FPSLREB Decisions

[1]      Alain Gingras ("the grievor") has referred to adjudication a grievance under subparagraph 92(1)(b)(i) of the Public Service Staff Relations Act (PSSRA). That subparagraph reads as follows:

          92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

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(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

[…]

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]      The grievor occupies a position of Immigration Officer (FS-02) in the Department of Citizenship and Immigration Canada. He has been working in Ottawa following the events that gave rise to his grievance and led to his departure from Manila, Philippines.

[3]      His grievance, dated May 17, 2001, reads as follows:

[Translation]

I would like to present a grievance against the employer's decision to end my assignment, allegedly because of misconduct.

Corrective Action Requested

I would like the decision to be rescinded and removed from my file. I would also like any documents relating to the decision to be removed from my file and handed over to me.

[4]      At the time of the reference to adjudication, in November 2001, the grievor's representative, Ron Cochrane, wrote to the Board the following:

[…]

          Mr. Gingras had his assignment to the Philippines terminated one year after his posting for alleged misconduct. The early termination of the Gingras posting has resulted in a financial penalty for Mr. Gingras.

[5]      On December 13, 2001, the employer objected to having the grievance proceed to adjudication.

[…]

          It is respectfully submitted that an adjudicator lacks jurisdiction to hear this matter, as it does not meet the criteria set out in section 92 of the Public Service Staff Relations Act since management's decision to terminate Mr. Gingras' appointment as a Visa Officerin Manila was not a disciplinary action constituting suspension or financial penalty.

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[6]      At the initial hearing, the employer objected to the jurisdiction of an adjudicator to hear this matter on two grounds: (1) on its face, the grievance does not allege disciplinary action and (2) the decision to recall was administrative and not disciplinary.

[7]      On May 7, 2002, I rendered a preliminary decision (2002 PSSRB 46) on the adjudicability of Mr. Gingras's grievance.

[8]      In the first decision, I rejected the employer's first objection. This decision deals with the employer's second jurisdictional objection, as well as the merits of the grievance.

[9]      The hearing resumed on April 23, 2003. At the outset, counsel for the employer requested a postponement of the case on the basis that his witness was in India, nursing a newborn child. After having heard the representations of both parties on this matter, I granted the postponement.

[10]      The hearing resumed on August 13, 2003. The evidence can be summarized as follows.

[11]      Murray Oppertshauser, Immigration Program Manager, testified that the grievor's role as an Immigration Program Officer was to receive immigration applications, assess them in accordance with the Immigration Act and its regulations and determine if the applicants were qualified to be immigrants to Canada. The notes (CAIPS notes) made by the grievor were an essential element of the process and were part of the record. They are deemed as evidence by the Federal Court and often form the basis of judicial review applications.

[12]      On many occasions, Mr. Oppertshauser reminded officers, including the grievor, of the care that was expected of officers in the drafting of their notes. Mr. Oppertshauser testified that management's concerns regarding the grievor's notes were brought to the grievor's attention on several occasions by him and by others, including Ms. Lebrun, the grievor's supervisor. In addition, the grievor received training on the drafting of notes (Exhibits E-6 and E-7).

[13]      Ninon Valade, an ex-colleague of the grievor, testified that in 1993, while she was a general visa officer in Beijing, China, she reviewed some CAIPS notes written by the grievor. She informed him that she felt that they were inappropriate and that he could get fired over them. She could not recall any reaction on the grievor's part. To this day, she and the grievor still have a good relationship.

[14]      In 1997, Ms. Valade became Deputy Director of Personnel (International Region). In 1998-99, she had a meeting with the grievor. The grievor was one of the few exceptions to a massive promotional exercise of FS-01s to FS-02s. She intended to discuss with the grievor the reasons why he had not been promoted and to address the means by which the grievor could improve. Several issues were discussed, in particular, the CAIPS notes. She told him again that she thought his notes were unacceptable. She clearly stated that the notes were unprofessional; she gave him examples and insisted that he should limit his notes to facts. She told him that he was jeopardizing his chances of promotion and would eventually get into trouble. According to Ms. Valade, the grievor did not understand her point of view. Ms. Valade even told the grievor that she would not want him to work for her because she would not want his notes. Ms. Valade testified that she had never seen such "outrageous notes". She played no role in the grievor's removal from Manila.

[15]      The grievor's testimony can be summarized as follows.

[16]      The grievor did not recollect the 1993 conversation with Ms. Valade but he confirmed the 1998 conversation during which Ms. Valade mentioned management's concerns about his "writing style". The grievor did not recall having been told by Mr. Oppertshauser that there were concerns regarding his CAIPS notes. Later in his testimony, the grievor said it was "possible" that Mr. Oppertshauser had said that he "had reservations" and that the grievor "would have to restrain his note taking". The grievor also acknowledged that more than one supervisor expressed concerns regarding the appropriateness of some of the grievor's comments in his notes and that his immediate supervisor, Ms. Lebrun, might have said, "you are going a little far with these notes". The grievor also acknowledged that Rick Shram had met with him and told him "it was not a good idea to describe a person as an imbecile."

[17]      The grievor stated that, in retrospect and in view of the consequences (he was brought back to Ottawa), he could understand the employer's objections to some of the language and comments that he used. He could see that, for instance, describing a potential immigrant as a "nerd" could be objectionable. The grievor pointed out "nothing untoward happened." The grievor did agree that if some of the applicants saw his comments about them, they might be hurt. He also said that he did not try harder to change his ways after being told that his comments were objectionable because "my main problem was I was not aware of the consequence". He was adamant that at no time was he told that his "writing style in his notes" could lead to the termination of his posting abroad.

Arguments

[18]      The argument of the grievor's representative can be summarized as follows.

[19]      It is unfair and unjust to deprive the grievor of a review mechanism by characterizing an action as "administrative". The employer has not alleged either "misconduct" or "incompetence". If the reason for the grievor's removal from his posting was alleged misconduct or alleged incompetence, the grievance should be granted.

[20]      An early recall from a posting has serious implications for a foreign officer's career. Therefore, the reasons for the recall should come under a magnifying glass.

[21]      At the final level of the grievance procedure, the employer characterized the grievor's actions as "inappropriate behaviour" and "lack of judgement". This "inappropriate behaviour", if it is within the control of the employee, is equal to misconduct. The reasons given by Mr. Oppertshauser were intended to address misconduct: "You failed to follow instructions."

[22]      Mr. Oppertshauser repeated it in cross-examination. Therefore, there is no doubt that the grievor was penalized for his failure to obey instructions given to him by the employer.

[23]      Therefore, the question is, was the grievor given clear instructions? A review of the evidence suggests that this should be answered in the negative. In addition, no one told the grievor during his four postings that his note-taking could bring about his recall to Ottawa. The training given to the grievor was never clearly linked to the quality of his notes.

[24]      Did the employer treat the grievor in good faith? The answer is negative. The grievor was not given a chance to improve. A case was built behind the grievor's back.

[25]      In summary, the reason for recalling the grievor is constructive discipline, alleged misconduct in the form of negligence and failure to obey orders and this misconduct is not proven.

[26]      The grievance should be allowed; the employer should be ordered to reinstate the grievor in Manila or send him to another posting for three years and to reimburse the grievor for his financial loss.

[27]      These cases were quoted: Deering (Board file 166-2-26518), Johnson (Board file 166-2-26107) and Stitt (Board file 166-2-25981).

[28]      The argument of counsel for the employer can be summarized as follows.

[29]      The issue is, did the grievor establish that there was disciplinary action resulting in a financial penalty, thus establishing an adjudicator's jurisdiction?

[30]      There is no allegation by the grievor that there is disciplinary action resulting in suspension or termination. Therefore, reinstatement in the posting is excluded.

[31]      There is no need for the employer to establish anything except to refute the allegations of disguised disciplinary action made in bad faith resulting in a financial penalty. It is not within an adjudicator's jurisdiction to decide if it was appropriate for the employer to remove the grievor from his foreign posting.

[32]      The grievor's employment was not terminated and he kept his level and pay, but lost his Foreign Service allowance.

[33]      Diplomats represent Canada abroad and deal with the public. A foreign mission is a Canadian island in a foreign sea and management needs to exercise great discretion to determine who is suitable and who should be retained in a foreign post. The relevant circumstances needed to make that decision include performance and misconduct. Canada should not have to keep abroad a diplomat if it is determined that the diplomat is not suitable. It is important that management trust in the ability of diplomats to carry out their duties in conformity with Canadian values.

[34]      By May 11, 2001, management had lost confidence in the grievor's ability to carry out his duties in an acceptable manner; it considered him a liability and could not keep him in Manila.

[35]      The intent was not to punish the grievor but rather to protect the integrity of the mission. The letter of May 11, 2001 (Exhibit E-4), was not a disciplinary document. It terminated the grievor's posting for operational reasons and the grievor was entitled to relocation expenses. No disciplinary action was taken. Rather, it was an administrative action and it was within the authority of management. A review of the evidence shows that through Ms. Valade's comments, on more than one occasion, through appraisals and through his immediate supervisors, Ms. Lebrun and Mr. Shram, the grievor was put on notice that his notes were unacceptable. Even through Mr. Oppertshauser's comments and the training course, the grievor was apprised of the necessity of writing notes in a professional manner.

[36]      There was no subterfuge to remove the grievor from his posting for no good reason. There were valid concerns and although neither incapacity nor incompetence were alleged, steps had to be taken not to jeopardize the mission. There was no need to give additional specific forewarning to the grievor, as his employment was not terminated, but rather he was simply reassigned as a rotational employee can be reassigned. This is a necessary prerogative of the employer, as long as it is not a subterfuge.

[37]      The onus of proving bad faith was on the grievor. The evidence is that Mr. Oppertshauser and the grievor's supervisors had legitimate concerns about the grievor's ability to carry out his duties in an acceptable manner. It was incumbent upon the grievor to meet the heavy onus of showing bad faith.

[38]      In addition, even if the grievor's conduct amounted to misconduct, it does not mean that the action taken by the employer was disciplinary. The decision was made on account of the grievor's behaviour, but the nature of the decision remained "administrative".

[39]      If there is a finding of disciplinary action, the only possible corrective action relates to the financial loss as a result of the early termination of posting.

[40]      The following cases were quoted: Genest (Board files 166-2-23133 and 149-2-125), Cochrane (2001 PSSRB 129) and Bailey (2001 PSSRB 70).

[41]      In rebuttal, the grievor's representative stated that the argument of the employer amounted to the establishment of a double standard for foreign service officers vis-à-vis other public servants. He added that the employer ought not to be allowed to discipline with impunity and without its decision being reviewed by an adjudicator. Fairness, equity and transparency required that the grievor be forewarned of the consequences of his persisting in his particular style of note-taking.

Reasons for Decision

[42]      In order to establish an adjudicator's jurisdiction, the grievor had the burden of proving that he had been the object of "disciplinary action resulting in a financial penalty" as contemplated by paragraph 92(1)(b)(i) of the Public Service Staff Relations Act (PSSRA).

[43]      The employer denies that it intended to take disciplinary action and alleges that, in recalling the grievor from his foreign posting, it took an administrative action.

[44]      It is clear from reading the employer's letter (Exhibit E-4) informing the grievor of his recall to Ottawa that the employer had serious "concerns" about the grievor's performance, in particular his CAIPS notes. The employer feared that the notes might indicate "bias", "prejudice", "cultural insensitivity", and was of the view that they contained "unacceptable editorial comments". The employer was also preoccupied with the grievor's reversal of other officers' decisions and his application refusal rate. The employer expressed doubts on the grievor's fairness and responsibility in arriving at selection decisions and questioned the grievor's "ability to satisfactorily perform the duties of Immigration Foreign Service Officer in a post outside Canada."

[45]      Having considered the written and testimonial evidence, and in particular the grievor's own admissions in cross-examination, I am satisfied that the employer had legitimate concerns regarding the grievor's performance.

[46]      The evidence does not support the conclusion that the employer acted in bad faith nor that it resorted to a subterfuge in recalling the grievor to Ottawa. Some recalls from foreign postings can be disciplinary in nature. However, the burden of proof rests with the grievor to establish this and, in the instant case, I am unable to conclude that the evidence establishes, on a balance of probability, that the recall is a disciplinary action. The facts support the conclusion that the employer's response to the grievor's behaviour was an administrative action intended to address operational considerations (maintaining the quality of its service according to its own standards) flowing from the grievor's unsatisfactory performance in writing comments in CAIPS notes, which he admitted, during cross-examination, could be hurtful to applicants should these comments come to their attention.

[47]      The grievor has not lost his employment, or his salary. He is still working, still receiving his salary but at a different geographical location. He has lost a particular foreign posting and the benefits that flow from holding this particular posting. The loss of these benefits does not flow from an intention to punish him by depriving him of these benefits. Rather, it is an indirect consequence of no longer having a foreign posting and of working in Ottawa instead. In view of my conclusion that the recall was not disciplinary, the issue of whether or not the loss of the premium is a financial penalty does not arise. This being said, the grievor now works in Ottawa and because he works in Ottawa, he is no more entitled to these benefits than his other colleagues working in Ottawa.

[48]      All recalls to Ottawa are not disciplinary actions and the loss of benefits flowing from the recalls does not automatically constitute a "financial penalty". The employer retains the possibility of recalling in good faith employees whose performance is not satisfactory while at the same time not warranting disciplinary action.

[49]      In short, I am of the view that this decision was a bona fide recall, which, although frustrating to the grievor, was not intended as a disciplinary measure. Therefore, the employer's second objection is maintained and I conclude that I am without jurisdiction.

[50]      Alternatively, in the present case, I am of the view that, even if I were to assume that the employer intended to sanction a misconduct on the part of the employee, I would conclude that, on the basis of the notes filed in evidence and given the particular context, the recall and the accompanying loss of the foreign service premium was a reasonable response to the employee's failure to cease his pattern of objectionable comments.

[51]      For these reasons, the grievance is denied.