FPSLREB Decisions
Decision Information
Termination (non-disciplinary) - Incompetence - the grievor, a clerk, filed a grievance against a negative performance review and a grievance against her termination for incompetence - two other grievances were withdrawn at the hearing - the evidence presented by the employer referred to the grievor's performance in three different clerk positions in Verdun and Pointe-Claire - four persons who supervised the grievor testified that she could not perform the simple tasks required of a person holding the positions in question - training programs were designed specifically for the grievor and she was monitored closely, but all of these efforts came to nothing - the grievor argued that the employer monitored her too closely, that her fellow workers looked down on her and that she would have had a better chance of succeeding if she had been able to work in English, her mother tongue - the adjudicator found that the employer had proved on a balance of probabilities that the grievor was unable to perform the work required in the positions she held - the reasons for this were her lack of knowledge, her inability to translate her knowledge into concrete action, her resistance to learning and to being helped by others and her conviction that her superiors and fellow workers were the source of her problems - the adjudicator found that the employer had tried every means humanly possible to assist the grievor and make a competent employee out of her - no evidence was presented about any contravention of the collective agreement in connection with her performance review. Grievances denied.
Decision Content
Files: 166-2-26571 to 26573 166-2-26585
Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ANNA DUPUIS Grievor and TREASURY BOARD (Human Resources Development Canada)
Employer
Before: Marguerite-Marie Galipeau, Deputy Chairperson For the Grievor: Alfred LaBissonnière, Public Service Alliance of Canada For the Employer: André Garneau, Counsel Heard at Montreal, Quebec, November 27, 28, 29 and 30, 1995; March 18, 19, 20, 21 and 22, 1996; April 16, 17, 18 and 19, 1996; and February 10, 11, 12 and 13, 1997.
Decision Page 1 DECISION This decision is in respect of four grievances sent to adjudication by Anna Dupuis, an employee of the Department of Human Resources Development.
During the hearing Anna Dupuis, through her representative, withdrew two of the grievances from adjudication (Board files 166-2-26571, 166-2-26585). I noted the withdrawals and these files are closed.
This decision covers the two remaining grievances (Board files 166-2-26572 and 166-2-26573). Anna Dupuis grieves the termination of her employment on November 18, 1994 (166-2-26573). In the letter of termination of employment (Exhibit E-1), the employer found Anna Dupuis to be incompetent and also reproached her for her conduct and her attitude at work.
In a second grievance (166-2-26572), Anna Dupuis alleges that the employer contravened article M-16 and article M-34 of the applicable collective agreement [Master Agreement between the Treasury Board and the Public Service Alliance, Exhibit E-1]. During his argument, Anna Dupuis’ representative indicated that his client was no longer alleging contravention of article M-16 and relied only on article M-34 which relates to an employee’s performance review and an employee’s file.
The hearing lasted 17 days. Witnesses were excluded. All of the witnesses except Anna Dupuis testified in French. Counsel for the employer argued in English and counsel for Anna Dupuis argued in French with her permission.
The facts can be summarized as follows. EVIDENCE EMPLOYER'S EVIDENCE Anna Dupuis began working (CR-03) for the Department of Human Resources Development Canada on October 5, 1992. On August 10, 1994, she was informed that her superiors had recommended (Exhibit E-2, last page) the termination of her employment. She was on extended leave of absence until the termination of her employment on November 18, 1994.
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Decision Page 2 Between October 5, 1992, the date she joined the Department, and August 10, 1994, the date of her departure on sick leave, she held three positions: Clerk: Various Duties (CR-03), Stockroom Clerk (CR-03), and Reception and Inquiries Clerk (CR-03). During this time, her superiors noted major shortcomings both in her performance and in her attitude and conduct. These shortcomings were noted in her performance reviews (Exhibits E-6, E-14) and in progress reports (Exhibits E-26, E-30, E-55, E-56, E-57). A training plan was implemented to assist the employee in overcoming her difficulties. Regular meetings on the monitoring of this training were held between Anna Dupuis and her superiors on the following dates: December 6, 13, 20 and 29, 1993; January 10, 17 and 24, 1994; February 1 and 9, 1994 (Exhibits E-32 to E-39) and February 15, 21 and 22, 1994; and March 3, 1994 (Exhibits E-25, E-45, E-46, E-47, E-48). The training and monitoring proved unsuccessful. During the same period, Anna Dupuis spent three weeks in Toronto on a course given in English and relating to one of her duties as a Reception and Information Clerk. Her results were quite poor (Exhibit E-51) and the qualified instructors concluded that she would require close, individual monitoring to be able to carry out her work (Exhibit E-2, p. 27-28).
Upon her return from Toronto, Anna Dupuis filed an harassment complaint and during the subsequent investigation, she worked in Pointe-Claire (Exhibit E-60) for seven weeks (Exhibit E-2, p. 30) from June 13 to July 29, 1994. A report on this temporary assignment (Exhibit E-60) commented on her lack of independence and lack of knowledge related to the performance of her duties. Once the harassment investigation was completed and it was found that there was no harassment, Anna Dupuis returned to Verdun where she resumed her duties for a few days. On August 10, 1994, the Director, Pierre Villeneuve, met with Anna Dupuis (Exhibits E-52, E-2, pages 30 and 31). He reviewed the situation and stated that Anna Dupuis was unable to carry out her duties. He informed her that a recommendation (Exhibit E-2, last page) would be made to the Assistant Deputy Minister, André Gladu, and that the latter might decide to terminate her employment. The same day, Anna Dupuis left on sick leave which ended on the day of her dismissal, November 18, 1994.
During her employment, Anna Dupuis filed a complaint with the Commissioner of Official Languages (Exhibit E-21, E-22). In response to this complaint, the employer took corrective action and the file was closed in January 1994. Public Service Staff Relations Board
Decision Page 3 Here is a summary of the evidence relating to each position held by Anna Dupuis. Clerk: Various Duties (CR-03) in Administrative Services: October 5, 1992 to November 29, 1993
First period: October 5, 1992 to March 31, 1993 Anna Dupuis was reluctant to begin her new job in her substantive position (Clerk, Insurance Services: Client Services (Exhibit E-4)) because it was a position which required her to provide service directly to clients and to meet with recipients. The employer also had a more pressing need for the services of someone in a position designated as “Clerk: Various Duties”. Consequently, the employer gave the “Clerk: Various Duties” position to Anna Dupuis (Exhibit E-5). This position provided support to the whole of the Employment Centre and its staff. It involved being at the telephone console, making photocopies, sorting and distributing mail and in general, performing various administrative tasks (Exhibit E-5). The incumbent had to be bilingual. According to the test results, Anna Dupuis is bilingual.
From October 5 to November 23, 1992, Anna Dupuis was supervised by Rachel Tremblay, Director of the Employment Centre in Verdun. Anna Dupuis’ colleagues explained her work to her. Rachel Tremblay assumed that Anna Dupuis was competent because she held a similar Clerk: Various Duties position prior to joining the Department. On November 23, 1992, the Chief, Administrative Services, Johanne Jones, returned from sick leave. From November 23, 1992 to March 31, 1993, Johanne Jones supervised Anna Dupuis’ work. During this time, she noted that Anna Dupuis tended to ask her colleagues for the solution to problems rather than trying to solve them herself. She had difficulty setting priorities. She lacked organizational skills. She set aside work which she did not like. In spite of numerous requests, she did not update a key register or a file on parking. She had interpersonal problems with her fellow workers. The latter complained to Johanne Jones. Supervisors were also complaining because she was not receptive to comments and said that she had too much work. She was reluctant to work at the telephone console, to make photocopies and to distribute the
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Decision Page 4 mail. Gradually, her colleagues no longer wanted to help her with her work. After six months, and even though she was working at the telephone console and distributing the mail, she still did not know all of the Centre’s employees. She did not record certain records of employment. According to Johanne Jones, she even went so far as to hide them. Questioned about this conduct, she explained to Johanne Jones that she was afraid of criticism. Moreover, the way in which she dealt with the records of employment cast a shadow on the honesty of all employers. Over time, her fellow workers distanced themselves from her more and more.
On March 31, 1993, Johanne Jones wrote the comments I have just listed in a performance report (Exhibit E-6) that was given to Anna Dupuis. She refused to acknowledge receipt of the report.
According to Johanne Jones, Anna Dupuis speaks French very well. During the period she was her supervisor, Anna Dupuis never asked her to speak to her in English or to give her documents in English. She conversed with her colleagues in French. Moreover, she passed the oral French examinations of the language tests.
Johanne Jones informed the Director, Rachel Tremblay, of her problems with Anna Dupuis. She explained that she had to give her a great deal of direction because she lacked initiative.
Rachel Tremblay, for her part, observed that Anna Dupuis’ fellow workers found relations with her difficult. She noted that Johanne Jones had to monitor this employee constantly. She observed the brusque, harsh manner in which Anna Dupuis responded to managers and employees who asked her for information. She also noted that if she refused one of Anna Dupuis’ requests, she would return three or four times to make the same request. She met with Anna Dupuis in the presence of Johanne Jones to discuss with her the problems being experienced. At the end of this period, Rachel Tremblay approved Johanne Jones’ report (Exhibit E-6). Rachel Tremblay’s observations were included in her report (Exhibit E-2, pages 1 to 11).
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Decision Page 5 Second period: April 1 to August 23, 1993 On April 12, 1993, Ginette Tardif replaced Johanne Jones. As supervisor for the Administrative Services section, she gave each employee a mandate (Exhibit E-7). She discussed it with each of them. The mandate was based on the employee’s job description (Exhibit E-8). Anna Dupuis appeared to be satisfied with the mandate she received.
From April to August 1993, Anna Dupuis continued in the position as support clerk or Clerk: Various Duties.
Ginette Tardif regularly received complaints about Anna Dupuis from other sections. Ginette Tardif did not take note of everything. “Sometimes I did and sometimes I let it go”, she said. “There was so much.”
Although she was working under a new supervisor, Anna Dupuis’ problems worsened.
Ginette Tardif reported her difficulties to the Director, Rachel Tremblay. Anna Dupuis required detailed instructions and constant supervision. She had to be told the same thing several times. She was reluctant to work in a group. She complained about doing more than the others. She complained that Ginette Tardif did not understand her.
Anna Dupuis’ fellow workers complained that they had to make up for the fact that she refused to cooperate and that she avoided certain tasks which she did not like much but which were part of her priority duties, such as filling in at the telephone console, the mail, photocopies and appeal files.
In short, Ginette Tardif made the same assessment as Johanne Jones had made concerning Anna Dupuis’ performance and like Johanne Jones, she reported her concerns to Rachel Tremblay.
Third period: August 23 to November 29, 1993 In August 1993, Ginette Tardif assigned Anna Dupuis to the position of Administrative Support Clerk (Stockroom clerk) (Exhibit E-8). Again, she gave her a
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Decision Page 6 mandate (Exhibit E-9) and discussed it with her. The stockroom clerk that Anna Dupuis replaced trained her for one month (August 23 to September 30, 1993) in her duties.
Anna Dupuis’ role was to look after a small stockroom (that is, to serve some fifty employees). It involved purchasing, ordering and taking inventory, and distributing office supplies. Anna Dupuis was not happy with her new duties. She made mistakes (Exhibit E-10). She did not check the goods received, she did not indicate what had become of the goods not received, she mixed quantities of two items. This is the basics of the stockroom clerk’s job. In one instance, she committed three different types of errors on an order form and its invoice.
Ginette Tardif pointed out her mistakes to her. Invoices were paid twice for duplicate orders. Anna Dupuis acknowledged her mistakes, but she continued to make the same ones. The Finance clerk brought these mistakes to the attention of Ginette Tardif.
The Director, Rachel Tremblay and the Chief, Administrative Services, Ginette Tardif, met with Anna Dupuis on three occasions, that is, September 21 and November 15 and 25, 1993. Three memorandums (Exhibits E-11, E-12, E-13) addressed to Anna Dupuis attest to this fact.
The Director informed Anna Dupuis at the September 21, 1993 meeting (Exhibit E-11) that because of her repeated absences she would have to replenish her “bank” of sick leave credits and that, in the meantime, she would have to present a medical certificate for any absence and that such absences would be considered as leave without pay. She pointed out to her her lack of interest in the work and her obligation to provide satisfactory service and to get along with her fellow workers. She noted that Anna Dupuis had presented a medical certificate which restricted her ability to do the stockroom clerk’s work and she pointed out to her that, in the event that she was placed in another position, she might find herself at the bottom of the list of surplus employees.
The memorandum (Exhibit E-11) covering the September 21, 1993 meeting was given to Anna Dupuis at a second meeting held on November 15, 1993 (Exhibit E-12).
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Decision Page 7 At the second meeting, the Director, Rachel Tremblay, told Anna Dupuis that the employer’s expectations had been clearly explained to her on September 21, 1993 and that if she failed to meet those expectations she could face disciplinary action. Moreover, because of the physical limitations invoked by Anna Dupuis, she had the choice of continuing her present duties as stockroom clerk or accepting the position as Reception and Inquiries Clerk. If she chose the new position, she would receive a training plan which would take into consideration her knowledge, skills and limitations.
A third meeting was held with Anna Dupuis on November 25, 1993. Rachel Tremblay and Ginette Tardif pointed out to Anna Dupuis that she was continuing to make the same errors in her duties as stockroom clerk. They explained that she should consider their comments regarding the errors she continued to make, in spite of the training and assistance she had received, as a verbal reprimand and that any further errors would result in a written reprimand.
They also informed her that, because of her thirteen unsuccessful months in the position of Administrative Services Clerk, it had become necessary to move her to the position of Reception and Inquiries Clerk as of November 29, 1993.
According to Ginette Tardif, Anna Dupuis’ repeated absences for a variety of reasons meant that she was not reliable. Not only was her performance not good (repeated errors) but she also took too long to complete her tasks. She would leave to smoke, she chatted a great deal and she was not getting along with her fellow workers. The same problems happened day after day and everyday, Ginette Tardif received complaints concerning Anna Dupuis from her five fellow workers (there were seven people in the section, namely, Ginette Tardif, Anna Dupuis and five others). This is why on November 26, 1993, just a few days before Anna Dupuis left the position of stockroom clerk, Ginette Tardif drafted a performance report (Exhibit E-14). This report covered the entire period during which Ginette Tardif had been supervising Anna Dupuis, that is, from April 13 to November 26, 1993. In the report, she noted Anna Dupuis’ unsatisfactory performance, her lack of interest, her difficult relations with her fellow workers and the negative impact of these factors on all of her colleagues.
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Decision Page 8 Ginette Tardif’s progress report (Exhibit E-14) dated December 22, 1993 was drafted in English because, at the beginning of December 1993, Anna Dupuis filed a complaint with the Commissioner of Official Languages (Exhibits E-21, E-22). From then on, all formal and informal communications with Anna Dupuis from management were in English.
According to Ginette Tardif and Rachel Tremblay, this complaint was a surprise since at no time since her arrival at the Department had Anna Dupuis complained about the fact that she was spoken to in French. Neither of them thought there was a problem since Anna Dupuis had a French last name, was bilingual according to the tests, her duties were performed in a bilingual environment with a Francophone majority and in her work, she dealt with clients in the language of their choice.
According to Ginette Tardif, Anna Dupuis had never spoken to her in English either before or after the filing of her complaint with the Commissioner of Official Languages. Indeed, after the complaint, when Ginette Tardif offered to speak to her in English, Anna Dupuis apparently said that there was no problem, they could speak in French.
It was in response to the performance report (Exhibit E-15) that Anna Dupuis first told her superiors that she thought that the fact that she had received her mandates in French had been detrimental to her performance. As for the content of the report (Exhibit E-14) that was given to her in English, she said that it contained only criticism and that she was being criticized daily.
Before completing the recounting of this period, two events bear mentioning. First, according to Ginette Tardif, during this time, Anna Dupuis told her that she was having personal problems and confided in her frequently, in fact, every morning. In addition, she would ask Ginette Tardif every morning if she liked her and she always responded affirmatively. With encouragement from Ginette Tardif, she sought assistance through the Employee Assistance Program (Exhibit E-16).
Anna Dupuis then said that she had a physical problem (involving the carpal tunnel) which prevented her from fully performing her duties as stockroom clerk. The employer assigned some of her tasks to another person, tried unsuccessfully to get clarification from Anna Dupuis’ physician (Exhibit E-18) and had her examined by
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Decision Page 9 Dr. Germain Vignault of Health Canada (Exhibits E-19, E--0). This physician found that there was no relation between Anna Dupuis’ state of health and her duties since there were not repetitive stress movements. He found Anna Dupuis’ medical condition to be temporary, recommended a convalescence of about four weeks to two months following minor surgery and further recommended that she avoid lifting weights and doing repetitive movements. A complaint filed by Anna Dupuis before the CSST was dismissed. This decision is being appealed.
In short, Anna Dupuis’ performance during her first thirteen months with the Department was unsatisfactory. The Director, Rachel Tremblay, wrote her conclusions on this period in her report (Exhibit E-2, pages 11 to 14) (she ultimately spent three weeks drafting this report). When she testified, Rachel Tremblay corroborated the testimony of Ginette Tardif with respect to the complaints they had both received about Anna Dupuis from the latter’s fellow workers.
Reception and Inquiries Clerk: November 29, 1993 to August 10, 1994 As we have just seen, during her first thirteen months with the Department, Anna Dupuis held two clerical positions (Various Duties, Administrative Services) under the supervision of three people: Rachel Tremblay (October 5 to November 23, 1992), Johanne Jones (November 23, 1992 to March 31, 1993) and Ginette Tardif (April 1 to November 29, 1993).
Now begins a new period during which Anna Dupuis held a third position, that of Reception and Inquiries Clerk (Exhibit E-23) under the supervision of three other people, namely, Pierre Villeneuve (November 29, 1993 to May 12, 1994), Mireille Villemaire (November 29, 1993 to February 4, 1994) and Monique Reeves-Vanier (February 7 to May 13, 1994).
Her performance during this period of slightly more that eight months was unsatisfactory and ultimately, in spite of intensive training, the employer concluded that Anna Dupuis was incompetent.
Below is a table prepared by Rachel Tremblay (Exhibit E-2, page 17) showing Anna Dupuis’ results during this time:
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Decision Page 10 Training Plan for the Reception and Information Position Phases Content Instructor Periods No. of weeks Rating obtained 1 Records Mireille from 29-11-93 9 Unsatisfactory management Villemaire to 04-02-94 2 Records Monique R. from 07-02-94 4 Unsatisfactory management Vanier to 03-03-94 3 Reception Toronto from 07-03-94 3 Unsatisfactory and to 25-03-94 Information
4 Practice Monique R. from 28-03-94 3 Unsatisfactory with daily Vanier to 25-04-94 monitoring
5 Practice Monique R. from 27-04-94 3 Unsatisfactory with daily Vanier to 13-05-94 monitoring
Total time (in weeks) 23 Overall and final rating Unsatisfactory When she started her position as Reception and Inquiries Clerk, and in light of Anna Dupuis’ unsatisfactory performance during the first thirteen months with the Department, the employer decided to adopt a new approach. The Acting Director of Operations at the Verdun office, Pierre Villeneuve, met with Anna Dupuis (Exhibit E-24) on November 29, 1993 and explained to her that she would receive training in accordance with a pre-determined training plan (Exhibit E-27). The training would be given by a technical expert, Mireille Villemaire, Senior Insurance Services Advisor: Technical Services. Pierre Villeneuve also explained to Anna Dupuis that her training would be combined with monitoring and that he would meet with her each week to discuss how her training was going.
Period from November 29, 1993 to February 4, 1994: Records Management According to the documents submitted in evidence (Exhibits E-23, E--24, E-26, E-27, E-28, E-29, E-30, E-31 and E-32 to E-39), Anna Dupuis was unsuccessful in the
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Decision Page 11 various phases of training during this period. The training plan (Exhibit E-24) set forth the learning to be acquired, the time allotted and the expected performance.
The analysis of her success rate on the tasks assigned to her is contained in the training report (Exhibit E-26 and partially amended Exhibit E-25) signed by Mireille Villemaire and Pierre Villeneuve. Detailed analysis of the results achieved shows that Anna Dupuis was unsuccessful (Exhibit E-26, p. 3). The analysis of the comments is found in a second report (Exhibit E-31).
During this period, Pierre Villeneuve and Mireille Villemaire met with Anna Dupuis once on November 29, 1993 (Exhibit E-24), four times in December 1993 (Exhibits E-32, E-33, E-34, E-35), and three times in January 1994 (Exhibits E-36, E-37, E-38). Another meeting was held on February 9, 1994 (Exhibit E-25). At each meeting, they reviewed Anna Dupuis’ progress in the various phases of training she began on November 29, 1993 and which ended, initially, on February 1, 1994. During these meetings, explanations were given to Anna Dupuis in English (Exhibits E-31 et seq). The results of the training (Exhibit E-26) were also in English.
Mireille Villemaire, the technical advisor, helped develop the training plan. Pierre Villeneuve also put her in charge of implementing the plan. She was responsible for observing Anna Dupuis, helping her and evaluating her progress.
During her testimony, Mireille Villemaire acknowledged that her own observations and findings are contained in Exhibits E-27 and E-29. She also acknowledged having signed the report (Exhibit E-26) indicating that Anna Dupuis had been unsuccessful during this period. She does not doubt the various comments contained therein nor the accuracy of the percentages, although it was Pierre Villeneuve and not she who prepared the compilation. She did, however, express some frustration concerning the fact that, because of her other duties, she was unable to exercise 100% control over the quality of Anna Dupuis’ work. It was her opinion (Exhibit E-27) that constant visual monitoring was necessary to ensure better control. She was very upset that she had not been able to be by Anna Dupuis’ side the whole time. She was pleased that this approach had been adopted, at her suggestion, when Monique Reeves-Vanier took over from her. She would also have liked to have explained to her more clearly why she had to provide such detailed training to Anna Dupuis because, normally, with
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Decision Page 12 records management (this was the first phase of training), the employee is trained “on the job”.
For his part, the Director, Pierre Villeneuve, testified with respect to the various meetings held with Anna Dupuis in the presence of Mireille Villemaire between November 29, 1993 and February 9, 1994 (Exhibits E-24, E-32, E-33, E-34, E-35, E-36, E-37, E-38, E-25). During this period, he coordinated the phases of the training plan while Mireille Villemaire saw to the training. He met with Anna Dupuis every week to review how her training was going. He made his expectations clear to her.
During his testimony, Pierre Villeneuve reviewed the results (Exhibit E-26). He explained that, in spite of averages such as 86%, the expected results or the passing mark was specified in the performance indicator rubric or the “expected results”, and were 95% or 90%. The report (Exhibit E-26) listed the errors committed. In conclusion, he found that Anna Dupuis’ overall performance was unsatisfactory. He pointed out that after one month an employee is normally able to perform the work for which Anna Dupuis received nine weeks of training without success.
For her part, during her testimony, the Director, Rachel Tremblay, explained the reasons which led her to assign Anna Dupuis on November 29, 1993 to her substantive position as Reception and Inquiries Clerk. These reasons, as well as Rachel Tremblay’s assessment of the errors made by Anna Dupuis and her behaviour, are contained in her report (Exhibit E-2, pages 15 to 21.)
Rachel Tremblay is the manager of the Verdun office which has between sixty and seventy employees. It took her three weeks to write her report (Exhibit E-2).
Rachel Tremblay decided to assign Anna Dupuis to her substantive position as Reception and Inquiries Clerk. Until then, Anna Dupuis had never held this position because, initially, she preferred not to deal with the Department’s clients and moreover, the employer had a more pressing need for the services of someone in the position of Administrative Services Clerk: Various Duties.
Rachel Tremblay assigned Anna Dupuis to her substantive position because the employees in Administrative Services were complaining about her and asking to be transferred to other sections. Moreover, Anna Dupuis’ performance was unsatisfactory.
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Decision Page 13 Rachel Tremblay decided to evaluate the employee’s performance more closely and assigned her to her substantive position on November 29, 1993.
The two main duties of the Reception and Inquiries Clerk are records management and reception and inquiries.
The first phase of the training dealt with records management. As Pierre Villeneuve and Mireille Villemaire testified, this phase of training ended with an unsatisfactory result.
The results recorded in the report (Exhibit E-26) confirm the unsatisfactory results. Rachel Tremblay corroborated the testimony of Pierre Villeneuve and explained that the performance indicators (résultats attendus) appear high but reflect normal expectations for anyone holding the position held by Anna Dupuis. Thus, 86% as a result in the area of mail represents an unsatisfactory performance because it means that in fourteen instances documents were improperly routed and ultimately, that means that fourteen of the Department’s clients run the risk of having to suffer the consequences of those errors. That is why the Department sets the acceptable pass level at 95%. Another example: the Department sets the acceptable pass rate at 90% in terms of determining the status of a client’s claim. Consequently, 73.6% is unsatisfactory (Exhibit E-26) because it means that the status of the claims of 26 out of 100 clients have been incorrectly designated. Accordingly, 26 clients are inadequately served.
Rachel Tremblay stated that employees work on a production line and that deadlines and standards exist at all levels. Resources are allocated based on approximately 13,000 claims per year.
Period from February 7 to March 25, 1994: Records Management (February 7 to March 3, 1994) and Reception and Inquiries Training in Toronto (March 7 to 25, 1994)
On February 1, 1994, Monique Reeves-Vanier returned to work from sick leave. She was informed that she was to take over the training of Anna Dupuis in records management that had been begun by Mireille Villemaire.
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Decision Page 14 At the time of the events, Monique Reeves-Vanier had been the supervisor in the Assisted Services section for fifteen years. She was responsible for twenty-seven employees working in records management.
Upon her return on February 1, 1994, she continued Anna Dupuis’ training that had been begun by Mireille Villemaire. At that time, Anna Dupuis was still in the first phase of the training plan (Exhibits E-24, E-27) which covered elements 1 to 10 (knowledge of the C.E.I.C, filing system, setting up a file, file routing, explanation of the role of the parties involved, mail, learning, determining the status of a claim, posting information, cancellation and registration).
On February 1, 1994 (Exhibit E-39), Monique Reeves-Vanier and Pierre Villeneuve met with Anna Dupuis and explained that all of her work would be checked by Monique Reeves-Vanier. They explained the control method to her. In order to verify the employee’s understanding of the work, Monique Reeves-Vanier asked her not to ask other employees if she had any questions, but to note her question and discuss it with her when she was checking the employee’s work.
Monique Reeves-Vanier was at Anna Dupuis’ side 7.5 hours a day. Unlike Mireille Villemaire who had tasks other than Anna Dupuis’ training, at the request of her superiors, Monique Reeves-Vanier devoted all of her time to training Anna Dupuis. All of the training was in English.
Monique Reeves-Vanier produced a written report on the results of the first monitoring period, that is, February 1 to 4, 1994 (Exhibit E-30). In 97 searches, Anna Dupuis made mistakes in 49 cases. The details of these errors are contained in Exhibit E-30. Monique Reeves-Vanier noted that Anna Dupuis lacked judgment and knowledge of how to route a file and the role of officers 1 and 2.
Monique Reeves-Vanier testified that it was not normal for the employer to have to provide an employee with such detailed instruction as that provided by the employer since November 29, 1993. She testified that she had taken pride in trying to help Anna Dupuis succeed. Anna Dupuis appeared satisfied to work with her (Pierre Villeneuve testified to this effect. See also Exhibit E-25, page 3.).
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Decision Page 15 The errors noted by Monique Reeves-Vanier between February 1 and 4, 1994 are recorded in the report on Anna Dupuis’ training for the period from November 29, 1993 to February 4, 1994.
Between February 5 and March 3, 1994, Anna Dupuis continued to accumulate mistakes. The entire period ended in an unsatisfactory rating. The errors and the consequences of these errors are documented in Anna Dupuis’ training report (Exhibit E-40) for the period from February 5 to March 3, 1994. This report reflects the comments of Monique Reeves-Vanier for this period (Exhibits E-42, E-43, E--44), as well as those of Mireille Villemaire who continued training Anna Dupuis on certain specific aspects, and she too noted the latter’s unsatisfactory performance (Exhibits E-40, phases 2, 3 and 4).
Between February 1 and March 3, 1994, Pierre Villeneuve and Monique Reeves-Vanier met with Anna Dupuis on five occasions, specifically, February 1, 15, 21 and 22 and March 3, 1994 (Exhibits E-39, E-45, E-46, E-47, E-48) to review the progress of the training and monitoring, as well as to go over the details of a training period that would be held in Toronto. The report for this period (Exhibit E-40) once again documents Anna Dupuis’ unsuccessful performance.
From March 7 to 25, 1994, Anna Dupuis was on training in Toronto. The purpose was to enhance her knowledge of the reception and inquiries function that was one of the two key tasks she was required to perform, records management being the other one.
Pierre Villeneuve, Rachel Tremblay and Monique Reeves-Vanier testified with respect to Anna Dupuis’ attitude toward this training, the results she achieved and the effect that this period had on the quality of her work.
In short, the evidence shows that Anna Dupuis resisted the idea of taking the training given in English in Toronto, that she would have preferred to take the training in French in Montreal and that once she arrived in Toronto she was unhappy at the hotel in which she stayed. She had difficulty assimilating the content of the training. According to her instructors, her results were “fair” (Exhibit E-50) and they recommended that, upon her return to work, Anna Dupuis receive individual training.
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Decision Page 16 The fact is that upon her return, there was no improvement whatsoever in the quality of her work.
In her report (Exhibit E-2, pages 25 to 28), Rachel Tremblay gave a detailed account of Anna Dupuis’ stay in Toronto. Some of Pierre Villeneuve’s reports (Exhibit E-47, E-48 and E-51) also make mention of it.
Period from March 25 to May 13, 1994 Return to the Reception and Inquiries Section Upon her return from Toronto, Anna Dupuis worked at the reception desk and answered questions from clients. Monique Reeves-Vanier worked at her side. She took note of the clients’ questions and Anna Dupuis’ responses.
Monique Reeves-Vanier signed a report (Exhibit E-56) in which she stated that during the period from March 28 to April 25, 1994 Anna Dupuis correctly answered 63 out of a total of 272 people and that of 152 references to a computer screen, she completed the work correctly in only 39 instances. Her success rates were between 23.16% and 25.66% and based on the factors considered, the 23.16% success rate had to be adjusted downward to 15.92%.
Since Anna Dupuis did not make any progress between March 28 and April 25, 1994, Monique Reeves-Vanier, who had worked constantly at her side, decided to leave her to work on her own at the reception desk from April 27 to May 13, 1994 on the chance that her presence might have had a negative influence on the employee’s ability to perform her work correctly. A waste of time: Monique Reeves-Vanier observed that, even when she was not there, Anna Dupuis’ work did not improve.
She signed another report (Exhibit E-57) for the period from April 27 to May 13, 1994. In this report (Exhibit E-57), she wrote that there had been no improvement in Anna Dupuis’ performance and she concluded that the employee was unable to do the work of Reception and Inquiries Clerk.
She noted that, despite requests, Anna Dupuis had not filled out the necessary control sheets and she continued to consult officers in spite of instructions to the
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Decision Page 17 contrary. The errors are compiled in Exhibits E-53 and E-54. (Anna Dupuis' representative admitted the truth of the information contained therein.)
The report (Exhibit E-55) for the period from April 27 to May 13, 1994 concluded that Anna Dupuis had been unsuccessful in her training. Monique Reeves-Vanier testified that it was the first time in her career that she had known an employee not to succeed after receiving so much training and monitoring.
Monique Reeves-Vanier stated that Anna Dupuis complained about the other employees and had difficulty concentrating. Four of seven employees complained about the conduct of Anna Dupuis and the latter complained about her fellow workers. According to Monique Reeves-Vanier, the atmosphere in the office began to deteriorate after the arrival of Anna Dupuis.
During his testimony, Pierre Villeneuve also stated that he had received several complaints about Anna Dupuis from the telephone operator and employees in the records management section.
Period from May 13 to August 10, 1994 From May 13, 1994 Anna Dupuis was absent on sick leave. She returned to work on June 13, 1994 and the employer assigned her temporarily to the CEC in Pointe-Claire while awaiting the completion and results of an investigation relating to an harassment complaint she had filed in March 1994. The investigation concluded that the complaint was unfounded. On July 29, 1994, Anna Dupuis returned to the Verdun office. In his report (Exhibit E-60) on the period during which Anna Dupuis was at Pointe-Claire, the Director of the Pointe-Claire CEC noted that Anna Dupuis lacked the necessary knowledge to perform her duties. However, he also stated that during her time at Pointe-Claire she showed a desire to provide accurate information, she did not hesitate to ask her colleagues if she had any questions and she appeared to want to collaborate to the extent of her abilities.
Following the conclusion of the investigation, Anna Dupuis left Pointe-Claire and returned to the Verdun office. On August 10, 1994, accompanied by her union representative, she attended a meeting at which Monique Reeves-Vanier was present and at which Pierre Villeneuve reviewed the training she had received since
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Decision Page 18 March 7, 1994 (Exhibit E-52). He informed Anna Dupuis that his superiors had come to the conclusion that she was unable to perform her duties and that it would be recommended (Exhibit E-2) to the Assistant Deputy Minister that her employment be terminated. Anna Dupuis left on extended leave the same day. Her employment was terminated on November 18, 1994. In the interval between August 10 and November 18, 1994, a psychologist recommended (Exhibit A-4) on September 1, 1994 a two-month extension of her sick leave which began on August 10, 1994.
EMPLOYEE’S EVIDENCE In addition to her own testimony, Anna Dupuis called five witnesses. Except for the testimony of Pierrette Villemaire, the nature of which has already been covered, the evidence offered by Anna Dupuis can be summarized as follows.
Anna Dupuis has been consulting Malcolm Johnson, a member of the Ordre des Psychologues since 1978. Since August 16, 1993 he has met with her forty-seven times. During these meetings, he noted that Anna Dupuis was stressed because of what was happening at work. She felt persecuted. She told Malcolm Johnson her version of what was happening at work. Malcolm Johnson felt that, based on what she told him, it was understandable why she felt persecuted. He believed that by moving her from position to position, the employer was throwing her off. He was not aware of why she was moved and for ethical reasons, he did not telephone the employer to obtain the background.
Malcolm Johnson left the position of Acting Director of Health Services for Federal Employees in 1991. His experience as a government employee taught him that middle and senior managers receive no training in interpersonal relations. He suspects that it is this lack of training which leads to the type of difficulties encountered by his client.
Peter Hall works at Pointe-Claire for the Department of Human Resources Management Canada. He worked in the Verdun CEC from 1992 to 1994. He had excellent relations with Anna Dupuis. He worked as an officer in the Insurance Services section. Anna Dupuis worked in the Reception and Inquiries section. They worked on the same floor. According to Peter Hall, the atmosphere in the CEC office was regimented. Monique Reeves-Vanier was his supervisor for 1.5 years. Under her
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Decision Page 19 supervision, he felt like he was in boot camp. One day, Anna Dupuis asked Peter Hall for information about a file. He heard Monique Reeves-Vanier tell Anna Dupuis that if she had questions she should ask her and no one else. He was not aware that previously, Monique Reeves-Vanier had asked Anna Dupuis to come to her when she had questions.
Anita Miner is an employee of the Department of Human Resources Development. She acted as the union representative for Anna Dupuis on several occasions. She succeeded in convincing management to withdraw from Anna Dupuis’ file a letter written in December 1993 which contained a verbal warning. She attended the meetings held to monitor the training given to Anna Dupuis. She even had a report amended (Exhibit E-40). She suggested to the employer that Anna Dupuis be kept on at the Pointe-Claire office. The role played by the union in Anna Dupuis’ file is described in Rachel Tremblay’s report (Exhibit E-2).
Prior to her retirement after 29.5 years of service, Raymonde Pelletier was an officer at the Verdun Canada Employment Centre. She saw Monique Reeves-Vanier tell Anna Dupuis that if she had a problem she should come to her. Anna Dupuis had come to Raymonde Pelletier to resolve a problem she was having with a claimant’s file.
I now come to Anna Dupuis' evidence. Although I did not allow Anna Dupuis to read a written version of her testimony, I allowed her to refresh her memory with personal notes.
Anna Dupuis testified at length on the reasons for which according to her she did not meet the requirements of the positions which she held during her employment with the department. Her evidence can be summarized as follows.
She is of the view that her first supervisor Mrs. Jones was negative toward her and that the first performance report (Exhibit E-6) which she received does not reflect accurately her performance. She acknowledges that she experienced certain difficulties with certain aspects of her work (e.g. the keys) but, in her opinion, other factors came into play. For instance, she feels that she was asked to replace the receptionist at the reception desk too often and that this "became a problem". [She underlines that she never did get a copy of her performance report (Exhibit E-6) in English.] At the meeting
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Decision Page 20 held to discuss her performance, Mrs. Jones told her that she acted like an R.C.M.P. constable. According to Anna Dupuis, the fact that she experienced difficulties in prioritizing was the result of management's decision to shift her from one task to another one. The difficulties which she experienced with her colleagues were the result of employees not knowing exactly what their tasks were. She acknowledges that she did confuse names during the period (5-10-92 to 31-03-93) covered by the first performance report (Exhibit E-6). She is convinced that employees were told about the contents of her file while she worked at the R.C.M.P. and that this helped shape their attitude toward her. In a group of nine employees, only two spoke to her.
She was repeatedly told by Johanne Jones, Rachel Tremblay and later on, Ginette Tardif, that she didn't want to work as part of a team. The atmosphere deteriorated. She felt like a "squashed victim".
When Ginette Tardif became her supervisor, she was happy to receive from her a mandate setting out her tasks. Her colleagues also received a mandate. This mandate was, in her view, a step in the right direction for it clarified each employee's responsibilities.
However, once again she was asked too often to replace the receptionist at the reception area. Her relationships with her colleagues further deteriorated. One of them, Jocelyne Ménard, told her that she should change her attitude. Ginette Tardif yelled at her as had Johanne Jones. The atmosphere deteriorated to the point that she had to take sick leave in May 1993. At the time, the reasons behind her colleagues' attitude toward her were a mystery to her.
She was disappointed to have to go work in the stockroom and to have to process mail. She is of the view that the fact that she was shifted from one position to another was an important factor in her inability to attain the expected results in her performance.
She notes that when she started to work in the stockroom on August 30, 1993, she was remitted a copy of Donald Bertin's mandate (her predecessor in this position) instead of being given a mandate with her own name on it.
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Decision Page 21 Her supervisor, Ginette Tardif, alluded in front of her co-workers to the fact that she was seeing a certain Mrs. Turcotte of the Employee Assistance Program (EAP). She denies having told herself her co-workers that she was seeing Mrs. Turcotte and later on, the psychologist Malcolm Johnson.
She lost confidence both in Mrs. Turcotte and Ginette Tardif when she reached the conclusion that they were exchanging information about her behind her back.
Ginette Tardif was rude to her several times in front of her colleagues, going as far as saying: «Tu comprends jamais rien, estie».
Her sense of humiliation deepened. At a meeting in October 1993, several of her co-workers said that they did not want to work with her.
She denies having received too many personal phone calls at work. She does not understand why the following supervisors accused her of receiving too many calls: Rachel Tremblay, Monique Reeves-Vanier, Ginette Tardif, Pierre Villeneuve, Johanne Jones.
In the month of November 1993, she was stunned when Claire Turcotte (EAP) phoned her and asked her if she was contemplating committing suicide.
Thus, the first 13 months of her employment with the department did not go well.
In November 1993, Rachel Tremblay told her that she would be given another chance, that perhaps she had been placed in the wrong positions and that she would now become an enquiries clerk but she also added that if she did not succeed the training phase, her termination would be considered.
On November 29, 1993, she received the training plan. She was scared because she knew her employment was in jeopardy.
Several incidents took place which, in her view, affected negatively her work performance.
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Decision Page 22 On December 21, 1993 she received an evaluation report which was not favourable to her. She felt humiliated. On December 24, 1993 she was told by Johanne Quesnel that Rachel Tremblay had told employees not to transmit her phone calls to her. On December 29, 1993, after having discussed her training plan, Pierre Villeneuve told her that she had ruined her own reputation and that she had created all her own problems in the office. The next day, Pierre Villeneuve asked her if she was filling out her control sheets. She said no. He reminded her at a meeting held in the presence of her union representative, that she had to fill out control sheets as part of her training. He added that if she persisted in not doing so, he would have to take disciplinary measures against her. Anna Dupuis felt humiliated. On December 31, 1993, Pierre Villeneuve gave her a letter confirming his intentions. Anna Dupuis felt harassed and isolated especially in view of the fact that other employees did not have to complete control sheets.
On January 14, 1994, one of her colleagues offered a chocolate to every one in the office except her. On January 17, 1994, at a meeting with Pierre Villeneuve, Pierrette Villemaire and Monique Reeves-Vanier, Pierre Villeneuve informed her that the results of her work were not good. Anna Dupuis felt incapable, "a total loser". On January 21, 1994, a colleague, Francine Brûlé, kept telling her that she was very lucky to have received a training plan when the rest of her colleagues had had to learn their work "on the job". This comment made her feel treated differently than the others. In addition, she noted that she was asked to complete her work day (8:30 - 4:30) and, when her daily training was over, to stay and study from 3:30 to 4:30. Yet, she notices that in the past, others had not been asked to complete their work day once their training was over. This also made her feel treated differently.
On January 26, 1994, she was denied family leave and told to take vacation leave. She requested this leave in order to go take care of her sister's children while their mother was in the hospital. On January 27, 1994, while she was talking to Johanne Quesnel, Monique Reeves-Vanier told her she was wasting her training time talking. Anna Dupuis felt intimidated and isolated.
On January 28, 1994, she was not invited at a meeting held to discuss the punctuality expected of the employees. Monique Reeves-Vanier told her that the meeting was not for her as she was always on time. On the same day, Anna Dupuis
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Decision Page 23 told her union representative that she was constantly being watched and that she was tired of this.
During the time Mireille Villemaire and Monique Reeves-Vanier oversaw her training, Anna Dupuis became even more nervous as they were always watching her. She feels that when errors were found in files, she was singled out as the person who was behind the errors.
On February 16, 1994 at a meeting (C.E.C. in transition) of all staff, people were asked to draw a picture of their feelings toward their situation in the office. One person drew a picture of a girl hanging herself. A co-worker asked Anna Dupuis if she was this girl. She found it odd that two people had thought that she might be contemplating suicide.
When her supervisors decided to send her to a course in Toronto, they made life difficult for her. She had to insist that she take the train (instead of the bus). Then, in Toronto, the hotel where she lived for the first week was very uncomfortable and situated at a considerable distance from her classes. She noticed that other persons (not from the same office) attending these classes were living in better accommodation. She feels the decision to send her to this hotel was deliberate. Anna Dupuis felt humiliated, treated differently. She thinks that these feelings had an impact on the results which she obtained. She thinks that she was sent to Toronto to follow this course in English because she had filed a complaint to the Commissioner of Official Languages.
Certain employees laughed when they learned on February 22, 1994 that she was going to Toronto to attend a course. They asked her if she would be learning English.
On February 23, 1994, at a meeting with Pierre Villeneuve and Monique Reeves- Vanier, she was told again that her performance was not satisfactory. She declined to discuss her problems with a co-worker, Jacinthe Lafontaine, who also happened to be a neighbour.
She does not understand why she had to use her accumulated leave when she saw her own psychologist, Malcolm Johnson, but did not have to use her leave when seeing Claire Turcotte, the representative of the Employee Assistance Program.
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Decision Page 24 On February 24, 1994, a co-worker, Josée Péloquin, swore at her. At lunch, another co-worker, Jocelyne Charron, told her to work faster.
On March 1, 1994, her co-worker Josée Péloquin told her that she did not know how to do anything properly. On March 3, 1994, the same thing happened. Her supervisor, Monique Reeves-Vanier, told her to ignore Josée Péloquin.
On April 5, 1994 at a meeting held by Pierre Villeneuve in the presence of Monique Reeves-Vanier and Anna Dupuis' union representative, Pierre Villeneuve discussed with Anna Dupuis the poor results which she obtained at the course in Toronto. He reproached her several things such as her daughter's phone calls at the office and the fact that her co-workers didn't want to work with her. He also told her that she was bringing her personal problems at the office.
She filed a complaint of personal harassment at the Public Service Commission. She had to take annual leave in order to go meet the investigator.
On April 12, 1994, she filed a grievance in relation to the training plan which she received.
On April 13, 1994, her co-worker Josée Péloquin swore at her again and accused her of having lost a file.
On April 14, 1994, at a staff meeting, employees imitated claimants. They had a square telephone for English speaking claimants and a round telephone for French speaking claimants.
On the same day, Monique Reeves-Vanier, her supervisor, asked her to serve claimants at the counter. Anna Dupuis replied that she was not ready. Monique Reeves-Vanier told her to ask questions to her co-workers. Anna Dupuis replied: "How do you want me to do this when employees don't speak to me".
On April 15, 1994, Monique Reeves-Vanier told her in front of a claimant to speak to the claimant in French. This claimant said that he could speak in both official languages. Anna Dupuis felt humiliated because Monique Reeves-Vanier raised her voice at her.
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Decision Page 25 On April 18, 1994, Monique Reeves-Vanier said to Anna Dupuis that she shouldn't interrupt claimants when they spoke and told her that she should gain confidence.
On April 19, 1994, Monique Reeves-Vanier told her to forget about completing her course in Toronto. On the same day, as Anna Dupuis came out of the elevator, she met two co-workers and one of them swore at her.
On April 20, 1994, she learned that neither she nor a co-worker, Jocelyne Charron, would have their jobs reclassified upwardly. She was told by Monique Reeves-Vanier that this was because she was not performing properly.
On the same day, she learned that without her being invited in their discussions, her co-workers (Jacinthe Lafontaine, Maria DiBasio, Nathalie Lafricaine, Danielle Doucet, Ginette Du Perron, Marie-France Boulerice) had arranged the different dates of their vacation leave together.
On April 21, 1994, when she arrived at a meeting, she was made to feel unwelcome by certain of her co-workers. On the same day, she was told that for that day she would have to take her coffee break at 9:00 o'clock instead of 10:00 o'clock as Monique Reeves-Vanier had to leave at 9:00 o'clock.
On April 27, 1994, Monique Reeves-Vanier told her that from then on, she would work on her own at the counter and answer claimants. Anna Dupuis asked Monique Reeves-Vanier to do something about the way employees were treating her. Monique Reeves-Vanier did not reply.
On May 10, 1994, at a meeting held by the Regional Director, Gilles Parent, she tried to no avail to obtain clarifications on the possibility of obtaining the reclassification of her position. Gilles Parent replied that it would have to wait the completion of her training as well as the results of the internal investigation of her personal harassment complaint.
On May 11, 1994, her co-worker Josée Péloquin screamed at her that there were claimants waiting at the front counter. Anna Dupuis told her that she didn't have to scream.
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Decision Page 26 On May 12, 1994, she overheard Josée Péloquin tell another co-worker that if her boyfriend were English speaking "ça marcherait pas".
On the same day, she had a meeting with Pierre Villeneuve, Rachel Tremblay and Monique Reeves-Vanier. Again, she was told that she wasn't filling out the control sheets properly. Anna Dupuis said that she was tired of their being after her and that she could not wait to get the results of her harassment complaint. She said that it was the worst training plan that she had ever seen. Monique Reeves-Vanier told her that she was blaming everyone in the office but herself. When she went back to her work, an employee walked by and gave her a smile. Anna Dupuis cried and decided to take time off. She was away from work from May 13 to June 13, 1994.
On June 2, 1994, while on sick leave, she received a phone call from Gilles Parent who asked her where she wanted to work pending the results of the internal investigation. She said that she wished to work at the Pointe-Claire office.
On her return from leave, she went directly to the Pointe-Claire office. She did not experience any problems with the work or with her co-workers.
On July 26, 1994, she learned that her harassment complaint had been judged to be unfounded.
On August 10, 1994, at a meeting held by Pierre Villeneuve in the presence of Monique Reeves-Vanier and Anna Dupuis' union representative, Jean Boyer, Anna Dupuis was informed that Pierre Villeneuve was preparing a recommendation to terminate her employment. Pierre Villeneuve told her that it was not possible to transfer her. She left work and went on sick leave after which she received unemployment insurance benefits.
On the whole, her perception of her situation is as follows. She did not receive "adequate training" as alleged in the termination letter but rather, she received "too much training" which was stressful. She was followed too much, trained too much and put under great stress by having to obtain 100% results. She did not have an unbecoming behaviour, rather, it is the other employees' behaviour which was at the root of the problem. Their behaviour distracted her. As a result, she had difficulties remembering what task to do. She does not know why she encountered so many
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Decision Page 27 difficulties with her colleagues. She feels that she was constantly criticized and humiliated. She believes that neither Johanne Jones nor Ginette Tardif liked her. She thinks Mrs. Jones did not like her on the basis of the fact that she kept telling her that she was not doing her work properly. As for Ginette Tardif, she did not speak English and this created a cold situation between the two of them. She feels sympathy for Pierrette Villemaire and Monique Reeves-Vanier who had to give her such an intensive training. She feels that despite her training she was not ready, toward the end of her training period, to go to the reception desk.
Anna Dupuis' mother tongue is English. She is bilingual and, at the time of her employment with the Department, she received the bilingualism bonus. She complained that she did not receive an offer of employment (Exhibit E-4) in English. Her first performance report (Exhibit E-6) was not in English. She says that she specifically requested that written communications addressed to her be in English. The Director, Rachel Tremblay, does not agree. Anna Dupuis filed a complaint with the Commissioner of Official Languages (Exhibits E-21, E-22). The Department informed her in December 1993 that from then on, all official communications with her would be made in English. From then on, this is what took place. The performance reports and the meetings with her were in English. A comprehensive action plan received the endorsement (Exhibit A-19) of the Commissioner of Official Languages.
Anna Dupuis also filed a complaint of harassment. An investigation ensued and in the end, a conclusion was reached that the complaint was unfounded.
EMPLOYER’S EVIDENCE IN REBUTTAL During rebuttal, the employer called Josée Deslauriers to testify. At the time of the events, she was the secretary for Rachel Tremblay, the Director of the Verdun office.
Josée Deslauriers stated that her office was located not far from that of Ginette Tardif. At no time did she hear Ginette Tardif allude to the fact that Anna Dupuis was consulting Claire Turcotte of the Employee Assistance Program. However, she did hear Anna Dupuis inform Ginette Tardif of those meetings.
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Decision Page 28 Moreover, it was she who received Anna Dupuis’ file from the time that she was employed with the R.C.M.P. She gave it to Rachel Tremblay. Eventually, the file was returned to the pay section.
Lastly, she had heard Ginette Tardif swear but never toward an employee. Rachel Tremblay was recalled during rebuttal to state the following. In response to Anna Dupuis’ feeling that she was not liked by Johanne Jones and Ginette Tardif, Rachel Tremblay made the two women aware of Anna Dupuis’ perceptions.
Since Anna Dupuis had held two positions in thirteen months with three supervisors (Rachel Tremblay, Johanne Jones, Ginette Tardif) and she had had performance problems, Rachel Tremblay decided to follow the advice of Claire Turcotte and move Anna Dupuis to another position (Reception and Inquiries Clerk).
According to Rachel Tremblay, Anna Dupuis was treated like other employees when it came to telephone calls. As for the training that she was given in the Reception and Inquiries Clerk position, it had to be more intensive because Anna Dupuis’ performance had been unsuccessful during the first thirteen months of her employment with the Department.
As for leave, given Anna Dupuis’ numerous absences, Rachel Tremblay decided to be stricter in approving her leave as she was with other employees in similar circumstances.
As for the decision not to reclassify Anna Dupuis’ position upwards, Rachel Tremblay merely followed a directive which states that if an employee is having difficulty during the training period in a position, that position cannot be reclassified. Anna Dupuis did not appeal this decision.
As for Anna Dupuis’ file with the R.C.M.P., it is possible that Ginette Tardif and Pierre Villeneuve were aware of it because they were Anna Dupuis’ supervisors.
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Decision Page 29 ARGUMENT The argument of counsel for the employer can be summarized as follows. Anna Dupuis' employment was terminated for cause "other than misconduct or discipline" (section 92 of the Public Service Staff Relations Act). This cause is set out in the termination letter (Exhibit E-1). This cause is her failure to perform adequately as well as her unbecoming behaviour and her attitude.
Performance problems were detected early on. They were discussed with her frequently. The first performance report (Exhibit E-6) reflects these problems. She was reticent to do routine tasks as well as specific assignments and she had difficulty adjusting to priorities. She did not concentrate. Her performance affected her relationship with her colleagues. She failed to acknowledge her difficulties.
Following the departure of her supervisor, Mrs. Jones, her performance problems continued under Mrs. Tardif despite having received a mandate clarifying her work assignments. Her relationship with Mrs. Tardif deteriorated as well.
In August, 1993, she was given a new mandate and replaced a Mr. Bertin in the stockroom. Mr. Bertin trained her for some time before he left. Again, she experienced difficulties in meeting job requirements (Exhibit E-14). She had difficulties with both performing her assignments and relating to her colleagues. She was seen on three occasions (Exhibits E-11, E-12, E-13) and given written objectives. She was advised of her deficiencies and she was given goals to meet in order to improve her performance.
Again, Anna Dupuis refused to recognize her difficulties and instead, attributed them to the fact that Mrs. Tardif did not like her.
Rachel Tremblay suggested to her that she meet a representative of the Employee Assistance Program. Although Anna Dupuis did meet Claire Turcotte on nine occasions, there did not result any improvement in her performance or her attitude.
It was decided that a structured training might help Anna Dupuis in learning the duties of a reception and inquiries clerk. Anna Dupuis was told that following this
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Decision Page 30 structured training, if she did not succeed in performing her duties, consideration would be given to the termination of her employment (Exhibit E-13).
Although other employees received training "on the job" for one to three months and although Anna Dupuis' training was set for six months in order to give her ample time to learn the duties, she failed in those six months to meet the objectives set in the training plan.
The committed efforts of the unemployment insurance expert, Mireille Villemaire were obtained as well as those of Monique Reeves-Vanier who had considerable experience in training. The efforts of Pierre Villeneuve were also obtained. These persons were tasked with ensuring that no effort was overlooked in trying to assist Anna Dupuis. In addition, she was sent to Toronto on a standard departmental course as a reception and inquiries clerk. Her results were below that of the other participants and in the end, it was concluded that she did not possess the abilities required of that position.
In August, 1994, a committee reported that her harassment complaint was unfounded. She departed on sick leave following which, her employment was terminated.
In summary, the evidence demonstrates that throughout the period of Anna Dupuis' employment, management acted in good faith with her. Throughout the period, Anna Dupuis was informed of what was required of her. She was informed when she did not meet the requirements of the position. She was informed of her deficiencies and of the consequences of continued failure to meet the requirements. Throughout the period of her employment, she was provided with opportunities to make adjustments and to meet the requirements. She was provided with considerable assistance to make whatever adjustments were required. Throughout the entire employment period, management explored all possibilities of employment as a clerk for Anna Dupuis and in the end there was nothing more that she could be assigned to. Therefore, the employer had cause to terminate her employment. The following cases were relied upon: Michael Duncan Still and Treasury Board (Board file 166-2-25981), Michael Hogan and Treasury Board (Board file 166-2-26360), Marc Laforest and Treasury Board (Board file 166-2-25245).
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Decision Page 31 The argument of Anna Dupuis’ representative can be summarized as follows. The expectations placed on Anna Dupuis were too high. The work climate created by the employer was more a source of stress than of assistance. The training plan had been created for Anna Dupuis and was unacceptable. As of December 1993, her lot had been decided. The objectives set in the training plan were unattainable by any reasonable person in the same position. The training conditions were not conducive to learning. More than 85% of the objectives required a success rate of 100%.
By informing her of the possible consequences should she be unsuccessful in her training, Anna Dupuis was made to feel insecure and intimidated.
She did not receive reasonable supervision. On the contrary, she received constant supervision with the result that she felt spied on.
Anna Dupuis clearly explained her perceptions during her testimony. She also made allowances and did not put the blame on Mireille Villemaire and Monique Reeves-Vanier.
While the employer did place Anna Dupuis in several positions, it was not to help her but rather to meet the needs of the section.
It is interesting to note that things went well while she was at Pointe-Claire. She performed similar duties there to those she performed at Verdun. She did not have any problems in her relations with her new colleagues. Consideration should have been given to sending her to another employment centre.
Her results in the performance of her duties appear disastrous but they are not surprising when considered in their context.
The fact that her colleagues knew that she was consulting a representative of the Employee Assistance Program was hurtful to Anna Dupuis.
In short, the employer placed Anna Dupuis in such an onerous situation that no one would have been able to meet the employer’s requirements.
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Decision Page 32 Anna Dupuis should be reinstated in her position and the employer should be directed to create a positive environment so that she will be able to perform normally in a healthy work environment.
Anna Dupuis’ representative amended grievance 166-2-26572 and indicated that she no longer alleged that article M-16 of the collective agreement had been contravened.
The following cases were relied upon: Re Edith Cavell Private Hospital and Hospital Employees Union, Local 180, 6 L.A.C. (3d) 229 and Blaine McFarlane and Yukon Public Service Commission (Board files 267-YG-47 and 55).
In response, counsel for the employer added that, given Anna Dupuis’ poor results, the employer did not feel it was appropriate to move an employee from another employment centre. Moreover, it was clear that the least remark about her performance would trigger another cycle of deterioration.
REASONS In this matter, the burden of proof was on the employer and it is my opinion that the employer discharged that burden. The employer terminated Anna Dupuis’ employment because of incompetence or inability to perform her work, and reproached her for her conduct and her attitude at work. The "Larousse" Dictionary defines “incompetence” as follows: “manque de connaissances pour faire quelque chose; incapacité”. It defines "incapacité" as follows: “état de quelqu'un qui est incapable de faire quelque chose; inaptitude, incompétence". It is clear that inability and incompetence, depending on the circumstances, can be considered as interchangeable. In the instant case, the employer invoked the “incompétence or incapacité ” of Anna Dupuis. In this instance, the two terms are used interchangeably.
The weight of the employer’s evidence was to the effect that Anna Dupuis was unable to carry out her work and that, throughout the period that she worked for the Department, the employer did not receive from the employee the work it was entitled to expect.
Public Service Staff Relations Board
Decision Page 33 There appear to have been many reasons for this situation. I do not believe that they can be identified with any certainty nor that the importance to be given to each one can be accurately determined.
However, one thing is certain and that is that Anna Dupuis did not carry out to the employer’s satisfaction the work for which she was being paid.
There are a number of factors for this situation including a lack of knowledge, an inability to translate her knowledge into concrete action, an intellectual or emotional resistance to learning, a rigid and closed attitude toward any attempt to help her and Anna Dupuis’ unshakeable conviction that the source of her problems was not of her own making, that it was the fault of her superiors or her fellow workers.
At no time during her long and difficult testimony did Anna Dupuis show any ability to take a step back and try to identify her own shortcomings.
I doubt that she can be rescued from the emotional and intellectual trench in which she has isolated herself and which prevents her from being able to look at herself with any objectivity.
Whatever the causes of this attitude (I do not have the expertise to comment on it), I can at least say (after presiding over 17 days of hearings) that these causes are of Anna Dupuis’ own making and not those of her superiors or her fellow workers.
The assessment of Anna Dupuis’ work did not come from just one person but from several people who observed her work in three successive positions. Not only did these people find her to be incompetent, but data on her work was recorded, the employer computed them and -- and this must be stressed -- Anna Dupuis herself does not dispute the accuracy of the results she achieved.
The following individuals were Anna Dupuis’ superiors: Rachel Tremblay, Johanne Jones, Mireille Villemaire, Monique Reeves-Vanier, Ginette Tardif. They all came to the same conclusion: Anna Dupuis was unable to perform her work in a satisfactory manner.
Public Service Staff Relations Board
Decision Page 34 Anna Dupuis was assigned to the following positions: Administrative Services Clerk, Stockroom Clerk, Reception and Inquiries Clerk. Anna Dupuis did not perform her work satisfactorily in any of the three positions.
Her performance reports (Exhibits E-6, E-14), the progress reports and the minutes of meetings with Anna Dupuis (Exhibits E-25, E-26, E-31, E-32, E-33, E-34, E-35, E-36, E-37, E-38, E-39, E-40, E-41, E-45, E-46, E-47, E-48, E-52, E-55, E-56, E-57) provide details on the employer’s expectations and the observations made by Anna Dupuis’ supervisors and communicated to her at regular intervals. The final outcome was that her performance was unsatisfactory.
The outcome of the training taken in Toronto in March 1994 in English (Exhibit E-50) was a recommendation by the instructors that Anna Dupuis be monitored very closely and on an individual basis and this was after she had already been receiving intensive and individual training in Montreal since November 1993. In other words, the recommendation of the instructors of the course taken in English in Toronto by Anna Dupuis, confirmed, after the fact, the method that the employer had already chosen by which to assist Anna Dupuis.
The employer, through the superiors identified earlier, increased the meetings with Anna Dupuis. She was given explanations about the nature of the work and the manner in which to perform her duties through meetings with her personally, through training tailored and adapted to her needs and through a training session in Toronto.
I believe that the employer tried every means humanly possible to assist Anna Dupuis and to make her a competent employee.
I was struck by the investment of human energy that Anna Dupuis cost her employer. The time and attention which Anna Dupuis was able to muster on her behalf is a persuasive indication of a deep-seated problem and one which, in my opinion, spoke to Anna Dupuis’ incompetence.
In light of the magnitude of the means deployed, I do not believe that the employer failed to clarify its expectations, stinted in its efforts to assist Anna Dupuis or came to a hasty conclusion regarding her incompetence.
Public Service Staff Relations Board
Decision Page 35 Given all of the opportunities Anna Dupuis received to prove her worth, I do not believe that the employer was under any obligation to place her in a fourth position in an office other than the one in Verdun. I do not consider her brief stay at the Pointe-Claire office to be a convincing argument for such a placement since, although she appears not to have had difficulties with her colleagues, her lack of knowledge and lack of ability to work independently (Exhibit E-60) were noted once again.
In the letter of termination of employment, the employer found Anna Dupuis to be incompetent. In addition to this ground, it also cited her conduct and attitude. The following comments in this regard are warranted. I believe that the evidence with respect to Anna Dupuis’ incompetence is in itself sufficient to justify her dismissal and that on this basis alone the employer had cause to terminate her employment.
The evidence with respect to Anna Dupuis’ conduct and attitude, as reflected in the various reports and as described by her superiors, merely supplements the evidence of incompetence and completes, if you will, the picture of an untenable situation. In short, the evidence is to the effect that Anna Dupuis had difficulties in her relations with her fellow workers and that her superiors received many complaints about her from her colleagues. It appears that Anna Dupuis, because of her incompetence and attitude, had a demoralizing effect on those working with her. It is clear to me that the amount of energy and attention demanded by Anna Dupuis could not fail to go unnoticed by her fellow workers who, moreover, also had to deal with the consequences of her incompetence. Having said this, I do not question (having no evidence to the contrary) certain statements made by Anna Dupuis that some of her fellow workers disliked her and, upon occasion, excluded her. I do not doubt that she was unhappy. However, I am not in a position to determine each person’s share of the responsibility for these difficult relations and I do not believe that I need to do so except to say that I am not convinced that these personal conflicts are the cause of Anna Dupuis’ incompetence as she believes.
Finally, and as mentioned earlier, there is no evidence to support the conclusion that the cause of Anna Dupuis’ incompetence can be traced to actions or omissions on the part of the employer.
Public Service Staff Relations Board
Decision Page 36 In conclusion, the grievance (166-2-26573) with respect to the termination of employment of Anna Dupuis is denied. The grievance (166-2-26572) with respect to article M-34 of the collective agreement is also denied since no clarification was provided by Anna Dupuis on the facts allegedly constituting a contravention of this article by the employer, no evidence was presented to this effect and, moreover, during his argument, the representative for Anna Dupuis did not present any arguments with respect to article M-34.
Marguerite-Marie Galipeau Deputy Chairperson
OTTAWA, April 21, 1997. Certified true translation Serge Lareau
Public Service Staff Relations Board