned to the employer’s Hamilton office. He reported to Brigitte Penthor, who was based in Toronto. The grievor stated that on his first day in the new position, he was met at his Hamilton workplace by a co-worker, who was based in St. Catharines, Ontario, and who had been asked to orient him. The grievor testified that Ms. Penthor never visited his Hamilton office and that he saw her approximately once per month.

11        After approximately eight months of working in that office, and after expressing his interest to move, the grievor accepted a lateral transfer to the employer’s Keele Street office in Toronto (“the Keele office”). This move allowed him greater access to his supervisor, Ms. Penthor, who worked next door to him. In July 2011, Angela Beecher replaced Ms. Penthor as his supervisor. The uncontradicted evidence showed that the grievor was respectful and polite at the workplace.

IV. Grievances and issues

A. Breach of Article 19 — harassment and discrimination grievances

12        The grievor claims that the employer violated the collective agreement by the manner in which his Director General, Mr. Pisapio, intervened in the handling of a harassment complaint filed by the grievor, how he spoke to the grievor about harassment and how the grievor was treated when he was ultimately placed on suspension. In addition to asking that both these grievances be upheld, the grievor asks me to find the substance of these grievances to establish bad faith on the part of the employer which the grievor will then rely upon in asking me to overturn the decision to terminate his employment. The actions alleged in the racial discrimination grievance took place on December 20, 2012, and therefore fall within the period covered by the harassment grievance (November 15 to December 20, 2012).

13        The grievor filed his harassment complaint with the employer’s harassment prevention coordinator, Ron Stolz, who received it on November 22, 2012. In it, the grievor named his supervisors, Ms. Penthor and Ms. Beecher; Associate District Director, Craig Townsend; and Mr. Pisapio, who supervised the grievor’s direct supervisor, as being responsible for the alleged harassment.

14        Among other things, the grievor alleges that his supervisor, Ms. Beecher, called him a liar twice in separate incidents and humiliated him in the form of comments she made in front of several co-workers at a staff meeting. He was told that he was trying to steal from the employer and was shouted at. He also stated that he was subjected to attendance management, numerous action plans, and unrealistic expectations and working conditions. He also stated that those matters were very detrimental to his health. They made him feel depressed and bullied, and caused him psychological trauma.

15        Mr. Stolz sent written confirmation of his receipt of the complaint to the grievor on December 4, 2012, and stated that “... the complaint is being reviewed for determination regarding application to the Treasury Board Policy on Harassment Prevention and Resolution.”

16        The Treasury Board’s Policy on Harassment Prevention and Resolution (“the Policy”), effective October 1, 2012, was produced as evidence. Mr. Stolz confirmed in his testimony that the Policy was in effect during the time of the incidents in question. It states as follows under “Context”:

…The values of the public sector uphold the practice of respect, fairness and courtesy and the importance of demonstrating human dignity within professional relationships…

...Interactions between supervisors and subordinates may be especially sensitive because of the power differential they embody. Exercising normal supervisory functions such as assigning and appraising work is not harassment, but how such functions are exercised can risk giving rise to the potential for harassment or perceptions of harassment.

…

…This policy stresses the responsibility of deputy heads to protect employees from harassment beyond the requirements of the Canadian Human Rights Act, which forbids harassment on prohibited grounds of discrimination, by requiring deputy heads to act on all forms of harassment…

[Emphasis added]

17        The Policy defines “harassment” as follows:

…improper conduct by an individual, that is directed at and offensive to another individual in the workplace … and that the individual knew or ought reasonably to have known would cause offense or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act ….

…

18        The grievor points to the Treasury Board’s Human Resource Management Tool for providing feedback: Supportive vs. corrective feedback, 2012, as a policy supporting the legitimacy of his concerns as voiced in his harassment complaint. This tool states as follows:

…

• One of the most important skills in effective management and development of people is the proper use of feedback.
• It is important to stay away from labels...words such as ‘unprofessional’ or ‘irresponsible’ are not supportive.

Avoid words that express judgement and put the giver in the role of controlling parent.

• Don’t give feedback to someone when you are angry.

…

19        It is also important to note that the harassment grievance is not grounded upon a breach of the Policy but rather is based upon an alleged breach of Article 19 of the collective agreement. The grievor argued that the Policy provides helpful context as to what should have informed the employer in its handling of his complaint. Article 19 is titled “No Discrimination” and states as follows:

… There shall be no discrimination … harassment, intimidation or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status, or a conviction for which a pardon has been granted.

20        The employer replied in writing to the complaint in a memo signed by the Deputy Commissioner. It indicated that upon review, the complaint was found “... not to fall within the realm of harassment under the Treasury Board Harassment Policy”, and that the employer would not proceed with an investigation. This memo indicated as follows to the grievor: “You claim to have been subjected to demeaning and belittling comments, and to numerous action plans that have resulted in bullying and intimidation. You further state they impose unrealistic expectations and working conditions.”

21        The complaint outlined several incidents, with respect to which the employer submits its managers were simply “managing” the grievor. However, it is important to recognize that the complaint specifically references how he was being managed. Noted more is the “how” rather than the “what” with respect to things being done to manage his work. The grievor alleged that in its efforts to resolve several issues with respect to his attendance, hours of work, vacation leave, claims for shift premiums, and responsiveness to its communications, on several occasions, the employer included overt or inferred negative and judgemental comments about his integrity and honesty.

22        For almost every issue that arose, the grievor offered an explanation that suggested the matter was an honest misunderstanding. He further explained and, in some cases, pointed to documentary evidence tabled as an exhibit that despite his attempts to explain what he saw as misunderstandings, his supervisor was quick to jump to conclusions that each issue was in fact deliberate on his part and was evidence of him being lazy, dishonest, and untrustworthy.

23        The employer’s counsel objected to me hearing the details of much of this evidence from the grievor on the grounds that it fell outside the dates in the memorandum of settlement. I allowed the evidence with the caveat that I would not rely upon evidence from outside the agreed-upon dates for this grievance but rather accepted this as potentially helpful context informing my assessment of what transpired upon the employer’s receipt of the grievor’s harassment complaint.

24        In examination-in-chief and in cross-examination, Mr. Stolz, who was the employer’s regional coordinator for harassment prevention since 1999, explained the process for receiving and responding to a harassment complaint. He stated that he receives complaints from employees, confirms details if need be, explores resolution options, and then makes a written recommendation to the regional deputy commissioner for a decision and reply to each complainant.

25        He stated that he called the grievor the day after receiving his complaint and that they spoke for 30 to 60 minutes. The grievor contradicted this and testified that they spoke only for 5 to 10 minutes. Mr. Stolz discussed options to resolve the complaint, confirmed the grievor’s mailing address for correspondence on the matter, and asked for further information about some of the allegations. He stated that the grievor promised to follow up with additional particulars on his allegations.

26        Mr. Stolz stated that they spoke again on December 4 and that he told the grievor that he had not yet received the particulars. He stated he received some documents later that same day from the grievor that contained particulars with respect to the complaint. Mr. Stolz noted that his letter acknowledging his receipt of the complaint and dated December 4, 2016, was sent with the departmental mail service.

27        Mr. Stolz testified that shortly after receiving the complaint, he received an unsolicited phone call from Mr. Pisapio, who proceeded to explain some things to him about the grievor. Mr. Stolz stated that as Mr. Pisapio had been named in the complaint, he would have received a copy of it. Mr. Pisapio informed him that there were “performance and attendance issues” with the grievor, which were being “worked on”. Mr. Stolz confirmed in cross-examination that Mr. Pisapio called him the day after the complaint was filed and that they spoke for approximately 10 minutes. He also confirmed that other than with the grievor, he initiated no other conversations to investigate the many allegations.

28        In cross-examination, Mr. Stolz confirmed that the Policy adduced in evidence was the version in effect during the incidents in question. He was asked to provide an example of harassment. He replied with an example of a manager asking an employee to wash his car in exchange for a promotion. I found it a curious, hypothetical example for Mr. Stolz to offer at the hearing, given that it is not clear that such an incident would even fall within the prohibited forms of discrimination in article 19.

29        Mr. Stolz was then asked if he could explain and provide examples of racial stereotypes. He replied, “That depends.” He was then asked to comment on them. He replied that this was not a clear issue and that they could arise in different circumstances.

30        When asked about his review of the allegations, Mr. Stolz essentially repeated what he had previously recounted of his discussion with Mr. Pisapio, which was that the grievor was having performance and attendance problems and that his managers were trying to manage him. He added that he found some inconsistencies in the grievor’s allegations. When asked for more detail about this, he said that the grievor complained about being on attendance management but that in fact he was not. When asked to clarify this statement, he stated that he checked when the complaint was filed and that the grievor was not in the national attendance management program. When asked if it was possible the grievor had been in an informal local attendance management program, he replied that this was possible.

31        When cross-examined about the allegation that the grievor had been called a liar, Mr. Stolz stated that he was not aware of it as it was not in the documents he had been sent and that he did not call the grievor’s manager, who it was alleged had made the comment. Similarly, he was asked about the allegation of humiliation in front of a group of co-workers and he replied, “This was a tricky issue,” but stated that the grievor could have discussed this issue and his feelings with the supervisor in question after the meeting, but chose not to. When asked about the grievor’s allegation that he had been shouted at, Mr. Stolz replied that he has seen over 200 such allegations from different staff over the years and that they usually come down to someone raising his or her voice and the other party perceiving it as being shouted at. He confirmed that he did not communicate with the manager who had allegedly shouted at the grievor, to inquire about the allegation.

32        The grievor provided un-contradicted testimony that he met with Mr. Pisapio, in early December 2012 around the same time he filed his harassment complaint and days before being suspended. The grievor testified that Mr. Pisapio told him that he did not like the word “harassment” and that he would prefer that the grievor not use that word to depict the management team’s work.

33        The grievor claims not to have received the December 10, 2012, memo dismissing his complaint, and his next and last contact with the employer on the matter came on December 20, 2012, at his meeting with Mr. Pisapio, at which the grievor was suspended.

34        Turning now to the events of December 20, 2012, which are the only events that come within the scope of both the harassment and the discrimination grievances, it is clear in the evidence that by this point, the employer was faced with the difficult task of dealing with what it saw as an employee who was having serious performance issues.

35        According to Mr. Pisapio, he was not completing tasks, had ceased communicating with his managers and had isolated himself. Mr. Pisapio testified that he tried phoning the grievor on the day in question, but despite Ms. Beecher telling him that the grievor was at his desk, there was no answer. Mr. Pisapio said he was “concerned for him” and decided to place the grievor on administrative leave.

36        Mr. Pisapio explained that a meeting was held on this date at the Keele office with the grievor and his bargaining representative, Claudia Espinoza. The grievor was given written notice that he was being put on administrative leave and was told to return to his office and gather his personal belongings. Mr. Pisapio added that he waited in the hallway at the grievor’s door for 30 to 40 minutes and twice had to knock on it to ask him to leave the building.

37        When asked in his examination-in-chief to describe exactly how the grievor left the building, Mr. Pisapio could only say, “I don’t remember.”

38        In response to his cross-examination on the circumstances of the grievor’s departure from the office, Mr. Pisapio stated that he did recall “assertively” directing the grievor to cease using his computer and to leave the building. He further confirmed that he and Mr. Townsend walked the grievor to the outer door of the office building and that they directed the security staff that the doors be locked behind him.

39        Mr. Pisapio was asked whether he had directed that the grievor’s photo be posted at the commissionaire’s guard desk beside the door. He denied that he had done so. The employer called several witnesses, all of whom testified they did not see a photo of the grievor posted on the wall near the security desk.

40        I am not persuaded by those statements as all those witnesses were able to testify to was that they did not see the photo displayed on the wall. It is possible that they simply did not notice the photo or were not in that part of the building when the photo was on display, as attested to by Sheri-Lunn Fraser, a co-worker of the grievor.

41        When asked about the manner of the grievor’s departure, Mr. Pisapio acknowledged that it was “not necessarily standard practice” to escort an employee to the door and to lock the door behind that employee. He further acknowledged that when another employee, who was cited by name, was terminated for performance problems, she was not escorted to the door and the doors were not locked behind her. He also confirmed that her photo was not circulated to staff and that no order was given to avoid communicating with her. He also confirmed that it was not standard practice to put an employee on administrative leave due to performance problems.

42        After hearing the grievor’s examination-in-chief on this matter, the employer chose not to call Mr. Pisapio to testify to the allegations in any further detail. The employer recalled Ms. Beecher and called Sherri Rouselle, a manager who worked in the Keele office at the time of this incident. Both witnesses testified that they did not see the photo of the grievor that is alleged to have been posted in full view at the commissionaire’s security desk near the door to the Keele office.

43        The grievor called Ms. Fraser to testify. She works as a parole officer at the Keele office. She stated that she was not aware of any incident ever occurring in which the grievor exhibited violent or threatening behaviour. She testified that on the day he was placed on suspension, she received a call from him, in which he asked for help setting up his out-of-office automated email reply. He had to end their call abruptly.

44        Shortly afterwards on that same afternoon, her manager, Ms. Rouselle, called a meeting of all staff and advised them that the grievor was put on leave, that he was not allowed to return to the office, and that if anyone saw him at or near the office, he or she was to call security immediately.

45        The grievor claims that he was singled out and treated differently upon his suspension and that this differential treatment was based at least in part on his race, and was further reflected in the harassing treatment he received in the weeks preceding the suspension.

46        For the purposes of this hearing, Article 19 of the collective agreement essentially incorporates the prohibitions on discrimination that are in the Canadian Human Rights Act (R.S.C., 1985, c. H-6). Section 226(2)(a) of the PSLRA empowers this Board with the authority to interpret and apply the CHRA to matters referred to adjudication. Section 7 of the CHRA states it is a discriminatory practice to adversely differentiate against an employee in the course of their employment on a prohibited ground of discrimination which includes race (s. 3(1)).According to s. 14(1)(c) of the CHRA, it is a discriminatory practice to harass an individual on a prohibited ground of discrimination in matters related to employment.

47        To determine if an employer engaged in a discriminatory practice, a grievor must first establish a prima facie case of discrimination, which is one that covers the allegations made and which, if the allegations are believed, would be complete and sufficient to justify a finding in the grievor’s favour in the absence of an answer from the employer (see Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536 at 558 and 559). An employer faced with a prima facie case can avoid an adverse finding by providing a reasonable explanation that shows that its actions were in fact not discriminatory or by establishing a statutory defence that justifies the discrimination (see A.B. v. Eazy Express Inc., 2014 CHRT 35 at para. 13).

48        In order for a harassment claim to be substantiated, the harassing conduct must be shown to be related to the alleged ground of discrimination, it must have been unwelcome, and severe enough to create a hostile environment for the harassment victim (see Canada (HRC) v. Canada (Armed Forces) and Franke [1993] 3 F.C. 653 at 29-50; Group d’aide et d’information sur le harcelement sexual au travail de la province de Quebec Inc. v.  Jean Barbe, 2003 CHRT 24).

49        A grievor is not required to show that the employer intended to discriminate against him (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 40). Sometimes, through subtle and unconscious biases, racial stereotypes may occur without necessarily any discriminatory intent. Specific to black men in particular, the grievor submitted that it has been found that such stereotypes can include an apprehension of physical violence.  (See Bageya v. Dyadem International, 2010 HRTO 1589 at 129-131 which cites Sinclair v. London (City), 2008 HRTO 48).

50        I find that on the evidence as outlined above, the grievor has established a prima facie case of racial discrimination in relation to his treatment when he was suspended, for which the employer did not provide a reasonable explanation.

51        Having observed several hours of testimony on this matter, I have clear and compelling evidence supporting my conclusion that the type of racial biases and stereotyping, referred to in Bageya, of black men as being violent is the most plausible explanation to explain the harsh treatment the employer gave the grievor upon suspending him.

52        The employer provided no justification for how it acted in placing the grievor on suspension. The grievor suffered significant humiliation and injury to his good reputation in front of his many colleagues at work by being treated like a criminal upon being suspended from his job. When the hearing of this matter concluded approximately 3.5 years after these events, the grievor was still visibly upset and shaken by recounting these events in his testimony to me.

53        The grievor argued that Mr. Pisapio’s actions to intervene in the processing of the harassment complaint amounted to bad faith and deprived the grievor of a procedural right to have his complaint given a bona fide review. The employer replied by citing jurisprudence that it argued opposes the existence of any such procedural right.

54        The employer cited Boudreau v. Canada (Attorney General), 2011 FC 868, for the proposition that I do not have jurisdiction under the Act to hear a grievance alleging a breach of the employer’s workplace harassment policies. Boudreau found that such allegations of policy breaches were not within the former Public Service Labour Relation Board’s (PSLRB) jurisdiction and further found the attempt by the grievor in that case to alter his allegations to include a collective agreement breach contrary to the principle widely followed in the Federal Court of Appeal’s Burchill decision (Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.)) prohibiting such a change to the substance of a grievance upon its referral to adjudication.

55        While I find the intervention of Mr. Pisapio to preclude any meaningful review of the grievor’s complaint to be evidence of extremely poor judgement for a senior manager, this is simply not a grievance upon which I am willing to consider recognizing a breach of Article 19 on what would essentially be procedural grounds. The grievor made out a reasonable case for the bad faith he has argued, however, I am lacking evidence to link the impugned behaviour of Mr. Pisapio to the fact the grievor is a black male. The other significant deficiency in the harassment grievance is the fact that the grievor was not even aware at the time it occurred, that Mr. Pisapio was meddling in what otherwise would have been the review of his complaint. Both the connection of the impugned act to the grievor’s race and the grievor being aware of and harassed by the act are typically required to sustain a harassment complaint under human rights jurisprudence as noted above.

56        The other incident I have before me in evidence is the unwise and very unfortunate comment by Mr. Pisapio telling the grievor that he did not like the grievor using the word “harassment” when discussing the work of the management team. While this again, shows very poor judgement for a senior manager, I have no evidence of this comment being linked to a prohibited ground of discrimination under Article 19 and I am not willing to infer such a link given the lack of evidence.

57        And finally, while this comment can reasonably be found to be both intimidating and possibly even threatening, I do not find it, on its own, having sufficient gravity to substantiate a finding of Article 19 being breached. The human rights jurisprudence noted above indicates both a qualitative and quantitative element to measuring the extent and severity of harassing behaviour which is relevant in determining when impugned behaviour is seen as sustaining a harassment complaint.

58        However, I have ample evidence before me to find racial discrimination and a breach of Article 19 has occurred based upon the events on the day the grievor was placed on administrative leave.

59        Mr. Pisapio testified that he did not remember the details of how he treated the grievor upon placing him on suspension. Having been reminded of some of the more objectionable details in cross-examination, Mr. Pisapio provided no justification whatsoever for his actions. However, he did confirm the treatment of the grievor upon being suspended was not standard practice.

60        I find these interventions of Mr. Pisapio to have been consistent with the racial stereotyping of black men as identified in Bageya.

61        The manner in which the grievor was placed on suspension can only be explained as being justified by someone who was considered a physical threat to the safety of the office. Thus the evidence points to a clear and compelling case of the grievor being treated as a racially stereotyped person as has been noted within the previously mentioned jurisprudence.

62        For these reasons, I dismiss the harassment grievance and allow the discrimination grievance.

B. Termination

63         Was the opinion of the deputy head that the grievor’s performance was unsatisfactory reasonable? Or were the employer’s actions examined throughout this hearing evidence of bad faith towards him, thus vitiating what might otherwise have been valid grounds for termination?

64        The grievor was terminated due to the poor performance of his work duties. He grieved his termination under s. 209(1)(c) of the Act, which references terminations for reasons other than discipline. The grievor served the required notice to the Canadian Human Rights Commission (“CHRC”) of his termination, claiming discrimination as part of this, and the other two grievances involving the CHRA.

65        The employer noted the two references that the grievor’s counsel made in his opening statement, one about “retaliation” in the harassment grievance and the other about “disguised discipline” in the termination grievance. The employer correctly noted the fact that both allegations fell outside the scope of the grievance under s. 209(1)(c) of the Act before me. The employer also stated it would object to any such arguments in the termination grievance and further claimed that the Federal Court of Appeal’s decision in Burchill precludes them in that no new allegations can be introduced at adjudication. The employer also argued that I must view the termination grievance in isolation and that I must not consider management’s actions impugned in the events that are the subjects of the other two grievances. The employer argued that the settlement prohibited the grievor from relying upon those same events to prove the termination grievance.

66        The employer noted that s. 230 of the Act directs me to determine whether the deputy head’s opinion that the grievor’s performance was unsatisfactory was reasonable, given the evidence available at that time. This provision reads as follows:

s.230 In the case of an employee in the core public administration or an employee of a separate agency designated under subsection 209(3), in making a decision in respect of an employee’s individual grievance relating to a termination of employment or demotion for unsatisfactory performance, an adjudicator or the Board, as the case may be, must determine the termination or demotion to have been for cause if the opinion of the deputy head that the employee’s performance was unsatisfactory is determined by the adjudicator or the Board to have been reasonable

(Emphasis added).

67        The grievor replied that the particulars in the alleged harassment and discrimination matters should inform my consideration of the employer’s decision to terminate him, which he alleged was tainted by bad faith.

68        The settlement contains a confidentiality clause. It specifically states at paragraph 2 that terms of settlement shall remain confidential and that they shall not be disclosed to anyone except those required to implement the agreement, as required by law. Given my role in adjudicating these grievances and the employer’s reliance upon the settlement in argument before me, I consider myself mandated by law to both implement the settlement and the corollary duty to cite it in this decision.

69        As noted earlier, the settlement limits to specific dates the chronology of the two grievances that I have already addressed. Clauses 4 and 5 state that, respectively, the parties agree that the grievances bearing file numbers 566-02-9508 and 9509 on the subjects of harassment and discrimination respectively will be contained to the dates of November 15, 2012, to December 20, 2012. Clause 6 of the settlement then states that these same two grievances “... are not to be considered or referred to as continuous grievances and that their scope is not to be extended beyond December 20, 2012.”

70        The employer objected to the grievor referring to disguised discrimination in the hearing of the termination grievance. The employer stated that the settlement set strict boundaries that precluded the harassment and race-based discrimination allegations from being considered in the termination grievance.

71        Counsel for the grievor objected to the employer’s interpretation of the settlement and instead argued that the previously noted clauses did not preclude the grievor from pointing to alleged examples of bad faith on the part of the employer’s management, which he argued were relevant to my consideration of the reasonableness of the decision to terminate the employment under s. 230 of the Act.

72        If I were to accept the employer’s submission on its settlement interpretation, it would effectively leave the grievor with no evidence upon which to argue his termination grievance. If, in fact, this was the parties’ mutual intent, which I highly doubt, the agreement should have been drafted much more clearly, to directly reference the termination grievance. I therefore do not infer such a meaning.

73        I also reject the employer’s Burchill-based objections as I believe there is ample evidence that it was aware of the grievor’s racial discrimination allegation and the fact that it arose in the termination as part of the employer’s alleged bad faith in how it treated the grievor. That allegation is properly part of the grievance under s. 209(1)(c) of the Act before me in this decision. (See Nadeau v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 82, aff’d 2015 FC 1287)

74        Several hours of testimony at the hearing examined a series of events that the employer submitted indicated serious workplace problems with the grievor. The grievor replied with testimony that sought to explain each misadventure as an honest misunderstanding or miscommunication. The grievor was meticulous in drawing out any inconsistencies or exaggerations in the testimony of his supervisors who he testified occasionally reacted with disrespectful and what in his view were harassing responses. In his view, these reactions showed mistrust and ultimately bad faith that biased the views and actions of management towards him and in his words, took away his chance to succeed in his job.

75        The testimony referred to events including the grievor taking vacation leave shortly after starting work and being absent three days longer than his manager had expected. The grievor was required to record and submit several videotapes of his program classes, but either the tapes were misplaced or the recording inexplicably ceased during several classes. The grievor was not always punctual in attending his workplace at the times that were clearly established by the employer. His attendance problems were exacerbated by the fact that his manager began work early in the morning whereas the grievor regularly began work in the afternoon as his courses ran in the evening. The normal work hours for a person with evening classes were from 1:00 p.m. to 9:00 p.m. The grievor testified that on one occasion, he began working in the mid-afternoon and that he worked until the middle of the night. His manager objected to such late hours, stating that no employee should be at the workplace so late into the evening, due to safety concerns.

76        Early in the grievor’s tenure, he drafted a report on an offender’s coursework. His supervisor found many deficiencies in it and asked him to redraft it in order that it met clearly established national report standards that had been communicated to the grievor. The grievor submitted a redraft that was virtually flawless, thus leading his manager to be suspicious that someone else had redrafted it for him. The grievor testified that the stark difference in the quality of the two drafts was due to him using the wrong template in the first draft. The grievor pointed out that rather than his supervisor bringing her concerns to him about this matter immediately, he did not find out about it until his performance evaluation months later.

77        Comments from the regional quality review managers later pointed out several deficiencies in other reports written by the grievor. When asked in cross-examination how it could be that his first report and later reports were written poorly but that that the one re-write (noted previously) was flawless, the grievor explained that the “climate at work changed” and had an adverse impact on his ability to successfully perform his duties.

78        Given the grievor’s poor performance delivering his programs that his managers testified to, the employer made several attempts to provide him with additional training. On more than one occasion, he missed training due to being injured or ill. Ironically, on one occasion, he did attend supplemental training in Kingston, but the course had been postponed. The grievor drove to Kingston in an employer vehicle and later claimed that he had not received the many messages his manager had left him prior to his departure telling him not to make the trip.

79        And finally, the grievor claimed a shift premium in advance, which he testified was common practice at his workplace, and then became ill and missed the work that would have triggered that entitlement. Unfortunately, he did not correct his erroneous claim upon his return to work.

80        Taken together, these misadventures illustrate either that the grievor had an incredibly lengthy run of bad luck and miscommunications or that he had problems that interfered with his ability to perform his work duties and began to cause friction within his relationships with management.

81        His supervisors testified to the frequent challenges they had in contacting the grievor by phone or email. I received testimony that at one point his supervisor observed “hundreds” of unopened work emails on his office computer. This became such a challenge that his supervisor created a rule whereby under normal circumstances he was required to reply to management emails within one work day. The grievor replied that the periods when his managers claim they totally lost contact with him was when he was away from work on vacation leave or on medical leave after being injured in a car accident.

82        The evidence regarding his attendance indicates that management concerns arose early but that his performance assessments also indicate improvement at some juncture as well. Through most of the time period in question, the grievor’s supervisors had placed him on an informal attendance management plan where he was required to email them upon his arrival at work and upon his departure at the end of the day. The grievor testified that his attendance improved but that he was not allowed to be released from what he felt was the harassing and humiliating attendance management.

83        Much more significant in my view is the uncontradicted evidence I heard that the grievor’s delivery of programs to help criminal offenders reintegrate into the community and avoid reoffending was not meeting established national standards. One troubling example of this was the fact that the national substance abuse program which was to be delivered in 12 sessions over 3 months was found to be weeks behind schedule. The grievor explained to his supervisor that some offenders were receiving replacement sessions that had been previously missed. The grievor testified that his supervisor had told him he was “pushing offenders” too quickly and other evidence supported his assertion that she told him to “allow offenders to learn at their own pace”.

84        Employer testimony showed that even accepting the claim of the grievor that he was told to let his offenders learn at their own pace, he was still in breach of required national standards and practices for dealing with offenders that missed a session. The regular schedule was not to be disrupted as such an offender was supposed to do a make-up session at other times, and all such incidents were to be documented. Such documentation was not happening in the grievor’s program. His managers also discovered that some of his program sessions had been cancelled without them being notified as required and without proper documentation or justification.

85        In the winter of 2012 the grievor was then assigned to deliver a community maintenance program. Management continued to observe problems with his work and sought assistance from regional quality control staff to intervene and provide remedial training and assistance to him. The uncontradicted testimony I received was that several attempts were made to arrange for meetings and program session visits to observe his work. However, several such meetings were missed due to absences from work.

86        Shortly thereafter, the grievor was told to focus his work solely upon the regional QR tasks that he had been assigned. Key to this effort was his delivery of videotapes containing recordings of his classroom sessions which ware mandated in national program standards for quality assurance and training purposes. The hearing heard that shortly after being asked to produce these videotapes the grievor emailed his supervisor that he would be absent from work ill. After a two month absence from work, the grievor returned but was unable to locate the videotapes that he said had been stored in a cabinet at his Hamilton office.

87        The grievor returned to work and was then seen as a high priority by the regional QR managers. Meetings were held and the feedback of his supervisors stated that little was accomplished by these regional meetings as the feedback from the grievor on his classroom work was “convoluted and circular”.

88        In the spring of 2012 the employer undertook to develop detailed work plans with the grievor to provide him remedial training on his course delivery and report writing. Assistance was provided to ensure he understood expectations, ensure he had the necessary tools to succeed and provide weekly if not at times, daily supervision and feedback to track progress and identify and address ongoing challenges. Ms. Beecher described the effort now being undertaken by the regional QR managers as an “inordinate amount of work” to help him.

89        The evidence also shows that at this juncture the grievor had requested, and the employer made all reasonable efforts, to include a union representative in all their meetings to establish and review progress on the grievor’s work plans. Unfortunately the evidence also shows that the grievor’s union representative was unavailable for a period of time, either not responding to emails or booking but cancelling meetings. Eventually another union representative took conduct of the grievor’s file and was helpful in attending meetings with the employer and responded to written communications.

90        With a new work plan in place having been reviewed and accepted by the grievor and his union representative, the grievor embarked upon delivering a national substance abuse program refresher course. Some positive feedback was noted as to the grievor’s delivery of the sessions but problems were also documented with national standards not being followed as required reports that were to have been submitted by the grievor in advance of the course were not done.

91        In May 2012, a performance evaluation documented some improvement in the grievor’s attendance and communications with superiors which was taken as an opportunity by his supervisor to reduce the burden of weekly meetings. But the grievor’s supervisor stated his work suffered immediately upon her lessening the frequency of supervision.

92        In the summer of 2012 the evidence indicates the grievor’s programs were still not running on-time to meet the established national standards. By that fall, it had been two years since the grievor commenced his job in program delivery with offenders and his supervisor, Ms. Beecher, compared his performance to other staff with the same amount of experience by saying he was assigned significantly less work and his results were below average.

93        In November 2012, the regional QR office submitted a report on the grievor’s outcomes in delivering a national substance abuse course and found that he had insufficient skills to be allowed to continue delivering that program. This resulted in a November 16 meeting with Ms. Beecher. She testified that at this meeting she told the grievor that he would now deliver the community maintenance program and that she wished to ensure he had an action plan in place to ensure whatever needs he had for support and training to allow him to succeed were addressed. She testified that the grievor never did provide a written response as to what he needed to enable him to perform his duties. She stated that in the ensuing discussion the grievor told her he could not meet the requirement of one day responses to work email. He suggested he be allowed three days to respond. She also testified that he admitted he could not meet the national standards for program delivery, but could not explain why not or what he required to succeed.

94        Ms. Beecher stated that she saw the admission of the grievor that he could not meet national program standards as a breakthrough that he was accepting responsibility and being accountable but that she felt blocked as she did not know what he needed to make progress.

95        His managers testified that on several occasions they asked the grievor if there was anything that was causing problems with his work and without asking him to divulge personal information reminded him that he could access the employee assistance program if so.

96        In reply to the many statements from the employer about the grievor’s poor performance, his counsel sought to adduce in cross-examining his manager’s evidence that they did not address matters of concern with him promptly. It was suggested management was not supportive of him and that in fact they formed a poor opinion of him early and never gave him a chance to succeed. Several examples were given of how their conclusions about his performance drawn from the performance evaluations or in memos to senior management contained over-generalizations and unfair comments about his poor performance. An example of this was the grievor’s missing videotapes of his classroom work with offenders. The grievor testified that he was not given a proper office in Hamilton and as a result had only a shared cabinet where others might have mistakenly taken his videotapes from where he had left them. The grievor also drew out of cross-examining the supervisors the fact they had made judgemental statements that appeared to be contrary to established Treasury Board guidelines for proper performance evaluation reviews and mentoring.

97        The grievor properly noted some instances where both his immediate supervisor and the regional QR managers gave the grievor very positive feedback regarding his improved efforts in leading his courses and writing the related offender reports.

98         I find the evidence from the grievor’s QR files the most reliable with respect to his job performance. If I was to accept every claim by the grievor of shortcomings and alleged bias of the observations and opinions voiced by the grievor’s supervisors and their senior managers, I would still be left with un-contradicted and convincing evidence from the QR materials. The evidence clearly establishes that the regional quality review managers were free from the day to day challenges of “managing” staff and their issues. The evidence shows the QR staff genuinely invested their time and energy to help the grievor improve his skills in order to succeed. The grievor himself testified that he had a good rapport with Denise West from the regional QR office.

99        When considering the factors in terminating his employment, Mr. Pisapio emphasized the fact that he had “many discussions” with his management team discussing the grievor’s work challenges and specifically his inability to make the necessary improvements noted through the QR work to ensure his program delivery met national standards.  He noted that Ms. West recommended that the grievor no longer be allowed to deliver his national substance abuse program. Her recommendation followed a very extensive effort on her part, which was documented in detail at the hearing, to help the grievor improve his skills and to discover and remediate any challenges he was facing in his program delivery.

100        Mr. Pisapio referenced a highly detailed seven-page QR report of the grievor’s performance in his second course delivery (ending October 24, 2012) of the national substance abuse program. In this report Ms. West finds:

– None of the essential competencies required of a facilitator for a correctional program delivery were met;

- There are significant concerns about his ability to deliver the program according to the program manual/training. Exercises were eliminated and practice of skills was greatly limited in videotapes reviewed. Opportunities to explore problematic thinking were not explored as they presented.

- Tre was unable to maintain gains identified in session segments from one lesson to another. His limited response to session feedback has restricted ability to address the identified problems.

– Significant chunks of program materials were not observed on videotape despite frequent requests for fill sessions to be taped and submitted for review. While some skills were covered well, his implementation of some others demonstrated a lack of understanding of the concept. His degree of understanding of program content is therefore unknown.

– His initial analysis of participant progress was too general, vague and not congruent with and / or supported by the videotapes reviewed. It was of little help to decision makers or the participant in determining outstanding needs.

101        Mr. Pisapio continued by explaining that the grievor had been given many training opportunities, support, guidance, written performance evaluations, and action plans to improve his performance and that discussions were held with him about other potential positions with the employer.

102        When asked about his decision to suspend the grievor, Mr. Pisapio testified that he “was concerned” for the grievor and that he considered the following matters:

• the grievor was asked about being reassigned to administrative duties, which he refused to do;
• he was not producing any work;
• he was not completing simple tasks;
• he had isolated himself in his office;
• he did not answer Mr. Pisapio’s or his supervisor’s calls; and
• he sat at his desk but did not answer his phone.

103        The parties approached the grievance in completely different manners. The grievor led evidence as to some positive feedback he received from his managers about his work showing improvement, but he primarily focused on explanations as to why his many problems on the job were due to not being given proper support and a chance to succeed.

104        The grievor noted the evidence of his manager meeting with him to discuss an action plan for him to improve his work one week before he submitted his harassment complaint. The grievor then noted Mr. Pisapio’s interventions immediately after that to stop any investigation into his harassment complaint and within a few weeks to suspend him as evidence of the bad faith the employer showed towards him.

105        The grievor cited the decision in Raymond v. Treasury Board, 2010 PSLRB 23 at para. 131, which finds that when determining if an employer acted reasonably in its decision to terminate an employee, one of the factors to consider is if the deputy head or supervisors who assessed the employee’s performance were involved in a bad faith exercise. If so, then the employer did not act reasonably. The grievor argued that his other allegations, which I have found to be substantiated in the case of racial discrimination, show the mind of the delegated decision maker was influenced by his bad faith towards the grievor.

106        The employer referred me to Adjudicator Bertrand’s decision in Reddy v. Office of the Superintendent of Financial Institutions, 2012 PSLRB 94 at paras. 89 and 90, which cites Plamondon v. Deputy Head (Department of Foreign Affairs and International Trade), 2011 PSLRB 90. These cases find that an assessment of an employee’s performance made in bad faith cannot be deemed reasonable in a review under s. 230 of the Act. Reddy was also cited as authority for the proposition that s. 230 directs me to consider the reasonableness of the employer’s decision to terminate rather than form my own independent opinion.

107        In his closing argument, counsel for the grievor stated that if I used s. 230 of the Act to defer to the actions of the employer it gives license to others to discriminate. While this is an emotionally moving argument, it is not one that is grounded in law given the facts before me.

108        What Parliament has directed me to do in s. 230 is to explore whether the employer’s assessment of the grievor’s performance as unsatisfactory was reasonable. It strikes me that many grievors will have experienced bad feelings in their relationship with those supervisors who struggle day to day with the difficulties being experienced by their staff who feel challenged to meet performance standards. I read s. 230 as being an acknowledgement by Parliament that such difficulties and even hard feelings may arise but that the assessment of performance must be looked at separately and on its own merits.

109        Bad faith, if it is proven to have tainted the assessment of performance, can lead to a finding of unreasonableness under s. 230. I accept that for a grievor who has experienced many difficult experiences with a manager, this separation may be difficult, if not impossible for him or her to make.

110        The clear and compelling evidence before me demonstrates that the assessment of the grievor’s performance as unsatisfactory was reasonable given the detailed QR evaluation I have noted above. It is important to note that this QR work was conducted by individuals to which no allegation of bad faith was alleged or found in my review of the evidence.

111        While the allegation of racial bias in the decision to terminate the grievor’s employment was raised in his opening statement, this matter was not pursued to any meaningful extent in his closing statement. I nevertheless find there is no evidence that the grievor’s race was, in any way, a factor in the employer’s assessment of his performance being unsatisfactory.

112        I therefore find that the termination grievance has not been substantiated.

113        Counsel for the grievor requested in his closing arguments, that if any of the grievances were to be allowed, that I not order a remedy. Based upon this submission, I will refrain from ordering a remedy for the grievance I have allowed.

114        (The Order appears on the next page)

VI. Order

115        The discrimination grievance is allowed.

116        The harassment and termination grievances are dismissed.

117        The parties are directed to discuss details of the remedy.

118        No later than 60 days from the date of this decision, the parties will advise the Board whether they have successfully reached an agreement on the issue of a remedy as set out above.

119        I will remain seized of this matter to deal with any issue arising from this order for a period of 120 days following the issuance of this decision.

May 30, 2017.