FPSLREB Decisions

[1]   On August 13, 2002, Didier Arnould, who worked for the Department of Fisheries and Oceans Canada (DFO) as a Fishery Officer, grieved his rejection on probation. His grievance was referred to adjudication on September 23, 2003.

[2]   The employer's letter of termination (Exhibit E-16) dated August 8, 2002, reads in part:

Subject: Rejection on Probation

Pursuant to section 28(2) of the Public Service Employment Act and section 31(1) of the Public Service Employment Regulation, I regret to notify you that your employment with the Department of Fisheries and Oceans will be terminated effective September 6, 2002. As of today, August 8, 2002, you must return all departmental keys, documents, identification and equipment and will no longer report to duty. Effective immediately you will be on leave with pay until September 6, 2002.

This decision is based on the conclusion that you do not meet the requirements of a GT-03 Fishery Officer. There have been ongoing concerns with your work performance during your extended probation. The number and severity of incidents have increased over time and have become disruptive to District staff and operations. These incidents are consistent with those documented by previous trainers and supervisors from the beginning of your probationary employment with DFO. These concerns have been brought to your attention on numerous occasions during meetings with your supervisor and the Acting Director of Conversation (sic) & Protection. You have been given ample opportunity to adjust your behavior accordingly. Improvement has not occurred and your performance to date, including personal suitability, does not meet the requirements of a GT-03 Fishery Officer. You were also advised that failure to redress this situation could result in rejection on probation.

[3]   The Fishery Officer Career Progression Program (FOCPP) was established in 1982, to provide training for people who want to become fishery officers for the DFO (Exhibit E-1). The trainee progression in the FOCPP is described as follows:

1. Trainees are hired as cadet (sic) (non-employees) for the duration of the classroom training components (18 months);

2. Upon successful completion of the classroom training, the Trainees are appointed at the GT-01 group and level;

3. Upon successful completion of approximately six months of field training, Trainees are promoted to the GT-02 group and level;

4. Upon successful completion of a further 12 months field training period, Trainees are promoted to the GT-03 group and level;

5. The Program was designed and tested and carefully weighed to accommodate normal Trainee progression within a 24 month period, however in exceptional situations, the Program provides an accelerated training provision.

[4]   The trainees must successfully complete all phases of the FOCPP to meet the requirements of the Statement of Qualifications for a GT-03 Fishery Officer position. The trainees are on probation for the entire training program until nominated to the GT-03 level. Experienced fishery officers are assigned to the recruits as field trainers responsible for designing training plans for on-the-job assignments, implementing required training activities and evaluating the trainees' performance and progress. The FOCPP provides that failure of either classroom or field training requires remedial training and a one-time re-test, and subsequent failure will result in termination of employment.

[5]   Mr. Arnould started his training as a cadet in January 2000, after he successfully completed the six-month classroom training. He was appointed to the GT-01 group and level on June 19, 2000, in a competition for an assignment at Baie-Comeau in the Arctic region (Exhibit E-4). Mr. Arnould was appointed for a determinate period from June 19 to August 18, 2000. In Baie-Comeau, Mr. Arnould worked along with an experienced fishery officer assigned as his field trainer. Six fishery officers work in the Baie-Comeau DFO office.

[6]   After three weeks, Grant Pryznyk, Director, Central and Arctic Region, offered Mr. Arnould an assignment at the Hay River office for a three-to-four month expected period starting on July 10, 2000. Larry Dow was assigned as his field trainer. The grievor stated in his testimony that he received minimal guidance for the periods of work in Hay River, which were extended until March 25, 2001. He worked in Calgary for one week and went back to Hay River for one month, ending on April 30, 2001.

[7]   On August 7, 2000, DFO offered Mr. Arnould an indeterminate appointment on a full-time basis with the Fish Habitat Management Branch in Calgary (Exhibit E-5). On September 27, 2000, the employer advised Mr. Arnould that his probation period would be until completion of this training program (Exhibit E-6).

[8]   For the period of June 19 to December 19, 2000, the field-training book (Exhibit E-3) was filled out by Mr. Dow, with a Personal Suitability Report completed on January 26, 2001 (Exhibit E-7). Mr. Dow concluded his report as follows:

CONCLUSION

This review is only for the period of June 19 - December 19, 2000. After reviewing Didier's overall performance over the last 6 months, it is my opinion that he is ready to be promoted to the GT-2 level. I give him a satisfactory rating because of certain personal suitability issues.

During the time at which this appraisal was completed (January 26, 2001), Didier has been working at a fully satisfactory level. There has been another situation with the use of a government truck, but this will not be an issue if he continues to follow the DFO vehicle use policy.

[9]   In his report, Mr. Dow gives an unsatisfactory rating on the "judgment" criteria of the personal suitability form. An incident relating to the privilege given to Mr. Arnould to use the patrol truck for his personal needs after hours was specified in the report. This incident shows that Mr. Arnould made an issue of invasion in his private life by his supervisor on that occasion. On the other hand, his supervisor just wanted to permit the after-hour personal use of the patrol truck in respect of the DFO authorized passenger policy. An incident relating to the seizure of illegal gill nets was also stated in the report. Those two incidents demonstrated that misunderstandings occurred between Messrs. Arnould and Dow and that there was an underlying communication problem. During that period, Mr. Arnould complained to Mr. Pryznyk that his supervisor exhibited an anti-francophone attitude and Mr. Dow apologized to him afterwards.

[10]   Following Mr. Dow's recommendation, Mr. Arnould was promoted to the GT-02 group and level on February 26, 2001, effective November 1, 2000. Mr. Arnould accepted an appointment in Calgary for the Prairies Area on February 28, 2001 (Exhibit E-8).

[11]   On May 7, 2001, the Calgary office became Mr. Arnould's work location, and Jeff Armstrong was appointed as his field trainer and supervisor. Mr. Arnould worked in Calgary until August 8, 2002, with the exception of two short periods: from July 20 to August 16, 2001, he worked in Fort Hardy; from November 28, 2001, to February 14, 2002, he worked for the Peace River District.

[12]   For the period of time when Mr. Arnould was under the supervision of Mr. Armstrong (while working in Calgary or for the District of Peace River), some incidents were related in the final assessment (Exhibit E-9).

[13]   The first one is related to negative comments Mr. Arnould expressed on April 30, 2001, to Mr. Armstrong about his supervisor in Hay River (Mr. Dow). For Mr. Armstrong, this behaviour showed a confrontational approach by Mr. Arnould with his supervisor. On September 27, 2001, a review of the previous incidents addressed the issue of his relationship with his supervisor and with other employees. Mr. Arnould replied that he was upset about Mr. Dow's attitude, who completed the suitability report after his departure from Hay River for Calgary.

[14]   Two incidents stated in the final assessment are related to absences from work without authorization (May 7, 2001, and in October 2001). For the May absence, Mr. Arnould explained that he just took back time he worked over his normal schedule for personal reasons (to pick up his wife at the airport) and for the second absence, he had to extend his holidays by a week for personal reasons (his wedding in Peru and illness in the family). On those two occasions, Mr. Arnould did not get prior authorization from his supervisor.

[15]   His supervisor verbally granted his request for leave in April or May 2002, after another officer changed his plans to accommodate him. Mr. Arnould wanted to take time off other than what had been agreed. This situation was dealt with in a confrontational way toward his supervisor and with other officers, as seen by Mr. Armstrong. That brought Mr. Armstrong to note, in the final assessment, that Mr. Arnould had communication problems with him and with co-workers.

[16]   Mr. Armstrong concluded as follows in the final assessment transmitted by fax to Mr. Arnould at the Hay River office on February 6, 2002 (Exhibit E-9):

Considering the above issues and concerns with F/O Arnould's overall performance and taking into account his time that he has worked with me in the Calgary office, comments from other co-workers, comments from DFO trainers and supervisors, he must not be progressed to the Fishery Officer GT-03 level at this time. He does not meet the requirements of a GT-03 Fishery Officer and his ratings on four of the six assessment criteria fall in the category of unsatisfactory.

F/O Arnould needs to make changes and improvement in how he deals with his supervisor and others. Currently, I have been made aware that other staff do not feel comfortable working with F/O Arnould for a variety of reasons. He needs to be more positive in the work place. He needs to focus on developing and improving his ability to deal with complex files. He has demonstrated in the past, and has expressed interest in, playing a role of putting forward presentations to school groups and others and I support him in developing this further.

F/O Arnould's GT-02 training period must be extended to provide additional time for him to improve his performance in the above areas and be re-assessed to see if he can meet the requirements of a GT-03 Fishery Officer. I recommend an extension of his training period of six months. An assessment will be made to determine if specific training exists and can be provided to help address specific shortcomings. F/O Arnould should be partnered with a trained GT-03 Fishery Officer to assist him in meeting the goals of becoming a GT-03 Fishery Officer. He will be assessed through normal C&P meetings with his supervisor as his case load and approach is reviewed on a weekly or bi-monthly basis. At the end of the training extension period he will be assessed to see if he does meet the requirements of a GT-03 Fishery Officer.

[17]   The unsatisfactory ratings were detailed in the report filed as Exhibit E-9 and Mr. Arnould responded in writing to them (Exhibit E-10). His general introductory comment reads, in part:

I would like to take this occasion to formally respond in writing to my Final Assessment from May 7, 2001 to Present - While in Calgary and express how I feel about it.

I understand that an appraisal is an exercise to assess my performance. It is a report that should not come as a surprise and I must say that it is not the case with this one. I find this assessment quite demoralizing. It should be a continuous process with regular feedback, thus entailing communication and consultation between the supervisor and the employee, in order to ensure progress and that objectives are being met. I feel as though this assessment does not reflect my overall performance and I find it confusing and contradictory.

The assessment is based on my time spent in the Calgary office as stated in the title. I do not understand why my time spent in Port Hardy is not mentioned anywhere as I am informed that inquiries were made about my performance there and I am confident that they were valuable comments. I also spent 6 weeks of work in the Peace River District and there is no mention of that time or performance anywhere.

If this assessment is to be based on my time spent in the Calgary office only, could I be explained why references were made to incidents and situations, which took place in Hay River? Was I not told during the meeting of April 30, 2001 in Calgary that it was a new start?

[18]   Notwithstanding the allegation that the report came as a surprise to him, Mr. Arnould stated in his response that discussions about the reported incidents occurred in a majority of events with his supervisor. For some of these incidents, Mr. Arnould had a different view or understanding of them than Mr. Armstrong. In comments he made regarding some incidents, Mr. Arnould indicated that he felt uncomfortable with the behaviour of his field trainer or felt there were some reasons for his actions or that he misinterpreted what he said and it might be due to "cultural differences".

[19]   At the hearing, Mr. Arnould stated that after he responded to the evaluation, it became more intolerable at the office and he got the feeling that there was more distance between him and the supervisor than with other officers and that his work was not looked at in the same way as the others' work.

[20]   A Training Counselling and Development Plan (Exhibit E-13) was prepared by Mr. Armstrong on April 15, 2002, to improve the performance and personal suitability shortfalls identified in the final assessment. Mr. Arnould agreed to this plan.

[21]   Mr. Pryznyk notified Mr. Arnould in writing on May 9, 2002 (Exhibit E-12), that his probationary period would be extended for six months beginning April 5, 2002. The letter reads as follows:

You are currently undergoing On the Job Training as part of the Fishery Officer Career Progression Program. You successfully completed the probationary GT01 On-The-Job-Training based on an assessment while stationed in Hay River, NWT and were promoted to the probationary GT2 level and subsequently relocated to Calgary Alberta.

Since that relocation date your supervisor, Jeff Armstrong has identified shortfalls in certain aspects of your performance, mainly personal suitability. These personal suitability issues have been addressed in earlier meetings with Jeff as well as within your final assessment. Some of these issues are: unwillingness to accept responsibility for actions, inappropriate denial of facts, blaming others, unwillingness to accept guidance and constructive criticism, accusations, a confrontational approach and lack of teamwork.

You, Jeff and I have participated in meetings to discuss the shortfalls and finalize a training plan by which you can improve in order to meet the requirements of the Statement of Qualifications for a GT3 Fishery Officer. Personal Suitability is a very important component of the job of a Fishery Officer.

The training plan has been formalized with your participation and you have agreed to undertake the required training and development identified in it. It is comprised of formal training and periodic consultation/assessment sessions with your supervisor. You should also make efforts to use the points raised in your final assessment and what you learn from the upcoming training courses as tools to help you change your behaviour and approach in working toward the goal of meeting the requirements of a GT-03 Fishery Officer.

Your training period at the GT-02 level is extended for 6 calendar months beginning April 5, 2002, therefore your probationary period is also extended for that same period. After that date you will be provided with an assessment covering that period of time.

Should you not meet the requirements of a GT3 Fishery Officer at the end of that six month extension, your employment as a Fishery Officer may be terminated. There will be no further extension to any training period under the Fishery Officer Career Progression Program.

I expect your full cooperation and encourage you to improve your performance and meet departmental requirements for a GT3 Fishery Officer by the end of the training period extension.

[22]   Mr. Arnould brought communication problems that he had with his supervisor, Mr. Armstrong, to the attention of Adrienne Paylor (District Manager). That issue was debated with Ms. Paylor and Mr. Armstrong in meetings held in March, April and July 2002, as noted in Ms. Paylor's notes filed as Exhibit G-2 by Mr. Arnould.

[23]   Two incidents that occurred between Mr. Arnould and co-workers were discussed in meetings with Ms. Paylor. The first one, in May 2002, related to a trip to a bridge crossing on the Pembina River with two biologists who complained of his driving and emotional reactions. The second incident occurred in July 2002, with a female biologist on a trip back from a boat course. These incidents, debated by Ms. Paylor and/or Mr. Armstrong, show that communication problems occurred between Mr. Arnould and co-workers. It is clear from Ms. Paylor's notes that the July incident deteriorated the work environment in the Calgary office, the employees having been negatively affected by the issue of their relationship with Mr. Arnould.

[24]   In Mr. Arnould's opinion, Ms. Paylor's notes clearly show that the decision to terminate his employment was made by management when he was notified about the prolongation of his probation period. Mr. Arnould understood from Ms. Paylor's notes that on the day the managers decided to extend his probation period, they decided that he would not make it and would not meet the requirements of a GT-03 Fishery Officer.

[25]   The Training Counselling and Development Plan (Exhibit E-13) was not completed. DFO-scheduled workshops on harassment were done and it was not possible for Mr. Arnould to follow the other courses specified in the Plan (course T-412 was cancelled, he was not available for course P-607, and he was no longer in the Department when the Early Conflict Resolution workshop was held). Mediation was not necessary for Mr. Armstrong, who did not want to be part of it. Mr. Arnould did not set up appointments with employee assistance counselling, considering that he did not need it. The weekly consultations went on for only three weeks and no monthly assessments were performed with his supervisor to determine progress.

[26]   On August 8, 2002, Garry Linsey, Area Director, Prairies, signed the rejection on probation letter on the recommendation of Mr. Armstrong and Ms. Paylor (Exhibit E-16).

Argument

For the Employer

[27]   In the present file, the grievor was rejected on probation and the employer has to prove that it is a work-related rejection. The employer has to show real cause for rejection, such as dissatisfaction as to suitability. An adjudicator appointed under the Public Service Staff Relations Act (PSSRA) has no jurisdiction as soon as there is evidence satisfactory to him/her that the employer acted in good faith on the ground of dissatisfaction with the suitability of the employee for the position. Dissatisfaction with suitability can arise from misconduct or misbehaviour by the employee. Counsel for the employer submitted, to support those arguments, the decisions rendered in Canada (Attorney General) v. Penner, [1989] 3 F.C. 429, and Ross v. Treasury Board (Correctional Services Canada) , 2003 PSSRB 97.

[28]   The employer has to demonstrate that section 28 of the Public Service Employment Act, respecting rejection on probation for cause, has application. After the employer fulfills that burden, the grievor has to demonstrate that the employer's actions are in fact a sham or a camouflage to give jurisdiction to the adjudicator under section 92 of the PSSRA. To support those arguments, counsel submitted the decisions rendered in Canada (Attorney General) v. Leonarduzzi, [2001] F.C.J. No. 802, Owens v. Treasury Board (Royal Canadian Mounted Police), 2003 PSSRB 33, Spurrell v. Office of Superintendent of Financial Institutions, 2003 PSSSRB 15, and Earl (PSSRB File No. 166-2-27346 (1997) (QL)).

[29]   In the present file, Mr. Arnould was rejected on probation and the adjudicator appointed under the PSSRA should not interfere with that decision. Mr. Arnould was under probation for the duration of the training (Exhibit E-6) and that is until graduation to the GT-03 level per the FOCPP (Exhibit E-1) and the Public Service Employment Regulations (section 30(1)).

[30]   The Personal Suitability Report completed by Mr. Dow (Exhibit E-7) for the period from June 19 to December 19, 2000, gives Mr. Arnould a satisfactory rating and concludes that he is ready to be promoted to the GT-02 level. Certain personal suitability issues are identified in the Report. The final assessment made by Mr. Armstrong was sent to Mr. Arnould on February 6, 2002 (Exhibit E-9), and many incidents are reported in it. For five categories, Mr. Arnould got an unsatisfactory rating and did not meet the requirements of the GT-03 Fishery Officer level. The training and probationary periods were extended for six months, beginning April 5, 2002 (Exhibit E-12).

[31]   Other incidents occurred in the extended training period relating to suitability. The incidents with the other workers in May and July 2002 show that Mr. Arnould still had problems to deal with involving his supervisor and other employees. These incidents created problems with other employees who had difficulty working with Mr. Arnould. Mr. Linsey reacted to the situation and rejected Mr. Arnould on probation on August 8, 2002 (Exhibit E-16). He specified the reasons for rejection on probation in his letter, following recommendations from Mr. Armstrong and Ms. Paylor.

[32]   Ms. Paylor's personal notes describe the incidents at the origin of the rejection on probation and the meetings where those incidents were discussed with Mr. Arnould and in some meetings with his supervisor.

[33]   The employer fulfilled its burden of proof to demonstrate that dissatisfaction as to suitability was the cause for the rejection on probation.

[34]   The grievor did not demonstrate that the rejection was in bad faith. Mr. Arnould testified that he disagreed with the assessment and the evaluation of the incidents made by the employer. The incidents are real and the employer acted in good faith, giving Mr. Arnould a chance to improve his suitability by extending his training period.

[35]   Mr. Arnould did not prove that the employer's actions are a sham or a camouflage. For all these reasons, the adjudicator should deny the grievance for lack of jurisdiction.

For the Grievor

[36]   Following the decision rendered in Penner (supra), the employer has to act in good faith. In the present file, the decision-maker, Mr. Linsey, has to prove that he acted in good faith in assessing the situation. In Mr. Arnould's case, Mr. Linsey had no knowledge of what was happening in the office. The legislation states that he cannot delegate his decision power.

[37]   In Ms. Paylor's notes (Exhibit G-2) for June 21, 2002, she wrote that her response to the situation, with Mr. Armstrong's agreement, was to extend the training period. She specified during the conference call with Messrs. Pryznyk and Armstrong on July 9, 2002, that they intended to discharge Mr. Arnould at this point. On July 15, 2002, Ms. Paylor reported a conversation on Mr. Arnould's dismissal with Ian Coffin. Mr. Linsey testified that he knew nothing of this and only received information on Mr. Arnould's file late in July or at the beginning of August 2002.

[38]   The principle that the decision to reject on probation had to be made by the decision-maker and not by a "rubber stamper" was stated in the decision rendered in Muliadi v. Ministry of Employment and Immigration (1986), 66 N.R. 8 (C.A.).

[39]   Mr. Linsey did not give Mr. Arnould the chance to address the concerns related to his rejection on probation. The FOCPP (Exhibit G-1) provided that Mr. Arnould had to get training with a field trainer. Mr. Arnould did not have training with Mr. Armstrong for the period of time he worked in Calgary or in Hay River. Mr. Arnould did not receive coaching and motivation from Mr. Armstrong. Throughout his training period, Mr. Arnould received real field training only for the short period of time that he worked in Port Hardy with Mr. Parker as field trainer.

[40]   In the present case, Mr. Armstrong hid information from Mr. Arnould and acted secretly against him. Mr. Armstrong used the assessment made by Mr. Dow and the "French incident" reported to him. Mr. Armstrong considered that Mr. Arnould was not a team player because he went to the union to inquire about his rights. Mr. Armstrong's bad faith is clear when he put the letter he received from the biologists (Exhibit E-15) in Mr. Arnould's personal file without giving him a copy. The adjudicator had jurisdiction in the present file, the actions of the employer showing a sham or camouflage.

Reply

[41]   In rebuttal, counsel for the employer submitted that Ms. Paylor's notes for July 9, 2002, are not a decision to dismiss but only one of the alternatives considered at that time. The decision rendered in Muliadi (supra) cannot receive application in this rejection on probation because the Immigration Act and Regulations cannot receive application.

Reasons for Decision

[42]   Mr. Arnould was notified of his employer's decision to terminate his employment by rejection on probation pursuant to section 28(2) of the Public Service Employment Act. Mr. Linsey specified that his decision was based on the conclusion that Mr. Arnould did not meet the requirements of a GT-03 Fishery Officer, particularly for suitability and performance issues. The grievance filed by Mr. Arnould against that decision was referred to adjudication by the Public Service Alliance of Canada under subparagraph 92(1)(b)(i) of the PSSRA, which provides:

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

[...]

(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

[...]

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

[43]   Mr. Arnould was appointed as a GT-01 Fishery Officer on June 19, 2000, in Baie-Comeau for a three-month period. The offer of appointment specified that he would be on probation for the duration of the training (Exhibit E-4). Mr. Arnould accepted an indeterminate appointment to the Calgary office in the same position starting on August 18, 2000 (Exhibit E-5). The probationary period of 12 months specified in the August 17, 2000 letter was adjusted on September 27, 2000, to be for the duration of the training pursuant to the Public Service Employment Act and Regulations (Exhibit E-6).

[44]   The Public Service Employment Act provides for a probationary period:

28(1) An employee who was appointed from outside of 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.

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

(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.

[45]   The Public Service Employment Regulations, 2000, provide that:

30.(1) The probationary period referred to in subsection 28(1) of the Act is the period described in Schedule 2 that corresponds to the class of employees of which the employee is a member.

SCHEDULE 2
(Subsections 30(1) and 31(1))
PROBATION AND NOTICE PERIODS

Column 1 Item Class of Employees	Column 2 Probationary Period
1.   Employees who are recruited to undertake training, if successful completion of training is mandatory, and whose appointment is for a period of more than 1 year.	Duration of the training or 12 months, whichever period is longer, excluding any period of leave without pay or full-time language training and any period of leave with pay of more than 30 consecutive days.
2.   Employees who are recruited into an apprenticeship or professional training program and whose appointment is for a period of more than 1 year.	Duration of the apprenticeship or professional training or 12 months, whichever period is longer, excluding any period of leave without pay of full-time language training and any period of leave with pay of more than 30 consecutive days.

[46]   At the hearing, it was not contested that Mr. Arnould's probation period would end upon successful completion of training. The understanding was that the promotion to the GT-03 group and level would put an end to the probationary period. As Mr. Arnould was not promoted to the GT-03 group and level, he was still on probation on the date of his termination.

[47]   The notice given by Mr. Linsey, dated August 8, 2002 (Exhibit E-16), was in respect of subsection 28(2) of the Public Service Employment Act, Mr. Linsey having the signing delegated authority to give such notice.

[48]   The PSSRA at subsection 92(3) states that:

(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.

[49]   I agree with my colleague Board Member Ian R. Mackenzie who summarizes the court's decisions related to the application of the PSSRA provisions interplaying with the ones of the Public Service Employment Act in Owens v. Treasury Board (supra) as follows:

[...]

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".

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....

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....

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....

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.

...

[50]   On the evidence, the employer has demonstrated that there were employment-related reasons for the decision to reject the grievor on probation. Mr. Armstrong and Ms. Paylor informed Mr. Linsey about ongoing concerns with regard to Mr. Arnould's performance during his probation period. He was also advised that some serious incidents occurred with Mr. Arnould and those incidents were brought to his attention. Mr. Linsey concurred with the evaluation of Mr. Armstrong and Ms. Paylor that no improvement occurred, notwithstanding the extension of the probationary period. He also concurred with the recommendation of Mr. Armstrong and Ms. Paylor to reject Mr. Arnould on probation because he did not meet the requirements of a GT-03 Fishery Officer on his performance, including personal suitability. Ms. Paylor's notes, filed as Exhibit G-2 by Mr. Arnould, show that those concerns were brought to his attention on numerous occasions during meetings and that the incidents were disruptive to other staff and to the operation of the district office.

[51]   I do not agree with the argument of the grievor's representative stating that Mr. Linsey cannot reject on probation on the basis of reports and evaluations performed by Mr. Arnould's supervisor (Mr. Armstrong) and the Acting Director (Ms. Paylor), who are his subordinates. The fact that the day-to-day assessments, evaluations and follow-ups are made by the supervisor and/or the Acting Director cannot be interpreted as showing that Mr. Linsey was only acting as a "rubber stamper". It is the normal procedure in work relations for the manager in charge to delegate the day-to-day supervision of employees to the supervisor and/or Director of Services and to verify with them the accuracy of the facts reported to him. I am satisfied that the facts and/or incidents supporting the evaluation of Mr. Arnould are accurate. Ms. Paylor's notes and Mr. Arnould's testimony clearly show that the incidents, which occurred during the probation period, and the extended probation period are related to employment issues and that the employer had good reason to be dissatisfied with the suitability of Mr. Arnould.

[52]   I have no jurisdiction to evaluate whether the training procedure or the field coaching involved in the training program is sufficient to achieve the training goal provided for in the FOCPP of the Department of Fisheries and Oceans. The training procedure and the requirements (Statement of Qualifications) for a Fishery Officer are clearly under the jurisdiction of the employer and I cannot interfere, as stated under section 7 of the PSSRA.

[53]   I cannot consider the employer's actions to be a sham or camouflage. The employer followed the basic principle of fairness when it proceeded with the assessment of Mr. Arnould's suitability at different times during his training process. Mr. Arnould's testimony shows that the incidents reported in these assessments are real and related to employment reasons, notwithstanding that the grievor can disagree on the seriousness or the concerns raised by those incidents.

[54]   I cannot consider the fact that the employer discussed the possibility to reject Mr. Arnould at the term of his probation period at the end of January 2001 as "a proof that he decided, at that point, to get rid of him". To the contrary, the employer gave Mr. Arnould a chance to readjust his behaviour when it gave him a six-month extension of his probation and training period.

[55]   Ms. Paylor and/or Mr. Armstrong provided close counselling or guidance to Mr. Arnould throughout his extended training period, as shown in Ms. Paylor's notes. I consider that Mr. Arnould was not taken by surprise by the employer who clearly explained its expectations during meetings held with Ms. Paylor and/or Mr. Armstrong. Consequently, I conclude that Mr. Arnould did not prove that the employer's actions were a sham or camouflage.

[56]   For all these reasons, the grievance against the rejection on probation is dismissed for lack of jurisdiction.

Léo-Paul Guindon,
Board Member

OTTAWA, June 30, 2004.