Date:  20190624

Files:  566-02-13976 and 13977

 Citation:  2019 FPSLREB 61

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

Christian Reeves

Grievor

and

DEPUTY HEAD

(Department of National Defence)

Respondent

Indexed as

Reeves v. Deputy Head (Department of National Defence)

In the matter of individual grievances referred to adjudication

Before:  Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor:  Douglas Hill, Public Service Alliance of Canada

For the Respondent:  Pierre-Marc Champagne, counsel

Heard at Halifax, Nova Scotia,

February 12 to 15, 2019.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1]  On April 7, 2017, Christian Reeves (“the grievor”) referred a grievance to the former Public Service Labour Relations and Employment Board. He grieves the fact that he was rejected during his probationary period and claims that he was a victim of harassment and discrimination.

[2]  On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

[3]  The grievor was hired under an apprenticeship program by the Department of National Defence (DND or “the respondent”). He was part of a bargaining unit represented by Union of National Defence Employees (UNDE), a component of the Public Service Alliance of Canada (PSAC). The PSAC and the Treasury Board of Canada signed a collective agreement covering his bargaining unit, which was the Operational Services group (expiry date: August 4, 2014). Although the Treasury Board is the legal employer, in this decision, “employer” refers to DND, to which authority has been delegated to make all decisions related to human resources.

[4]  For the reasons that follow, I find that the respondent discriminated against the grievor. I also find that his apprenticeship was terminated prematurely.

II. Summary of the evidence

[5]  The grievor was born in Liberia and as a child immigrated to Canada with his family in 1995 to escape the civil war. He graduated from high school in 2002, worked from 2002 to 2006, and then completed a two-year community college program in heavy-duty mechanics from 2006 to 2008.

[6]  In November 2009, he was offered an indeterminate appointment to a vehicle technician apprentice position in the Maritime Forces Atlantic (MARLANT) part of DND.

[7]  The offer was made within an apprenticeship program for civilian employees. The letter of offer provided terms and conditions, and the relevant terms were as follows:

…

Probation Period:

In accordance with section 61 of the Public Service Employment Act, employees appointed outside the public service into a Professional Development or Apprenticeship Program are subject to a probationary period for the duration of the Program or twelve months, whichever is longer excluding … periods of leave… Your probationary period will continue with any subsequent appointments or deployments until the complete probationary period has been served.

…

Career Progression

You are required to participate in the Nova Scotia Apprenticeship Program in the automotive trade until such time as the criteria for certification has been met.

…

To complete a level in the apprenticeship program, you must attain the provincial grade, in all technical training, both on the job and in class, required for that level and complete the required number of hours of practical experience. Examinations will be administered in accordance with provincial regulations for trade certification at specified intervals. If you are unsuccessful or do not participate in the technical training required for a level, you will not receive credit for your practical experience until you are successful or you participate in the technical training required for that level.

Completion of apprenticeship program

Upon successful completion of apprenticeship training and receipt of certification of qualification, MARLANT/Formation Logistics will endeavour to appoint you to an indeterminate position at the journeyperson level in the automotive trade.

If circumstances unforeseen by management (i.e. lack of work, discontinuance of a function, budgetary restraint) precludes such an appointment, provisions of the Operational Services collective agreement and the Public Service Terms and Conditions of Employment Regulations will apply.

Education Expenses

While undergoing formal apprenticeship training, you will be considered on duty receiving full salary and benefits.

MARLANT/Formation Logistics will fund costs associated with tuition, books, fees and mandatory educational institution costs in support of the provincial apprenticeship program. Travel costs for formal training will be paid in accordance with the Travel Directive.

Unsuccessful in the Program

Throughout the apprentice training period your manager will work with you, with ongoing regular feedback on your performance, to assist you in succeeding to obtain your certification. Despite all reasonable efforts made to support you, should it be determined that you cannot meet the required standards of competence, and additional on-the-job training and coaching have been provided to assist in closing the learning gap, and you have not been selected for another position in the Public Service, you may resign from your apprentice position or will be rejected on probation.

…

[Sic throughout]

[8]  The Nova Scotia Apprenticeship Program consisted of four “blocks” of learning and culminated with a comprehensive exam for certification as a journeyman. The exam and certificate are referred to as “Red Seal”, since the certificate bears a red seal. It enables the certified journeyman to work in any Canadian province, without further certification by another province.

[9]  Each block of learning entails practical experience (the requirement is 2000 hours) confirmed by a certified journeyman as well as classroom learning that is tested in an exam. When the grievor joined the apprenticeship program, he had already competed the first two blocks of training with schooling at the Nova Scotia Community College (NSCC) and outside practical experience. He completed the third block (“Block C”) in 2012, in “Heavy Duty Machinery”. However, he was told that since there was no one to supervise him in that area, he would have to switch to “Truck and Transport”.

[10]  For those two specialties, the first two blocks are common, and the last two are different, meaning that the grievor had to redo Block C. It also meant an additional 2000 hours of practical experience, in-class training, and an exam, which he completed in early 2014. And it meant that the anticipated completion date of the apprenticeship, first set at December 31, 2012, was reset to March 31, 2016.

[11]  The fourth block (“Block D”) proved problematic, and the grievor failed four out of seven courses in the summer of 2014. We will see through the witnesses’ evidence what was occurring by that time. The grievor was given another chance; he was placed on an action plan, and he successfully completed the Block D. After that, he had to take the Red Seal exam, which he failed. He was rejected on probation after that failure.

[12]  The employer called a number of witnesses, and after the grievor had called his witnesses and had testified, it called additional rebuttal witnesses. I will summarize the evidence for each witness in the order in which each one appeared at the hearing. For ease of writing, I will refer to the witnesses’ military titles only initially. They were addressed as “Mr.” or “Ms.” at the hearing, and I do the same in recounting the evidence.

A. For the employer

1. Lieutenant-Colonel Myriam Sanchez-Maloney

[13]  At the time of the events giving rise to this grievance, Ms. Sanchez-Maloney was ranked major. She has been in the Canadian Armed Forces for 32 years. She holds a degree in mechanical engineering as well as a master’s degree in strategic studies.

[14]  From the summer of 2013 to the summer of 2015, she was in charge of the TEME (Transport Electrical Mechanical Engineering) team in Halifax. All naval bases also have a component for terrestrial vehicles to transport goods. She reported to the base logistics officer, who was Lieutenant-Colonel Ted Godsell. Reporting to her was Chief Warrant Officer John McIsaac, who supervised all the civilian technicians. Warrant Officer Blair Phillips, who reported to Mr. McIsaac, was responsible for the mechanical shop in which the grievor worked. Mr. McIsaac had sergeants reporting to him. The grievor’s section chief was Mr. Petitpas, a civilian.

[15]  When Ms. Sanchez-Maloney arrived in Halifax in the summer of 2013, she found some very old buildings (some still bearing marks of the 1917 Halifax Explosion) full of rats and devoid of light. The seven workshops were relocated into a new high-tech building that was spacious, well-lit, and very pleasant. She led the move, which was a major change for the employees. They had grown used to their old environment, with its nooks and crannies and ways of doing things.

[16]  The other challenge was that this was the period in which the federal government was seeking ways to decrease the cost of the public service. It meant that a great deal of pressure was exerted to ensure that the services offered by the workshops provided value.

[17]  Her first clear memory of hearing about the grievor was when a warrant officer told her that the grievor had been working on his vehicle. Apparently, doing that had been a practice in the past, but the employer had clearly signalled via a written directive that it would no longer tolerate it. Employees could not use the government’s space and tools to work on their vehicles; liability for property damage or personal injury was also a decisive factor. Ms. Sanchez-Maloney enforced the directive.

[18]  She commented on a letter of reprimand she had signed, dated May 7, 2014, which followed a report that the grievor had worked on his car during working hours on December 17 and 18, 2013. Ms. Sanchez-Maloney stated that she was struck by the fact that he had called Mr. McIsaac a liar, which was completely inappropriate and showed a total lack of respect.

[19]  The grievor received a second letter on the same day, entitled “Status of Apprenticeship – Performance Monitoring”. It addressed areas that he had to improve on, namely, maintaining a respectful attitude, communicating in a professional manner, adhering to regular work hours, and not using the employer’s facilities for personal gain.

[20]  This letter referred to another letter that the grievor had received on January 29, 2013; it was a letter of expectations. It dealt with a respectful attitude and work hours. His comment at the bottom of the letter states that he did not agree with most of its content. The letter was signed by Ms. Sanchez-Maloney’s predecessor, Major Brian Mills.

[21]  The letter of reprimand includes both blame for misconduct and a direction that apparently was given to all employees. The two relevant paragraphs are worded as follows:

…

The investigation is complete and I have concluded that you did misconduct yourself by ignoring the direction given to you by your Chain of Command to cease working on your personal vehicle during work hours. This is considered to be misuse of time for the Department of National Defence as you are paid to complete work for the Department, not for your own personal benefit. Furthermore, you were insubordinate by ignoring the direction given to you on both 17 and 18 December by your Chain of Command.

From this point forward, no personal vehicles are to be worked on whether during working hours or outside working hours within TEME. Previously, employees were allowed to park their personal vehicles in the building and could work on them outside of working hours. Your personal vehicle should be tended to outside of the workplace. This direction is for all TEME staff and I have communicated this information to the Chain of Command. There are many safety and liability implications related to this issue and it will not be tolerated in the future. Any future incidents may lead to disciplinary action.

…

[22]  Ms. Sanchez-Maloney stated that she received a number of reports from her staff concerning the grievor that referred to his performance and technical ability. He failed Block D in the summer of 2014 but did not report it. The employer found out in the fall when it requested the marks from the NSCC, which taught the curriculum and administered the exams. At that point, according to Ms. Sanchez-Maloney, a decision had to be made as to whether to keep the grievor on staff or to end his employment. He had been an apprentice for a long time, and the employer had to decide whether it was worthwhile to retain him.

[23]  Ms. Sanchez-Maloney was aware that the matter was discussed with Human Resources (HR), although she was not privy to all the conversations. She was not aware of a letter Mr. McIsaac had sent to HR in which he recommended terminating the grievor’s employment.

[24]  The NSCC recommended that the grievor redo Block D. In the end, the employer went along with that suggestion and put together an action plan to help him achieve Block D. The action plan was organized by Captain Julien Bertrand, who had just arrived at the base.

[25]  The action plan was effective, and the grievor improved his performance at work and succeeded in passing Block D. Unfortunately, he failed the subsequent Red Seal exam. Again, according to Ms. Sanchez-Maloney, the employer was at a decision point. It had to determine whether it was worth it to continue investing in an employee whose apprenticeship was dragging on and who had twice failed certification milestones. According to her, there were three elements to consider: the employees as a whole, the good of the organization, and taxpayers’ concerns.

[26]  In an email dated June 11, 2015, addressed to HR, Ms. Sanchez-Maloney stated her concerns. There was a need for a licensed mechanic, but the grievor would not be licensed until October 2015, if he passed the Red Seal exam. The email states very clearly as follows: “We have said for over a year now that we don’t think Mr. Reeves as [sic] the necessary skills to be a mechanic.” At the hearing, she was not asked whom “we” included. She ended her email with the following questions:

…

… When do we draw the line? When do we decide that we have made enough efforts and the individual is not suited for the job? He will not be able to challenge the red seal [sic] test again before October. Meanwhile he is holding a position in which I could hire a licenced [sic] mechanic. Please advise.

[27]  The decision was made to terminate the grievor at that point. Ms. Sanchez-Maloney made the recommendation to Commander Godsell, who was the commanding officer of base logistics and the delegated authority to terminate employees. She left the base shortly after that since her two-year term had ended.

[28]  In cross-examination, Ms. Sanchez-Maloney was asked if she had seen a letter dated October 3, 2014 that the grievor wrote to complain about the treatment he had received as an apprentice, the lack of mentorship he had received, and the fact that he had lost considerable time by having to change his specialty from heavy machinery to transport vehicles. She stated she had never been made aware of the letter.

[29]  Again in cross-examination, she was asked to comment on a chain of emails on which she was copied that starts with an email dated October 21, 2014, from Carol Ann Anderson, an HR advisor, in which she asks Captain Forster (one of the supervising officers) to provide any information to prepare an immediate rejection on probation. She answered that whether or not an employee is kept on probation, it is always necessary to properly document the file. The decision would be made at a higher level.

[30]  When it was pointed out to her that the rejection on probation did not follow the process outlined in the letter of offer or the “Departmental Directive on Apprenticeship and Operational Development Programs”, by not offering additional mentoring or allowing the employee to apply to other jobs or to resign before resorting to a rejection on probation, Ms. Sanchez-Maloney answered that implementing the terms and conditions of employment had not been her duty. She had been responsible for the staff infrastructure, and she saw her role as making recommendations to make the base as efficient as possible.

[31]  She was aware that the grievor had had to change streams because no one had been available to mentor him in heavy machinery. She still believed that his apprenticeship had been inordinately long. The team needed someone who was fully qualified, and too much time had already passed without the grievor being qualified.

2. Captain Julien Bertrand

[32]  Mr. Bertrand joined the regular forces in 2012 (he had been involved with the Royal Canadian Air Force before then). He was stationed at the Halifax base as the operations officer with TEME from November 2014 to July 2015, succeeding Captain Forster. He reported directly to Ms. Sanchez-Maloney.

[33]  He was made aware that the grievor had failed Block D. His goal was to help the grievor achieve his certification. To that effect, he implemented a detailed action plan to help the grievor better meet his performance requirements and to help him succeed in the Block D exams. He organized a meeting in January 2015, inviting Ms. Sanchez-Maloney, Ms. Anderson, Mr. McIsaac, the grievor, as well as Ken Salter, a union representative. The stated aim was presented as follows in the invitation email:

…

1. To hear Mr. Reeves [sic] concerns about his progression in his program and his working relationships.

2. To discuss with him management’s expectations for the upcoming months where he will continue to work at TEME, attend Block D of the apprenticeship program and obtain his Red Seal. The aim is to make sure that Mr. Reeves will have the best opportunities to be heard, seek guidance, understand his role as vehicle mechanic apprentice and team member of TEME. This meeting will help to outline the environment in which we will continue to work towards success.

[34]  A follow-up meeting was held to introduce the action plan, which Mr. Bertrand drew up with Mr. Phillips. At first, the grievor was not enthused by the action plan, but he was finally convinced of its usefulness and participated in a positive way, which led to his success in the Block D exams.

[35]  Mr. Petitpas was the civilian supervisor in charge of the day-to-day supervision of the grievor. Mr. Phillips was the managing officer who signed off on the reports.

[36]  Seven weekly action plan reports were filed at the hearing. The first one is dated February 19, 2015, and the last, April 17, 2015.

[37]  The action plan has five columns with the following titles:

• Departmental Priorities or Ongoing Program
• Employee Work Objectives
• Performance Indicator or Standard
• Strength or improvement accomplished
• Areas for improvement and example

[38]  The five columns are divided into four work objectives, which can be summarized as follows:

• perform vehicle maintenance work as required by the supervisor, without requiring constant supervision;
• cultivate a positive and productive atmosphere with peers and supervisors and start and end work according to the set schedule;
• maintain and increase skill level, be open to guidance and constructive criticism, and seek opportunities to improve the skill level; and
• perform all work safely and ensure a clean and organized work area at the end of the day.

[39]  The action plan also includes competencies or expected behaviours and lists them as follows:

CORE	1. Demonstrating integrity and respect
	2. Thinking things through
	3. Working effectively with others
	4. Showing initiative and being action-oriented
Functional	Project positive attitude to other members of the maintenance team
Technical	As an apprentice, display positive attitude through guidance from mentors to improve technical skills
	Maintain required skills to operate, diagnose, and repair equipment as necessary in a safe manner

[40]  The first three columns deal with work objectives. The last two contain the supervisor’s comments. For each of the seven weeks, they can be summarized as follows, according to the four work objectives and the three competencies:

• Week 1:
• Accomplishment: Duties performed as required, good personal conduct, sought help on an electrical problem, which made his repair time shorter, and all safety rules were followed.
• Areas for improvement: “His diagnostic skills require more practical hands on [sic] work to increase his knowledge and speed up repair time”.
• Competencies: The grievor responded with an open mind to assistance from senior technicians. To be improved: informing his supervisor of when he will return if he leaves the workshop.
• Week 2:
• Accomplishment: All objectives met; he showed professionalism.
• Areas for improvement: none (a comment appears but it belongs to the competencies and is in fact an accomplishment).
• Competencies: “Mr. Reeves was working on a bobcat with another tech. and because of his previous experience was able to pass on technical info on the best procedure’s for changing out bucket pins in a safe manner resulting in an acceptable repair time” [sic throughout]. Had a positive attitude, worked without assistance, and was eager to get to next job.
• Week 3:
• Accomplishment: All objectives met, had a positive attitude, and actively sought to keep busy.
• Areas for improvement: “Good job staying busy”.
• Competencies: Staying busy, positive attitude, and accepting assistance without hesitation.
• Week 4:
• Accomplishment: Duties performed, and safety rules followed.
• Areas for improvement: “Mr. Reeves has to worry about what he does, not anyone else. He was spoken to on the 26 March about the time he is supposed to be ready to start work 0700hrs. Mr. Reeves mentioned about other guys showing up late and nothing being said to them” [sic throughout]. Also, he needs to stay focused on the job he has been given rather than being distracted and helping others with their jobs.
• Competencies: The grievor is positive and respectful to team members; he has a positive attitude to senior techs helping him. To be improved: “Mr. Reeves is required to pass in a time card by 3pm daily … no exceptions. Mr. Reeves left early sick on the 17 of March and no time card was passed in,” [sic throughout].
• Week 5:
• Accomplishment: Positive work ethic, good attitude, completing spill-response training, and working in a safe manner.
• Areas for improvement: no comment.
• Competencies: Worked effectively and had an open mind and a positive outlook.
• Week 6:
• Accomplishment: Performed his duties “in a reasonably timely manner”, shows respect to peers and supervisors, uses manuals, and is able to do job with little assistance — “great job”. All safety rules followed.
• Areas for improvement: none.
• Competencies: Ensuring repairs are correct and thorough, being polite to all team members, and being thankful for assistance from senior techs.
• Week 7:
• Accomplishment: Performed duties with little or no supervision, projected a positive attitude, and worked safely.
• Areas for improvement: “Mr. Reeves needs to have a little more patience when other techs are helping him. When help is given it is to show him some of the things that require testing to come up with an accurate diagnoses [sic] to ensure we get the right parts and all the parts required to complete the job . we [sic] are not doubting his ability we are tweaking his diagnostic skills.”
• Competencies: The grievor was action-oriented, stayed busy, and projected a positive attitude. He has had to work with other techs to complete jobs not because he needed help but to finish jobs that needed to be completed immediately.

[41]  All in all, according to Mr. Bertrand, the action plan worked very well, which was noted in the 2014-2015 “Public Service Performance Agreement” (PSPA). The grievor succeeded with Block D.

[42]  When he failed the Red Seal exam, management was somewhat discouraged. What Mr. Bertrand heard from other managers, which he seemed to agree with, was that the grievor performed well when he was followed closely and less so when he was not so closely managed. That was Mr. Bertrand’s explanation for not helping the grievor achieve the Red Seal, perhaps with another action plan. According to him, this would not have countered the “pattern” that had been noted, which was that without constant supervision, the grievor’s performance suffered.

[43]  When he was confronted in cross-examination with the satisfactory evaluations in the grievor’s PSPAs and was asked where he got the idea of a “pattern”, Mr. Bertrand answered that both the civilian and military supervisors had often discussed the grievor’s poor performance.

[44]  Mr. Bertrand denied having any prejudice against racial minorities. Until he met the grievor in January 2015, despite hearing about him, he had no idea that the grievor was a black man.

3. Commander Ted Godsell

[45]  Mr. Godsell has been a member of the regular forces since 1998. From July 2014 to January 2017, he was the commanding officer of base logistics at the Halifax base, reporting directly to the base commander. He explained that MARLANT provides support to the fleet.

[46]  The Base Logistics unit includes 400 staff, approximately 200 civilians and 200 military personnel. The Halifax base is an operational base that serves 10 000 military personnel belonging to the navy, the army, the air force, and the special forces.

[47]  Mr. Godsell became aware of the grievor’s situation in the fall of 2014, when Ms. Sanchez-Maloney, who reported directly to him and kept him apprised of personnel issues, briefed him on the grievor. He also heard from Ms. Anderson, who was his main HR contact.

[48]  Mr. Godsell stated that that period was a challenging time for the armed forces. The federal government of the day wanted to increase public service accountability while decreasing its numbers. DND as a whole was well aware that it would need to make changes to civilian HR management, to ensure that money spent on civilian employees was well spent.

[49]  Conditions at the Halifax base were also being rethought. It had just opened a new garage for TEME, of which it was very proud. At the same time, upper management was questioning the need for base vehicle maintenance in terms of why do it on the base rather than at Canadian Tire, for example, if it would be less costly to do it off-base? It is important to administer public resources responsibly.

[50]  Already in the fall of 2014, rejection on probation had been discussed for the grievor. From the fall of 2014 until June of 2015, the issues about him were handled with HR’s advice, in particular that of Ms. Anderson. Mr. Godsell trusted her and knew that she would respect HR principles. He also trusted Ms. Sanchez-Maloney and held her in high esteem. He already knew her, as they had attended Staff College together. She had a great deal of experience and strong ethics.

[51]  When in June 2015 the grievor failed the Red Seal exam, the situation changed. At the hearing, Mr. Godsell commented that it did not come as a shock to some on the team, based on previous observations. At that point, it was decided to proceed with the rejection on probation.

[52]  Other options were briefly considered, according to Mr. Godsell. However, the grievor’s disrespect, tardiness, and outbursts to supervisors weighed heavily against him. Mr. Godsell stated that respect for supervisors, including military supervisors, was very important to him. He shared that value with Ms. Sanchez-Maloney.

[53]  The meeting to hand the grievor his termination letter was held on July 21, 2015. Mr. Godsell remembered the following attendees: Katie Maclean, from HR; the grievor and his representative, Mr. Slater; Mr. McIsaac; and maybe (Mr. Godsell was unsure of these last two) Mr. Bertrand and Mr. Phillips.

[54]  When he was asked for his rationale for the rejection on probation, Mr. Godsell answered that it was the grievor’s failure of the Red Seal exam. There was concern that continuing his program would mean continuing to expend resources beyond the six-year mark. Resources had been devoted to helping him pass his Block D; the employer was unwilling to continue putting such resources into his training.

[55]  When he was asked about the documents he had reviewed to make his decision, Mr. Godsell mentioned a letter from the grievor, dated October 2014, which had been given to HR. This is the same letter that Ms. Sanchez-Maloney did not recognize. It details the grievor’s complaint about his training. It is addressed to “Human Resources DND – CFB Halifax” and reads as follows:

To Whom It May Concern,

I am writing this letter as a formal complaint and to have something on record regarding my two meetings with the management team consisting of Chief McIsaac and Major Sanchez to discuss complaints about my work at CFB Halifax. They have accused me of being rude, disrespectful and that my performance has deteriorated in the past two years. I was hired as an apprentice in 2009 and am the only visible minority (black). I had a little difficulty with my security clearance but fortunately, for me the Employer (DND) waited until I got my security clearance. This entailed that I was hired 9 months later then the other apprentices.

On the first day of my employment, I met with Chief Ball and he told me that there was no one in Halifax able to mentor me and I would need to go to CFB Shearwater to be mentored by Warren White. The year and a half that I spent at Shearwater was great. I learned a lot and was working in all kinds of equipment. Mr. White retired in the early spring of 2011. By the fall of 2011, I was transferred to CFB Halifax and a person by the name of Brian Priest was my mentor as he was the only one with a Heavy Duty Mechanic ticket. When I got to CFB Halifax, I hear rumors going around that he didn’t want to work with me.

I really couldn’t understand why someone that didn’t know me would have this attitude and not want to work with me. At the time management didn’t inform me that Mr. Priest didn’t want to work with me therefore I never questioned them about it.

In early 2012 when I was preparing to go back to NSCC to complete my last block of my apprenticeship so I could write my Provincial Ticket, WO Frank MacDonald approached me and asked if I would mind changing my trade from Heavy Equipment to Truck and Transport. Reluctantly I agreed to change because by this time I just wanted to get my Provincial Ticket. What I did not know was that this would set me back four years in my career!

Management did not tell me that it would affect my career in anyway other than I would be Truck and Transport and not Heavy Equipment. I assumed I would be working on other types of equipment and it would not affect my apprenticeship in any manner. When I met with my apprenticeship Officer on March 20, 2012, I was informed that half of my accumulated hours (4,000 accumulated hours) were removed from my time since there was a change in trades. I was never informed of this in the original meeting otherwise I would not have made the change. My completion went from 2013 to March 2016. I should have been finished and have my Provincial Ticket if not for this inappropriate and unjust career advice from management.

I questioned WO MacDonald about the effect this would have on my salary scale and he told me that he would look into it but I have never heard anything since. There was a change in management after this. As recent as May 7^th, 2014 I discussed this with Major Sanchez-Maloney. She told me that she would look into it but again I have heard nothing about the situation. New management has done nothing to assist me with the apprenticeship hours or my salary. All I get is reprimanded for not having my licence yet which in reality is not my fault but the result of WO MacDonald’s advice.

I have had no mentorship since I was transferred from CFB Shearwater to CFB Halifax in September 2011; I do the same job as my co-workers but do not receive the pay scale I am entitled. I usually work on my own unless it is a task that requires two people for safety issues.

I feel that I do my job in an exemplary manner and complete all tasks assigned to me on time and correctly and there is no need to have meetings with the above mentioned authorities to give me disciplinary letters such as I received on May 7^th.

I feel that through the discussions with them and with some of my co-workers, I am being harassed and discriminated against.

Some of my co-workers have told me that they have been coerced into signing a form against me or their employment or chance of advancement is in jeopardy. The last time I went to NSCC I was told by one of my co-workers that I had to watch my back because they were trying to get rid of me.

I have tried to continue working to the best of my ability but find it very difficult to work under these conditions and requested a transfer to CFB Shearwater where I first started my career with DND. I asked for this transfer when I received my letters on May 7^th and to date I still have had no indication if I can or will be transferred.

Therefore, I want to have this letter on record voicing my concerns.

Regards;

Christian Reeves

[Sic throughout]

[56]  Mr. Godsell commented on the contents of the letter. He was made aware of it only in June 2015, when he was considering the rejection on probation. He found that several points lacked credibility. There were factual errors, such as why the grievor had had to switch from Heavy Equipment to Truck and Transport. He had lost 2000 hours, which represented a year, not four years.

[57]  The letter also indicated that the grievor was not receptive to very senior people (Ms. Sanchez-Maloney and Mr. McIsaac) trying to work with him. Several reports had been made of his disrespectful behaviour. Mr. Godsell was not aware of co-workers being coerced to sign statements against the grievor.

[58]  Mr. Godsell also considered the PSPAs, the divisional notes, and the correspondence between Ms. Sanchez-Maloney and her predecessor, Mr. Mills, about concerns with him and his test results.

[59]  Mr. Godsell concluded from his analysis of the grievor’s file that there were serious concerns about his ability to be an effective mechanic. His failure of Block D and then the Red Seal exam added up to the reality that he could not be a mechanic. The record also included his disrespect of supervisors. All in all, his work behaviour was not suited to the military environment.

[60]  Management did consider giving the grievor the same support he had received for Block D, but in the end, it decided not to. It meant too great an investment of time and resources, with no guarantee of success.

[61]  Mr. Godsell stated that the July 21, 2015, meeting was the first time he had met the grievor. He might have seen him on the base but had no recollection of it and had never had a personal interaction with him before that date.

[62]  In cross-examination, Mr. Godsell confirmed that no investigation had been done to follow up on the grievor’s October 2014 letter. He stated that he had not considered the letter a harassment complaint. He did not see the need to ask the grievor to comment on the letter at the rejection-on-probation meeting. Since he had failed the Red Seal exam, there was not much to discuss.

[63]  Mr. Godsell commented that he was aware that others had been allowed to retake the Red Seal exam, but their circumstances must have been different. In the grievor’s case, considerable resources had already been spent to help him with Block D. At the same time, there was tremendous pressure from DND and the Treasury Board for TEME to be more accountable and efficient. Ms. Sanchez-Maloney did not support further training, and he trusted her judgment.

[64]  Mr. Godsell agreed that the steps outlined in the Departmental Directive on Apprenticeship and Operational Development Programs, in the case of the probationary period not being completed, had not been followed. The extract that was pointed out to him reads as follows:

ii) Probationary Period not Completed (persons appointed from outside and from within the public service)

Should it be determined that an AODP [Apprenticeship and Operational Development Programs] employee can not [sic] meet the required standards of competence and additional OJT [on-the-job training], coaching and additional strategies have been provided to assist the employee in closing the learning gap, the employee:

• may apply for other positions;

• may resign; or

• will be rejected on probation.

[65]  Mr. Godsell acknowledged that the grievor had been the only black male apprentice. He also acknowledged that negative information found on the grievor’s file had often not been put to him, and he had therefore not had the opportunity to respond. He confirmed that all the grievor’s supervisors had been white.

4. Warrant Officer Frank MacDonald

[66]  Mr. MacDonald is a vehicle technician by trade. He joined the regular forces in 1994. He was the grievor’s first supervisor on the Shearwater base from January to late November 2010, at which point he moved to Halifax. When the grievor moved from Shearwater to Halifax, Mr. Priest, the heavy-duty journeyman, declined to supervise him because he was no longer active in that field by reason of a medical accommodation. Mr. MacDonald explained that apprentices necessarily need a journeyman to oversee their training and to sign their logbooks for the hours worked. The journeyman also signs the jobs that the apprentice completes.

[67]  In February 2012, Mr. MacDonald asked the grievor to change from Heavy Duty Machinery to Truck and Transport to ensure that he would have journeymen supervising him. Mr. MacDonald confirmed it by the time the grievor had completed Block C, so the change meant at least a one-year delay obtaining his certification. Mr. MacDonald continued supervising the grievor until July 2012. He was replaced by Sergeant Jim Miller until Mr. Phillips took over in September 2012.

[68]  Mr. MacDonald was responsible for the grievor’s first performance evaluation entitled “Civilian Performance Review Report” (CPRR) for fiscal year 2010-2011. The comments in it are positive. The grievor received an overall assessment of 3 out of 5. The five levels are: 1) surpassed the majority of performance expectations, 2) met all performance expectations, 3) met most performance expectations, 4) did not meet most performance expectations, and 5) unable to assess (for example, if the employee had been on an extended leave). Mr. MacDonald wrote the following comments:

During this reporting period Mr. Reeves has been employed in Shearwater Maintenance (9) and Heavy Equipment Maintenance (3). Mr. Reeves is currently completing his Heavy Equipment Apprenticeship program, at a normal rate. He demonstrated adequate job knowledge and trade skill. He makes good use of the technical resources available to him; he regularly searched publications and manuals when conducting unfamiliar repairs. He completed all assigned tasks to an acceptable standard under steady supervision. Mr. Reeves neatly and accurately completed daily time cards setting the shop standard. A good team player, he willingly volunteered for Ex Dirty Hands contributing to the overall success of the exercise.

[69]  Mr. MacDonald had one concern. He expressed it by the fact that the grievor needed “steady supervision”, which was more than expected. Still, his performance had been adequate, and contributing to the “Dirty Hands” exercise was certainly the hallmark of a good team player.

[70]  Mr. MacDonald had also completed the grievor’s second CPRR, for fiscal year 2011-2012. Again, he met most performance expectations. Most of the comments are positive, with a note on the need to improve communication with supervisors. Under “Results Achieved”, Mr. MacDonald wrote the following:

Mr. Reeves met most of the work objectives with successful results. As A Truck and Transport apprentice, he effectively maintained a 60% production, 30% training, and a 10% admin ratio, these percentages are consistent with an employee undertaking an apprenticeship program. Mr. Reeves did not meet the required standard for communication, he was counselled on his ability to maintain effective communication with supervisors. Mr. Reeves must ensure his supervisors are aware of any unexpected sick absences from work, and that he makes the effort to contact supervisor [sic]. This incident has since been rectified.

[71]  Under “Manager or supervisor summary of performance”, Mr. MacDonald wrote as follows:

During this reporting period, Mr. Reeves performed work objectives to an acceptable standard. As a Truck and Transport apprentice, he followed basic direction and eagerly applied his trade skill in the inspection, diagnosis, and repair of Heavy Equipment fleet vehicles. A dedicated team player, he was a well integrated [sic] member of the Heavy Equipment repair section. Mr. Reeves unselfishly dedicated his time and effort to Exercise DIRTY HANDS contributing to the overall success of the event. Mr. Reeves strived to maintain a clean working environment, thus reducing shop safety hazards. He adhered to safety rules always using PPE [personal protection equipment] when required. He was receptive to constructive criticism from supervisors and mentors, always displaying a positive attitude. Mr. Reeves willingly accepted advice and guidance from other members of the section on vehicle repair procedures unfamiliar to him.

[72]  The grievor signed the form to register for the Truck and Transport stream in February 2012. The form clearly shows that he had 4000 hours remaining to complete, for Blocks C and D. It also states that the expected date of completion was March 31, 2016.

5. Warrant Officer Blair Phillips

[73]  Mr. Phillips joined the regular forces in 1990. He is also a vehicle technician by trade. He was at the Shearwater base in 2010, then was moved to the Halifax base in September 2012. He had arrived at Shearwater just as the grievor was leaving.

[74]  When he arrived at the Halifax base, he was briefed by Mr. Miller, who had replaced Mr. MacDonald. He was told about the grievor and that he had changed trades, that he had trouble grasping vehicle maintenance concepts, and that he had damaged some equipment.

[75]  In one incident, the grievor had apparently cut off a civilian vehicle while driving a shop truck. The truck was carrying tires that had not been secured properly. It was reported in writing. Mr. Phillips held a meeting with the grievor and the co-worker who was in the truck. Both the grievor and the co-worker signed the brief report that was dated December 18, 2012. The incident did not lead to any further action.

[76]  Mr. Phillips recounted another incident that was documented in an email to his military superior, Master Warrant Officer Molloy. On January 9, 2013, Mr. Phillips found the grievor on a computer, apparently reading a magazine online. When Mr. Phillips asked what he was doing, the grievor replied that he was searching the web for the way to fix a truck. Mr. Phillips went to get the grievor’s supervisor. Together, they spoke with the grievor, who complained that his supervisor “was always picking on him”. The email report ends on the following paragraph:

…

He then went back to working on the truck and started to curse and swear to himself. I told Murv [the supervisor] to come and get me if his attitude continued. Murv told me that he puts up with this attitude on an ongoing basis. I told Murv that he shouldn’t have to put up with this as a supervisor.

[77]  Mr. Phillips testified that no one wanted to work with the grievor because he would not listen; if he did, he would then do things his own way.

[78]  Mr. Phillips completed the CPRR for fiscal year 2012-2013. It was signed on June 12, 2013, by Mr. Phillips, the grievor, and Mr. Molloy as the review officer. Again, the grievor “met most” performance expectations. This was based on the report of his immediate supervisors. The narrative that they filled out and that Mr. Phillips signed is somewhat contradictory. It is noted that he had to complete his Block D in Truck and Transport, but he was apparently employed in the Heavy Equipment Maintenance section. The supervisors’ comments read as follows:

…

SECTION 6 – Manager or supervisor comments …

Mr. Reeves has shown a noted improvement in initiative and work ethic since signing the letter of expectation for attitude, respect and working hours.

…

SECTION 8 – Reviewing Officer’s comments …

1. Mr. Reeves has conducted most assigned tasks in a timely manner.

2. He has adhered to safety rules and regulations while maintaining a safe and clean working area.

3. He has contributed to unit and organizational goals.

4. He has maintained and adhered to organizational security requirements.

5. Mr. Reeves has not maintained effective communication with his supervisor. When a job is complete, he should advise his supervisor and ask for a new job, this will help with production and help him write off his apprentice log book [sic] sooner.

6. Mbr is accountable for his actions.

Mid-year Performance Review …

…

Supervisor comments...

Mr. Reeves is currently in his third year of apprenticeship training. He requires constant supervision when inspecting and repairing Heavy equipment. There has been some instances where equipment damage has occurred due to inexperience. His supervisor has been advised to have qualified technicians take a more active role and work closely with Mr. Reeves.

…

End of Review Period Performance Review…

During this reporting period Mr. Reeves has been employed in Heavy Equipment Maintenance section. Mr. Reeves is an apprentice currently working towards certification. He demonstrated average job knowledge and trade skill. He readily completed assigned tasks under minimum supervision. Mr. Reeves made good use of the resources available to him, by actively seeking advice from the more experienced technicians in the shop. Mr. Reeves signed a letter of expectations for his attitude, respect and working hours. He was reminded, that he is not to surf the web for personal use on the shop computer unless he is on his coffee break or lunch hour. During this reporting period there has been instances where equipment damage has occurred due to inexperience on Mr. Reeves part. Mr. Reeves is to approach his supervisor and ask for assistance if he has any doubts or concerns when he is inspecting or repairing DND equipment. He volunteered to be part of the SNIC crew, on standby 24/7 and coming in for MRT calls at a moments notice. Mr. Reeves should also be recognized for his outstanding support with operation Dirty Hands, (GCWCC) a Government of Canada workplace charitable campaign.

[Sic throughout]

[79]  At the hearing, Mr. Phillips confirmed that the grievor had indeed switched to Truck and Transport, but according to him, it was basically the same thing. One had to find the right tool for the job, which the grievor did not seem to do.

[80]  At the hearing, Mr. Phillips explained how the email chain with negative comments about the grievor came about. In late October 2014, after it was confirmed with the NSCC that the grievor had failed Block D, HR was looking for more information to support a rejection on probation. The email was addressed to Captain Forster and copied to Ms. Sanchez-Maloney and Mr. McIsaac. It asked for “… any additional information so that the case may be prepared for Rejection on Probation immediately.” Mr. McIsaac sent it to Mr. Phillips, who answered in an email on October 24, 2014.

[81]  Mr. Phillips writes of the grievor’s lack of respect for authority and lists several actions that have been reported to him as well as his encounter when the grievor was reading magazines on the web. He has also been seen eating his lunch during working hours, wearing sneakers instead of safety footwear, causing a collision, and working on his car during working hours.

[82]  Mr. Phillips states that indeed, the grievor has received one-on-one training from other employees and supervisors. He then lists comments from three senior civilian technicians and three military supervisors, all of which are negative: the grievor requires a lot of supervision, he cannot retain information, he is not motivated, other technicians do not want to work with him, and he makes costly mistakes.

[83]  Mr. Phillips denied that any pressure had been exerted to obtain those comments. According to him, the people quoted in the email had been told that if they did not provide information, then they would be stuck with the grievor for the next 35 years. Several mechanics apparently refused to contribute anything, as they did not want to be on record.

[84]  At the hearing, an email from a Corporal Kline was brought to Mr. Phillips’ attention. It is dated October 17, 2014, and was forwarded to Mr. Phillips the same day. Mr. Kline was a military mechanic working as a journeyman, not a supervisor. The email is addressed to a Sergeant Muise, Mr. Kline’s military superior and a supervisor (not one quoted in Mr. Phillips’ email). Mr. Kline writes as follows:

Good afternoon Sgt,

I just wanted to make you aware of some things I’ve noticed on the floor lately. For at least the past week every day during his 30 minute lunch Mr. Reeves has been going for runs, trying to keep his fitness level at a good standard. He also is the only person back out on the floor working as of 12:30 every day in coveralls. Mr. Reeves has no problem lending a hand when needed, and also offers as well with minimum complaining. Mr. Reeves also doesn’t abuse the system (sick days). With-out [sic] a doubt I can say he’s trying, and personally I think it looks good on him.

[85]  When he was asked why this perspective was not included in the email that he sent on October 24, Mr. Phillips answered that Mr. Kline had no idea of the big picture.

[86]  Another email chain was presented to Mr. Phillips for his comment. A quality assurance inspector reported to the civilian supervisor and then to Mr. Phillips that he had overheard one of the military supervisors using the “N” word. The inspector took offence, finding it disrespectful for the “… three blacks or coloured working here in the shop.” He added in a further email that he had relatives of black descent.

[87]  Mr. Phillips spoke to the military supervisor and assured the inspector by email that it would not happen again. The inspector replied as follows: “Thanks for the reply but if it happens again in this office or on the floor I will punch that races [sic] bastard out”. Mr. Phillips was asked if there was any consequence for the inspector using such colourful language, and Mr. Phillips shrugged and said there was none as that language was usual for him.

[88]  Mr. Phillips participated in the action plan effort that Mr. Bertrand had set up. He acknowledged that the grievor seemed on track and that the civilian supervisor was happy with the grievor’s performance. Mr. Phillips signed the 2014-2015 performance assessment, now called the Public Service Performance Agreement (PSPA). After that, he had no further involvement with the grievor, who left shortly after that PSPA to write his Red Seal exam.

[89]  In cross-examination, Mr. Phillips acknowledged that when he dealt with the “N”-word incident, he had first listened to the military supervisor’s version before telling him to not do it again. In the grievor’s case, Mr. Phillips had received a lot of information about him, yet he never asked to first have his version of events.

[90]  Mr. Phillips also confirmed that when he talked to the grievor about the incident of the shop truck and the unsecured tires, he had the grievor sign the note to acknowledge that he had been made aware of the situation. It was pointed out to Mr. Phillips that for most of the negative situations discussed in his email, there was no trace that the grievor had been made directly aware of the problems. Mr. Phillips answered that he had been told to gather evidence, which he did.

[91]  Mr. Phillips did not know why no performance assessment was on record for fiscal year 2013-2014. He believed that he would have done it.

[92]  When he was asked about the incident in which he had seen the grievor looking at a magazine online, Mr. Phillips could not recall whether the magazine had been a side advertisement or whether it had occupied the whole screen.

B. For the grievor

1. Neil Harnish

[93]  Mr. Harnish started at DND in 1976 as a trade helper. He has been a certified auto mechanic since 1978 and has always worked at the Halifax base. He works as a vehicle mechanic in the heavy equipment shop. He worked with the grievor for approximately two years, from time to time in an acting supervisor position.

[94]  At some point, he could not recall when, Mr. Phillips asked him to “write up” the grievor. At that time, Mr. Harnish was in a hiring process for the permanent supervisor job (the same one that he had occasionally acted in). He was told that if he was unwilling to say negative things about the grievor, he would no longer be part of the competition. He was told to write down whatever the grievor was not doing right. This is the quote from Mr. Harnish that Mr. Phillips included in his email:

Mr. Reeves does not have the knowledge to be a mechanic. It seems he cannot or does not retain some of the learning of the trade. He would ask an experienced tradesman how to do something and then showed [sic] how to do it, and then say I’ll try it this way. So the tradesman would not want to help him again. He seems like he does not have the enthusiasm to want to learn the trade. I would not want him as a mechanic in my shop.

[95]  At the hearing, he was asked why he wrote that. He answered that he was told that he had to. Everything he wrote could be interpreted differently, except the last sentence, which he now regrets, because it is not true. He was asked whether he would want the grievor as a mechanic in his shop. Mr. Harnish answered, “I sure would.”

[96]  Of course, Mr. Harnish explained, the grievor did not have the knowledge to be a mechanic – that’s why he was an apprentice. Of course he could not retain all the information. It is a difficult trade, and Mr. Harnish said that he himself was still learning, after all these years.

[97]  As a matter of fact, added Mr. Harnish at the hearing, the grievor had really picked himself up and was doing quite well, and was learning.

[98]  In cross-examination, Mr. Harnish was asked about tradesmen no longer wanting to help the grievor. He answered that some were put off by the fact that after they gave advice, the grievor did something else. He added that that was not unusual in the tradesmen’s world. He stood by a statement he had written at the grievor’s request for the union after the grievor was terminated that reads as follows:

In june 2014 I was told I had to do a write up on Mr. Reeves. At that time I was told if I did not do it I would be taken off the competition for the supervisors position. Than after I wrote it they said it would not matter.

[Sic throughout]

2. Kenny Atwell

[99]  Mr. Atwell is a certified vehicle mechanic whom the DND hired in April 2009. His trade is Truck and Transport. At the time he was hired, he was a third-year apprentice and had passed the first three blocks. He passed Block D and then took the Red Seal exam. He failed at his first attempt. Management told him not to worry, that failing happened. He was successful on his second attempt.

[100]  He worked a great deal with the grievor (the grievor’s Truck and Transport logbook for the tasks he accomplished is mostly signed by Mr. Atwell). He stated that they got along fine. When he was asked whether he would work with the grievor again, Mr. Atwell answered, “In a heartbeat.”

[101]  Mr. Atwell was asked about the treatment the grievor received. He answered that it had been terrible and that the grievor was continually singled out. Every day he was scolded for something. It was not a matter of a one-on-one conversation with a supervisor; it involved being called into the office. The grievor was not the greatest mechanic, said Mr. Atwell, but he quickly added that neither was he.

[102]  Mr. Atwell recalled a meeting that Mr. McIsaac called to address the dissatisfaction of the mechanics who felt that the wrong supervisor had been hired. The grievor was not invited to attend. Mr. Atwell asked why he had not been invited, and Mr. McIsaac answered that he was just an apprentice. Mr. Atwell felt that was wrong, since it was also the grievor’s workplace. He said that it was an example of the way the grievor was treated, badly.

[103]  Mr. Atwell was asked about the grievor working on his own car on work premises. Mr. Atwell answered that technically, it was not allowed, but that people did it, including him. He considered that it was all right as long as it was not done on DND time, which meant during the lunch break, since access to the workshop was prohibited after hours.

[104]  Mr. Atwell was asked what he recalled of the day the grievor was terminated. According to him, the grievor was called away, as had happened many times before. This time, Mr. Salter, the union representative, was there. He heard that the grievor had been fired. The grievor asked him to get his logbook, which Mr. McIsaac had kept. Mr. Atwell checked with the apprenticeship board, which confirmed that the logbook belonged to the apprentice, not the employer. Mr. Atwell retrieved the logbook from Mr. McIsaac’s office.

3. Ken Salter

[105]  Mr. Salter is an electrician by trade. He started working at DND in 1991. He became a shop steward after five years. He had to educate himself to learn how to represent members. He eventually became chief shop steward, and then three years ago, he was elected the president of the local. In November 2018, he ceased his union activities, considering that devoting 20 years to that cause was enough.

[106]  At the time of the grievor’s dismissal in July 2015, Mr. Salter was the chief shop steward. Management asked him to attend the meeting at which the grievor would be dismissed. He remembered quite a large gathering of some 12 people, including Mr. McIsaac, Ms. Maclean, and Ms. Anderson. Before the meeting, he had called Brenda Lee Blaney, who was the member services officer for the UNDE in its Atlantic region, for advice on representing the grievor at the meeting. It was the first time he had attended a dismissal.

[107]  At the meeting, Mr. Salter tried to convince the employer representatives that perhaps the grievor had learning difficulties and that he should be allowed to attempt the exam again. He tried to convince them that the grievor was willing to work hard, but they were not receptive. They stated that they had done their best to help the grievor but that he was not suited to this type of work.

[108]  Mr. Salter was shocked. He thought that it was rather degrading to tell the grievor that he was not suited for the job after he had worked conscientiously at it for all those years. There had never been a single complaint about safety issues; his performance assessments did not reflect any unsuitability.

[109]  Mr. Salter said that throughout the meeting, Mr. McIsaac smirked, which Mr. Salter thought was rather unprofessional. He was surprised by such a display of satisfaction.

[110]  The grievor was handed his letter, and the group dispersed. The grievor wanted to say goodbye to his colleagues. Mr. McIsaac was following him closely and insisted that he leave immediately. After five minutes, Mr. Mc Isaac became aggressive and began repeating “get out” to the grievor. Mr. Salter told Mr. McIsaac to back off and to show some compassion. Finally, Mr. Salter and the grievor left, under Mr. McIsaac’s constant badgering.

[111]  The grievor did not have the opportunity to gather his belongings. He was shaken and upset, as were Mr. Salter and the colleagues.

[112]  In cross-examination, Mr. Salter stated that the grievor had contacted him often since he felt that the employer was trying to get rid of him. Mr. Salter had had conversations with management, from which the action plan seemed to result.

[113]  Mr. Salter is not a mechanic, but as the union representative, he had many contacts with other mechanics. According to him, their assessment was that the grievor worked well. He thought that when management said that the grievor was not suited to the trade, it meant in the academic sense. Mr. Salter thought that the grievor might have some schooling issues.

[114]  Mr. Salter felt that the grievor had been treated unfairly, as he had seen that other mechanics might have had problems in their training that had not led to ending their certification process. Some people were better at school, and some people were better at practice.

[115]  Mr. Salter did not know when the grievor had given the October 3, 2014, letter to management to complain of his treatment. He remembered receiving advice that it was better for the grievor to continue his efforts without complaining.

4. The grievor

[116]  The grievor now works as a mechanic in a truck shop. He owns a home in Sackville, Nova Scotia.

[117]  The grievor felt that he had been discriminated against by not being allowed to take the Red Seal exam a second time. He knew of two colleagues who had had that opportunity. He also felt that Mr. McIssac had harassed him when he was dismissed by following him closely and by not giving him the time to gather his belongings.

[118]  The grievor was shown the complaint he had written that is dated October 3, 2014. He stated that he gave it to Mr. Salter on that date. When he was asked why he had written it, he answered that he did so because he felt constantly monitored while others were not so closely watched. At that time, he really feared that he would be fired before the end of his probation period.

[119]  Although in the end, the action plan worked out, the grievor did not feel that it was for his benefit. Rather, he saw it as a collection of information to be used against him. He did not receive any more mentoring during this time. He was monitored, and at the end of each week, the supervisors would discuss his performance with him.

[120]  At the hearing, the grievor was asked to review documents that were part of the employer’s evidence. The first one was written by Sergeant Miller (now Warrant Officer Miller, who testified at the hearing). It details the following behaviours of the grievor: he had told Corporal Daniel Conway to “FO” when he was asked to stay longer at work, he made two mistakes in repairs (in one instance damaging a battery), and he called someone by a name that that person had asked not be used.

[121]  The grievor denied ever telling anyone to FO. He might have made mistakes, just like most people. He did not know he was not to use the name of the person concerned; once he was told, he never used it again.

[122]  The second document was the incident noted by Mr. Phillips about the truck with unsecured tires. The grievor said that he had been told to get tires. He did not deny that he might have cut off another vehicle and that the tires were unsecured.

[123]  The third document was Mr. Phillips’ report that the grievor was looking at magazines on the web during working hours. The grievor remembered that he was looking for information on repairing a Zamboni. There might have been advertisements on the page.

[124]  The grievor disputed what seemed to be implied about his behaviour in the letter of expectations. He considered himself respectful and professional and believed that he treated his co-workers with respect.

[125]  The grievor commented on the letter of reprimand. He denied calling Mr. McIsaac a liar. At the meeting, the grievor said that what he was being accused of was a lie. He did not work on his car during working hours, only during his lunch break. Working on one’s car was not allowed, but he had obtained permission from a supervisor because his car had broken down on the way to work; some of its valves needed to be replaced.

[126]  The concerns expressed in the email that Mr. Phillips put together, with quotes from some supervisors and colleagues, were never expressed to the grievor.

C. The employer’s rebuttal evidence

1. Corporal Daniel Conway

[127]  Mr. Conway worked in the same building as the grievor, first as a colleague and then, starting in 2012, as a supervisor. Mr. Conway testified that his relationship with the grievor had been fine until he became his supervisor; then it became difficult. The grievor often questioned the tasks he was assigned.

[128]  He remembered that the grievor had left early one Friday, without his permission. The following Friday, when he told the grievor he had to stay rather than leave early, the grievor told him to FO.

[129]  When questioned in cross-examination, Mr. Conway was no longer certain of the exact phrasing, but he was sure that the “F” word had been used and directed at him. He had written an email about it to his supervisor, Mr. Miller, but he had not confronted the grievor with the written report, nor could he remember meeting with Mr. Miller and the grievor to discuss it.

[130]  Mr. Conway was asked about the employees’ practice to leave early on Friday afternoons. He stated that indeed they could leave early on that day but only with their supervisor’s permission. The time of departure could vary from week to week and from one supervisor to another.

2. Warrant Officer Jim Miller

[131]  Mr. Miller is a vehicle technician. He worked with the TEME team from 2007 to 2014 on the Halifax base. He stated that his experience with the grievor had been fine but that he had noticed that the grievor just did not seem to have the general aptitude of the average apprentice.

[132]  Mr. Miller was referred to notes that he had kept about the grievor, which included the email from Mr. Conway about the FO remark. It also listed other instances of deficiencies on the part of the grievor.

[133]  Mr. Miller was asked why he kept those notes. He answered that they would come in handy when completing the annual performance evaluation; they could reflect employees’ strong or weak points. In cross-examination, he said the notes were not meant to be disciplinary. In an answer to a question from the Board, he could not explain why he had mentioned performance evaluations, since he had not been responsible for the grievor’s performance assessment.

3. Katie Maclean

[134]  Ms. Maclean was a labour relations advisor with DND from 2011 to 2017. She recalled the grievor’s file. She remembered seeing his complaint dated October 3, 2014, but only in the summer of 2015. Mr. Salter, the union representative, had brought it to her attention.

[135]  She recalled that in 2014, concerns surfaced about the grievor’s performance; he did not have a great attitude, and he seemed lackadaisical about his work. His misconduct warranted the letter of reprimand. She was present at the meeting at which he called his supervisor a liar. She helped draft the reprimand letter.

[136]  She also helped draft the second letter that was handed to the grievor on May 7, 2014. It was in response to Ms. Sanchez-Maloney’s wish to have the employer’s position clearly articulated, which was that the grievor was being monitored and that he could be rejected on probation.

[137]  When I asked her about the deficiencies in the grievor’s performance, Ms. Maclean answered that people came forward to say that he lacked initiative, that he was reading magazines at work, and that he had cursed at work.

[138]  Ms. Maclean was asked if she had seen Mr. Phillips’ document that spoke of the grievor’s perceived faults and that quoted people at work. She answered that she was not sure.

[139]  Ms. Maclean testified that after the rejection on probation was done and when it was necessary to answer the grievance at the second level, an analysis was made of instances reported by the grievor of what he claimed was unfair treatment by Mr. McIsaac. The document, dated October 28, 2015, and addressed to Mr. Salter, reads as follows:

As per your request I am compiling dates and incidents.

On or about October 15^th, 2014 Chief MacIssac conducted a meeting with all the mechanics in the Heavy Section and I was excluded, one of my co-workers – Kenny Atwell asked why I wasn’t invited to the meeting and he was basically told by Chief MacIssac to mind his own business.

On November 6, 2014 when I sat down with my Union Representative and Chief MacIssac to discuss why he wanted to see my transcript in the presence of my Union Representative Chief MacIssac told me that they (management) didn’t think I was working out. When I asked what he meant by that he accused me of spending 59 hours working on a piece of equipment which means ‘he can’t do the job’.

On July 21, 2015. The day of my dismissal my Union Reps were trying to put off the dismissal until they could get a better understanding of the case. Chief MacIssac told everyone that it was dangerous to have me on the floor because I was not qualified. After almost 6 years of working in the same position and on the same equipment I’ve never had a piece of equipment come back with the same issue or had any other mechanical problems. For Chief MacIssac to say that it was dangerous for me to be on the floor was misleading and unfair. Katie McLean, Ken Salter and other high ranking officials of TME were witnesses to this discussion. In addition, on the day of my dismissal Chief MacIssac made sure he followed me around as if I was some type of criminal. I was upset about losing a job that I had for 6 years and was trying to figure out what my next move should be through the union process. I was standing around waiting for Ken Salter and Chief MacIssac was right in my face saying I had to clear out immediately, he said over and over that I would not receive my final pay if I did not clear out. He demanded my ID before I left the building, this was in front of my Union Rep-Ken Slater. Mr. Salter had to tell him to relax and have a little sympathy.

On or about February 25, 2015 I had a meeting with Carol Ann Anderson in Human Resources to discuss the fact that I hadn’t been treated fairly and equally by Chief MacIssac. I also made it known that he was actively and aggressively pushing to have me dismissed. I didn’t understand why, in my understanding an apprentice is there to learn the trade and I should have had a mentor to do so which I did not have.

Witnesses to my treatment: you can contact either of the following people in the TME section. They will confirm my treatment by Chief MacIssac.

Kenny Atwell

Glenn Bonnell

Signed,

Christian Reeves

[Sic throughout]

[140]  This document was referred to Lieutenant (Navy) Christopher Cusack. He was to determine whether the grievor’s harassment complaint should lead to a full investigation. In an email addressed to Commander Godsell and copied to Ms. Maclean, Mr. Cusack wrote that the memo provided insufficient information to proceed with a full investigation. He did recommend that the grievor review his memo with a qualified harassment assistant to ensure that it met the elements of harassment. His recommendation was not followed.

[141]  According to Ms. Maclean, Commander Godsell and HR had only the first part of the October 3, 2014, complaint when the decision was made to reject the grievor on probation. The second page, on which he clearly states that he felt harassed and discriminated against, came out only at the grievance presentation.

[142]  I asked Ms. Maclean if the employer ever considered maintaining the probation period until its termination date, March 2016. She answered that it did not. When she was asked why, she answered that it was because of the length of time it had already lasted and that apprenticeship and probation were assessed differently. She did not elaborate on that idea.

4. Lieutenant (navy) Christopher Cusack

[143]  Mr. Cusack is currently a logistics officer. In the fall of 2015, he was the assistant chief of staff to the base commander in Halifax. His involvement with the grievor consisted of being asked to assess the grievor’s memo dated October 28, 2015. Part of his duties was to analyze grievances for harassment. He concluded in an email that the memo did not meet the level of harassment that would lead to a more in-depth investigation. The allegations were insufficient. He suggested that the grievor be helped to draft a more complete complaint. There was no follow up.

[144]  When shown the complaint dated October 3, 2014, Mr. Cusack stated that it might have been sufficient to recommend a more fulsome investigation. He had not seen it at the time he was asked to conduct his review.

III. Summary of the arguments

A. For the employer

[145]  This case does not present the usual situation of a probation that generally lasts about 12 months. In this case, the probation applies to an apprenticeship program. If the apprenticeship is not successful, the terms and conditions of the letter of offer provide that a rejection on probation may occur. There is no guarantee of employment. Moreover, the employer has no control over the NSCC apprenticeship program, which plays a major role in assessing an apprentice’s suitability for the job.

[146]  Rejection on probation is not part of the Board’s jurisdiction. The only way it can take jurisdiction is either because of discrimination, in which case it would have jurisdiction under s. 209(1)(a) of the Act over a grievance related to the interpretation and application of the collective agreement, or because the rejection on probation was in fact disguised discipline, in which case it may have jurisdiction under s. 209(1)(b) of the Act.

[147]  The Board cannot reassess performance. However, if there was an employment-related reason for the rejection on probation, it cannot be disguised discipline or a sham. In this case, several employment-related reasons led to the rejection on probation: the grievor’s behaviour, his lack of eagerness, and his poor performance and the fact that he failed the Red Seal exam.

[148]  Discrimination was not raised at the time of the rejection on probation. Mr. Salter talked of learning difficulties, but the grievor denies having them. Racial discrimination really became an issue after the rejection on probation, but the grievor had never grieved it before then.

[149]  The grievor blames the employer’s hostile environment for his failure and blames the employer for delaying his apprenticeship. The employer admits that the grievor lost a year with the change in trades. That does not explain him failing Block D and the Red Seal exam.

[150]  There were many reports of the grievor’s unacceptable behaviour and attitude with colleagues and superiors. He denies everything, but it seems a little strange that there would be that much fabrication.

[151]  Issues with the grievor’s performance persisted for a long time, yet the employer agreed to help him after he failed Block D by drawing up a detailed action plan. He was twice warned that his behaviour needed to improve, by the letter of expectations in January 2013, and by a letter about performance monitoring in May 2014.

[152]  There was no obligation for the employer to do everything to ensure that the grievor succeeded on the Red Seal exam. He was continually supported and helped. At one point, the employer could decide that after all this time, the grievor was just not suitable. Moreover, the employer had its own considerations – it needed a qualified mechanic, and the grievor was holding up that position and that hire.

[153]  The grievor states in his grievance that he was treated differently because he was not given a second chance to take the Red Seal exam, contrary to how others were treated. The only evidence on that issue received at the hearing was Mr. Atwell’s testimony. His situation was very different. He had not failed any block of training and he had become a qualified mechanic within two years of his hire.

[154]  The grievor argues that the differential treatment was due to his race. In fact, there are many reasons to explain why the employer acted as it did. It is not sufficient to argue that race was the reason; a nexus is required between the treatment received and the prohibited ground of discrimination.

[155]  Even if Mr. McIsaac’s behaviour on the last day may seem undesirable, it had nothing to do with management’s decision to end an apprenticeship that was not successful. A genuine and sustained effort was made to help the grievor achieve his certification. The employer cannot be blamed for the grievor’s failure.

[156]  The employer reviewed several cases to support its arguments. In my analysis, I will return to those I consider relevant to this case.

B. For the grievor

[157]  The employer’s reasoning that the Board does not have jurisdiction is incorrect. It has jurisdiction to interpret and apply article 19 of the collective agreement, which prohibits harassment and discrimination.

[158]  The grievor felt that he had been subjected to different treatment when he failed the Red Seal exam in that his white colleague was given the opportunity to redo it; he was not. He was not given the opportunity to explain his version of the events to Mr. Godsell; he was simply given the letter rejecting him on probation. It was striking to see the contrast between how a white man would be treated for misconduct, as in the case of the military supervisor using the “N” word and simply having a discussion with his supervisor, as opposed to the grievor not being allowed a fair process.

[159]  Mr. McIsaac’s behaviour on the day of the rejection on probation was clearly harassment.

[160]  The rejection on probation was discriminatory. The employer’s attitude that the grievor could not succeed as a mechanic, as repeated by a number of witnesses, was racist.

[161]  The rejection on probation was also done in bad faith. The employer did not follow the steps it had laid out in the letter of offer. It did not consider that the grievor had to redo Block C twice. It simply decided that failing the Red Seal exam was a sufficient ground to reject him, despite letting another employee redo that exam.

[162]  The rejection-on-probation letter listed three reasons to justify the employer’s decision. The relevant paragraphs read as follows:

To date, you have received a Letter of Expectations (25 January 2013) and multiple performance reviews that demonstrate weaknesses relating to your position. You were advised in a letter on 07 May 2014 that failure to meet performance standards, in combination with your academics, would be used to assess whether the Department of National Defence would decide whether to continue your employment. Your performance reviews, although slightly improved, still show areas that require progress.

Recently, you have failed your Journeyman Mechanics Certification which is a term and condition of employment to be appointed as a Vehicle Equipment Mechanic. You now must requalify for testing. Your Letter of Offer and Departmental Directive on Apprenticeship and Operational Development Programs clearly state the impacts on your employment should you be unsuccessful in the program. Based on the foregoing, I have made the difficult decision not to extend your program and [sic] cease your employment.

[163]  Those reasons do not hold up to scrutiny. The performance reviews showed proper engagement on the grievor’s part, and the last one (2014-2015) was complimentary. One performance review was entirely missing. The letter of May 7, 2014, was based on biased and inaccurate information. Finally, using the grievor’s failure of the Red Seal exam as justification was clearly in bad faith, since the rejection on probation was made out to be a direct consequence of this failure, when it had not been so in the case of another apprentice.

[164]  Mr. Godsell testified that he was aware at the time of the rejection on probation that the grievor had alleged that discrimination had occurred in how he had been treated. Yet, Mr. Godsell chose not to investigate further, which is additional evidence of bad faith in the employer’s treatment of the grievor.

[165]  The grievor also cited case law to support his case, which I will return to in my analysis.

IV. Analysis

[166]  The grievor grieved his termination in the following terms:

I grieve the employer’s letter dated 21 July 2015 wherein I was rejected on probation.

I grieve the employer’s termination of my apprenticeship program prior to the completion date of the program which was March of 2016.

I grieve the employer’s violation of their Harassment Prevention and Resolution Guidelines, their DAOD on Harassment and the TB Policy on Harassment Prevention and Resolution.

I grieve the employer’s violation of Article 19 of my collective agreement.

I grieve that I was treated differently by my employer in comparison to my colleagues.

I grieve any and all other related articles of my Collective Agreement.

[167]  Article 19 of the collective agreement reads as follows:

There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

[168]  From the evidence I heard, it seems to me that the grievor was not given an equal opportunity to succeed. Some on the management side seemed determined to put an end to his probation.

[169]  I did not hear from Mr. McIsaac, and I draw an adverse inference on the subject of the written reprimand; that is, that the grievor worked on his car contrary to a direct order. It seems that employees were aware that the employer was not in favour of such a practice, but it had been tolerated for a long time. Clearly, Ms. Sanchez-Maloney wanted to discourage it altogether, but I received nothing to contradict the grievor’s assertion that on that particular day, he had been given special permission to have his car in the shop because it had broken down on his way to work. I received no evidence from Mr. McIsaac; he was directly involved, was one of the architects of the file mounted to justify the grievor’s rejection on probation, and he was very aggressive at the time of the termination.

[170]  I must comment on something that struck me in Ms. Sanchez-Maloney’s testimony, which is rather reflective of the employer’s attitude in this case. She stated that after the grievor had failed the Red Seal exam, the employer had to make a decision, based on three considerations: the morale of all employees, the interests of the organization, and taxpayers. She did not mention the grievor.

A. Rejection on probation

[171]  As the employer emphasized, the Board does not have jurisdiction over rejections on probation. Section 211 of the Act clearly states that a grievance relating to termination under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13), such as a rejection on probation (see s. 61), cannot be referred to the Board for adjudication.

[172]  I find that I am properly seized of this grievance to the extent it is based on a violation of article 19 of the collective agreement, the anti-discrimination clause.

[173]  In addition, there is a long line of jurisprudence that states that an employer must have employment-related reasons for terminating an employee on probation. Although the test was modified slightly by Tello v. Deputy head (Correctional Service of Canada), 2010 PSLRB 134, the principle that the rejection on probation must be done in good faith and must not be a sham or camouflage was recently reiterated by the Federal Court of Appeal in Attorney General of Canada v. Dyson, 2016 FCA 125 at para. 12, in which the Court states the following:

[12] It is well-settled law that “an adjudicator seized of a grievance by an employee rejected on probation is entitled to look into the matter to ascertain whether the case is really what it appears to be” (Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), [1989] F.C.J. No. 461 at para. 17). Thus, it was open to the adjudicator to inquire as to whether the “employer had used rejection on probation as a sham to camouflage another reason for the dismissal and had therefore acted in bad faith” (Kagimbi FCA [2015 FCA 74] at para. 2) and, on that basis, assume jurisdiction under paragraph 209(1)(b).

[174]  Therefore, the question at issue is whether the grievor’s rejection on probation was employment related.

[175]  The letter rejecting the grievor on probation, dated July 21, 2015, lists the following four grounds for the termination:

1.  the letter of expectations;

2.  the work performance reviews, none of which is mentioned specifically;

3.  the May 7, 2014, written reprimand; and

4.  failing the Red Seal exam.

[176]  The grievor argues that these are pretexts and not the real reasons. I agree. In both the action plan and the 2014-2015 performance review, it is clear that he met the expectations that had been set in the January 2013 letter. The performance reviews, while not stellar, are satisfactory and certainly do not indicate that his probation status was threatened. As I commented earlier, I am not certain that the written reprimand was entirely warranted — I did not have Mr. McIsaac’s version of the events, and including a general directive to all employees about working on personal vehicles undermined the discipline targeted only at the grievor.

[177]  Finally, no explanation was provided as to why failing the Red Seal exam was fatal for the grievor and not for Mr. Atwell. The justification is that Mr. Atwell had not failed Block D. Given that he did not have to change trade streams midway in his apprenticeship, comparing his success to the grievor’s situation seems rather unfair.

[178]  In fact, the employer’s documents contradict the conclusions of the letter of rejection. The action plan was successful, the grievor did succeed with his Block D exam, and the agreement had been extended to March 2016. From the terms of the letter of offer, there was no reason to end the program prematurely. Therefore, I find that the rejection on probation was made in bad faith, given that the employer did not base his decision on employment-related reasons.

B. Discrimination

[179]  Discrimination in employment is found when the employee can establish discrimination on a prima facie basis, and the employer has no valid defence. The test for prima facie discrimination was clearly described by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61, as follows:

[33]  … to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

[180]  In this case, the grievor belongs to a group protected from discrimination under the CHRA, by virtue of being black and having been born in Liberia. He has suffered adverse impact at the hands of the employer, since he was rejected on probation. The issue that remains to be determined, for me to find prima facie discrimination, is whether his race and national origin were factors in the adverse treatment he suffered.

[181]  Showing that race is a factor in an employment context is not an easy task. The official position of DND, and of the federal government as an employer, is that racial discrimination is entirely proscribed and will not be tolerated. Based on the following reasons, I find, on a balance of probabilities, that racial discrimination must have been at least a factor in the grievor’s rejection on probation, as there is no other explanation for the acts that clearly discriminated against him. As in Grant v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 59, I have to infer that racial discrimination occurred. As has often been stated, direct evidence is difficult to find; one needs to look at the surrounding circumstances to determine whether it is more likely than not that racial discrimination played a role in the matter. In this case, the general mistreatment of the grievor and the employer’s refusal to consider it when it was raised lead me to conclude that in the absence of any objective reason for the rejection on probation, the grievor was a victim of discrimination because he is a black man.

[182]  Ms. Sanchez-Maloney and Mr. Godsell emphasized the efforts that had been made for a period of six years and that after those six years, the employer could no longer devote further resources to the grievor. Not once did they mention the setback of changing trade streams, except that Mr. Godsell stated that the grievor had lost 2000 hours, not the 4000 he claimed. Still, 2000 hours is a full year. Management never noted the demoralizing effect of having to redo the third block.

[183]  The employer sought to show that much effort had been devoted to helping the grievor succeed in Block D. The action plan was in fact a monitoring exercise. It was successful in that the grievor showed that he could perform as expected, and he did succeed with the Block D exam. However, the efforts devoted to helping him were somewhat contradicted by the evidence that was gathered against him to end his probation.

[184]  I find particularly disturbing the clear campaign that was mounted against the grievor, in which testimonies were sought to show him in a bad light. Mr. Harnish testified to his remorse at participating in this exercise and the reason he did. I find that the impact of the employer’s actions was clearly discriminatory. Several factors lead to a conclusion that what occurred was in fact discriminatory treatment of the grievor.

[185]  First and foremost is the fact that another apprentice, Mr. Atwell, failed the Red Seal exam yet was told, “No big deal; just try it again.” The employer sought to distinguish the situation by arguing that Mr. Atwell had not failed Block D. Then again, Mr. Atwell did not have to redo Block C and lose thousands of hours of practical experience. Mr. Atwell was not subjected to an atmosphere in which his supervisors and Labour Relations advisors were looking for any incident to end his probation. This occurred precisely at the time the grievor was taking his school training to pass Block D.

[186]  Second, no consideration was given to allowing the grievor to end his apprenticeship program at the expected date of completion (March 31, 2016), which would have given him another opportunity to try the Red Seal exam. The opportunity was not offered, despite the terms of his letter of offer, which provided as follows that the probationary period was to last the duration of the apprenticeship program: “… employees appointed outside [sic] the public service into a Professional Development or Apprenticeship Program are subject to a probationary period for the duration of the Program or twelve months, whichever is longer …”.

[187]  It is not disputed that the grievor’s apprenticeship had been extended to March 2016. In the event that the employee had trouble meeting the “required standards of competence”, “additional on-the-job training and coaching” would be “… provided to assist in closing the learning gap …”. The employer argued that that had been done to assist the grievor with Block D. No further assistance was provided to help him with the Red Seal exam when he failed to meet its required standards.

[188]  Third, the employer sought to avoid any investigation into the racial discrimination claims. Mr. Cusack was presented with partial documents; his suggestion to provide help to the grievor to draft a proper harassment complaint was ignored.

[189]  Four, the lack of mentoring that the grievor suffered when he arrived at the Halifax Base from Shearwater was not contradicted and remained unexplained. Journeymen supervised his work, but the employer’s witnesses did not name one person who was his mentor, as Warren White had been in the Heavy Equipment stream. Mr. Phillips, his supervising officer, devoted considerable energy to the denigrating campaign. He was unable to explain why no performance assessment was carried out for 2013-2014.

[190]  Five, I take into account Mr. Atwell’s forthright testimony. He responded without hesitation that the grievor was constantly picked on for behaviour that no one else was reprimanded for. I note the curious reprimand about the grievor working on his car, when the same letter states that from then on, it will no longer be allowed.

[191]  I understand the employer’s point that the grievor was not a stellar mechanic and that he could be rude with superiors. However, that behaviour had clearly improved, as noted in the 2014-1015 CPRR and in the action plan set up by Captain Bertrand. The action plan was the last report fully documenting the grievor’s performance. Terminating his employment after the action plan was successful and after he had achieved Block D only because he had failed the Red Seal exam (as had Mr. Atwell) shows an attitude towards the grievor that is simply unexplainable. The only remaining explanation is pure and simple racial prejudice.

[192]  I hasten to say that I believe the employer when it states that racial discrimination is not tolerated within the department. I believe Commander Godsell and Captain Bertrand when they say that they did not consider the grievor’s race when reaching their decision. However, at the lower ranks, I see that behaviour occurred that was clearly adverse to the grievor, for which the only explanation can be his race. He was not a model employee at all times, but he certainly showed his willingness to learn, to improve, and to respect his team members. I take that from the witnesses and the performance reports, as well as from the action plan.

[193]  Despite the employer’s intolerance of racial discrimination, it failed to investigate the discrimination claim once it was raised. Mr. Godsell stated that it had been raised by the time the decision was made to reject the grievor on probation. It was clearly raised in the grievance process.

[194]  I find the employer has not provided a reasonable explanation for the adverse treatment that the grievor suffered. The grounds stated in the letter of rejection on probation were not sufficient to justify the decision in it, given that the apprenticeship period had not ended, that the grievor’s performance had in fact been improving, and that a fellow apprentice had been allowed to take the Red Seal exam a second time. I find that racial discrimination must have been at least a factor in building such a negative image of the grievor that the upper echelons of DND were convinced that rejecting him on probation was the proper course, given the absence of an explanation for the employer’s actions and the definite animosity of some managers. The employer should not have ended the grievor’s probation before the stated date of March 31, 2016, and it should not have denied him the opportunity to try the Red Seal exam a second time in October 2015. I find discrimination played a role in this decision.

V. Remedy

[195]  The parties requested that I render a decision on the merits of the case without ordering a remedy. I accepted that suggestion, and therefore, I have not heard full submissions on remedy. I did state that if I found that discrimination occurred, I would order compensation under the Canadian Human Rights Act (R.S.C., 1985, c.H-6; CHRA); the parties did not object. Therefore, the only remedy considered in this decision is that under the CHRA.

[196]  I find that the grievor is entitled to compensation under s. 53(2)(e) of the CHRA for the grave assault on his dignity. I will state again how disturbing I find the campaign that was mounted to justify the termination, given the evidence that some employees were pressured into participating in it. I also find it disturbing that Mr. Miller kept notes on the grievor when he had no responsibility for assessing the grievor. I am convinced that the grievor’s life was made more difficult because he is black and because he comes from a different culture.

[197]  It has been repeated many times that it is difficult to quantify the proper award of compensation for an assault on dignity. Given what this has cost the grievor in terms of delaying his journeyman certification, given the many indicators I have that it was caused by prejudice towards him, and given the length of time he was subjected to a negative campaign, I will grant an amount in the upper range of compensation, $15 000.

[198]  Compensation may also be awarded under s. 53(3) of the CHRA because of the employer’s wilful or reckless behaviour. I do not believe that racism was necessarily present everywhere, and there were certainly instances of people coming to the grievor’s defence or truly seeking to help him. However, the employer failed by not investigating the racial discrimination claim after the bargaining agent forcefully raised it. The reaction was one of defence and denial rather than genuine interest in the grievor’s point of view. That amounted to reckless behaviour for which I award $10 000.

[199]  The parties may come to an agreement to settle what the grievor is owed due to the premature ending of his apprenticeship program. I will remain seized until the parties so inform the Board. If they cannot reach an agreement within 60 days of the date of this decision, the Board will invite their further submissions on remedy.

[200]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[201]  The grievance is allowed.

[202]  The rejection of probation was done for other than work-related reasons, and the grievor is entitled to be reinstated in the apprenticeship program.

[203]  The grievor was subject to discrimination, contrary to article 19 of the collective agreement.

[204]  The grievor is awarded $15 000 under s. 53(2)(e) of the Canadian Human Rights Act.

[205]  The grievor is awarded $10 000 under s. 53(3) of the Canadian Human Rights Act.

[206]  I remain seized until the matter of remedy is resolved, either by an agreement of the parties or by a further Board order. The parties will inform the Board of their desired course of action within 60 days of the date of this decision.

June 24, 2019.

Marie-Claire Perrault,

a panel of the Federal Public Sector Labour Relations and Employment Board