FPSLREB Decisions

[1]      This decision involves a rejection on probation of Garry Owens, a CR-03 employed by the Royal Canadian Mounted Police (RCMP). The rejection on probation letter was issued on April 6, 2001, and the date that Mr. Owens ceased to be an employee was May 6, 2001. Mr. Owens filed two grievances on April 26, 2001; he grieved both the rejection on probation and a denial of union representation for, and notice of, disciplinary meetings. The first grievance against the rejection on probation includes the failure to provide union representation during the investigation process. The second grievance relates solely to the alleged failure of the employer to allow for union representation and appropriate notice of a meeting on April 6, 2001.

[2]      The final level response to both grievances was issued on May 13, 2002. The grievances were referred to adjudication on July 11, 2002. The grievor was subject to the Program and Administrative Services group collective agreement between the Treasury Board and the Public Service Alliance of Canada, with an expiry date of June 20, 2000.

Preliminary Matters

[3]      The employer raised an issue about the jurisdiction of the Public Service Staff Relations Board (the Board) to hear these grievances in a letter to the Board dated August 2, 2002. It was the employer's position that an adjudicator has no jurisdiction to hear the grievances because the grievor was given an employment-related reason for his rejection on probation. The bargaining agent's response, dated September 3, 2002, submitted that the Board did have jurisdiction based on the fact that the action taken by the employer was clearly disciplinary. The Board responded on September 20, 2002, that the issue would be left to the adjudicator at the hearing, and that the parties should be prepared to proceed on the merits.

[4]      At the commencement of the hearing, counsel for the employer submitted that the jurisdiction of this Board was limited to determining if the rejection on probation was "employment-related". He submitted that it was not the role of this Board to place itself in the shoes of management and determine if the Board agreed or disagreed with the decision. Nor is it the role of this Board to question the evidentiary basis on which the employer made the decision. He indicated that he would be calling one witness only, to establish that the grievor was rejected pursuant to section 28 of the Public Service Employment Act (PSEA). It was the employer's position that I was without jurisdiction to examine the rejection on probation any further.

[5]      The grievor's representative stated that this was not a rejection on probation, but in fact was a disguised disciplinary discharge, and that there were no restrictions on my jurisdiction.

[6]      I reserved on the extent of my jurisdiction and will discuss the scope of an adjudicator's jurisdiction over rejection on probation in my reasons for decision, below.

Evidence

[7]      Mr. Owens commenced employment with the RCMP on February 6, 2001 as a CR-3, Maintenance/Reviewer, with Operational Information Systems, "E" Division, Vancouver, B.C. There was no dispute that Mr. Owens was a probationary employee; the appointment letter of January 17, 2001 (Exhibit E-1), clearly indicates his probationary status.

[8]      Mr. Owens has worked in the Public Service for approximately 25 years. He started his career in the army and subsequently worked at, by his count, some 17 departments. Prior to starting at the RCMP, he was in a term position at the Canada Customs and Revenue Agency (CCRA). He was ecstatic about his appointment to the RCMP, as it was his first permanent position in over 20 years of employment with the Public Service.

[9]      Stephen Ayliffe, a Superintendent with the RCMP, testified on behalf of the employer. He is the officer in charge of Informatics for the Pacific Region and was the manager who made the decision to reject Mr. Owens on probation. Superintendent Ayliffe has the delegated authority to reject on probation pursuant to subsection 28(2) of the PSEA.

[10]      Superintendent Ayliffe testified that he partly based his decision to reject Mr. Owens on probation on a briefing from his second in command, Inspector Morrison, relating to Mr. Owens' performance problems during training, as well as some unacceptable behaviour in the workplace. The letter of rejection on probation (Exhibit E-3), dated April 6, 2001, gives the following reasons for the decision:

During your employment with the Royal Canadian Mounted Police in the above noted position you have not met the established standards and required level of competence for the position. You have demonstrated a lack of judgement, poor performance and unacceptable behaviour.

. . .

[11]      Superintendent Ayliffe received an "Administrative Investigation Report" from Inspector Morrison, dated May 25, 2001, which included a number of attachments relating to the investigation of Mr. Owens (Exhibit E-2). Superintendent Ayliffe referred to this document during his testimony. I have only considered those attachments dated prior to April 6, 2001 (the date of the letter of rejection on probation).

[12]      In his first week on the job, Mr. Owens was given a binder to read which provided an overview of the RCMP. He studied the binder for three days. He also attended a one-day orientation session. He testified that he was "left to his own devices" and received minimal supervision. He was given a self-training computer module for the CPIC system and was supervised by Cathie Bell. According to Mr. Owens, Ms. Bell checked on him a few times and spent, on average, one hour with him over the course of a day.

[13]      Superintendent Ayliffe testified that early in February, during his training, Mr. Owens had problems with respect to training on the PIRS, the records management system. This was reported by the section head and substantiated by the trainers (Exhibit E-2, attachment "A"). Superintendent Ayliffe felt that the concerns over the grievor's performance were well documented. As well, the interventions made by the trainers and the section head, including providing suggestions on how to improve, were documented.

[14]      Lyndall Lloyd, the grievor's supervisor, prepared a training profile (Exhibit E-2, attachment "A") that sets out periodic observations on his training progress commencing on February 28, 2001. Also attached to the training profile were notes with periodic observations made by Ms. Bell and Debbie Dancey, who were his trainers. The last entry made by Ms. Lloyd, dated March 6, 2001, is a succinct summary of the concerns identified by her in the training profile:

Gary is not progressing as he should. He does not appear to be focused on learning his job, but is more interested in learning the content of the files as opposed to learning how to maintain the files. A great deal of time and effort have been afforded Garry in an effort to bring his performance up to an acceptable level.

Garry has completed the PIRS course twice, taking a total of 9 days while other new employees have completed the same modules within 2/3 days. He has demonstrated limited understanding of the simplest procedures and requires repeated instruction on these duties.

A meeting will be scheduled for Wednesday or Thursday of this week to discuss these concerns with Garry.

[15]      Concerns about his performance were raised by his trainers and by his supervisor on a number of occasions, including a meeting with Ms. Bell and Ms. Lloyd on February 27, 2001 (Exhibit E-2, attachment "A").

[16]      Mr. Owens stated that he has difficulty learning things under pressure, although he does not have a learning disability. He testified that he was slower than most people in learning. He also testified that there was a "glitch" in the self-training module and it did not respond the way it should have. He did indicate to Ms. Bell that he was not quite grasping the training, although he was trying.

[17]      At the end of the first week on the job, Mr. Owens recalled speaking to his supervisor, Ms. Lloyd. She expressed some concern about his progress. The grievor stated that he thought she expressed a "bit more concern than the situation warranted". He was not concerned about mastering the CPIC system at the first attempt, as there was a great deal of unfamiliar terminology and a different way of doing things. He was under the impression that he had 12 months to learn the system and perform up to standard. In cross-examination, Mr. Owens stated that he had not given the training profile prepared by Ms. Lloyd (Exhibit E-2, attachment "A") a thorough study, but he agreed that it was probably "generally true".

[18]      Superintendent Ayliffe was asked in cross-examination how much time Ms. Lloyd, the grievor's supervisor, spent in direct supervision of Mr. Owens. He stated that there would be occasional interaction, but that he could not speak to how often they would have interacted. Similarly, he was not aware of the extent of interactions between the grievor and the trainers. He noted that there are self-learning modules for records management training and direct supervision would be minimal for such modules.

[19]      Superintendent Ayliffe testified that Mr. Owens worked in a file area that contains operational records on active or dormant criminal investigations. These highly sensitive files are to be disclosed on a "need to know basis" only. Mr. Owens' curiosity about the files in general, and in specific instances about files violent in nature, was noted by his supervisor. Mr. Owens stated that he had looked through some files, but since he was supposed to update files, he saw no particular harm in leafing through the odd file.

[20]      On the morning of March 6, 2001, Ms. Bell saw the grievor coming from the file bay with his belt undone, and his zipper half down. As soon as he was made aware of this, he corrected his attire. Superintendent Ayliffe testified that this was considered to be a significant state of undress and was disturbing to staff members. Approximately an hour later, Ms. Lloyd met with the grievor to discuss the incident.

[21]      Mr. Owens testified that he was putting away files in the file room; it had been a warmer day than usual. When he came out of the file room, another employee motioned to her stomach area, indicating that his belt had come undone and his zipper was slightly down. He said that he was embarrassed and quickly fixed his pants and belt. He thought nothing more about it. In cross-examination, Mr. Owens stated that on that day, his pants were looser than what he usually wore, so his belt popped open. He had not noticed that the belt had come undone. He also usually wore a sweater, which covered his belt, and on this day he was not wearing a sweater.

[22]      On the following day, March 7, an employee discovered a red diskette in a common work area. The employee opened one of the files on the diskette and discovered a sexually explicit image and immediately took the diskette to Ms. Lloyd. Subsequent examination of the diskette during the investigation showed that there were 19 similar images on it.

[23]      Mr. Owens testified that on that morning (March 7) he was returning from coffee when he noticed all the staff at one end of the office. He went to join them, but was told to wait until he was called. Ms. Lloyd then escorted him into a meeting with Corporal Robert Houghton. She told the grievor that he was suspected of removing photographs from files and photocopying them. He was also accused of having exposed himself on the previous day. He testified that he asked if there was a union representative or legal counsel he could talk to, and he was advised that the union representative, Ward McLean, was not available. The grievor testified that he asked for legal assistance at least twice and none was provided.

[24]      At this first interview, Corporal Houghton produced a computer diskette and asked if the grievor had brought it to work. Corporal Houghton told Mr. Owens that the diskette had pornography on it. The grievor testified that he was horrified. He had brought the bright red diskette from home in order to keep notes of the system procedures, which Ms. Lloyd had asked him to keep. The diskette was kept in plain view at his workstation and had been there for approximately three weeks. In cross-examination, Mr. Owens stated that since there was no label on the diskette, he assumed that it was an empty diskette. When he grabbed the diskette at home, he thought that it was blank.

[25]      The interview lasted for approximately one and a half hours. In the afternoon, Mr. Owens returned to prepare a written statement. According to notes prepared by Ms. Lloyd (Exhibit E-2, attachment "B"), Mr. Owens was told by Corporal Houghton that the statement was voluntary and that he did not need to sign it right away but could have it reviewed by a union representative or another person of his choice before submitting it. Neither Ms. Lloyd nor Corporal Houghton testified. Mr. Owens testified that his statement was voluntary, but that his requests for representation were denied. His voluntary statement also refers to the denial of representation (Exhibit E-2, attachment "E").

[26]      On the following day (March 8), Mr. Owens was called into another interview, this time with Corporal Mark Hachey and Corporal Houghton. This interview was taped. Mr. Owens testified that the interview was largely a re-hash of the interview the day before and involved the officers asking him the same questions, in a more formal way. At this interview, Mr. Owens was not advised of any rights to union representation. According to notes prepared by Corporal Hachey (Exhibit E-2, attachment "C"), he was advised that the interview was not for a criminal investigation but in response to a complaint of inappropriate behaviour in the workplace.

[27]      Inspector Morrison suspended Mr. Owens without pay after the interview on March 8, 2001. The period of the suspension was for the duration of the investigation, which Inspector Morrison initially told Mr. Owens would be for about a week. The suspension lasted until April 6, 2001, when Mr. Owens received the letter rejecting him on probation. His pay for the period of suspension was subsequently reinstated.

[28]      On March 8, the written statement prepared by Mr. Owens on the previous day was sent to the RCMP Threat Assessment Unit for review, to ".ascertain if this individual could potentially be dangerous to the other employees in that section or anyone else.." (Exhibit E-2, attachment "C" - notes of Corporal Hachey). The report was received on March 13, 2001. Corporal Hachey discussed the results with Inspector Morrison and Inspector Morrison decided to approach the Vancouver Major Crime Section and request that they review the file for a potential criminal investigation.

[29]      Mr. Owens testified that the investigation was more thorough than he had expected. The officers spoke to friends, co-workers, neighbours and former colleagues at CCRA. On March 29, 2001, two RCMP constables visited him at his apartment. They asked if they could come in and look around his apartment. Mr. Owens testified that they did not have a search warrant but that he did allow them in. He was then requested to go to the Burnaby detachment for an interview. The interview there lasted for approximately four hours. At this interview, Mr. Owens saw the images on the diskette for the first time.

[30]      A week after this, on April 6, Inspector Morrison called at approximately 9:00 a.m. to ask Mr. Owens if he was willing to come down to the office to meet with him. Mr. Owens testified that he agreed but was unable to make the appointment on time because of a bus strike. Mr. Owens phoned and postponed the meeting until the following Monday. In the meantime, Mr. Owens had contacted his union representative. At 11:00 a.m. on April 6, 2001, the letter of rejection on probation was delivered to Mr. Owens by a constable from the Burnaby detachment. The meeting with Inspector Morrison never occurred.

[31]      Superintendent Ayliffe testified that, upon completion of the investigation, it became evident that "in totality" the performance issues and the unacceptable behaviour in the workplace warranted rejection on probation. He stated that he relied on the information supplied by the section head (Ms. Lloyd) and rendered a decision to reject on probation on April 6, 2001 (Exhibit E-3).

Arguments

For the Employer

[32]      The employer submitted that Mr. Owens had been rejected on probation, pursuant to section 28 of the PSEA, and therefore I had no jurisdiction under section 92 of the Public Service Staff Relations Act (PSSRA) to deal with these grievances.

[33]      Mr. Fader submitted that Parliament's intent is quite clear from reading subsection 92(3) of the PSSRA. It is the intent of the legislation that in the case of a bona fide rejection on probation, this Board has no jurisdiction. Parliament is clear that once the adjudicator is satisfied the issue is rejection on probation the matter is closed.

[34]      The Federal Court of Appeal in Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.) held that just because the actions of the employee could have been subject to discipline does not mean that the employer is required to use discipline. The employer has a choice as to whether to proceed by way of discipline or rejection on probation. Furthermore, Penner established that an adjudicator has no jurisdiction to inquire into the adequacy and merit of the decision to reject on probation as soon as the adjudicator can satisfy himself/herself that the decision was founded on "bona fide dissatisfaction as to suitability."

[35]      Mr. Fader submitted that I had to be satisfied that Superintendent Ayliffe was "lying" in order to have jurisdiction over these grievances.

[36]      Mr. Fader also stated that the test established in Canada (Attorney General) v. Leonarduzzi, [2001] F.C.J. No. 802 limits the jurisdiction of an adjudicator, as follows:

. . .

     However, as I see it, the adjudicator required only that the employer demonstrate the rejection was for an employment-related reason, i.e. a dissatisfaction with the suitability of the employee and, as such, was acting in accordance with the provisions of the PSEA..

.

     What the Vice-Chairperson said was that the respondent probationary employee had the legal and evidentiary burden of establishing a sham but the employer had an initial evidentiary burden of establishing the rejection on probation was employment-related.

[37]      Mr. Fader also referred me to Jacmain v. Canada (Attorney General), [1978] 2 S.C.R. 15 and Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225.

[38]      With regard to the second grievance alleging a failure to provide union representation and to provide advance notice of meetings, Mr. Fader argued that since there was no discipline, the collective agreement provision did not apply. The language of the agreement is clear that representation is to be provided, as well as one-day notice where practicable, for disciplinary meetings only. Since the meetings were not disciplinary in nature, the collective agreement provisions did not come into play.

[39]      He submitted that both grievances should be dismissed.

For the Grievor

[40]      Ms. Seaboyer summarized the issues as follows:

• Was this a rejection on probation or a disguised disciplinary discharge?
• Was the grievor provided with union representation and notice of disciplinary meeting?
• Does the failure to provide notice and representation render the discharge void?
• Was discharge an appropriate penalty for the alleged incidents?

[41]      Ms. Seaboyer submitted that the Board does have jurisdiction when the grievor can prove that it is a disguised disciplinary discharge. The evidence shows that there was an effort by the employer to disguise discipline. Other than requiring extra time on the CPIC system, the grievor testified that he was not made aware of any other concerns. He received minimal supervision during his time at the RCMP and was left to his own devices. He frequently had to find someone to answer any questions he had. During the three interviews with management and the four-hour interrogation at the Burnaby detachment, he was never asked anything related to his performance; the questions related strictly to the alleged incidents.

[42]      Furthermore, Mr. Owens was suspended without pay pending the investigation. Under the Financial Administration Act (FAA), this constitutes a disciplinary action in and of itself.

[43]      There was no indication that Mr. Owens' performance was putting his job in jeopardy. There was no evidence that prior to the March 6 and 7 incidents, the employer was considering rejection on probation.

[44]      Ms. Seaboyer submitted that the collective agreement clearly provides for representation at a disciplinary hearing. The meetings up to and including the aborted April 6 meeting related to discipline. The absence of the union representative makes the rejection void ab initio.

[45]      In terms of notice, Ms. Seaboyer conceded that perhaps one-day notice for the meetings related to the incident with the pants and the diskette may not have been practicable, but that sufficient notice was practicable for the final scheduled meeting, and certainly 90 minutes was not sufficient notice, especially given that there was a bus strike at the time. The haste of the meeting was at odds with the length of time that the process had taken.

[46]      She submitted that there was no evidence that the belt incident and the diskette incident were anything but accidental and no criminal charges were laid. The grievor was never challenged about his right to unrestricted access to files and to read them.

[47]      Relying on the Treasury Board guidelines on discipline (Exhibit G-2), she submitted that the following principles should apply:

-     the duty to act in good faith;

-     the duty to fully inform the employee of what is required from him or her;

-     the duty to inform the employee that he or she is not meeting the requirements of the position, and to inform him or her of the nature of the deficiency and what the consequences will be if he or she continues to fail to meet the requirements of the position;

-     the duty to provide the employee with the opportunity to make the necessary adjustments to meet requirements;

-     the duty to assist the employee in making these adjustments; and

-     the duty to explore reasonable alternative solutions before demoting the employee or terminating his or her employment.

[48]      It was Ms. Seaboyer's submission that there was little or no evidence the employer followed any of these principles.

[49]      Ms. Seaboyer noted that the trainers were not able to be cross-examined on their notes and that Superintendent Ayliffe stated he did not know what was said to the grievor about his performance.

[50]      She submitted that the grievor was not given a fair opportunity to demonstrate his performance, which is contrary to the Public Service Commission policy manual: "Staffing Module", Chapter 12 (Exhibit G-3).

. it is important to ensure that they [probationary employees] are given every opportunity to demonstrate their capability to perform the duties of the position and to meet performance standards. Managers must ensure that they set realistic goals, communicate standards and expectations, monitor performance, give training and provide feedback and encouragement. It is also essential that new employees be given a reasonable opportunity to reach the required level of competence and that they have the necessary equipment, resources and facilities to demonstrate their capabilities.

[51]      The grievor had been in the job for only one month; he was dealing with new equipment and new processes. This was not a reasonable length of time to allow a person to reach the required level of competence.

[52]      Ms. Seaboyer also submitted that the employer had taken disciplinary action, when Mr. Owens was suspended without pay, pending the investigation of the two incidents. Regardless of whether he was reimbursed for those lost wages, the suspension remains disciplinary in nature.

[53]      Ms. Seaboyer relied on the following decisions with regard to rejection on probation: Hartley (Board file 166-2-17326); Tighe (Board file 166-2-15122) and Fardella (Board file 168-2-49).

[54]      The discipline imposed on Mr. Owens (his rejection on probation) should be considered void ab initio because of the denial of union representation for the disciplinary meetings that occurred. Ms. Seaboyer referred me to Evans (Board file 166-2-25641) and Johnson (Board file 166-2-26107).

[55]      In conclusion, the employer used rejection on probation to camouflage discipline. It was submitted that, in order to show disguised discipline, the test was not whether Superintendent Ayliffe had "lied" but whether a disciplinary process had been followed. There was sufficient evidence on how the employer proceeded to show that there was discipline. Ms. Seaboyer hypothesized that the employer commenced by pursuing a disciplinary process until someone "woke up" and realized that Mr. Owens was on probation.

Reply

[56]      The fact that no questions were raised about performance in the interviews does not alter that fact that the employer had a report that demonstrated in detail problems with performance. Mr. Owens did not dispute the contents of this report.

[57]      With regard to the argument that the employer disciplined the grievor by sending him home without pay, the FAA (sections 7 and 11) provides sufficient authority for the employer to manage. This was not a disciplinary action, as he was ultimately reimbursed his pay. The Fardella decision (supra) relied on by the grievor's representative dealt with different legislative provisions.

[58]      There was no denial of natural justice in how Mr. Owens was treated during the investigative process. Allegations of procedural fairness do not expand the jurisdiction of this Board. In any event, the decision of the Federal Court in Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818, provides that any procedural irregularities are cured at this hearing; this hearing is a hearing de novo.

[59]      The Treasury Board policy (Exhibit G-2) does not deal with rejection on probation, but is limited to discipline and termination of employment under paragraph 11(2)(g) of the FAA. The Public Service Commission policy (Exhibit G-3) is not an employer policy but a policy of the Public Service Commission, which may provide rights and recourse under different legislation but is not within the jurisdiction of this Board.

[60]      The cases relied on by the grievor's representative on the standard for rejection on probation all predate the Penner (supra) decision of the Federal Court, which explicitly rejected this "school of thought" on rejection on probation.

Reasons for Decision

[61]      The grievor has filed two grievances with the Board that raise two distinct, but related, issues. First, Mr. Owens is grieving his rejection on probation, which he alleges is disciplinary in nature. Secondly, Mr. Owens is grieving the failure to allow for union representation and to provide the required one-day notice of a disciplinary meeting. Since an assessment of whether union representation was denied depends on whether the meetings were disciplinary or not, I will deal first with the grievance against the rejection on probation.

[62]      The legislative regime that applies to probationary employees involves the interplay of two statutes: the Public Service Employment Act (PSEA) and the Public Service Staff Relations Act (PSSRA). The PSEA provides for a probationary period and for rejection for cause:

28. (1)  An employee who was 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 that employee is a member.

(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.

[63]      The PSSRA, in subsection 92(3), states that nothing in subsection 92(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".

[64]      The intent of Parliament to forbid adjudication of rejections on probation is clear from a straight reading of the provision. The Federal Court has examined this provision and, most recently in Leonarduzzi (supra), has given direction to adjudicators on the scope of their jurisdiction:

. Specifically, the employer need not establish a prima facie case nor just cause but simply some evidence the rejection was related to employment issues and not for any other purpose.

. . .

. The employer cannot rely on subsection 28(2) to reject employees without giving a bona fide reason..

[65]      In Penner (supra), the Federal Court of Appeal adopted the test articulated by this Board in Smith (Board file 166-2-3017):

. . .

In effect, once credible evidence is tendered by the Employer to the adjudicator pointing to some cause for rejection, valid on its face, the discharge hearing on the merits comes shuddering to a halt..

[66]      Once the employer has discharged its burden of demonstrating that the rejection was for an employment-related reason, the burden of proof then shifts to the grievor to demonstrate that the employer's actions are in fact "a sham or a camouflage" and therefore not in accordance with subsection 28(2) of the PSEA: Leonarduzzi (supra). In Penner (supra), the Court articulated the test slightly differently:

.. an adjudicator appointed under the PSSR Act is not concerned with a rejection on probation, as soon as there is evidence satisfactory to him that the employer's representatives have acted, in good faith, on the ground that they were dissatisfied with the suitability of the employee for the position..

[67]      This approach to an adjudicator's jurisdiction under section 92 of the PSSRA with respect to a grievance involving a rejection on probation has been recently followed in Spurrel (2003 PSSRB 15), Board file 166-23-31504.

[68]      On the evidence, the employer has demonstrated that there were employment-related concerns or reasons that were relied on for the decision to reject the grievor on probation. These reasons included demonstrated problems with the training program, as well as the two incidents in the workplace. Mr. Owens did not dispute that there were performance-related issues. He also did not deny that the two incidents did occur, although he had explanations for both of them.

[69]      Mr. Owens testified that he was not a quick learner. He had only been on the job for approximately one month before his suspension, and it is not clear that he would have been rejected on probation for his poor performance alone, in the absence of the two incidents for which he was suspended. Given the short period of his employment with the RCMP, it is quite likely that he would have been given further time to demonstrate that he was performing up to the expected standards. The two incidents in the workplace were therefore of critical importance to Superintendent Ayliffe in deciding to proceed by way of rejection on probation.

[70]      Mr. Owens was suspended without pay for approximately a month prior to being rejected on probation. A suspension without pay is, by its very nature, disciplinary. The fact that he was later reimbursed for this period of suspension does not change the character of the action at the time it was imposed. At some point, the employer changed its tack and proceeded by way of rejection on probation. It has been argued by the grievor's representative that the use of the disciplinary process is an indication that the rejection on probation was in fact a disguised disciplinary discharge. This position confuses the investigation process used by the employer with the decision on whether to reject the grievor on probation or impose discipline.

[71]      In Penner (supra), the court concluded that the employer could choose whether to proceed by way of discipline or rejection on probation and just because something could be characterized as being subject to discipline did not mean that the employer was required to proceed by way of discipline:

. . .

In certain cases, the employer may have the power either to reject or discharge a probationary employee. This is so because. a lack of discipline or misbehaviour on the part of the employee is a reason for the employer to reject him; it may also be a reason warranting a discharge. In these cases, the employer has the choice of either discharging or rejecting the employee. Both the power to reject and the power to discharge are conferred on the deputy head; in each case he may, therefore, choose which one of those two powers he wants to use.

. . .

.Neither the function of a probationary period nor the structure of the legislation can be reconciled with the proposition that disciplinary discharge and rejection for cause are not mutually exclusive concepts. One is the ultimate sanction imposed by management for serious misbehaviour, the other is a termination of employment based on a bona fide dissatisfaction with suitability. It may be that this dissatisfaction with suitability arose from misconduct or misbehaviour by the employee, but that does not render the dissatisfaction any less real and legitimate nor does it permit us to confuse the rejection with a disciplinary sanction.

. . .

[72]      The process used in advance of the decision to reject on probation may give rise to certain rights under the collective agreement (see the discussion below), but once the decision has been made to reject an employee on probation, the employer is required only to show that there was an employment-related reason. Superintendent Ayliffe's testimony demonstrated an employment-related reason for rejecting Mr. Owens on probation.

[73]      It is also good labour relations policy to allow the employer to engage the disciplinary process when conducting an investigation of a probationary employee. It is then possible for the employer, at the point of final decision, to determine that a disciplinary penalty short of discharge is appropriate. In this case, the employer chose to reject on probation, a choice open to it according to the Federal Court of Appeal decision in Penner (supra).

[74]      I now turn to the question of whether the employer's actions are "a sham or camouflage". This part of the test is a very high standard or threshold for the grievor to meet. The employer has demonstrated legitimate concerns about Mr. Owens' performance and behaviour in the workplace. Unless those reasons can be characterized as trivial, in my view, the employer's decision cannot be said to be a sham or a camouflage. The reasons relied on by the employer in this case are not trivial, but are significant concerns about Mr. Owens' suitability for employment.

[75]      Although the grievor has legitimate concerns about the way in which the employer assessed suitability, the employer's actions cannot be characterized as a "sham". Mr. Owens was suspended without pay only one month into his probationary period. This was likely not sufficient time to assess his performance adequately or to allow him to correct any deficiencies that were identified. However, once the employer has met its burden of showing an employment-related reason for rejection, and the grievor fails to prove that the actions were "a sham or camouflage", I am without jurisdiction to review the rationale for the decision to reject on probation and its reasonableness. A complaint to the Public Service Commission, which is responsible for administering the PSEA, is the appropriate avenue for raising such concerns.

[76]      In Penner (supra), the Court of Appeal sets out a requirement of the employer to act in good faith in a rejection on probation. The grievor did not establish any bad faith on the part of the employer in coming to its decision to reject on probation.

[77]      Accordingly, the part of the first grievance relating to the rejection on probation is dismissed.

[78]      Turning to the aspects of the first grievance relating to the denial of union representation during the investigation process, and the second grievance on the denial of union representation and of notice of a disciplinary meeting on April 6, 2001, the relevant collective agreement provision reads:

17.02 When an employee is required to attend a meeting, the purpose of which is to conduct a disciplinary hearing concerning him or her or to render a disciplinary decision concerning him or her, the employee is entitled to have, at his or her request, a representative of the Alliance attend the meeting. Where practicable, the employee shall receive a minimum of one (1) day's notice of such a meeting.

[79]      Because the employer took the position that the entire investigation process was administrative and not disciplinary, it adduced no direct evidence on this issue. The "Administrative Investigation Report" (Exhibit E-2) provides some hearsay evidence that this issue was addressed by Corporal Houghton, who advised Mr. Owens that he could seek union representation. However, this evidence is unreliable, and I must prefer the direct testimony of Mr. Owens, who stated that his request for union representation was denied.

[80]      I have already found that at the commencement of the investigation the employer was proceeding by way of disciplinary action, as evidenced by the suspension without pay. I therefore conclude that the employer breached the collective agreement, and the part of the first grievance relating to the denial of union representation is allowed, for those meetings up to and including the meeting that resulted in the grievor's suspension without pay.

[81]      In terms of appropriate notice, I find that it was not practicable to provide such notice for the initial interviews on the incidents in the workplace. The grievor's representative conceded this in her argument. Accordingly, the employer did not breach the notice provision.

[82]      The second grievance refers only to the notice received for the meeting of April 6, 2001 (which, in the end, did not occur). Clause 17.02 does not apply to this aborted meeting because at that time the decision to proceed by way of rejection on probation had already been made by the employer. Since the purpose of the meeting was not disciplinary, the collective agreement provision does not apply. Accordingly, the grievance in Board file 166-2-31373 is denied.

[83]      In view of the employer's subsequent decision to proceed by way of rejection on probation, there is no remedy available for the failure to allow for union representation at the earlier meetings, other than a declaration.

[84]      In conclusion, the grievance against the rejection on probation (Board file 166-2-31372) is allowed in part. The grievance against the denial of union representation and notice of a disciplinary hearing (Board file 166-2-31373) is dismissed.

Ian R. Mackenzie,
Board Member

OTTAWA, April 23, 2003