FPSLREB Decisions

[1]      The grievor, Pierre Archambault, filed two grievances with his employer, the Canada Customs and Revenue Agency (the Agency), on November 16, 2000.

[2]      In the grievance registered under number 1249-461-19682, Mr. Archambault objects to the actions of the Agency's agents, which he deemed to be harassment and abuse of power against him in the following terms:

[Translation]

I object to the actions of the agents of the Canada Customs and Revenue Agency (CCRA), including among others, Francine Fortier, Suzanne Blais, Antoine Bourdeau, Suzanne Auchu and Pauline Couture. These actions and, in particular, among others, the decision to terminate my employment, to consider only the negative points, not to take into consideration resolved files, and not to make a fair and honest assessment, constitute harassment and an abuse of power toward me.

In the grievance registered under number 1249-461-19863, Mr. Archambault objects to the Agency's decision to terminate his employment without valid reason. In both grievances, Mr. Archambault requests that he be reinstated in his job.

[3]      The Public Service Staff Relations Board (the Board) included both grievances submitted by Mr. Archambault to his employer when it opened this reference to adjudication file.

[4]      I took under reserve the preliminary objection by counsel for the employer according to which the Board allegedly does not have jurisdiction over a rejection on probation, which is the subject of this case. The arguments presented by the parties in this regard will be discussed in this decision with all of the arguments, following the presentation of the evidence.

The Facts

[5]      Francine Fortier, Assistant Director, Revenue Recovery Division (Montérégie, Rive-Sud Tax Services Office) testified for the employer.

[6]      Pierre Archambault testified on his own behalf and called three employees to testify (Claude Castonguay, Harry Louis, Sylvie Landry).

[7]      Mr. Archambault was hired for a determinate period as a collection contact officer (PM-01 group and level) from January 10, 2000, to March 31, 2001 (Exhibit E-2). In correspondence dated February 15, 2000, the Agency informed Mr. Archambault that he would be on probation for a maximum of 12 months. Prior to his hiring, Mr. Archambault worked in Client Services of the Department of Revenue (from January to May) and in the Collections Division of the same department (until October 1998). He worked as a part-time security guard for the Garda company (in 1999) and held a determinate position with the Service de recouvrement des pensions alimentaires (Revenu Québec) from October 1999 until he was hired by the Agency in January 2000.

[8]      Ms. Fortier informed Mr. Archambault of his rejection on probation by correspondence dated October 30, 2000 (Exhibit E-1). She explained that various evaluations showed that he was not meeting the employer's expectations and that he would cease to be employed following a two-week notice period, that is, as of November 14, 2000.

[9]      During his first two weeks of employment (January 10 to 21, 2000), Mr. Archambault received training covering all aspects of the work of collection contact officers. The training was provided to a group of 11 new employees (Exhibit E-3).

[10]      Following training, Mr. Archambault was integrated in a team under the responsibility of Suzanne Blais (Team Leader) and Suzanne Auchu (Technical Advisor). Mr. Archambault was assigned a caseload of between 200 and 300 individual files.

[11]      In performing his duties, a collection contact officer is required to analyse the files assigned to him and to identify a maximum of five to eight files weekly as priorities for intervention ("BF" list). The contact officer must suggest to his team leader the action to be taken to recover the amounts due to the Agency by the taxpayer. The technical advisor provides advice to the contact officer on possible interventions and provides solutions to problems that he may encounter in carrying out his duties. The technical advisor provides follow-up to the initial training by reviewing the work of the contact officers at the start of their employment.

[12]      In March 2000, in keeping with Agency policy, the caseload rotated among the contact officers. At this time, Mr. Archambault was assigned corporation files in addition to individual files for the first time. The team leader confirmed with Mr. Archambault that he was comfortable with the corporation files. Mr. Archambault informed the team leader that he held a B.A. in Business with an accounting minor and that although he said he was not familiar with the CORPAC computer program used in the corporation files, he was comfortable working with this type of file.

[13]      Suzanne Blais met with Mr. Archambault on May 26, 2000, regarding some of the shortcomings she had noted. Additional training was provided on May 30 and 31, as well as on June 6, 7 and 8, 2000, by his team's technical advisor.

[14]      The technical advisor and the team leader reviewed Mr. Archambault's work regularly thereafter. At a meeting on or about June 12, 2000 (June 15 according to Mr. Archambault), he was told the specific areas that required improvement. According to Mr. Archambault, the employer reprimanded him for trifling problems.

[15]      On August 31, 2000, the team leader explained to Mr. Archambault that little improvement had been noted (Exhibit E-4). Mr. Archambault testified that the technical advisor allegedly criticized him for other shortcomings, such as duplication, the drafting of write-offs and the action plans for his files. The employee challenged the issue of duplication and minimized the importance of the criticisms related to the drafting of write-offs. Examples of the reworking requested by Ms. Auchu are included by the employee in the details provided to Ms. Châtillon with respect to the harassment complaint (document 19, Exhibit G-1).

[16]      On September 14, 2000, the Assistant Director of the Division informed Mr. Archambault orally and in writing that there would have to be a significant improvement in performance in the next two weeks (by September 29, 2000). If there was no improvement during that period, he would be rejected on probation (Exhibit E-4). Mr. Archambault told the Assistant Director that he had no confidence in his team leader (Suzanne Blais), which Ms. Fortier perceived as a request to change teams.

[17]      Mr. Archambault stated that he was unable to work from September 18 to October 1, 2000. Upon his return to work, he was assigned to the team reporting to Antoine Bourdeau (team leader), supported by Pauline Couture (technical advisor). Mr. Archambault retained the list of files for which he had previously been responsible. In light of Mr. Archambault's period of incapacity, the Assistant Director gave him three weeks, upon his return to work, in which to improve his performance, that is, until October 20, 2000 (Exhibit E-7).

[18]      At a meeting on October 3, 2000, Mr. Bourdeau presented the improvements that he wanted to see in Mr. Archambault's work as follows:

[Translation]

• Improved concentration and listening.
• Learn about the files by reading the account histories to identify action already taken so as not to duplicate.
• Study the files in depth, that is, the source of the debt, the client's financial situation, computer systems (RAPID, GST) to make arrangements based on the client's ability to pay.
• Develop action plans for the most complex files.
• Adapt the examples provided by the technical advisor to the client's situation and do not copy the examples word for word when preparing a write-off.
• Improve sentence and syntax structure when drafting write-off documents.
• Ensure effective management of the caseload in ACSES (example: plan by priority, largest, oldest), control, bring forward date (BF), use of the alpha list. Note. The underlined words were added manually to the document by the team leader during the meeting (Exhibit E-6).
• If necessary, consult with the technical advisor when carrying out his work.

[19]      Mr. Archambault was accompanied by a union representative at this meeting on October 3, 2000. Two feedback sessions per week were planned with the team leader and a report was to be given to Ms. Fortier at the end of the period set as October 30, 2000.

[20]      Following the feedback sessions with the employee, Mr. Bourdeau reported his observations in the performance evaluation report (Exhibit E-8). The criticisms from the team leader and the employee's responses (clarified at the hearing) are recorded as follows:

1. On the morning of October 6, 2000, Mr. Bourdeau noted that the employee had not adhered to the criteria requested (large accounts and old accounts) when redoing his caseload planning. Although the employee had been told to prioritize five to eight accounts per day, the caseload was out of control after only two days, with 19 accounts showing on the BF list, in addition to new accounts. Mr. Archambault explained the increase in his BF list by the arrival of new accounts by mail and those reactivated as a result of call backs by or to taxpayers.
2. On the afternoon of October 6, a control audit of the employee's caseload found technical errors on some accounts (errors recorded on six accounts). In response to the shortcomings identified, Mr. Archambault testified that he disagreed with the strategy or actions recommended by his team leader and the technical advisor on these accounts. He testified that he regularly checked the information on the PAYDAC system, contrary to his superior's opinion on this point. In the employee's opinion, his superiors were trying to find fault with his work and were only seeking grounds to dismiss him. He argued that the employer showed bad faith by failing to include on page 2 of Exhibit E-8 comments that were favourable to him regarding the $44,474.00 account. He admitted that he had misread the date when he suggested making a premature seizure (in less than the required 90 days).
3. Another feedback session on October 11, 2000, revealed that there were more than 15 bring forwards in the employee's BF list for October 10 and 11, 2000. Several of the controlled accounts showed that the employee had not checked the information on the PAYDAC and RAPID systems. Mr. Archambault clarified during his testimony that he disagreed with the conclusions regarding the use of the PAYDAC and RAPID systems. He also expressed his disagreement with the actions recommended by his superiors concerning these accounts. Mr. Archambault pointed out that he disagreed with his superiors about the information that he was required to enter in or transcribe to the ACSES system.
4. The team leader pointed out, at the feedback session on October 71, 2000, that the caseload planning if again out of control (21 BF in his plan) only two days after asking the employee to redo it for the period from October 12 to 20. According to Mr. Archambault the feedback session should have been on October 16, not October 17, and the only purpose of the requests by his team leader (versus T2 copies and other action requested) was to delay him in carrying out his other duties. The audit of some accounts in Mr. Archambault's caseload showed, in the employer's opinion, that the information in the accounts or in the computer system was not properly analysed (lack of T2 analysis, no checks of the RAPID system). The employee seems to have difficulty distinguishing between shareholders, directors and the company. The team leader noted that Mr. Archambault had not prepared collection action plans for any of the accounts in his caseload.
5. Mr. Archambault testified that the requirements varied (both in terms of intervention strategies and write-off drafting requirements) from one team leader to the another or between technical advisors and team leaders. In his view, some of the instructions received during the initial training were contradicted by those received from the technical advisors and the team leaders when performing his functions as a collection contact officer.

[21]      Mr. Archambault indicated his intention to submit during the hearing copies of the accounts on which he worked during his period of employment with the Agency. Counsel for the employer raised an objection with respect to the submission in evidence of taxpayer files because they are confidential. After verifying Mr. Archambault's reason for submitting these documents, I decided that it was not necessary to submit taxpayer files (or parts of files) in evidence to demonstrate either the good results achieved with some files, the contradictory instructions from his superiors or trainers and technical advisors, or that other employees commit the same mistakes for which he was criticized. Mr. Archambault's testimony on these points is enough to show his position and the filing of confidential documents would add nothing to this testimony. However, Mr. Archambault may keep in his possession for the duration of the hearing any documents that he currently has and which might be considered confidential. Once the hearing is complete, it is recommended that the parties meet to resolve the issue of confidential documents that Mr. Archambault may have and which may belong to the Agency.

[22]      Mr. Archambault testified that he was able to collect significant amounts in several of the accounts in his caseload. He argued that the employer did not want to consider these positive elements during the various feedback sessions on these files, although Mr. Boudreau did tell him that everything was fine with the other files. It is the employee's view that the fact that the employer focused only on the negatives during the feedback sessions shows that it was acting in bad faith.

[23]      The three employees called by Mr. Archambault to testify explained that it is normal for the technical advisor or the team leader to suggest changes to the account collection procedures of officers and for them to require changes to caseload planning and priorities. The maximum number of accounts that should appear on the weekly BF varies between five and eight. This maximum can be exceeded when mail comes in or because of telephone calls. It is common to adjust priorities in these circumstances to avoid having things get out of control. Instructions received at the time of the initial training may change during the course of work, either at the time of a team meeting, or by instructions from the technical advisor and the team leader. Account intervention strategies may vary from one team leader to another and from one technical advisor to another and contact officers apply the strategies requested by these individuals. The contact officers stated that they follow the action requested by the advisor and the team leader and reorient their interventions accordingly. The same applies to the vocabulary used when drafting write-off notices and entering information in the various computer systems or on paper.

[24]      Although Mr. Archambault has subpoenaed eight other employees among those employed in the Montérégie Tax Services Office (Exhibit G-3) and these individuals were absent at the time of the hearing, no action was necessary by the adjudicator to subpoena them since these potential witnesses would have testified along the same lines as Mr. Castonguay, Mr. Louis and Ms. Landry.

[25]      Mr. Archambault had indicated his probable intention to call Antoine Bourdeau (team leader) as a witness. The objection raised by counsel for the employer with respect to possibly having this person testify was overruled by the adjudicator. Although Mr. Archambault was advised that he could call Mr. Bourdeau, he chose not to call this person to the stand.

[26]      Mr. Archambault testified that, on the occasion of a meal organized by another employee, he travelled with Ms. Blais. During the trip, Ms. Blais allegedly asked him some personal questions (custody of his daughter, visitation rights, etc) and the conversation was not on work-related matters. On another occasion, he allegedly received a cold and even hostile response from Ms. Blais when he greeted her when she visited the office with her children.

[27]      According to Mr. Archambault, Ms. Blais criticized him for trifling things and harassed him by demeaning his work and refusing to take into account positive aspects. This attitude by the employer continued despite the change in team and was also noted during meetings with Ms. Fortier. The solidarity of the employer's representatives resulted in a continuation by Mr. Bourdeau and Ms. Fortier of the undermining begun by Ms. Blais.

[28]      Recourse to individual feedback and review of the decision from individual feedback are set out in the Agency's staffing program (Exhibit E-9) and apply in cases of rejection on probation. Individual feedback is provided by the person responsible for the staffing process (Ms. Fortier, in this case) and review of the feedback decision is done by the supervisor of the person responsible (Denis Martineau, Director, Montérégie- Rive-Sud Tax Services Office).

[29]      Mr. Archambault requested individual feedback on October 30, 2000 (document 9, Exhibit G-1), and a negative response was provided on May 31, 2001 (Exhibit E-10). The request for review was sent on June 7, 2000 (Exhibit E-11), and a negative response was sent on June 27, 2001, by Mr. Martineau (Exhibit E-12).

[30]      Ms. Châtillon (Assistant Commissioner, CCRA) received a complaint of harassment on November 3, 2000 (document 10, Exhibit G-1). On December 18, 2000, she informed Mr. Archambault that his allegations should instead be submitted to the individual feedback and review of individual feedback process and that his harassment complaint was rejected (document 20, Exhibit G-1).

[31]      The following extracts from Public Service Staff Relations Act (PSSRA) and the Act to establish the Canada Customs and Revenue Agency (CCRAA) must be considered in this matter.

[32]      In particular, section 92 of the PSSRA describes the type of grievance that may be referred to adjudication in the following terms:

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

(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 1 of Schedule 1 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) of (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.

[33]      The following provisions of the CCRAA must also be considered:

HUMAN RESOURCES

50. The Agency is a separate employer under the Public Service Staff Relations Act.

51. (1) Notwithstanding subsections 11(2) and (3) and section 12 of the Financial Administration Act, the Agency may, in the exercise of its responsibilities in relation to personnel management,

(a)   determine its requirements with respect to human resources and provide for the allocation and effective utilization of human resources;

(b)   determine requirements for the training and development of its personnel and fix the terms and conditions on which that training and development may be carried out;

[. . .]

(f)   establish standards of discipline for its employees 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 by whom those penalties may be applied and 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 by the Agency and establish 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;

      [. . .]

54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.

[. . .]

Arguments

[34]      The employer argued that, under the CCRAA, the Agency has not been subject to the Public Service Employment Act (PSEA) since November 1, 1999, the effective date set by the order. Pursuant to the CCRAA, the Agency has the authority to reject on probation under paragraph 51(1)(g).

[35]      The Agency developed a human resources staffing program governing, in particular, appointments and the recourse provided to employees in accordance with the provisions of subsection 54(1) of the CCRAA. This staffing program, filed as Exhibit E-9, states that recourse to individual feedback and review of the decision are available to an employee who is rejected on probation.

[36]      These avenues of recourse were used by Mr. Archambault (request for feedback on October 30, 2000, and request for review on June 7, 2001). The employee received the negative responses (May 31, 2001, for the feedback and June 27, 2001, for the review).

[37]      Referral to adjudication is possible only in cases where a grievance relates to a disciplinary measure resulting in termination, suspension or a financial penalty pursuant to paragraph 92(1)(c) of the PSSRA.

[38]      Pursuant to the PSSRA, only grievances provided for in paragraph 92(1)(c) may be referred to adjudication, as no other subsection or paragraph of section 92 can be applied.

[39]      The employer must demonstrate to the adjudicator that the rejection is indeed a rejection on probation. According to the decision of the Honourable Justice Lemieux in Canada (Attorney General) v. Leonarduzzi ([2001] F.C.A. no. 802), the employer must first show that the rejection on probation was for an employment-related reason. The evidence presented by the employer in this instance shows a ground for rejection, valid on its face, and is credible on this point (in keeping with the principle developed in Smith reported in Leonarduzzi) (supra).

[40]      In this instance, the employer proved that Mr. Archambault showed major shortcomings in the performance of his duties, after initial training from January 10 to 21, 2000. On May 26, 2000, the employer noted these shortcomings and individualized training was provided to the employee on May 30 and 31, and from June 6 to 8, 2000.

[41]      Despite this additional training, the grievor was unable to improve his performance on the specific points explained to him on June 12, 2000. A negative evaluation was received on August 31, 2000, and the Assistant Director, Collections Division, gave the grievor a final warning on September 14, 2000. Unless there was considerable improvement in the next two weeks, he would be rejected on probation. Despite a further delay to October 20, 2000, Mr. Archambault was unable to correct his performance in respect of the expectations set for him on October 3, 2000.

[42]      The evidence shows that the employer rejected Mr. Archambault on the grounds of his inability to meet the performance expectations set by the employer. In these circumstances, the employer assumed its burden of proof to show that the termination resulted from bona fide dissatisfaction with respect to Mr. Archambault's attitude. For this reason, the adjudicator does not have jurisdiction to consider the question, namely, whether the decision to reject the employee was appropriate or with foundation, and must dismiss the grievance accordingly.

[43]      For his part, Mr. Archambault argued that the Agency remains subject to the PSEA (citing sections 55, 91 to 95 of the CCRAA). He further argued that the recourse provided under the Agency's staffing program (individual feedback and review of the decision) is not real recourse. The feedback is provided by the person in authority who made the decision to reject the employee on probation and the immediate superior of the person in authority reviews the decision. These persons are both judge and jury and the recourse does not provide any guarantee of impartiality necessary to establishing real recourse for the employee.

[44]      The technical advisors and team leaders who conducted the evaluations during his employment acted in bad faith by failing to take into account the positive aspects of the grievor's work, focusing only on the negative points. They were relentless in criticizing him for trifling mistakes (requirements to rewrite write-off reports . . .) and by holding against him mistakes in the handling of files that were also made by other employees. The instructions given to the grievor were inconsistent from person to person (from one technical advisor to another and from one team leader to another) and were not consistent with the initial training.

[45]      In Mr. Archambault's view, the employer is required to show incompetence by the grievor and the adjudicator must determine whether the employer's claims are true. The burden of proof is on the employer, who must show that the grievor made gross errors to justify incompetence.

[46]      The fact that the employer acted in bad faith (by refusing to provide a complete history of the accounts he worked on during his period of employment; by taking into account only the negative elements without considering the positive elements) gives the adjudicator jurisdiction to determine the real reasons for the rejection.

[47]      During the presentation of his arguments, Mr. Archambault argued that he was prevented from presenting his evidence. I therefore offered to allow him to present any additional evidence that he felt might be useful and necessary to his case at this stage of the hearing. Mr. Archambault declined this offer.

[48]      In reply, counsel for the employer argued that the sections of the CCRAA cited by Mr. Archambault in his arguments (sections 55, 91 and 95) were transitional measures that preserved employee rights during the changeover from a department to an agency. The wording of the CCRAA, and especially beginning with section 50 et seq, clearly shows that the Agency is not subject to the PSEA.

[49]      The following decisions were submitted by the parties:

Canada (Attorney General) v. Leonarduzzi [2001] F.C.J. No. 802

Attorney General of Canada v. Judith L. Penner [1989] 3 F.C. 429 (F.C.A.)

Canada (Treasury Board) v. Rinaldi [1997] F.C.J. No. 225

Jacmain v. Canada (Attorney General) [1978] 2 S.C.R. 15

Ling (Board files 166-2-27472 and 27975)

Bellavance (Board files 166-2-28380 and 28381)

Rose (Board files 166-2-27307 and 27308)

Reasons for Decision

[50]      The Canada Customs and Revenue Agency was created by the act enacted on April 29, 1999 (46-47-48 Elizabeth II Ch. 17), and the legislation took effect on November 1, 1999, by order (Canada Gazette, Part II, Vol. 133, No. 21-SI/TR/99-111). Mr. Archambault's hiring on January 10, 2000, is fully within the Agency's jurisdiction and the transitional measures set out in the act establishing the Agency cannot be applied. This would not be the case had Mr. Archambault been hired or terminated prior to November 1, 1999.

[51]      The PSSRA sets out in section 92 the circumstances under which a grievance can be referred to adjudication for consideration by an adjudicator.

[52]      The grievances filed by Mr. Archambault against his employer were taken to the final level of the applicable process without resolution, as evident from the employer's responses provided in the Board's file. Accordingly, the condition set out in subsection 92(1) of the PSSRA is met.

[53]      Paragraph 92(1)(a) of the PSSRA cannot be applied in this instance because Mr. Archambault's grievances objecting to his termination do not relate to the interpretation or application in respect of him of a provision of a collective agreement or an arbitral award.

[54]      Paragraph 92(1)(b) of the PSSRA cannot be applied in this instance because Mr. Archambault is not an employee of a department or a portion of the public service of Canada specified in Part I of Schedule I (the Agency is specified in Part II of Schedule I) or designated by order pursuant to subsection (4) (the Agency not having been subject to such an order). Furthermore, Mr. Archambault's termination is not subject to paragraphs 11(2)(f) or (g) of the Financial Administration Act notwithstanding as indicated in subsection 51(1) of the Act to establish the Canada Customs and Revenue Agency.

[55]      Paragraph 92(1)(c) could be applied to the extent that Mr. Archambault was terminated, suspended or was subject to a financial penalty arising from disciplinary action. The assessment of the facts presented in evidence will allow me to determine, later in this decision, whether in fact Mr. Archambault was terminated pursuant to disciplinary action and whether the burden of proof to be discharged by the parties in such circumstances was discharged.

[56]      Subsection 92(2) does not apply because this is not a grievance of interpretation.

[57]      Mr. Archambault's termination is not subject to the PSEA given that all aspects of personnel management were conferred on the Agency by sections 51 et seq of the CCRAA. Accordingly, subsection 92(3) of the PSSRA cannot be applied in this instance.

[58]      Accordingly, the grievances filed by Mr. Archambault against his termination can only be sent to adjudication if they relate to disciplinary action based on this reasoning, and implies that the PSSRA does not provide redress for rejection on probation.

[59]      In the reasons for decision in Penner (supra), Marceau J. commented as follows:

The basic conclusion of the Jacmain judgment, as I read it, is that an adjudicator appointed under the P.S.S.R. 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. And, to me, this conclusion follows inexorably from the legislation as it is.

Indeed the legislation as a whole could hardly be interpreted as supporting any other view. As was said by Heald J. [[1977] 1.F.C. 91 (C.A.), sub. nom. Attorney General of Canada v. Public Service Staff Relations Board, at page 100], and approved by de Grandpré J. in his reasons in Jacmain (at page 37) "the whole intent of section 28 is to give the employer an opportunity to assess an employee's suitability for a position. If, at any time during that period, the employer concludes that the employee is not suitable, then the employer can reject him without the employee having the adjudication avenue of redress. To hold that a probationary employee acquires vested rights to adjudication during his period of probation is to completely ignore the plain meaning of the words used in section 28 of the Public Service Employment Act and section 91 of the Public Service Staff Relations Act.". Neither the function [page 442] 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.

. . .

It seems to me that while Parliament has seen fit to set up a scheme of grievance adjudication so as to submit the disciplinary powers of management to the control and supervision of an independent authority, it has not wanted such a scheme to interfere with the discretion and authority of management in selecting employees who will appear fully suitable for the positions to be occupied in its permanent staff, a discretion and authority which would be seriously and unrealistically impaired if cause for rejection were limited to strict technical qualification.

[60]      This reasoning by Marceau J. can be applied to this case, because the addition of subsection 92(3) through the Public Service Reform Act (S.C. [1992] Ch. 54), which was subsequent to Penner (supra), cannot be applied to this case (see paragraph 56 supra). Thus, the PSSRA can only be interpreted in the sense that an adjudicator appointed under the authority of this act does not have jurisdiction over a rejection on probation when the evidence presented convinces him that the employer acted in good faith on the ground that the employee did not have the aptitudes required to hold the position in question.

[61]      The employer must show evidence of grounds in support of the rejection and Lemieux J. in Leonarduzzi (supra) describes the burden of proof to be borne in the following terms:

The respondent submits the employer must make a prima facie case that the grievor was terminated for just cause. This is not so. A distinction must be made between an employment related reason and "just cause". In Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (F.C.A.), a case involving the jurisdiction of the Board to hear a grievance of a probationary employee terminated for cause under section 28 of the PSEA. Marceau J.A. stated at page 438:

Other adjudicators have adopted quite a different attitude and accepted that they had no jurisdiction to inquire into the adequacy and the merit of the decision to reject, as soon as they could satisfy themselves that indeed the decision was founded on a real cause for rejection, that is to say a bona fide dissatisfaction as to suitability. In Smith (Board file 166-2-3017), adjudicator Norman is straightforward:

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. The adjudicator, at that moment, loses any authority to order the grievor reinstated on the footing that just cause for discharge has not been established by the Employer.

Justice Marceau held it was the view Adjudicator Norman expressed above which was the only one authorized by the Supreme Court of Canada's decision in Re Jacmain v. Attorney General (Canada) et al., [1978] 2 S.C.R. 15 and the only one the legislation really supports.

[62]      The evidence presented before me shows that the employer terminated Mr. Archambault when he was on probation. Despite initial training provided to the employee from January 10 to 21, 2000 (Exhibit E-3), the employer noted shortcomings in the performance of his duties and additional training was provided on May 30 and 31 and June 6 to 8, 2000 (Exhibit E-4). On June 12 or 15, 2000, the employer specified to Mr. Archambault the points where improvement was required. The team leader noted little improvement when a meeting was held with the employee on August 31, 2000. The employer informed Mr. Archambault, in correspondence dated September 14, 2000, that there must be significant improvement in his performance within two weeks or he would be rejected on probation (Exhibit E-4). The employer, taking into account Mr. Archambault's period of disability, extended by three weeks the time given him to improve and put it off until October 20, 2000 (Exhibit E-7). Mr. Archambault was transferred to another team reporting to Antoine Bourdeau, who set the performance criteria to be evaluated (Exhibit E-6). At the end of the period, Mr. Bourdeau gave a negative evaluation report (Exhibit E-8).

[63]      That evaluation report found that Mr. Archambault's caseload planning (BF) was inadequate and out of control. During successive feedback sessions, an abnormally high number of accounts were found in his weekly caseload planning, which was deemed to be "out of control". It was reported that the grievor did not use the computer systems available to him to provide him with information on the accounts. Moreover, Mr. Bourdeau criticized the grievor for a lack of judgment and discernment with respect to his actions on the files and the fact that he did not prepare an action plan for any of his accounts. The evaluation report prepared by Mr. Bourdeau is based on a series of specific examples taken from the accounts for which Mr. Archambault was responsible and which were verified during the feedback sessions (Exhibit E-8).

[64]      It is my view that the employer provided enough evidence to show that there was a valid employment-related reason for rejecting Mr. Archambault on probation. The employer has discharged the burden of proof to my satisfaction.

[65]      While this finding means that Mr. Archambault's grievances may not be referred to adjudication under section 92 of the PSSRA, I must still determine whether the termination is really the result of the application of the CCRAA and not subterfuge or camouflage to disguise a termination for disciplinary reasons, which would allow a referral to adjudication under paragraph 92(1)(c) of the PSSRA.

[66]      The burden of proof rests with the grievor to show that the rejection on probation is a disguised termination for disciplinary reasons.

[67]      Mr. Archambault argued that the employer's requirements were unreasonable with respect to the intervention strategies requested by his superiors. He tried to show that these strategies varied from one team leader and from one technical advisor to another. Even if he had convinced me of this fact, the employer is the only one that is able to determine the intervention strategy that it wants its employees to apply and the latter must comply with the requirements of persons in authority. While some requirements may be applied differently depending on the person who has authority over the employee at any given time, this does not mean that these requirements are unreasonable because of this.

[68]      Although Mr. Archambault testified to the fact that social relations with Suzanne Blais were not without some tension, he did not satisfy me that there might have been a personality conflict with his team leader that would have led to the desire to get rid of him and to fabricate an entire rejection file. In any event, by agreeing to transfer Mr. Archambault to the work team reporting to Mr. Bourdeau, Ms. Fortier ensured that the "personality conflict" with Ms. Blais would not influence the evolution of his performance following this transfer. Ms. Fortier's concern to proceed with as professional a performance evaluation as possible is contrary to the appearance of bad faith raised by Mr. Archambault.

[69]      Despite the fact that Mr. Archambault pointed out that other employees could also have made the errors for which the employer criticized him, I cannot consider this element as evidence of bad faith. The evidence provided in this regard did not satisfy me that Mr. Archambault's performance evaluation was discriminatory against him by requiring that his performance be better than that of other employees or by being based on significantly different criteria.

[70]      I do not believe that the employer actually prevented the grievor from preparing a valid defence by preventing him from having access to all of the accounts on which he worked. It was not necessary for the grievor to show evidence that on other files he had performed well (which was confirmed by Mr. Bourdeau), but rather he was required to show that the criticisms made were not valid grounds for his rejection.

[71]      It is my view that the grievor did not discharge the burden of proof and did not satisfy me that the real reason for his rejection was other than bona fide dissatisfaction as to his ability to meet the requirements of the job.

[72]      For all these reasons, I find Mr. Archambault's grievances cannot be referred to adjudication under section 92 of the PSSRA. Accordingly, I dismiss these grievances, having no jurisdiction to hear them on the merits.

Léo Paul Guindon
Board Member

OTTAWA, March 24, 2003
P.S.S.R.B Translation