Date: 20210215

Files: 566-02-11195

566-02-11196

 

Citation: 2021 FPSLREB 14

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

 

Victor-WITOLD Wrobel

Grievor

 

and

 

Deputy head

(Canada Border Services Agency)

 

Respondent

 

Indexed as

Wrobel v. Deputy Head (Canada Border Services Agency)

In the matter of an individual grievance referred to adjudication

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

For the Grievor: Erin Sandberg, counsel

For the Employer: Holly Hargreaves, counsel

Heard by videoconference,

September 1 to 4, 2020.

Written submissions filed October 9, November 16, and December 11, 2020.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1] Victor-Witold Wrobel (“the grievor”) referred a grievance to the Public Service Labour Relations and Employment Board on May 21, 2015, against his rejection on probation from the Canada Border Services Agency (CBSA).

[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 (S.C. 2003, c. 22, s. 2) 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] In accordance with s. 210 of the Act, the grievor also served notice to the Canadian Human Rights Commission (CHRC) that he intended to raise a discrimination issue involving the application of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA). On June 4, 2015, the CHRC sent a letter to the Board declining the opportunity to make submissions in this matter.

[4] The grievor was part of a bargaining unit represented by the Public Service Alliance of Canada, which signed a collective agreement covering the Border Services group with the Treasury Board that expired on June 20, 2014. For the purposes of this decision, the term “employer” designates the CBSA, to whom the Treasury Board’s authority as employer is delegated.

[5] The grievance was worded as follows: “I grieve the termination of my employment and that this decision was discriminatory.” The grievor asked to be reinstated and to receive compensation.

[6] The employer raised an objection that the Board is without jurisdiction in this matter, as the rejection on probation was a termination of employment under s. 62 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA). Under s. 211 of the Act, a grievance against such a termination cannot be referred to the Board for adjudication.

[7] For the reasons that follow, the employer’s objection is granted. I find that the grievor’s rejection on probation was for employment concerns, was done pursuant to s. 62 of the PSEA, and that discrimination was not a factor in the termination of employment.

II. Summary of the evidence

[8] The employer called the following witnesses: David Akerley, Daniel Grenon, Jacques Crête, Mathieu Gour, and Chris Henderson.

[9] The grievor testified and called Josée Charbonneau as a witness.

[10] The grievor started with the CBSA as a summer student hired for border services duties in 2010 at the P.E. Trudeau Airport in Dorval, Quebec. During the school year, he continued as a part-time employee. He also worked at the Mirabel Airport in Mirabel, Quebec, which mainly received commercial goods, as opposed to passengers. During that time, he was often involved in enforcement activities, searching goods arriving into Canada for illegal drugs or merchandise.

[11] In December 2012, he was accepted into the border services officer (BSO) training program. He put his accounting studies on hold as he saw the CBSA as an interesting career opportunity. From January to June 2013, he trained at the CBSA’s facility in Rigaud, Quebec.

[12] After completing their training at Rigaud, trainees are hired by way of letters of offer for FB-02 positions that set out a 12- to 18-month probation period. This is the last stage of their training and is called the Officer Induction Development Program (OIDP). During this time, the BSOs are expected to acquire all the necessary skills to be able to function independently at the FB-03 level. Once they successfully complete the OIDP, they receive formal letters appointing them indefinitely to FB-03 positions.

[13] The grievor received such a letter of offer on June 4, 2013. BSOs were assigned according to their ranking on graduating from the Rigaud program. He chose to work at Trout River, Quebec, because it was the closest location to Montreal, where he wished to remain. He had just married, and he and his wife wished to live in Montreal.

[14] The grievor knew nothing about Trout River. In fact, Trout River is a small, rather quiet border crossing or point of entry (POE) in rural Quebec south of Montreal. It is usually staffed by two BSOs, with a superintendent attending during the day. Trout River is about an hour-and-a-half drive from the grievor’s Montreal residence or approximately 100 km away, and part of that drive is on rural roads. The grievor saw the POE for the first time on his first day of work as a BSO on July 2, 2013. He met the superintendent there, Mr. Crête, who showed him around and had him fill out paperwork.

[15] The BSOs there worked 12-hour shifts, from 8 a.m. to 8 p.m. or the opposite shift, alternating nights and days. The BSOs could exchange shifts, as long as the superintendent gave permission. The grievor said that he understood that to be a mere formality.

[16] The grievor converted to Islam in 2010 after meeting his future wife, because she is a Muslim. He testified that in 2013, when they were married in the Islamic faith, they were exploring the best ways to practice their faith. It was an important part of their relationship.

[17] The grievor explained that during the month of Ramadan, Muslims are expected to fast from sunrise to sunset, meaning that they do not eat or drink anything, not even water. When Ramadan coincides with the summer season, it makes for exceptionally long fasting days. Although fasting should be done during Ramadan, it is possible to make up days of fasting outside the time of Ramadan, which the grievor did, since it was very difficult to entirely fast during a summer day and still be alert on a day shift. I note that Ramadan in 2013 was from July 8 to August 7. The grievor testified that at first, he worked mainly day shifts, then regular day and night shifts.

[18] The grievor stated that he preferred night shifts to day shifts for several reasons. One of them was that fasting made day shifts particularly difficult. Another was that if he worked at night, he had the opportunity to spend more time with his wife during the day. His colleagues did not mind since they preferred the day shifts.

[19] During July and August 2013, Mr. Crête was on leave and was replaced by Mr. Grenon, a fellow BSO who acted in the superintendent position. During that time, the grievor had no trouble having his night shifts approved. When Mr. Crête returned, he told the grievor that he needed to work more day shifts, for training purposes. Mr. Crête did not allow the grievor to change his shifts. The Trout River POE has very few crossings during the night shift, so the grievor had few opportunities to be exposed to different enforcement opportunities. At the hearing, when the grievor was asked whether he had discussed his faith with Mr. Crête, especially his desire to observe Ramadan, the grievor answered that he had, early on. Mr. Crête denied it; he stated that until he prepared for the hearing, he had never known that the grievor is a Muslim.

[20] Ms. Charbonneau, who testified on behalf of the grievor, also stated that she had not been aware until the hearing that he is a Muslim. Mr. Grenon also testified he had never learned that the grievor is a Muslim. Yet, the grievor believed that his religion was known to his colleagues. At one point, one of the BSOs invited everyone to his birthday party, to be celebrated with a pig roast. The grievor spoke up, saying that being Muslim, he could not eat pork. Instead of being gracious about it, the BSO hosting the birthday event simply said, “Well, don’t come then.” He said it in front of others, which hurt the grievor.

[21] The grievor spoke of the small-town mentality at the POE. Everybody had known everybody for a long time. He felt like an outsider. Added to that, a nearby town was in political conflict about a Muslim cemetery. People were not necessarily sympathetic to the Muslim point of view.

[22] Ms. Charbonneau also testified that as an outsider, she also felt excluded for a while, and that initially, she felt hostility from Mr. Crête. However, eventually, it seems that she settled into the group and found Mr. Crête helpful and accessible.

[23] The grievor’s relationship with Mr. Crête gradually became more conflictual. The first three-month quarterly review, completed by Mr. Grenon (dated August 14, 2013), was very positive. The form has 43 statements setting out tasks and experiences, with boxes to the right in which the reviewer rates the BSO on each behaviour as “Exceeds Expectations”, “Meets Expectations”, “Improvement Needed”, “Unsatisfactory” or “Unable To Assess”. Ticked are all but one box under “Exceeds Expectations”. Box 26 reads as follows: “Detains/seizes goods or detains/arrests people based on all evidence.” and the box is ticked under “Unable To Assess”. The last box reads, “Acts in accordance with and upholds the Codes of Conduct of the Public Service and the CBSA.” In a subsequent Performance Questionnaire, dated September 18, 2013, which is a working document used to record a trainee’s ability to perform tasks during a quarter, Mr. Crête observed that the grievor “Needs help doing it”. An asterisk refers to a note handwritten by Mr. Crête, which states: “Needs to work on his knowledge of our procedures within the CBSA.” Mr. Crête also included the following comment: “Victor is motivated; it shows that he has previous experience as a student BSO in Mirabel. He doesn’t hesitate to ask questions if he doesn’t know what to do.”

[24] To give the grievor wider experience, he was assigned to work for two weeks at the Lacolle Quebec POE, the most important one in the Eastern Townships. It sees a large number of immigration matters, and many more goods cross the border there. The grievor was assigned there from October 21 to 31, 2013, and it seems that the experience was positive.

[25] The second three-month quarterly review, dated January 10, 2014, covers the next three months of the grievor’s employment. It is also rather positive. Most boxes are ticked under “Exceeds Expectations” or “Meets Expectations”. Four boxes relating to enforcement actions are ticked under “Unable To Assess”. The grievor explained that the quiet Trout River POE just did not have many enforcement action opportunities. Most travellers crossed the border there to shop on the other side. After a while, most of their faces became familiar.

[26] Four boxes in that assessment are ticked as “Improvement Needed”: “Understands and appropriately applies legislation, policy and procedures.”, “Stays current on legislation, policies and procedures.”, “Holds themself [sic] personally accountable for decisions and actions.” and “Acts in accordance with and upholds the Codes of Conduct of the Public Service and the CBSA.” Mr. Crête added some explanations to the assessment. For the first two, he stated the following:

...

- Needs to improve his knowledge of policies within the CBSA.

- Needs to improve his knowledge of our office procedures.

- Needs to ask more questions to other inspectors and his supervisor in order to assimilate better his duties as a customs inspector.

 

[27] For the last two, he wrote as follows: “Needs to understand the repercussion of his actions toward his working environment.”

[28] At the hearing, Mr. Crête stated that the grievor had a tendency to arrive just on time and to leave as soon as his shift was over, which was not conducive to any information exchange between teams. He also stated that the grievor did not ask questions. He would have wanted the grievor to be more involved and more motivated. Mr. Crête stated that the conversations were ongoing and did not take place only after the quarterly reviews.

[29] Mr. Crête also identified as a problem the lack of enforcement actions. The grievor did not seem to question travellers and send them to secondary inspection, which is an important component of the work, according to Mr. Crête.

[30] At the hearing, the grievor explained that he did not detain goods or people because there had been no reason to. He was used to the heavy traffic of goods coming into the country at Mirabel; by comparison, hardly anything of note came through at Trout River. He stated that he had often carried out seizures at Mirabel and that he was used to reporting them.

[31] The grievor testified that no specific details were included with the second quarterly review. He could not remember what was said. He did remember that after the assessment, he felt somewhat rejected. He felt that Mr. Crête was quite a bit harsher than Mr. Grenon had been. He believes that the treatment he received was due to his shift-change requests, which Mr. Crête denied.

[32] The grievor did not quite agree with the assessment, but he was told to write an email to acknowledge that he understood it. He wrote an email to thank Mr. Crête for his feedback, hoping to appease him. He was six months into his probation; he hoped to just get through it and become an indeterminate employee.

[33] The grievor testified that at that time of year, January, there could be no vehicles through the POE over a 12-hour evening shift. Mr. Crête worked only the day shift and never helped the BSOs in primary or secondary inspection. The grievor was left to learn on his own. He felt confident, given his experience at Dorval and Mirabel.

[34] The grievor had to adapt to the reality of a small POE; for example, shoveling snow or replenishing the water bottle. There was no extra staff to carry out those tasks.

[35] Mr. Crête continued to be irritated because the grievor sometimes arrived late or very close to his starting time, which did not allow for exchanges with the BSOs from the previous shift. The grievor explained that he might have been late on rare occasions because of traffic conditions, a snowstorm, or a bridge being temporarily blocked. In fact, in cross-examination, a number of dates on which he was late were brought up. He did not dispute the fact but did not recall the circumstances. He also testified that he did his job, interacted with the BSO with whom he was posted, but did not feel the need to interact more with his colleagues. He did not feel that they were particularly welcoming.

[36] The grievor stated that he approached Mr. Crête about taking specific breaks to pray. According to him, Mr. Crête said that he would look into it but never followed up. Mr. Crête did not recall ever being asked that question. He testified that had he received a request for some kind of accommodation, he would have followed up on it, as he had received a great deal of training on the need to accommodate employees.

[37] The third quarterly review is dated March 24, 2014. This time, the enforcement activities are marked, “Unsatisfactory” and one being “Improvement Needed”. The explanation from Mr. Crête reads as follows:

# 19-20-21-22-23-24-25-26-32 are related to the enforcement aspect of Victor’s duties as a customs officer.

There are no enforcement related actions on file from Victor during this review period. I have met with him and explained that this was not acceptable.

Victor will have to document all of his actions related to enforcement and send me the results on a weekly basis.

Victor’s goal for the next quarter is to show results in order to obtain a satisfactory level.

[38] The grievor believed that there had been no enforcement actions because there had been few enforcement opportunities. He did not complete enforcement reports but simply kept a training journal.

[39] Mr. Crête’s comment at the end of the third quarterly review reads as follows:

Victor has made the right adjustments following some feedback I had given him during the past quarter.

Aside for [sic] the enforcement aspect, Victor is on track for his work performance and behavioural expectations.

[40] The next assessment is dated June 20, 2014. Again, the discussion centred on the lack of enforcement activities. The grievor did not feel particularly concerned. He felt that he knew enforcement actions very well, as he had done many in the past as a student employee. Simply put, the Trout River POE did not provide the same enforcement opportunity.

[41] The explanation for Mr. Crête’s assessment reads as follows:

# 19-20-21-22-23-24-25-26 are related to the enforcement aspect of Victor’s duties as a customs officer.

Victor has shown improvement in that aspect of is work, but in the future he will have to be more involved, watch for indicators and improve his searching skills in order to come to a satisfactory level. This will be greatly facilitated if he goes forward and asks his colleague for help and uses their experience to his advantage.

As for # 42 and 43 [holding himself accountable and acting in accordance with the codes of conduct], I feel that Victor will have to question himself and better understand the repercussions of his actions toward the values and ethics of our agency. I strongly suggest that he reads the code of conduct and asks questions if he needs some clarification.

[Sic throughout]

[42] In the comments section, Mr. Crête wrote as follows:

Victor as good potential and quality that would be an asset to our agency if they are develops properly.

Victor has improved tremendously in his interpersonal contact with his colleague.

Victor needs to understand better his role has a customs officer in our organisation.

Overall a better effort and self-motivation would be highly recommended in the future.

[Sic throughout]

[43] According to the grievor, he felt that he did not hesitate to ask his partner questions when necessary. As for the Code of Conduct, no specific part of it was referenced by Mr. Crête. According to Mr. Crête, he wanted to feel that the grievor was more involved in the workplace, including arriving at work a little earlier, so that he could have had more exchanges with the departing shift team. At the hearing, Mr. Crête insisted that the enforcement aspect of the grievor’s work, which is the most important aspect of a BSO’s duties, continued to be weak. The grievor did not seem to question travellers or be on the lookout for anomalies and rarely sent them to secondary inspection.

[44] When the grievor arrived for his shifts, he did not spend much time with the preceding shift team. He thought that it would be unreasonable to ask him to arrive an hour early simply to talk. He still felt like an outsider. He got along fine with whoever was his partner, but otherwise, he felt that he had nothing in common with the other BSOs. Ms. Charbonneau, who worked with him on several shifts, testified that he kept to himself.

[45] On July 8, 2014, Mr. Crête completed a report for the training committee to determine whether the grievor had successfully completed his probation period and was ready to become a full-fledged BSO (FB-03). In this report, Mr. Crête indicated that improvements were necessary in the areas of enforcement activities and the performance of duties, which he explained in the following manner:

[Translation]

The probationary employee needs to improve the following points:

- enforcement in general (increase examinations, be aware of indicators, improve search techniques, etc.)

- Better understand the impact of his decisions on our organization while keeping in mind the code of conduct.

This can be accomplished with coaching and especially with more considerable effort and motivation by the probationary employee.

[46] In August 2014, the grievor was asked to complete daily reports of all travellers coming through the Trout River POE. He reported a few enforcement actions and one seizure that according to the numbering was the 18^th of the year in 2014.

[47] Mr. Crête testified that this followed an action plan set up on the advice of the OIDP to help the grievor improve his performance. The grievor did not remember a clear action plan, only what he described as a “blitz” during August 2014.

[48] However, documents introduced at the hearing clearly showed that an action plan was put in place to help the grievor with his professional development. In an email dated August 1, 2014, Kathleen Winter, the acting superintendent, writes as follows:

Hello Victor,

I have been asked to create a three week plan to aid in your improvement of your enforcement actions.

In addition to your weekly report, please use the attached Operations Report form to document your searches and referrals.

Also, although the Operations Report no longer has space, please also note tombstone data (Name, DOB) on the travellers you refer.

The plan is as follows ....

[49] The plan then details specific actions that had to be taken during shifts in the following three weeks: selective referrals of vehicles and commercial trucks with indicator notes, CPIC (police database) verifications for two non-residents, a planned operation, preparing enforcement-related questions for an investigator, etc.

[50] It seems that the grievor fulfilled all the requirements of the action plan. However, according to Mr. Crête, this was the only period in which the grievor carried out the specific enforcement activities that had been asked for.

[51] Mr. Akerley, the OIDP manager, testified that the officers in training were provided with all the necessary assistance to complete their training program and to be promoted to the FB-03 level. During this period, acquiring the necessary skills was important; so was demonstrating suitability.

[52] The OIDP had just been created when the grievor was in training at Rigaud. He was part of the first cohort for which the OIDP was used as a formal tool to train new officers. The purpose was to ensure that all new BSOs would receive the same training, no matter the POE they were assigned to. For example, the grievor’s two-week placement at Lacolle was an OIDP decision to provide him with experience at a busy POE that included an important immigration component, which he would not have seen at the Trout River POE.

[53] The reports that Mr. Akerley received from Mr. Crête were that the grievor had some difficulty following the rules. He was often late. He would argue with Mr. Crête on being told that he had to arrive earlier. The lack of enforcement actions was also of concern.

[54] The OIDP made the decision to not promote the grievor to an FB-03 position after a year, based on the reports from Mr. Crête. OIDP management (as testified to by Messrs. Akerley and Gour) believed that the grievor was not quite ready to be appointed to the FB-03 level. At that time (July 2014), the action plan was recommended.

[55] On October 31, 2014, Mr. Crête completed another quarterly review. The grievor’s probation had been prolonged, but he was not advised at the 12-month mark that he had not been successful in securing an FB-03 position. He testified that from July 2014 to his termination date, he was provided no information on the risk of failing and being rejected on probation. He was told that his enforcement activities were insufficient, so he understood that he had to continue under probation for a while. From July 2014 to the fall of 2014, it was a busy period at the Trout River POE, and he put in a lot of overtime.

[56] The October 2014 quarterly review is the last one. It was not given to the grievor until December 3, 2014, at the same time as his letter of rejection on probation. This quarterly review lists a number of deficiencies in his performance, which he testified were not pointed out to him when they happened. He also disputed its content when he was shown the review, but it was too late. The deficiencies include the following:

... On various occasions, when faced with making enforcement decisions, Victor lacks the necessary knowledge and hesitates in making enforcement decisions, for example during the cases on June 26 2014 (K143) and on October 2, 2014 (ORS 3520-2014-K003).

...

[57] The grievor explained that “K143” was a report in the system to show a forced payment of duties for goods not declared, which did not necessarily lead to a seizure. He did not remember any comment being made about his action on that day.

[58] The ORS report is a special one that is generated when an enforcement action occurred against a traveller at another POE. This was the grievor’s first ORS report, so he called CBSA Intelligence to find out how to complete it. The rather infrequent nature of this report can be seen from the numbering; in October, it was the third such written report in 2014. The quarterly report continued as follows:

...

... Victor did not maintain an active access to a necessary database, ICES, and did not contact the superintendent on call on August 1, 2014 to have it reactivated during his enforcement action. When Victor completes reports, they are submitted lacking important information and detail. He required significant aid when having to recently complete an ORS report....

...

[59] “ICES” stands for “Integrated Customs Enforcement System”, which is a database about Canadians who have had previous contact with the CBSA or individuals seeking to enter Canada who might pose a risk. At the hearing, the grievor stated that he was uncertain about what the access to ICES involved or why it was an issue. He remembered carrying out the August 1 enforcement action on his own and did not remember any negative comment from Mr. Crête or Intelligence. According to Mr. Crête, the grievor had not used ICES sufficiently, and thus, his access had lapsed. Mr. Crête insisted on the importance of ICES access at the hearing; the grievor was rather vague about his access to and use of it.

[60] Mr. Crête also included the following comment:

Following a request from OIDP management, local management provided Victor with a three week enforcement improvement plan. ... During the plan, Victor was expected to plan an operation and he failed to do so.

[61] The grievor stated that he had planned an operation with Ms. Charbonneau and that he had reported it to the acting superintendent. Ms. Charbonneau was not asked about it at the hearing.

[62] The review also stated that the grievor carried out no further enforcement measures after the action plan. Mr. Crête testified that the grievor’s only enforcement actions had been done during the action plan, but that seems to be contradicted by the June 26 and October 2 actions. The apparent contradiction was not brought up in cross-examination.

[63] The review speaks more generally of the lack of enforcement actions. It also states that the grievor failed to provide reports of his daily activities. He testified that he was never asked to write daily reports except in specific instances (at Lacolle and for three days in August 2014). The third quarterly review (March 2014) did include a comment from Mr. Crête asking the grievor to write a daily report on enforcement activities. It seems that there was no follow-up to that request.

[64] Finally, the review speaks of not following the leave procedure. The grievor stated that there had been some confusion about the proper code, and then he heard nothing further about it.

[65] At the hearing, Mr. Crête testified about the content of the quarterly review, which he repeated. On the whole, there were many unsatisfactory points, especially a lack of enforcement actions. The grievor’s unfamiliarity with ICES was particularly worrisome.

[66] Mr. Crête was asked if the grievor had been told that his appointment as an FB-03 was in jeopardy if his performance did not improve. Mr. Crête answered that the grievor had been told many times that he needed to do more in terms of enforcement. Also, since a year had gone by, he should have been aware of the fact that his probation period was being extended beyond a year, and he should have taken concrete measures to improve his performance. The grievor did not ask questions and carried on as if everything was normal.

[67] Mr. Crête found the grievor quite satisfied with himself as opposed to being eager to learn and curious about his job. Mr. Crête was worried that if in his first year, when he was on probation, the grievor was so lackadaisical, he would not be an attentive BSO once promoted.

[68] On December 3, 2014, the employer had the grievor report to the Lacolle POE. He was handed the final quarterly review (dated October 28, 2014) as well as the letter of rejection on probation. Mr. Akerley and Mr. Gour attended the meeting. They did not remember any discrimination allegation being made at that time. Mr. Akerley testified that he would have noted it had one been raised. According to him, the meeting was brief, with little discussion. The grievor did dispute what was stated in the last quarterly review, but Mr. Gour stated that the employer would not undo its termination decision. The two paragraphs in the letter justifying the rejection on probation read as follows:

...

While the OID Program is premised on Officers Trainees acquiring the necessary skills and competencies to become FB-03 Border Service Officers after 12 months, you have been afforded 15 months to demonstrate that you have the ability and willingness to satisfy the program objectives. To this end, throughout your probationary period, your local management and the OID Program team have provided you with quarterly performance reviews and your superintendents have had regular meetings with you to discuss areas for you to improve performance, as well as program expectations and behavioral [sic] requirements to support your success in the program. Unfortunately, despite demonstrating some improvements in certain areas, as noted in your 10-12 month review, you have also consistently failed to meet multiple expectations as an Officer Trainee. Indeed in the three months since your 10-12 month review we have observed a significant decline in your ability and willingness to engage in the duties expected of you.

In this regard, I have concluded that despite efforts to support you in your development as an Officer Trainee, you have failed to demonstrate that you can satisfy the expectations and duties necessary to perform this role. For example, despite being counselled by your management team on numerous occasions and receiving regular performance reviews you have shown a considerable disregard for attending shifts on time, following protocol for seeking authorization for leave and submitting activity reports as required. Additionally, despite continued efforts to have you engage in enforcement-related activities you have demonstrated a lack of motivation and initiative to improve your skills and abilities. In this regard any indication of progress pertaining to specific performance expectations in any one evaluation period has been temporary and un-sustained [sic]. Your engagement in taking actions to improve and to be accountable for your actions is not forthcoming. My conclusions are based on incidents spanning several months, which do not allow me to expect that your reliability will improve.

...

[69] At the hearing, Mr. Akerley explained that the quarterly review had not been provided to the grievor earlier because the employer had already decided that his performance was not improving. The relationship with Mr. Crête was deteriorating, as Mr. Crête found that the grievor would challenge any comment made to him. The decision to terminate the grievor was made some time in November. Mr. Akerley testified that as of the grievor’s employment and termination, the employer was unaware that he is a Muslim.

[70] Mr. Henderson, who signed the letter of termination, testified that the decision to terminate the grievor was not made lightly. The CBSA invests a great deal in training recruits and wants them to succeed.

[71] Before signing the letter, Mr. Henderson reviewed the provided documents, mainly, the quarterly reviews, and noted a decline in performance. He stated that the grievor’s performance showed gaps in his ability to carry out and awareness of enforcement actions. It is important that BSOs understand their role as both facilitating entry into Canada and enforcing the rules. BSOs have to consistently demonstrate their willingness to probe a little further and to send travellers to secondary inspection, if indicators warrant doing so. According to Mr. Henderson, the grievor, after all his training and even after an additional action plan, did not demonstrate that skill to the employer’s satisfaction. The trend did not lead to an expectation that things would improve.

[72] In Mr. Henderson’s assessment, there was no mention of an accommodation being required. This was confirmed by Mr. Gour, who was Mr. Crête’s supervisor. Had any accommodation been requested, he would have been the one to authorize it.

III. Summary of the arguments

A. For the employer

[73] The employer contended that it met its burden of showing that the rejection on probation was done for employment-related reasons and that no discrimination was involved.

[74] Section 62 of the PSEA provides that the deputy head of an organization may terminate the employment of an employee on probation by providing notice to the employee. The PSEA does not require any justification on the part of the deputy head.

[75] Section 211 of the Act provides that the Board does not have jurisdiction over any termination carried out under the PSEA. However, the case law that has developed at the Board (and its predecessors) and at the Federal Courts is that a termination on probation cannot not be done in bad faith or for motives other than those related to employment, such as discrimination. Since in this case, the employer asserted that there were employment-related reasons and no discrimination, it argued that s. 211 applies and that the Board is without jurisdiction.

[76] The burden was on the grievor to show that the rejection on probation was in fact a sham or camouflage or that it was done for illicit reasons, in this case, discrimination. The employer submitted that the grievor failed to meet that burden.

[77] The evidence demonstrated that the grievor was shown his shortcomings and that he failed to correct them. The employer pointed to the fact that he had not maintained his access to ICES, which was an example of enforcement activity that was lacking.

[78] In the March 24, 2014, quarterly report, Mr. Crête requested that the grievor document his enforcement activities and send him reports. It was never done. The grievor was aware that Mr. Crête was concerned by the lack of enforcement activity, yet he testified that since there was no opportunity for enforcement, he could do nothing about it. This speaks to his low motivation, which was one of the reasons for rejecting him on probation. It is clear that the rejection was due to employment issues.

[79] The employer also submitted there was no obligation to spell out to the grievor that his appointment to an FB-03 position was in jeopardy. He had been repeatedly told that his performance on enforcement activities was insufficient and unsatisfactory. The employer had no obligation to provide the last quarterly review that was the basis of the rejection-on-probation letter. As stated by the Board and confirmed by the Federal Court in Kagimbi v. Canada (Attorney General), 2014 FC 400, there is no obligation to warn an employee on probation; the fact of being on probation is warning enough.

[80] The grievor’s discrimination allegations are unconvincing. It was not clear from his testimony that he ever requested accommodation for his religion. Moreover, nothing in the facts points to discrimination on the part of the employer, as the consistent testimony from all its witnesses was that they did not know until the hearing that the grievor is a Muslim. There was no causal link between his religion and his rejection on probation.

B. For the grievor

[81] The grievor submitted that there was no employment-related reason for the rejection on probation. In the alternative, if the Board finds such a reason, it should find that discrimination played a role in the termination and that the employer acted in bad faith. The decision to terminate him was a contrived reliance on s. 62 of the PSEA. Therefore, the grievance should be allowed.

[82] While it is true that the Board’s jurisdiction over rejections on probation is limited, the employer’s discretion is not unfettered. It must act in good faith. The decision to reject someone on probation cannot be made in an arbitrary or discriminatory fashion.

[83] The employer did not establish an employment-related reason for the grievor’s termination. The grievor participated in enforcement activities when he was stationed at Lacolle. The small amount of enforcement actions at the Trout River POE is demonstrated by the low numbers of both ORS reports (3) and seizures (18) in 2014, in October and August, respectively.

[84] At the hearing, Mr. Crête was unable to specify how the grievor had violated the Code of Conduct, yet it was often mentioned in the quarterly reviews that he should pay closer attention.

[85] The grievor was never informed of the extension of his probationary period. He assumed that the paperwork to transfer him to the FB-03 position was taking some time. There was no warning that his employment could be terminated.

[86] The 13- to 15-month quarterly review was used to justify rejecting him on probation, yet he did not see it until he was handed his termination letter. The employer simply refused to listen to his statements pointing out factual mistakes in the review.

[87] The grievor did not fit in with his colleagues, in part because of his religious beliefs that led to his exclusion, as demonstrated by the pig-roast incident. Mr. Crête was informed, according to the grievor, but he did nothing about it.

[88] The grievor felt that he was treated differently because others could trade shifts, but Mr. Crête would not allow him to trade his day shifts. The grievor also testified to a general anti-Muslim sentiment at the time in the area of the Trout River POE, which was not disputed. The fact that the grievor chose not to file a discrimination grievance should not be held against him; he tried to fit in.

[89] The case law on discrimination is clear. There need not be a causal link between belonging to a protected group and adverse treatment. It suffices to show that belonging to the protected group was a factor in the adverse treatment.

C. The employer’s reply

[90] It was not established that the ORS report was only the third one completed in 2014; such reports can be made over the phone. More importantly, what was required of the grievor was not so much enforcement action as enforcement activity; that is, seeking actively to verify incoming travellers and merchandise. He was not very active in this regard and did not deny it.

IV. Analysis

[91] As a general rule, the Board has no jurisdiction over rejections on probation, which are provided for in the PSEA. The Treasury Board, as the employer, has the right to impose a probation period to determine the suitability of employees new to the federal public service. Section 62 of the PSEA reads as follows:

62 (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

(a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or

(b) the notice period determined by the separate agency in respect of the class of employees of which that employee is a member, in the case of a separate agency to which the Commission has exclusive authority to make appointments,

and the employee ceases to be an employee at the end of that notice period.

(2) Instead of notifying an employee under subsection (1), the deputy head may notify the employee that his or her employment will be terminated on the date specified by the deputy head and that they will be paid an amount equal to the salary they would have been paid during the notice period under that subsection.

[92] The Board derives its authority from the Act. Section 209 provides for the type of grievances that can be referred to the Board. Section 211 provides as follows:

211 Nothing in section 209 or 209.1 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

(a) any termination of employment under the Public Service Employment Act ....

[93] The Board’s jurisprudence, as well as the case law from the federal courts, has carved a narrow possibility for the Board to intervene when a rejection on probation is done in bad faith or involves discrimination. Therefore, the employer must show that it had an employment-related reason to reject the probationary employee. The grievor must prove that that reason was a sham or camouflage to hide an unlawful termination, such as a one in which discrimination was a factor. In Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529, the Federal Court stated it succinctly as follows at paragraph 37: “Specifically, the employer need not establish a prima facie case nor just cause but simply some evidence the rejection was related to employment issues and not for any other purpose.” This principle was reaffirmed in Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134, in which an adjudicator under the predecessor Public Service Labour Relations Act had to determine if the legislative changes to the PSEA had changed the analysis for a rejection on probation. The adjudicator wrote as follows:

112 As I have concluded earlier in this decision, the provisions of the new PSEA have changed the burden of proof for cases involving the termination of employment of probationary employees. The deputy head no longer has the burden of proving a legitimate employment-related reason for the termination of employment, apart from providing the letter of termination which sets out the reason for its decision. The burden is on the grievor to show the deputy head’s contrived reliance on the new PSEA or that the rejection on probation was a sham or a camouflage. A termination of employment not based on a bona fide dissatisfaction as to suitability (or for no legitimate “employment-related reason”) would be a contrived reliance on the PSEA, a sham or a camouflage.

[94] The employer in this case asserted that the rejection on probation was related to employment issues. The grievor submitted that in fact, the true motive was not related to employment issues and that discrimination played a part in the rejection. Therefore, I will deal with the following two issues: Was the rejection on probation related to employment issues? Was discrimination a factor in the rejection on probation?

A. Was the rejection on probation related to employment issues?

[95] One of the recurring themes in the grievor’s quarterly reviews is the paucity of his enforcement activities. Mr. Crête brought it up from the start, and the grievor did not deny it. Rather, at the hearing, he was somewhat on the defensive. Enforcement action was not a reality in a small POE like Trout River. He did not want to treat people like criminals. Most people entering Canada are honest.

[96] One cannot help but be struck by the contrast between the grievor’s experience as a student, first at the Dorval airport, then at the Mirabel airport, and his experience as an officer trainee at the Trout River POE. The volume of cargo coming into Mirabel meant that inspection and seizure opportunities were numerous. The grievor felt that he knew how to recognize dubious merchandise and act upon it.

[97] The grievor just did not see the same indicators at the Trout River POE. One gets the sense, from both his and Mr. Crête’s testimonies, that he was somewhat disinterested. Ms. Charbonneau testified to the fact that he did his job but that he was not integrated into the team. It was a closed milieu and perhaps not particularly welcoming. But the grievor did not seem to want to make the effort to arrive earlier or to take time after his shift. Again, at the hearing, he was on the defensive. He did not ask questions, but he felt that he did not need to. More importantly, from the employer’s point of view, he did not seem to make much effort to question travellers.

[98] The probation period is the employer’s opportunity to determine the suitability of a new employee. Despite being told several times and despite an action plan that specifically prescribed more active interaction with travellers, the grievor did not try to conform to the expectation that he should more actively monitor entries into Canada. Again, he did not deny it. At the hearing, he stated that enforcement actions just did not make much sense in such a small POE. He failed to read the signal given numerous times that he was expected to be more active and more involved and in short, more interested in his job despite it being located at a small POE. He did not respond to these expectations, except when specifically directed to during the three-week action plan.

[99] The grievor brought up several decisions in which an adjudicator or the Board found that a rejection on probation had not been done in good faith and therefore should be overturned. However, those decisions are distinguishable.

[100] In Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109, the employee, a correctional officer, was on probation. His performance as an employee was not at issue; the only reason for the rejection of probation was his use of sick leave and family-obligation leave, which, according to the employer, far exceeded the norm. However, there was an explanation for his leave use (particularly trying personal circumstances), which the employer did not take into account. That case is similar to another case that the grievor cited, Dyson v. Deputy Head (Department of Fisheries and Oceans), 2015 PSLREB 58, in which the true reason for the rejection on probation was the use of sick leave, to which the employee had been entitled.

[101] In both cases, performance was not really an issue, which is why the adjudicators found that the rejections on probation were shams; that is, they were not based on any employment-related issue.

[102] In Alexis v. Deputy Head (Royal Canadian Mounted Police), 2020 FPSLREB 9, the employee was rejected on probation 5 months into her 12-month probation period. Although the Board stated that the employer had no obligation to keep her employed for the duration of the probation period if her performance was unsatisfactory, the fact was that the employee had not been provided with any training and had had no opportunity to improve her performance.

[103] In the grievor’s case, his probation was extended beyond the 12-month period. He had been provided with full training; the probation period was a matter of putting in practice what he had learned. The deficiency was identified to him in that his enforcement activity was insufficient. Somehow, instead of increasing that activity, as suggested by the quarterly reviews and the August action plan, he seemed to dismiss the importance of doing so and continued to justify this inaction at the hearing.

[104] In this case, the employer’s reasons for the rejection on probation, as expressed in the letter of termination and at the hearing, were its dissatisfaction with the grievor’s approach to his work and his seeming disinterest in questioning and probing travellers crossing the border. The grievor did not deny that he did not see things the same way as Mr. Crête would have liked him to approach them. This behaviour had been pointed out as needing to be remedied. It was not. It is telling that the grievor described the three-week more-intensive screening period in August 2014 as part of a “blitz” conducted by the CBSA generally as opposed to an action plan designed to make him more active in screening travellers. Yet, he had received related correspondence directing him to take specific actions.

[105] I find that the rejection on probation was based on employment-related issues and was not a sham or camouflage.

B. Was discrimination a factor in the rejection on probation?

[106] The grievor argued that religious discrimination was at play and that it was a factor in his rejection on probation. I cannot see discrimination in this case.

[107] Prima facie discrimination is established by a three-part test: 1) Does the person claiming discrimination have a characteristic protected from discrimination? 2) Did the person suffer an adverse impact? 3) Was the protected characteristic a factor in the adverse impact? (See Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.)

[108] The grievor is a Muslim. Religion is certainly a protected characteristic under the CHRA and under article 19 of the collective agreement. He also suffered an adverse impact by being terminated during his probationary period. However, I do not find that his religion was a factor in his adverse treatment.

[109] The grievor contended that there was a general anti-Muslim sentiment in the Trout River region, which coloured his relationship with his colleagues. His interaction with one colleague about the pig roast sounded genuine. However, there is little evidence that religion played a role in his working relationship with colleagues and Mr. Crête. He worked often with Ms. Charbonneau, who never knew he is a Muslim. In his quarterly reports, Mr. Crête mentions how the grievor’s interpersonal relationships with colleagues had improved. Finally, the grievor answered very vaguely when he was asked about specific requests he would have made to Mr. Crête about Ramadan and prayer breaks during his shifts. I do not think that he ever made a specific request for religious accommodation. I cannot see then how religion would be a factor in his termination.

[110] I do believe that the grievor felt isolated, which Ms. Charbonneau confirmed. He kept to himself, and he stated that on some shifts, he barely spoke to his partner. I do not think that was linked to religion. I think it is much more from the fact that the other staff members knew each other well and had known each other for a long time, and the grievor just did not integrate. It is unfortunate, but I do not see that religion played a role.

[111] I especially do not see that religion was a factor in the decision to terminate the grievor while on probation. Mr. Crête’s concerns, as expressed in testimony and in the quarterly reviews, had to do with the grievor’s attitude to his work. Similarly, there is insufficient evidence to establish that Mr. Crête’s insistence that the grievor keep his day shifts had to do with preventing him from honouring his obligations for Ramadan. Mr. Crête also testified that he did not know that the grievor is a Muslim. Consistent with his concerns about the grievor’s attitude to his work, Mr. Crête also testified that the insistence on day shifts was for training purposes, given there are very opportunities to be exposed to different enforcement opportunities during the night shift. Actually, when the grievor was questioned at the hearing about why working nights shifts was important, he answered that in fact, working night shifts also helped with his relationships with his colleagues, who were grateful to exchange night shifts for day shifts.

[112] I also believe Mr. Crête’s statement that had a specific accommodation request been made, he would have discussed it with his superior, Mr. Gour, and sought advice. That did not happen because no specific request was made. I cannot see that religion was a factor when Mr. Crête evaluated the grievor.

[113] The grievor provided several decisions that involved discrimination, to support his arguments. I agree with him that the test is not whether there is a “causal link” between belonging to a protected group and adverse treatment. It is well established that discrimination need only be a factor in a decision that has an adverse effect on an employee and that discrimination need not be intentional to be found (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39).

[114] The grievor cited Reeves v. Deputy Head (Department of National Defence), 2019 FPSLREB 61, as an example of discrimination playing a role in a rejection on probation. In that case, the documentary evidence of the employee’s progress contradicted the rejection-on-probation letter; moreover, it was clear that the employee had been treated differently. From the whole of the evidence, it seemed clear that racial discrimination had played a role in the adverse treatment.

[115] The grievor also cited LaBranche v. Treasury Board (Department of Foreign Affairs and International Trade), 2010 PSLRB 65. In that case, the employee had converted to Judaism some time before. She became the subject of a vicious anti-Semitic email campaign that the employer documented. The emails referred to the accommodations that had been granted to her (for example, leaving early on Fridays for the Shabbat, which starts at sunset). She became fearful and anxious, as she perceived the emails as threatening; the employer did little to assist her. Moreover, her secondment assignment ended early. The adjudicator found that the grievor had been a victim of discrimination. Her religion had clearly been a factor in the adverse treatment she suffered.

[116] In the grievor’s case, nothing identifies him as a Muslim, contrary to Mr. Reeves, who is black. Nor is there any record of asking for religious accommodation, as was the case for Ms. LaBranche. Mr. Crête’s dissatisfaction with the grievor’s performance was related to how the grievor approached his tasks. His religious beliefs were not at issue in any way. Contrary to Mr. Reeves’ case, the letter of rejection on probation did not contradict the quarterly reviews.

[117] I find therefore that discrimination was not a factor in the rejection on probation.

[118] As stated in Kagimbi, the employer must provide an employment-related reason to terminate a probationary employee. It must show that the employee was not suitable for some employment-related reason. It is not a matter of just or sufficient cause.

[119] I have concluded that the grievor’s rejection on probation was truly related to the employer’s employment concerns. I have also concluded that discrimination was not a factor in this case. Consequently, I find that s. 211 of the Act applies and bars the Board’s intervention.

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

(The Order appears on the next page)

V. Order

[121] The grievance is denied.

February 15, 2021.

Marie-Claire Perrault,

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