FPSLREB Decisions

File: 166-2-27346 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN THOMAS EARLE Grievor and TREASURY BOARD (Transport Canada)

Employer

Before: J. Barry Turner, Board Member For the Grievor: Stuart Rush, Counsel For the Employer: Harvey Newman, Counsel

Heard at Vancouver, British Columbia, March 26 and 27, 1997 and continued by conference call in Ottawa, May 7, 1997.

Decision Page 1 DECISION On June 10, 1994, the grievor, Mr. Thomas Earle who was then employed in the Canadian Armed Forces, was advised that he had been selected to participate in the classroom and simulation air traffic control training program as an Air Traffic Control Trainee (ATCT), Instrument Flight Rules (IFR) at the Transport Canada Training Institute (TCTI), Cornwall, Ontario. He signed and accepted this offer on June 24, 1994 (Exhibit G-2) as well as the attached Appendix A to Exhibit G-2 that reads in part: 2. Probationary Periods: a) You will be subject to probation throughout the training programme. If you do not qualify as an IFR controller, you will be rejected on probation unless you meet the requirement set forth in 2d).

... d) Trainees who successfully complete the regional IFR course (theory and simulation) and have successfully entered the final phase of IFR on the job training as outlined in the Unit Qualification Training Program (UQTP) will be considered as having the potential to qualify for IFR positions. Trainees who fail their IFR training beyond that point will be offered the opportunity to train for existing vacant tower positions. Once VFR qualification is achieved, those trainees will no longer be part of the Training Programme for Air Traffic Control - IFR.

On January 24, 1996, Mr. Earle was notified by A.S. Campbell, Acting Regional Director, Air Traffic Services, Pacific Region, Vancouver, that he was being rejected during his probationary period for having failed to meet the requirements of the training program (Exhibit G-7). This notice reads: This is further to your discussion with Linda Todd, Manager, Boundary Bay Tower, in which you were advised that she was recommending that your training as an Air Traffic Controller within the IFR Mainstream be ceased. A student progress review board has just been completed. The recommendation to cease train has been upheld.

As you were unable to meet the standards required for this training program, I must inform you that you are being rejected for cause for failing to meet the requirements of the training program for Air Traffic Controllers-Instrument Flight Rules. Your employment as an Air Traffic Controller Trainee will cease as of close of day February 07, 1996.

Public Service Staff Relations Board

Decision Page 2 I would like to take this opportunity to wish you success in your future endeavours.

It should be noted that Boundary Bay Tower is just outside the Vancouver area. On February 14, 1996 Mr. Earle filed the following grievance which was referred to adjudication on June 10, 1996: On June 22, 1995, I commenced training at Boundary Bay Control tower. When I arrived, I was informed that my Instructor did not want a trainee, but had been compelled to take one by management. I was subsequently changed to another Instructor at Unit. I was informed that this new instructor had a bad track record with trainees. I was put on conditional training and given 5 training days to correct a phraseology deficiency. I was recommended for ceased training after only 3½ days of training. I believe that the training that I received was of a substandard quality and not within Transport Canada guidelines.

As requested corrective action, Mr. Earle is asking for the following: That I be reinstated into the IFR Mainstream program to undergo area or terminal training in the ACC and otherwise be made whole.

By letter to the Public Service Staff Relations Board dated March 12, 1997 counsel for the employer advised the Board of the employer’s objection to the jurisdiction of an adjudicator to entertain this grievance. The letter reads: This reference to adjudication is scheduled to be heard in Vancouver on March 26 and 27. The grievance is based on a rejection on probation of an air traffic control trainee. The grievor, in his grievance, contests quality of his training while at the Boundary Bay Control Tower and on the face of the record there is nothing that brings this grievance within the provisions of section 92 of the PSSRA.

The employer’s position is that an adjudicator is without jurisdiction to entertain this grievance at adjudication and it ought to be dismissed.

Section 92 of the Public Service Staff Relations Act (PSSRA) reads: 92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

Public Service Staff Relations Board

Decision Page 3 (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

(3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.

(4) The Governor in Council may, by order, designate for the purposes of paragraph (1)(b) any portion of the public service of Canada specified in Part II of Schedule I.

At the outset of the hearing, I informed the parties that I would hear submissions on the jurisdictional issue first.

Public Service Staff Relations Board

Decision Page 4 Jurisdictional Argument for the Employer Mr. Newman argued that what is before me is clearly not a collective agreement matter, but purely and simply a rejection on probation. The grievor was on probation at all material times during his training period. He argued that there is also no reference to discipline in the wording of the grievance and concluded that on the face of the grievance alone there is nothing that allows me to take jurisdiction.

Mr. Newman referred to the employer’s first level response (Exhibit G-9) dated February 26, 1996 to the grievance that reads: SUBJECT: FIRST LEVEL GRIEVANCE RESPONSE I have fully reviewed the circumstances surrounding your grievance.

The quality of training you received from your OJI’s at Boundary Bay was not only in accordance with the guidelines set out in TP1016E and the UQTP for Boundary Bay Tower but, in the case of Mr. LeNoury, was of a superior quality in the amount of time and effort on his part.

Your inability to reach the qualification level was attributable not to the instruction you received, but to your inability to absorb and apply that instruction.

As you were unable to meet the standards of the training program for Air Traffic Controllers - IFR, you were rejected and your employment ceased.

Your grievance is therefore denied. He also referred to the employer’s final level response dated May 29, 1996 to the grievance (Exhibit G-11) that reads: DECISION OF AUTHORIZED EMPLOYER’S REPRESENTATIVE Your final level grievance regarding your rejection for cause during the probationary period has been thoroughly reviewed and was discussed with your national CATCA representative.

There is conclusive evidence to show that you were afforded every opportunity to meet the training requirements established for an Air Traffic Controller Trainee. In spite of the considerable efforts expended to assist you in achieving

Public Service Staff Relations Board

Decision Page 5 the expected results, you were unable to satisfactorily meet the third stage of the training program.

In light of these conclusions, your grievance cannot succeed and is hereby denied.

Mr. Newman concluded that based on the decision of the Federal Court of Appeal in Burchill v. Attorney-General of Canada, [1981] 1 F.C. 109, 37 N.R. 530, the grievor can not now convert his grievance into anything other than rejection on probation; it is not open to him to argue for the first time at adjudication bad faith or arbitrariness on the part of the employer.

He further argued that the decision in Perreault (Board file 166-2-26094) by former Vice-Chairperson Tenace, makes it clear that I have no jurisdiction as is indicated in subsection 92(3) of the PSSRA to hear the matter before me. The most relevant part of the Perreault decision (supra) reads on pages 20 and 21: The Public Service Staff Relations Act, on the other hand, has been amended by the addition of a totally new subsection 92(3) which, on its face, states emphatically and unequivocally that any termination of employment made under the Public Service Employment Act may not be referred to adjudication.

Undoubtedly, Parliament had a purpose in adding subsection 92(3) to the Public Service Staff Relations Act. I am at a loss to conjure up any convincing explanation for why the Government would take such great pains, first through the Public Service 2000 exercise and, secondly, through the lengthy Parliamentary process involved in securing the enactment of the Public Service Reform Act, if it was intended to leave everything exactly as it was in terms of “rejection on probation”.

A plain reading of the words of subsection 92(3) leads to the inexorable conclusion that grievances with respect to any termination of employment under the Public Service Employment Act, may not be referred to adjudication. A rejection on probation is made under the Public Service Employment Act. In my opinion, this case is a termination of employment under the Public Service Employment Act. If there is a remedy, it lies elsewhere.

(underlining added)

Public Service Staff Relations Board

Decision Page 6 Mr. Newman referred me to paragraphs 11(2)(f) and (g), and subsection 11(4) of the Financial Administration Act that read as follows: 11 (2) Subject to the provision of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management (including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,

(f) establish standards of discipline in the public service and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct and the circumstances and manner in which and the authority by which or whom those penalties may be applied or may be varied or rescinded in whole or in part;

(g) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed in the public service, and establishing the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;

(4) Disciplinary action against, and termination of employment or demotion of, any person pursuant to paragraph 2(f) or (g) shall be for cause.

Section 28 of the Public Service Employment Act which deals with probation reads as follows: Probation 28.(1) An employee who is appointed from outside the Public Service shall be considered to be on probation from the date of the appointment until the end of such period as the Commission shall establish by regulation for that employee or any class of employees of which the employee is a member.

(1.1) A probationary period established pursuant to subsection (1) is not terminated by any appointment or deployment of the employee made during the period.

Public Service Staff Relations Board

Decision Page 7 (2) The deputy head may, at any time during the probationary period of an employee, give notice to the employee that the deputy head intends to reject the employee for cause at the end of such notice period as the Commission may establish for that employee or any class of employees of which that employee is a member and the employee ceases to be an employee at the end of that period.

Mr. Newman concluded by virtue of the above cited legislation that I do not have jurisdiction.

It should be noted that jurisdictional arguments by both parties were initiated in Vancouver on March 26, 1997 but completed by conference call in Ottawa on Wednesday, May 7, 1997 after the parties received the officially translated version of the decision of the Federal Court, Trial Division, in Her Majesty The Queen (Treasury Board) and Mario Rinaldi, Court file T-761-96.

Mr. Newman also argued that the recent decision of the Federal Court, Trial Division, in Rinaldi dated February 25, 1997 is determinative regarding my authority even though Noël J. does not entirely agree with the Perreault decision (supra).

Mr. Newman argued that Mr. Justice Noël’s footnote 15, on page 7 in the Rinaldi decision (supra), also confirms that I do not have jurisdiction to hear the matter before me, whether the employer’s decision was taken in good or bad faith.

Footnote 15 on page 7 of this decision reads: I want to emphasize that in so far as the action or termination of employment occurred under section 29, a simple demonstration of bad faith or malicious intent on the employer’s part (such as proof of an obvious desire to get rid of the employee at the first opportunity) would not confer jurisdiction on the Adjudicator since, whether or not there was bad faith, the grievance would still be a grievance with respect to a termination of employment under the Public Service Employment Act, which subsection 92(3) of the Public Service Staff Relations Act excludes from the Adjudicator’s jurisdiction. When the employer argues that the employment was terminated under the Public Service Employment Act, the only way to show that it was not would be to prove that the conditions required to apply it were in fact not present at the relevant time and that the employment cannot therefore have been terminated under that Act.

Public Service Staff Relations Board

Decision Page 8 Mr. Newman argued that he felt the door was “opened a crack” for me to take jurisdiction if it can be shown that the grievor was not on probation at the relevant time. He noted also that Noël J. does not entirely disagree with the Perreault decision (supra) where he writes in Rinaldi (supra) at pages 9 and 10: In Perreault v. Treasury Board (Transport Canada), the employer relied on Burchill to try to have a grievance dismissed on the ground that the allegation of bad faith, which was made for the first time before the adjudicator, had the effect of transforming the original grievance into a new grievance. Adjudicator Tenace disposed of this argument as follows: 

Counsel for the employer also submitted that the grievor  has  referred  a  new  grievance  to adjudication  inasmuch  as  the grievor was alleging bad faith for the first time at  adjudication.    In my opinion,  the grievor’s meaning and  intention  have  been  reasonably  clear  throughout.    He  believes  that he was not given a “fair shake” during his  training  period  and  he  felt  that management wanted  to  get  rid  of  him.    This  becomes  quite  clear  when  one  reads the lengthy attachment which the grievor wrote to  accompany  his  grievance.    In my  opinion,  the  facts  do  not  mesh  with  the  reasoning  expressed  in  Burchill  (supra) and it has no application to the instant case. 

Thus, the adjudicator concluded that the allegation of bad faith did not change the nature of the grievance. According to him, the employee’s position had been reasonably clear throughout the process. Even though the allegation of bad faith was not formally stated until adjudication, it added nothing new to the grievance and did not change its nature.

Mr. Newman referred to the decision of the Federal Court of Appeal in Canada (Attorney General) v. Penner, [1989] 99 N.R. 213, that also makes it clear there is little scope for me to take jurisdiction in this matter. It was noted that the Penner decision (supra) predated the amended section 92 of the PSSRA.

Mr. Newman argued that only if the grievor can show that his rejection on probation was done artificially might there be an opening for me to consider deciding the matter on its merits. He concluded however that the termination was done in good faith for cause during a probationary period.

Public Service Staff Relations Board

Decision Page 9 Jurisdictional Argument for the Grievor Mr. Rush argued that, if the employer’s decision to reject the grievor on probation was made in bad faith or was arbitrary, then I should take jurisdiction and decide his grievance on the merits.

He referred me to the Supreme Court of Canada decision in Jacmain v. Canada (Attorney General), [1978] 2 S.C.R. 15, that concluded a rejection on probation can not be disputed unless the employer’s conduct is tainted by bad faith. He also referred to Penner (supra) that concludes the employer’s action of termination on probation must be taken in good faith (pages 217 and 219). He agreed that the Perreault decision (supra) closes the door to any challenge to a true rejection on probation, but he added adjudicator Tenace “turned a blind eye” to the issue of bad faith in the matter. Mr. Rush argued that, even with the new subsection 92(3) of the PSSRA, there is still a requirement for the employer to act in good faith since acts of bad faith are universally prohibited. Otherwise, an employer could easily avoid the consequences of illegal acts, tricks, ill-will, anti-union animus or more. He argued that, if Mr. Earle’s termination was motivated by bad faith, then calling it a rejection on probation is only a device used by the employer and can not stand.

Firstly, Mr. Rush argued with respect to Noël J.’s decision in Rinaldi (supra), that, if it can be established the employer’s action was not a true lay-off but was done in bad faith, then subsection 92(3) of the PSSRA is not a barrier to jurisdiction. Mr. Rush therefore agreed that adjudicator Galipeau was right in her Rinaldi decision (Board file 166-2-26927) in that as Noël J. writes on page 3: ... the Adjudicator decided that she had jurisdiction to hear the grievance in so far as the respondent satisfied her that his lay-off was a subterfuge to terminate his employment. ...

Noël J. reinforces this conclusion by saying on pages 6 and 7: ... The hypothesis on which the Adjudicator based her decision in fact concerns a situation in which an employer disguises an unlawful dismissal under cover of the abolishment of a position through a contrived reliance on that Act. Such a situation would clearly fall within the jurisdiction conferred on adjudicators by paragraph 92(1)(b) of the Public Service Staff Relations Act.

Public Service Staff Relations Board

Decision Page 10 Mr. Rush added that Noël J. went on to say on page 7: This is just as true if the respondent can prove a turbulent employment relationship. He would then also have to show that the employer’s reliance on section 29 is contrived. 15 Mr. Rush argued further regarding footnote 15 on page 7, that what Mr. Newman relied on is not a true or deciding principle of the case before me since he felt it should be characterized as obiter. He felt when read in this context, footnote 15 can not overrule the good faith/bad faith principle established in Penner (supra).

Secondly, he argued that Noël J. contradicts himself by saying bad faith is not a camouflage to protect someone from statute. Noël J. said it is contrived to reject someone on probation if it is camouflaged; therefore, one should not be able to separate bad faith from the argument either. Mr. Rush said Noël J.’s view of bad faith in footnote 15 is an overly narrow one that contradicts the broader authority that I should be bound by. Mr. Rush felt that footnote 15 is also contrary to the decision of the Federal Court of Appeal in Penner (supra) and can not override this judgment. He argued that good faith is the most fundamental requirement of law and must be allowed to be a consideration in the case before me.

He quoted the Penner decision (supra) in part at paragraph 11: [11] It is clear that five of the nine judges who rendered this Jacmain judgment expressed the opinion that an adjudicator seized of a grievance by an employee rejected on probation is entitled to look into the matter to ascertain whether the case is really what it appears to be. That would be an application of the principle that form should not take precedence over substance. A camouflage to deprive a person of a protection given by statute is hardly tolerable. In fact, we there approach the most fundamental legal requirement for any form of activity to be defended at law, which is good faith.

Mr. Rush concluded that Noël J. in Rinaldi (supra) does not deal with Perreault (supra) and bad faith as a factor and that I am not bound by Perreault as adjudicator Galipeau was not in her Rinaldi decision (supra). He said that I am also not bound by Rinaldi and should accept jurisdiction in this matter.

Public Service Staff Relations Board

Decision Page 11 In rebuttal, Mr. Newman argued that if Noël J.’s footnote 15 is obiter, it is reasoned obiter and can not be dismissed out of hand. He said that if one looks at Rinaldi (supra) in light of Penner, Noël J. is not inconsistent with Penner. He added that the case before me is under a different legislative scheme now.

Regarding the camouflage argument, Mr. Newman said one can not solely lose jurisdiction under the PSEA since an adjudicator has to be satisfied there was a termination under the PSEA, and in this case, the employee had to be on probation. He argued that Noël J. is correct in Rinaldi (supra) where he says at the bottom of page 5, top of page 6: ... Furthermore, subsection 92(3) of the Public Service Staff Relations Act provides that a grievance with respect to a termination of employment under the Public Service Employment Act cannot be referred to adjudication.