Date: 20220728

File: 566-33-14439

 

Citation: 2022 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

 

Sue Hamel

Grievor

 

and

 

Parks Canada Agency

 

Employer

Indexed as

Hamel v. Parks Canada Agency

In the matter of an individual grievance referred to adjudication

Before: John G. Jaworski, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Shawn Bell and Lindsey Torma, counsel

For the Employer: Laetitia Auguste, counsel

Heard via videoconference,

February 23 to 26 and June 16, 17, 21, 23, and 24, 2021.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1] Sue Hamel (“the grievor”) was employed by the Parks Canada Agency (“Parks Canada”) in the Northern Ontario Field Unit (“NOFU”) as a site manager III (“site manager”), classified in the Program and Administrative Services group at the PM-06 level, for the Lake Superior National Marine Conservation Area (“NMCA”) unit and based out of the NOFU’s Nipigon, Ontario, office. By letter dated January 11, 2017 (“the termination letter”), she was terminated from her position, effective that day.

[2] The relevant portions of the termination letter state as follows:

...

This letter is to inform you that your employment with the Parks Canada Agency as Park Site Manager III will cease due to a Rejection on Probation effective close of business today. This authority is granted to me by the Chief Executive Officer under Section 12.(4) and pursuant to Section 13 of the Parks Canada Agency Act.

This decision is based on your inability to meet the performance standard of your position, namely your lack of receptivity to guidance from the Field Unit Superintendent, your continued struggle adhering to Parks Canada vision, strategy, policies, and procedures, as well as your questionable situational judgement in some important situations.

You have been provided with clear goals and coaching. Training has been made available to you. Furthermore, I have provided numerous opportunities to make the necessary adjustments through regular feedback and discussions. Despite my efforts, your performance still reflects unsatisfactory performance for the position.

In lieu of a one-month notice period you will be compensated for the period of January 12th 2017 to February 10th 2017 inclusive. The Pay Centre will provide you with information regarding any monies and/or entitlements owed to you.

In accordance with the Parks Canada Agency Staffing Policies, you have the right to grieve this decision.

...

 

[3] On February 3, 2017, the grievor filed a grievance against her termination of employment, requesting corrective action, as follows:

· that she be reinstated into her position but not have to report to her former supervisor;

· that she be provided the necessary training and support for her to excel in her position;

· that she be provided reasonable compensation for her unlawful detainment; and

· that her supervisor and human resources (HR) manager be reprimanded for the unlawful detainment and treatment of her during her employment.

 

[4] 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 (PSLREB) 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”).

[5] On July 11, 2017, her grievance was denied at the final level of the grievance procedure, and on August 18, 2017, it was referred to the Board for adjudication under s. 209(1)(b) of the Act.

[6] At the outset of the hearing, the employer objected to the jurisdiction of the Board to hear the grievance on the ground that s. 211 of the Act does not allow referring a grievance to adjudication about any termination made under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the PSEA”).

[7] Due to the COVID-19 pandemic, the matter was heard by videoconference.

[8] The employer called one witness, Robin Lessard. The grievor testified and called one witness, Dr. Connie Russell.

II. Summary of the evidence

[9] Parks Canada is an agency established by the Parks Canada Agency Act (S.C. 1998, c. 31; “the PCAA”), which was established for the purpose of ensuring that Canada’s national parks, national historic sites, and related heritage areas are protected and presented for present and future generations.

[10] Entered into evidence was a copy of a document identified as the “Lake Superior NMCA Strategic Planning Framework 2015-2018”, dated November 30, 2015. Also entered into evidence was a copy of a document identified as the “Lake Superior NMCA Interim Management Plan 2016” (“the IMP”), dated January 2016.

[11] The Parks Canada vision is set out in the IMP and states that “Canada’s treasured natural and historic places will be a living legacy, connecting hearts and minds to a stronger, deeper understanding of the very essence of Canada”. It states the vision for the Lake Superior NMCA as follows:

...

... The vision for the Lake Superior NMCA described below reflects the shared perspective of Parks Canada, the Board, First Nations, and the public on the desired character, experiences, and cooperation that will make the NMCA a vibrant, healthy, and important place for all Canadians.

“To respect our natural and cultural heritage by balancing preservation, responsible use and enjoyment by all, for present and future generations.”

People have envisioned:

“That the wondrous natural features of the archipelago, the strength and beauty of its seascape, the diversity and uniqueness of its plant and animal life, and its wildness be protected and maintained.”

“That the cultural and spiritual places of the First Nations people be respected, and that traditional knowledge and Aboriginal history be incorporated into the management of the area.”

“That the history of the area be told and that its lighthouses, shipwrecks and other cultural sites be preserved.”

“That current industrial use of the north shore not be impaired by the National Marine Conservation Area, that commercial and sport fishing, hunting and trapping continue to be sustained and that private property rights be respected.”

“That traditional activities continue and that the National Marine Conservation Area provide the mechanism to manage the nature, location and impacts of future use of the area.”

“That an extensive partnership emerges to achieve conservation objectives and realize economic and tourism benefits for the area.”

“That a meaningful and responsible role be given to local citizens to provide direction and recommend priorities for the area.”

“That through personal experiences people connect with what makes the Lake Superior National Marine Conservation Area meaningful in each of their lives, and that the spirit of the place find itself in the hearts and minds of all, invoking a stronger, deeper understanding of the very essence of Canada.”

The basis for the above vision was presented in the document A Superior Vision: A National Marine Conservation Area for a Great Lake (Parks Canada, 2002), which was subject to community consultation. That vision was updated in 2010 to take its current form, was verified by public consultations, and was strongly supported by the Board. As illustrated above, it remains essentially unchanged today from the 2002 version.

...

[Emphasis in the original]

 

[12] The IMP defines the Lake Superior NMCA as the largest freshwater protected area in the world, covering an area of approximately 11 000 square km encompassing that part of Lake Superior that is part of Canada and stretching along the north shore of the lake, from west to east, from Silver Islet, which is on a peninsula, identified as the “Sleeping Giant”, to approximately Terrace Bay (which is approximately 220 km from Thunder Bay, Ontario). It was unique as it was not yet an operating NMCA but was in the process of being established. Other marine conservation areas within Parks Canada were incorporated into and already part of established national parks.

[13] The Lake Superior NMCA office was located in Nipigon, some 100 to 120 km north and east of Thunder Bay, where the NOFU office was located.

[14] The grievor resides in the Thunder Bay area. She has the following degrees from Lakehead University, in Thunder Bay: a BA in geography and philosophy; an honours degree in outdoor recreation, parks, and tourism; a BEd (junior - intermediate); and a Master’s of Education in environmental studies. She testified that she completed all the course work toward a PhD in education; however, she did not complete her dissertation. Before being hired by Parks Canada, the grievor had worked extensively in fields related to experiencing the wilderness and outdoors.

[15] On April 22, 2016, the grievor was appointed to the site manager position for the Lake Superior NMCA and started working on April 25, 2016. In documents entered into evidence, the Lake Superior NMCA was sometimes referred to as the “LSNMCA”.

[16] At the time relevant to matters in issue in this hearing, Mr. Lessard was the NOFU field unit superintendent or, as was sometimes referred to in the documents, “the FUS”. However, he spent the majority of his working life as a member of the Canadian Armed Forces (CAF), serving 28 years in a number of positions before he came to the Agency in 2010. He served as a FUS for the NOFU between November of 2013 and November of 2017, and before that, he was in the St. Lawrence Field Unit. In 2018, he returned to the CAF at the Joint Operations Unit at CAF headquarters in Ottawa, Ontario. As of the hearing, he was a lieutenant-colonel and the commanding officer of the Special Forces, a position he was appointed to in May of 2020. The grievor reported directly to Mr. Lessard.

[17] At the time relevant to matters in issue in this hearing, Mona Gingras was identified as the HR manager assigned to the NOFU. However, her group and level was not disclosed to me; nor was her position in the organizational structure.

[18] At the time relevant to matters in issue in this hearing, the grievor had two teams that would report upwards to her: the resource conservation team, led by Lisa Nyman, and the visitor experience team (referred to as “VE” in some documents), headed by Sylvio Pelletier.

[19] At the time relevant to matters in issue in this hearing, Eveline Maedel was identified as the administrative assistant for the NMCA Nipigon office. She reported to the grievor.

[20] At the time relevant to matters in issue in this hearing, Cindy Gordetti was employed by Parks Canada and worked in the Nipigon office; her position in the organization was not made clear in the evidence. However, it appeared that she reported upwards through the organizational chain to the grievor.

[21] At the time relevant to matters in issue in this hearing, the evidence disclosed that Helen Dunlop was employed by Parks Canada in some capacity, but the exact details were not made known to me. However, she was involved as a liaison between the Parks Canada Indigenous Affairs branch, the NMCA, and other branches of the Agency in general. I was not told to whom Ms. Dunlop reported.

[22] Section 13(1) of the PCAA provides that the Chief Executive Officer has exclusive authority to appoint, lay-off, or terminate the employment of employees of the Agency and can establish standards, procedures, and processes governing staffing, including the appointment or lay-off of employees.

[23] Entered into evidence, dated February of 2012, was a document entitled “Staffing Policies of the Parks Canada Agency” (“the staffing policy”), which appears to have 11 parts, of which part 8 is titled “Probation” and states the following:

...

8. PROBATION

...

Context

The Agency will not always be guaranteed access to complete performance information when recruiting persons from outside the Public Service. Therefore, a policy on probation for appointments from outside the Public Service is required.

Policy Statement

All employees appointed on a permanent basis from outside the Public Service are subject to a cumulative maximum 12 calendar month probationary period.

The probationary period may be extended by the length of any substantive periods of absence from the job.

The probation period may be waived or shortened if it is evident that the employee is performing well and is likely to continue to do so.

The probation period for term employees is the length of the term or 12 calendar months, which ever is shorter. If an employee’s performance is unsatisfactory during the probationary period, he or she may be rejected on probation without access to work force adjustment benefits and layoff priority.

Permanent employees must be given a minimum of 1 months notice for rejection on probation.

Term employees must be given a minimum of 2 week’s notice for rejection on probation.

Recourse for rejection on probation is subject to grievance. If the employee is not satisfied, the decision will be referred for independent third party review.

...

[Emphasis in the original]

[Sic throughout]

 

[24] Entered into evidence was a copy of the Treasury Board of Canada Secretariat’s (TB) Guidelines for Termination of Employment During Probation (“the TB guidelines”), which counsel for the employer said applied to Parks Canada. It states as follows:

...

1. Context

...

During Probation: Subsection 61(1) of the Public Service Employment Act (PSEA) authorizes the Treasury Board to establish, by regulation, the probationary period for classes of employees who are appointed from outside the public service. Subsection 62(1) of the PSEA provides deputy heads with the authority to terminate employment during the probationary period established by regulation of the Treasury Board. Subsection 24(1) of the PSEA permits delegation of this authority.

2. Target Audience and Purpose

These guidelines assist human resources advisors in the core public administration in their role of providing advice and guidance to management in situation such as the following:

...

¡ Termination of employment during probation is being considered.

3. General

Upon request, the Treasury Board Secretariat’s (TBS’s) Employer Representation in Recourse Team is available to provide advice and guidance on demotion or termination of employment.

It is recommended that measures taken to act in a manner consistent with the following principles are a matter of record.

...

c. In making a decision to terminate employment during the probationary period, the following guiding principles are key:

¡ The employee on probation knows the specific job duties and requirements of the position;

¡ The employee on probation is aware of the required standard(s) of performance and appropriate conduct;

¡ The employee on probation receives feedback when performance or conduct requires improvement; and

¡ The employee on probation receives the appropriate training for the position.

The probationary period is to assess the suitability of the employee for the position for which he or she has been hired. This assessment can include an evaluation of the following, as appropriate:

¡ The employee’s reliability, including attendance at work;

¡ The employee’s compatibility with colleagues or clients;

¡ The employee’s ability to meet work requirements, including those associated with the workload; and

¡ The employee’s ability to adhere to established policies, procedures, practices and codes of conduct.

Please be mindful of jurisprudence which has established that a decision to proceed with a termination of employment during probation should be based on objective and demonstrable grounds and must not be made arbitrarily, in a discriminatory manner, or in bad faith. That is, a manager or supervisor should be satisfied that the employee is not suitable for the position, and should be able to demonstrate that he or she has acted in good faith based on the employee’s unsuitability for the position. The grounds for such a decision could include unsatisfactory performance or misconduct.

The employee is to be notified by the delegated manager in writing of the decision to proceed with a termination of employment during probation, stating the reason for the decision and the effective date.

...

[Emphasis in the original]

 

[25] Entered into evidence was a copy of the TB’s Directive on Performance Management, which was in effect at the time of the facts that gave rise to the grievance. The part that may be relevant is section 6.1.3, which states as follows:

6.1 Deputy heads, or their delegates are responsible for:

...

6.1.3 Establishing an employee performance management program that includes the following minimum requirements:

· A recognition system that recognizes good performance both formally and informally;

· Annual written performance objectives for all employees, including commitments that reflect Government of Canada priorities, expected behaviours and learning or development plans;

· A rating scale or scales appropriate to the organization and to employees’ duties and levels;

· Annual written performance assessments for all employees (with the exception of employees on probation, who must be assessed within the probation period). Such annual assessments shall be conducted at the end of each fiscal year and rate the employee on an appropriate scale taking into account the results achieved and how they were achieved;

· Mid-year reviews for each employee (with the exception of employees on probation) in the form of informal conversations to review accomplishments in relation to performance commitments, adjust commitments if necessary, solicit and provide feedback and adjust learning plans if necessary;

· Active monitoring of probationary periods, including attestation of whether employees pass the probationary period;

· Identifying cases of unsatisfactory performance at the earliest opportunity possible and taking one or more of the following actions as soon as possible under the circumstances:

○ Developing, and monitoring at regular intervals, an action plan to improve performance;

○ Withholding the employee’s next scheduled pay increment;

○ Demoting the employee; and

○ Terminating employment.

· Any of these actions may be taken at any time during the performance appraisal cycle if, in the deputy head’s opinion, they are warranted by the employee’s unsatisfactory performance.

· The time between the identification of unsatisfactory performance and termination of employment should not exceed 18 months unless, in the opinion of the deputy head, the circumstances of the case justify a longer period.

· Such circumstances may include, but are not limited to, a duty to accommodate the employee, or the fact that the employee is on leave.

· Maintaining written records confirming each step taken to manage employees’ performance, along with formal written notification to the employee advising of consequences and next steps.

...

[Emphasis in the original]

 

[26] No other policies or directives that refer to the termination of employment of employees, either TB policies and directives or Parks Canada policies and directives, were produced into evidence.

[27] A copy of the job posting for the LSNMCA site manager, setting out the statement of merit criteria for the position, was entered into evidence. The portions relevant to this grievance state as follows:

...

The Lake Superior National Marine Conservation Area (LSNMCA) is approaching final establishment. The Site Manager will join a passionate team to develop visitor experience and resource conservation programming, to oversee the development of infrastructure in cooperation with stakeholders and partners, and to work in a concerted manner with communities when implementing LSNMCA programs. The Site Manager will continue to build a team of staff dedicated to advancing the operational priorities along the Lake Superior shore, to develop what will become a world class tourism destination and model of ecological sustainable use. This position reports to the Northern Ontario Field Unit Superintendent....

...

In order to be considered, your application must clearly explain how you meet the following (essential qualifications)

Graduation with a degree from a recognized university with specialization in a discipline relevant to the position.

Degree equivalency

· Experience working collaboratively and developing/managing relationships with partners and stakeholders, including Aboriginal organizations and First Nations

· Experience in the implementation of programs to achieve a mandate, strategic outcomes and vision

· Experience in issues management including providing support, briefings and expert advice to senior management on strategic direction, sensitive issues and priorities

· Recent and significant ** experience in the management of human, financial and material resources, including the supervision of staff

Note:

*Recent is defined as within the past 3 years.

**Significant is defined as depth and breadth normally gained, at a minimum, over a 5-year period with increasing responsibilities.

...

[Emphasis in the original]

 

A. Termination of employment

[28] The termination letter stated that the reason for the termination of the grievor from her position was an inability to meet the performance standards of the position, specifically these things:

· her lack of receptivity to guidance from the FUS;

· her continued struggle adhering to Parks Canada’s vision, strategy, policies, and procedures; and

· her questionable situational judgement in some important situations.

 

[29] It further indicated this:

· Mr. Lessard had provided the grievor with clear goals and coaching;

· Mr. Lessard had provided the grievor with numerous opportunities to make necessary adjustments through regular feedback and discussions; and

· training had been made available to her.

 

[30] Mr. Lessard testified that he made the decision to terminate the grievor’s employment. He said that he wrote a briefing note to his supervisor, Darlene Upton, dated December 16, 2016 (“the Dec. 16 memo”), the relevant portions of which state as follows:

...

PURPOSE

Based on current concerns, to seek your concurrence with termination during the probationary period.

SUMMARY

· Ms. Hamel, Site Manager III PM-06, Lake Superior National Marine Conservation Area is an excluded manager who was hired on April 25, 2016.

· The employee was informed of what was expected from her starting on her first day at work, and by regular discussions with the FUS and colleagues.

· Efforts have been made to provide training opportunities when available, coach the employee, and discuss performance. However, the employee did not take full advantage of the training and the discussion opportunities offered with the FUS.

· Throughout the probationary period, the employee has demonstrated difficulty adhering to the Parks Canada vision, a negative attitude and a lack of communication effort towards the Field Unit Superintendent and colleagues. Additional deficiencies include insufficient prioritization skills, poor situational judgement, and not following her manager’s guidance after questioning his advice and direction.

CONTEXT AND CURRENT STATUS

The employment objectives being pursued, the accomplishments expected and the constraints to be respected have been explicit, understood and agreed upon. These expectations are in balance with the capacity of her role.

They were communicated to her at the beginning of her employment with additional communication on several occasions during biweekly site update calls with FUS and two project update calls on alternate weeks to the site call. She received opportunities for additional training and did not follow through or communicate why she did not follow through.

CONSIDERATIONS

Ms. Hamel’s ability to competently perform all areas of the Site Manager role has been of increasing concern since the beginning of her employment with Parks Canada on April 25th, 2016. Primary areas of concern include negative attitude, inability to prioritize, poor communication, inefficiencies at executing tasks, not accepting guidance, difficulty adhering to sharing the Parks Canada vision, poor situation judgement, and low overall performance. (Details are outlined in the Background section following the briefing note).

Additional concerns: The combination of the above concerns represents a risk to the Agency, as the employee holds a demanding role that requires her to represent Parks Canada to stakeholder communities with dignity at a crucial moment in the Lake Superior NMCA site establishment process. Her inability to adapt to Agency expectations of her role as a public servant in a leadership position exposes the Agency to negative reputational outcomes and risks negatively impacting the achievement of priority goals.

...

Stakeholder Relationships – Some stakeholders or communities may react negatively to the employee’s departure. Ms. Hamel has built personal relationships with stakeholders in the area, including developing relationships with the indigenous communities. The FUS will mitigate negative response by implementing a prompt communication plan and monitoring the situation closely.

...

ANALYSIS AND ASSESSMENT

The employee was aware of the specific job duties and requirements of her position. She was provided information on the Parks Canada vision regarding the establishment of the Lake Superior NMCA. She was often provided feedback, but was not receptive to it. Appropriate training was offered to her, but the employee chose not to make it a priority. Ms. Hamel missed many situational opportunities to demonstrate some of Parks Canada’s leadership attributes such as ‘Sharing the Vision’. ‘Make things happen’, and ‘Exercises sound judgement’.

...

BACKGROUND

The following training, development and learning opportunities were provided to Ms. Hamel:

· General Orientation to the role with FUS and tour of site when hired.

· Key documents were provided to orient her the site Interim Management Plan, 2015 Lk Superior NMCA Strategic Outcomes and Operational Priorities document, her Job description, the NOFU Management Team Charter, and the FUS working philosophy.

· Ms. Hamel attended a full day of harassment training entitled “Respectful and Healthy Workplace” in May with the local team.

· Graduated critical tasks were assigned to her by the FUS, to ensure a progressive learning environment. (ie. June - Interim Liaison Committee task).

· Ms. Hamel attended face to face management meetings in June including training on conflict resolution, effective communication, and effective decision making.

· Ms. Hamel was offered an orientation trip in early summer to another site, but did not adapt her schedule to FU season operation.

· Bi weekly update meetings with her manager emphasized looking at priorities and was encouraged to indicate to FUS whenever she needed clarification.

· The FUS provided a performance agreement with priority goals in August to Ms. Hamel aligned with key orientations provided upon arrival, who did not respond to several enquiries asking if she needed clarification, and who has not returned the signed document or comments.

· Ms. Hamel was provided a nomination, encouragement, and support with registration in a four phase middle manager training course. She did not follow up or take advantage of this great opportunity.

· Ms. Hamel was provided with a mentor.

· Ms. Hamel was recommended as a Parks Canada representative at the Great Lakes Public Forum held from Oct 3rd to 6th.

· The FUS arranged to send Ms. Hamel to visit Fathom Five, to familiarize herself with similar sites in operation. That trip did not happen due to Ms. Hamel’s limited availability and lack of leadership availability at the site.

· A trip to National Office was organized in October. Ms. Hamel met key personnel like Kevin McNamee, Nadine Crookes, Nathalie Gagnon, Jason Boire and some others.

Issues of concern with Ms. Hamel during her employment, April – December

Ms. Hamel has demonstrated the following issues within her role:

Negative personal attitude: Ms. Hamel becomes confrontational and does not accept criticism/suggestions for improvement/direction from her manager. It is noted employee has difficulty accepting guidance when she does not agree with a process or is denied a request. She ends difficult conversations abruptly and dramatically, without closure, reconciliation, or seeking further understanding. Her reactions to situational discussions escalate quickly and unnecessarily, which becomes counterproductive. When this employee does not receive an answer she wants to hear, she argues consistently. As a result, a facilitated discussion with Centre of Values and Ethics has been held to try and improve the relationship between manager and employee (November). This has not proven successful to date.

Examples of conversations demonstrating poor attitude include:

1. Her disregard for the sensitivity of HR issues involving official languages policy,

2. Her refusal to understand procurement and IT approval processes in regards to her non-standard Apple computer request for the site,

3. Her disregard to her meal allowance entitlements (Oct 31st).

4. Her disregard of advice from FUS regarding communications with indigenous stakeholders (Dec. 2nd),

Prioritization difficulties: Initial concerns stemmed from the repeated need to follow up on tasks assigned to Ms. Hamel. This employee does not plan and execute tasks within a timely manner, with many examples of missed deadlines, and of repeated enquiries on project status from manager left unanswered in a timely manner. Ms. Hamel will often send requested documents at the last minute, does not provide time to review, and/or will submit a document for approval at the last minute.

Examples of this include:

1. Interim Liaison Committee follow-up not completed in timely manner.

2. Draft performance agreement not returned for discussion Aug-Dec.,

3. CSPS Middle Manager’s Course phase 1 not registered in timely manner and no significant effort made to prioritize attending,

4. Parliamentary question not addressed within timeframe in October,

Communication and make things happen: Ms. Hamel does not communicate with the proper team members when making decisions, and does not ensure that all relevant or affected colleagues are kept informed. Lack of collaboration with colleagues and lack of follow up: Ms. Hamel has difficulty following up on some files and demonstrates lack of cooperation with colleagues such as Human Resources, Finance, and External Relations.

Examples of this include:

1. Non-involvement in her site’s financial review for the fall Agency forecast,

2. October Parliamentary question not addressed within timeframe,

3. Mandated letter mid-review poorly addressed,

4. Ms. Hamel needs frequent reminders to track, summarize, and brief FUS on her contribution agreement files, and no overall briefing has been given to FUS and finance manager yet as of December.

Not following Guidance: Ms. Hamel has been provided instruction and direction on operational processes and continues to ignore processes.

Example: Does not follow buy-in process from management team chart.

Difficulty adhering to Parks Canada Vision, adapting to the Public Service in general, and Situational Judgement. Ms. Hamel disagrees with the Agency’s shared vision regarding official languages and first nations relations. There is an indication of potential risk to the organization as her behavior could negatively impact the Agency and the establishment of the Lake Superior NMCA.

Examples:

1. Ms. Hamel made apologies to Indigenous partners on behalf of Parks Canada for issues (recent Indigenous negotiation focus) where she had not previously investigated or confirmed the Agency history prior to apologising. This showed poor situational judgement and poor understanding of the correct way to proceed as a public servant. Following this incident, the FUS had a discussion with her to address and correct the situation. During the discussion, the employee refused to admit that apologizing as she did in this situation was inappropriate. This conversation happened after a CVE-facilitated discussion, showing no increase in her ability to communicate with supervisors.

...

[Emphasis in the original]

[Sic throughout]

 

[31] When asked by counsel for the employer when he decided to terminate the grievor’s employment, Mr. Lessard said that he could not put a date on it but then said probably around December 2, 2016. In cross-examination, he confirmed that he made the decision to terminate her employment on December 2, 2016. When asked by counsel for the employer why he decided to terminate the grievor’s employment, Mr. Lessard read aloud the second paragraph of the termination letter.

[32] The grievor testified that on her first day of work, Mr. Lessard offered to drive her to the office in Nipigon, which he did. She said that when they arrived, he instructed everyone to go into the boardroom, at which point the grievor said that she introduced herself to the staff and the staff in turn introduced themselves to her. She said that Mr. Lessard then left her there. She said that she started by having individual meetings with her staff, to learn their roles.

[33] The grievor said that on this first day of employment, Mses. Gordetti and Dunlop met with her and went through a binder of materials (“the orientation binder”). A copy of what was believed to be it was provided to the hearing, although the grievor could not state that the documents provided to the hearing were the material she was brought through with Mses. Gordetti and Dunlop on the first day. Mr. Lessard was asked about the binder, and although he said that he had given instructions about what he felt should be in the binder, he did not actually see the binder; nor did he know what was actually in it or what the grievor saw. He said that he did not go through the binder with the grievor.

[34] The grievor described the meeting she had with Mses. Gordetti and Dunlop on the first day and going through the orientation binder. She said that much of the meeting involved having explained to her the status of the project and what, according to them, needed to be achieved and what the priorities were. She said that 14 First Nations were part of the project process, of which 3, the Fort William First Nation, the Red Rock Indian Band, and the Pays Plat First Nation, had been designated by the others to be their representatives in the process. She indicated that it was impressed upon her that there was a serious, delayed process in building a relationship with the First Nations involved in the project, and she took from the meeting that the relationship between the First Nations and Parks Canada was strained.

[35] The grievor testified that she received no orientation from either Mr. Lessard or Ms. Gingras on her first day or at all in the coming weeks. She stated that she received no direction from Mr. Lessard as to what her tasks were, what tasks were priorities, how she was expected to go about and achieve these tasks, or against what standard she would be assessed. In cross-examination, when asked why setting goals and performance measures were important, Mr. Lessard stated that it is important to ensure employees know where they are going. Clear goals for an employee are helpful for a supervisor to assess. He agreed that it is important that these goals should be made clear early in an employee’s tenure.

[36] Entered into evidence was a copy of a generic work description for a park/site manager III. The grievor was not sure if it was provided to her when she started work, and there is no actual evidence that she received a copy.

[37] Entered into evidence were copies of each of a blank “Performance Agreement for Delegated Managers and Supervisors” (“the performance agreement”) and a “Learning Plan”. The grievor testified that she believed that these were in the orientation binder.

[38] I was not provided any document that set out the performance standard against which a site manager III at Parks Canada, let alone a site manager III whose position is key to establishing the NMCA, is measured.

[39] On July 28, 2016, at 17:45, Mr. Lessard sent an email to the NOFU management team (which would have included the grievor), which indicated that he had added a goal for all of them that had been copied from page 3 of the 2016-17 Mandate letter. It was identified as “Government-Wide Corporate Commitments for Executives as established by the Clerk of the Privy Council”. That goal, as set out in the email, stated as follows:

...

B: Workplace Health: Show leadership in building a healthy, respectful and supportive work environment, identifying concrete actions to:

i. Support open and stigma-free dialogues in the workplace on mental health and to identify and remove barriers to the accommodation of employees with mental health challenges

ii. Foster a workplace that does not tolerate harassment or discrimination

iii. Implement action plans focused on addressing PSES Results.

...

 

[40] “PSES Results” was not explained to me.

[41] On August 30, 2016, at 17:14, Mr. Lessard emailed the grievor (“the Aug. 30 email”), telling her that they needed to talk about the performance agreement. The email stated as follows:

...

1. We need to chat:

a. about Performance Agreement (how it works, Mona can also talk to you about it). It is a document that we need to discuss (your input is key to it)

b. the actual document below to ensure it is well understood and see if you would like to add to it.

2. I have updated your 2016-17 performance goals to include LSNMCA priorities, and the Financial, HR and Agency priority tasks common to all managers from the Mandate Letter 2016-17, for your review, file attached:

...

3. Source documents for task details referred to in your Performance Management Plan 2016-17:

...

 

[42] The Aug. 30 email attached a draft performance agreement for the grievor, as well as some documents identified as “source documents for task details for the performance plan.” While the draft performance agreement for the grievor was included in the evidence, as attached to the email, the other documents were not.

[43] The grievor testified that after she received that Aug. 30 email, she attempted on several occasions to clarify with Mr. Lessard the items set out in the performance agreement. She said that by the time she received it, she was four months into the job, and the enormity of the project was clear to her; the draft provided by Mr. Lessard was not at all clear on what was expected of her. She said that over the next several months, she attempted to clarify what was meant by the items set out in it, only to be constantly put off by Mr. Lessard. She stated that she would place the performance plan on their biweekly meeting agenda; however, it would never be discussed. She said that Mr. Lessard would, from time to time, ask her to sign it, approve it, or provide him with comments. However, she said that she told him that her comments and concerns were far too detailed to be set out in writing and that she preferred to sit down and meet with him, to clarify the document. She said that although Mr. Lessard said that he was willing to sit and talk with her, he would not do so without the agreement first being signed.

[44] Mr. Lessard said that it was a conscious decision by him to give her the performance objectives only at the end of August because he did not want to pressure her. Counsel for the grievor asked him if it was his position that annual written performance objectives could be given at any time during the year, to which Mr. Lessard answered that it was his view that employees should know what the performance objectives are. He maintained that the performance objectives given in August merely formalized things that she had been spoken to about, and she was aware of the IMP and the Strategic Framework.

[45] Mr. Lessard said that he tried to get the grievor to tell him what was needed with respect to the performance agreement, but she never did tell him. Although there is a reference to the performance plan in some of the emails between the grievor and Mr. Lessard, in the agendas for their bilateral meetings (after August 30, 2016), there is no evidence that there was ever a meeting scheduled to meet and discuss the performance plan; nor did there appear to be any amendments to the performance plan. The grievor did not sign off or agree upon the objectives set out in the performance plan.

[46] Mr. Lessard suggested in his evidence that the performance appraisal and review process was both formal and informal and that he could provide feedback without a formal process. In response to a series of questions put to him on cross-examination, Mr. Lessard said that there can be an informal process, stating that for it to be successful, it should be done every three or four months, and that the manager should be setting or resetting expectations and objectives and that the employee “must have an understanding of what has to be achieved.” With respect to the grievor, when asked how he ensured that employees understood issues with respect to their performance, Mr. Lessard said, with repetition: “with Sue, I would set items. I would try and refine; move towards a more formal discussion with a written agenda.”

[47] When asked about the performance agreement, Mr. Lessard stated that he provided it to her in August and that he asked her to get back to him if there were any changes to be made, and he said that she never got back to him. He said that he said to her in November, “Sue, if you have no comments, I will sign and that is it; it was very difficult to close the loop with Sue. Sue didn’t provide me with any feedback.” When asked if he completed a review, Mr. Lessard said that it was difficult to complete, although he did say that he wrote up a document but did not provide it to the grievor. He said that it was a draft. When asked if he gave her a rating, he said, “you don’t give a rating at mid-year, you give feedback.” No such document was produced to the hearing.

[48] When counsel for the grievor suggested that performance issues could come as a surprise to employees if they are not made aware of them, Mr. Lessard said that it is possible but unlikely, suggesting that if concerns were expressed and feedback was given, it should not be an issue, “in [his]experience”. His experience in this respect was not disclosed to the hearing. When he was asked if this informal process of performance review was a usual process or an exceptional one specific to the grievor, he said that the process was adapted to the grievor.

[49] There is no evidence that there was ever a mid-year performance review conducted by Mr. Lessard with the grievor either formally, in writing, or informally. Mr. Lessard then stated that he wrote up a document but did not give it to the grievor. This document was not produced to the hearing.

[50] When he was asked if the way he handled the grievor’s probation was unique as compared to other employees, he said that the probation is adapted to the employee. A few minutes later, he was again asked if at any time before her termination, he ever wrote down his concerns. He said that he did not think that he put anything in writing. He did say that he did “try” in phone calls. When he was asked if, when he was sending emails to the grievor, he told her what her performance weaknesses were or what his concerns were, he said, “No”, but that if a person is told that something is a priority file, it is clear.

[51] Mr. Lessard was shown the TB guidelines; however, he stated that he believed that the TB guidelines and the Parks Canada guidelines (with respect to a termination of employment during probation) were different. When counsel for the grievor asked him if he was familiar with the TB guidelines, he said that he was not familiar with them but that he was familiar with the Parks Canada guidelines and that the Parks Canada guidelines would apply. He then stated that he was not comfortable talking about this type of document.

[52] There is no evidence that there are or were any Parks Canada guidelines with respect to termination of employment during probation. I received no copy of any Parks Canada guidelines with respect to probationary employees or periods.

[53] In cross-examination, Mr. Lessard was asked questions about what process and guidelines he followed as provided to him by labour relations (LR) personnel in the decision to terminate the grievor on probation. He said that he would have done it the same as for any other employee, stating that he would have looked at the employee’s performance through the year, the discussions the employee had with him, and the training provided and that he would have given feedback. He further stated that he would have had discussions with his supervisor and LR personnel to ensure that the decision he was making was in accordance with Parks Canada policies and directives.

[54] There was no evidence that Mr. Lessard ever was responsible for the rejection on probation of any other employee or that he contemplated the rejection of any other employee while on probation. When he was asked what the Parks Canada polices and directives were, he said those in existence at the time; when asked which ones, he said that he could not recall.

B. Training requested and received

[55] Entered into evidence was an email from Ms. Gingras to the grievor dated April 25, 2016, setting out what mandatory training she was required to take, which was stated to be financial training, HR training, and Phoenix training (both for managers and employees). The evidence disclosed that the grievor completed this training in a timely manner.

[56] The evidence disclosed that there was training given in the summer of 2016 with respect to harassment in the workplace, which was mandatory for every employee in the NOFU, due to the results of a harassment investigation that predated the hiring of the grievor. The specifics of the complaint and report that led to the training were not provided to me. The indication from the evidence is that this training was not specific to that of being a manager or, with respect to an NMCA, its creation, formation, or operation.

[57] The evidence also disclosed that on July 21, 2016, the grievor spoke with a colleague, Svenja Hansen, who was a partnering and engagement officer in the NOFU, about training, as she had not been spoken to about a training plan. On July 22, 2016, Ms. Hansen emailed the grievor and provided her with information on training opportunities and on the Performance Management Program. In her email, Ms. Hansen stated as follows:

...

Before you start looking for external training opportunities...I suggest you look at the mandatory training required for supervisors/managers, because realistically Robin should place priority on you mastering the internal processes of Parks Canada and your role before he sends you on “other” training.

That said, here is the link to the website for the International Association for Public Participation. I hope to work with my national colleagues to bring a Public Participation for Decision Makers course to Ontario at some point in the near future....

...

[Emphasis in the original]

 

[58] On August 9, 2016, the grievor emailed Mr. Lessard about the “Gros Morne Sustainable Tourism workshop” (“the Gros Morne workshop”) that was being held on October 24, 2016, as something she would be very interested in attending. She said that it was brought to her attention by Mr. Pelletier, who said it would be invaluable for her, as it was the best workshop for her to understand NMCAs and how to work with the local, regional, and community groups involved. She stated that Mr. Lessard said that it was not a priority; however, he did not say why.

[59] In cross-examination, the request to go to the Gros Morne workshop was put to Mr. Lessard. So was whether he was aware that Mr. Pelletier, the LSNMCA visitor experience manager, had attended that same course and had recommended it to the grievor. Mr. Lessard said that he did not recall and then later said that he could have been. When he was asked if he discussed it with the grievor or whether it was just his decision to deny it, Mr. Lessard said that he was pretty sure that he discussed it with her, then said that he was not sure and stated that it was expensive to travel to Gros Morne, in Newfoundland.

[60] On August 31, 2016, Mr. Lessard sent the grievor an email about the manager’s course (middle-management training) offered by the Canada School of Public Service (CSPS). The email and attachment stated as follows:

[The email:]

...

1. See course info below (power point and a BN that dates from few months ago that offers good picture), I would like to nominate you for that course. I was going to talk to you about it this am [sic], but we did not have time. Please have a look so that we discussed [sic]. Pam did it last year, so you could chat with her about the course.

2. Please take note that Mona is also trying to schedule an HR 101 course for all new managers

...

[The attachment:]

...

“MANAGER DEVEOPMENT PROGRAM”

AT THE CANADA SCHOOL OF PUBLIC SERVICE: REQUEST FOR NAMES OF PARTICIPANTS

PURPOSE

The purpose of this memorandum is to identify names of newly appointed managers to participate in the Manager Development Program offered by the Canada School of Public Service (CSPS).

TIMELINE

The recommended list of participants is requested by January 16.

SUMMARY

· The Canada School of Public Service has launched the new Manager development Program as part of the enterprise-wide approach to learning.

· The Program was developed for newly appointed managers, potential managers, and current managers seeking reinforcement of their competencies.

· Parks Canada has been allocated a total of 25 seats for the program’s first years of delivery.

CONTEXT

· The new CSPS Manager Development Program provides a ‘consistent’ learning pathway for new managers in the Public Service. This integrated program covers the knowledge, compliance, skills and competencies necessary for them to succeed in their new role and environment.

· The curriculum of the program covers a long list of subjects, such as people management and engagement; values and ethics, including awareness of and dealing with harassment; financial, human resources and IT responsibilities; occupational health and safety; security; leadership; and adapting to change.

· The program consists of:

○ Phase 1 (Online, self-paced, 12 to 15 hours)

Building fundamental knowledge on how to manage within the Public Service

(This is an online learning phase based on fundamental knowledge which will help managers meet the demands of their new role.)

○ Phase 2 (Classroom, 5 days)

Developing skills and applying fundamental knowledge

The in-person portion uses experiential learning to further prepare managers to be operationally effective. This session applies the knowledge learned in phase1, as well as facilitates group discussions to help learners master the content.

○ Phase 3 (Online, self-paced, 8 to 10 hours)

Strengthening and deepening knowledge

The online study of phase 3 strengthens the basics acquired in phases 1 & 2 and widens the manager’s set of tools to navigate in increasingly more complex situations.

○ Phase 4 (Classroom, 5 days)

Integrating knowledge, skills and competencies

The last phase is conducted in-person and provides managers with the opportunity to integrate their previous learning through real life case studies and simulations.

· Learners have up to 12 months to complete the program. The first portion (Phase 1) is currently online and available to all registered participants. The first sessions of Phase 2, delivered in the classroom, are expected to begin in February 2015, and made available across Canada.

· This program is offered on a seat allocation basis and Parks Canada has been allotted 2 seats for the next calendar year.

...

[Emphasis in the original]

 

[61] The grievor testified about having been asked to write a briefing note. In some documents entered into evidence, it is referred to as a “BN”. She testified that when she was asked to do it, she had never written one, and as such made enquiries about how to do it. She said that she spoke with some colleagues about the process and was told that they had been sent on training to learn how to write one. She said that she found a course and that on September 28, 2016, she forwarded a request to Mr. Lessard. He responded that same day, stating as follows:

...

1. This would be a good course for sure. I would ask you to verify travelling course associated with this type of course prior to move ahead. I am pretty sure that there are other possibilities

2. I am also taking note of your interest for many courses (which is great). I would suggest that you complete the training plan with the Performance Evaluation, this would help us setting training priorities

Mona,

3. Does the School of public service offer such course on line or through other mean?

...

[Sic throughout]

 

[62] The grievor stated that she was never able to take the briefing-note course that she forwarded information about to Mr. Lessard or any briefing-note course.

[63] The grievor testified that she had contacted people about the middle-management training and had updated Mr. Lessard on October 19, 2016, by email that she had reached out but had not heard back. On October 21, 2016, Mr. Lessard emailed the grievor (“the October 21 email”), stating as follows:

...

1. For training and personal Development, in order to avoid help you priotizing, I see the following priorities:

a. Priority one (high): Complete the middle management course (ie within the next 12 months), this is mandatory.

b. Priority 2 (medium) briefing note training.

c. Priority 3 (medium-low): Business case training

2. I would advise to see your availability before taking on all of these courses as your workload is significant. There also could be a possibility for an HR 101 Training. If this opportunity shows up, it would also be a high priority. You can talk with Mona, check the School of Public service and even Blackskstone (Blackstone may be expensive). Let me know if you need to discuss or clarify.

...

[Sic throughout]

 

[64] The grievor testified that until she received the October 21 email, she had not been told how or what to prioritize with respect to training; nor had she been told by anyone about how to go about dealing with a training plan. Mr. Lessard confirmed in cross-examination that the October 21 email was his training plan for the grievor and that before that, it had not been provided to her, that training plans are not always the same and have to be adapted, and that there is no recipe — employees need to adapt.

[65] The grievor questioned how completing middle-management training in the 12 months following October 21 could be a priority. She said that her first priority was to know what she was supposed to be doing. She said that there was no outgoing site manager for the LSNMCA to brief her and walk her through the project. She stated that she was thrown in with no instructions and no training until the October 21 email, in which Mr. Lessard gave her some guidance on prioritizing training, which had nothing to do with actually knowing her job or the project.

[66] Entered into evidence was a copy of the grievor’s training record from the CSPS, which was middle-management training, showing her activity largely in November of 2016, of completing certain modules; the grievor also testified to completing modules in November of 2016. She stated that although her home and family were in Thunder Bay, she had rented an apartment in Nipigon, across the street from her office, where she would often stay when she worked late in Nipigon, rather than commute back to Thunder Bay. She stated that as far as she could remember, Mr. Lessard did not follow up with her on the course. She said that as of that time, she had no timeline for the start of the second phase of the course, being the first in-person session.

[67] The grievor testified that before the October 21 email, she had been told that she could not take the briefing-note training that she had asked for; it was only after the October 21 email that it changed, for reasons unbeknownst to her. Mr. Lessard confirmed that the grievor had asked for briefing-note training and that it had not been approved. When he was asked why in an interval of three weeks, he had changed his mind and approved it, Mr. Lessard first said that he and the grievor had had a discussion. Then he immediately qualified that and said that he thought that they had had a discussion.

[68] Mr. Lessard was asked about the business-case training referred to as the third priority item in the October 21 email. He suggested that he felt that the grievor would benefit from it. He said that it was there because the grievor had asked for it. He said that once she had completed the other two trainings (middle management and briefing note), he would have considered this training.

[69] Mr. Lessard was shown an email dated October 17, 2016, which the grievor sent to him. It stated as follows:

...

I am interested in the course for ‘preparing a business case’ recommended by Cory (see below). It would clearly be invaluable for all the upcoming development and planning for the LSNMCA.

I am interested in registering for the course scheduled on December 1st and 2nd in Ottawa, and can make it less expensive – as I can stay with family in Ottawa, and am savvy using public transportation in that region. I am cc’ing others incase [sic] someone else from NOFU may be interested as well.

Can I register?

...

 

[70] When it was put to Mr. Lessard that the grievor was not approved to take this course, Mr. Lessard said that he did not remember; yet, it was listed as the third priority in the October 21 email. While Mr. Lessard said that the failure of the grievor to take this course was not a factor in her termination, he said that that was not the point — it was a question of how many people were taking the course, and he did not believe that the course would affect her ability to adapt to the government. He said that this course and the briefing-note course would not have made her a good manager.

[71] Mr. Lessard was asked if the training plan for someone as senior as the grievor coming from outside the public service would be different from that for someone internal to the public service. He stated that the grievor was required to identify what she needed. He said that the grievor had to adapt to Parks Canada. Mr. Lessard stated that the grievor was struggling with understanding how government worked. He confirmed in cross-examination that he expected that challenge; however, when he was asked at what point he thought that she should have been comfortable, he said that he did not know.

[72] Mr. Lessard was asked why it took six months before the three priorities were set out in the October 21 email, to which he said that he had had discussions with the grievor in the summer and that he had left it up to her to bring it up to him. He then stated that in late August and early September, he was becoming concerned. He stated that the grievor was busy and had significant responsibility and that she should have got him on track. He said that she should have stopped asking for training courses and that he needed to make it clear to her that she should focus on the middle-management course. It was pointed out to Mr. Lessard that the courses set out in the October 21 email were not novel training opportunities and was asked why they were not provided to her when she started. Again, Mr. Lessard stated that there is no recipe at Parks Canada or, he added, elsewhere and then stated that what appeared to him when she started was how much she needed to adapt.

[73] When counsel for the grievor suggested after hearing Mr. Lessard’s comments about training that the grievor came forward with inappropriate training suggestions, Mr. Lessard stated, “No”, and added that her suggestions were good but were not a priority.

[74] In cross-examination, Mr. Lessard was asked if the grievor’s failure to take the middle-management course was one of the reasons he determined that she should be terminated. He stated that her lack of action to take the course and the time the grievor took were factors. He was asked if before deciding to terminate the grievor, he spoke to her, to see if she had registered for the course. He said, “I don’t think she was registered in November.” When counsel for the grievor told Mr. Lessard that the grievor would testify that she had registered and completed phase one of the course, Mr. Lessard stated, “I have no evidence she completed.” When he was asked if he had knowledge that she registered, he said that he did not recall if he asked her if she registered. He said that he was following up with her but that he did not know. When it was put to him that it was his obligation to follow up before using this as a reason for termination, Mr. Lessard said, “Sue was having difficulty in registering.”

[75] During the course of the cross-examination of Mr. Lessard on the October 21 email, he was asked if he was familiar with the concept of progressive discipline. He stated, “I can imagine”. When he was asked if he had any training in progressive discipline, he said that he did not recall. When progressive discipline was explained to him, he said that he did not recall such training, but then said that if it is discipline or performance, there is a progression, and that the October 21 email was a powerful statement. This was a comment he used at least four times during this exchange with counsel, stating that the grievor should have done something and that he had to do it for her.

[76] The grievor testified that early into her tenure, her priority was to visit a functional and operating NMCA, to see how it operated. She said that she made that request to Mr. Lessard. She said that he suggested that in August, he would be on vacation in Montréal, and that she could travel and meet him there, and they could then drive up to the Saguenay together. She said that this would not work as her husband was already to be away at the time he suggested, and they had two small children, who could not be left alone. She said that no other options were ever offered by Mr. Lessard with respect to the Saguenay NMCA; nor did he make any offers for her to visit any other NMCA site. She stated that not only did he not provide her with any options, but also, he told her not to reach out to other field units. She said that he reprimanded her for this. She said that she went to conferences, and when she was at them, she would network with people from other units. She said that when she did this, he would call her and tell her not to do it and that it was not okay. The evidence did not indicate that she was formally disciplined, only remonstrated for doing what appeared to be totally normal.

[77] Counsel for the grievor brought Mr. Lessard to the TB Directive on Performance Management and asked him if he was familiar with it. He stated that he was, to a certain extent, and that he suspected that it was similar to the Parks Canada one. He was then asked if he had ever been provided with it, to which he said, “I would be provided with this type of directive as it applies to Parks Canada; could be some; at this point, I can’t confirm. I have no doubt that they are similar.”

[78] No Parks Canada directive like the TB Directive on Performance Management was produced into evidence.

[79] Mr. Lessard was brought to two bullet points in section 6.1.3 of the TB Directive on Performance Management and was asked questions about them. When he answered the questions, twice he referenced that he thought that the bullet points would be similar to those in the Parks Canada directive. Mr. Lessard was brought to the last bullet point, which referenced maintaining written records with respect to managing employee performance. Mr. Lessard stated that this was for someone not on probation; it was for an employee management program. Counsel for the grievor asked him if at Parks Canada, probationary periods were different to which Mr. Lessard said that he was not saying that and then stated that he was not sure. He then stated that he was not prepared to speculate on what Parks Canada’s policy was.

[80] Counsel then asked him what his understanding was, to which he said that it was important for him to maintain records of unsatisfactory performance. When asked if they were to be written, he answered, “notes, yes, electronic files; could be emails you file and deem as unsatisfactory.” When asked if this was his way, he answered that he “would take notes in [his] own books and file emails and store.”

[81] There were no written notes of Mr. Lessard produced to the hearing of the grievor’s unsatisfactory performance, either handwritten or electronic.

[82] Mr. Lessard was brought to the grievor’s letter of offer and the second paragraph of it, which set out his responsibilities as follows:

...

You will report to Robin Lessard, Field Unit Superintendent, 7277, who will be responsible for establishing the scope of work, setting the goals and performance measures, providing ongoing direction and feedback, completing performance reviews and managing leave, travel and other administrative matters related to this offer.

...

 

[83] When he was asked what establishing the scope of work meant to him with respect to a new employee, Mr. Lessard said that it is to ensure that the employee knows what to do and that this is provided through documents. In this case, it was the Strategic Framework, which he said fell on the grievor’s shoulders. He said that in the case of the grievor, much of it was established in the staffing process, where it was explained to the candidates. He said that they should know it from that. He said that he took the grievor on a “tour” before she accepted the position, for a half-day. He took her to Nipigon and suggested that he would have asked her if she was “in” or not. He stated that it was only after this tour and after he had introduced her to the stakeholders in the NMCA that she accepted the offer.

C. Dispute over Ojibwe as a second language on a staffing process

[84] The impression I have from the grievor’s description of the relationship that Parks Canada had with the First Nations (in the area that was being created as the LSNMCA when she began working) was that it was not at all good and that it was strained, at best. She testified that at one of the initial meetings she had with one of the three most important of the First Nations chiefs involved in the process, she concluded from their discussion that he was very angry with Parks Canada and specifically, Mr. Lessard. She said that he told her that he did not trust Mr. Lessard and as such that therefore, he and she would have a difficult relationship. She further stated that he told her never to invite him to a meeting that Mr. Lessard was going to attend. She said that the relationship had to be mended and that she tried over and over to get Mr. Lessard to meet with this particular Chief but that it never happened.

[85] The grievor described the problems she had with Mr. Lessard when it came to filling positions for the NMCA. She stated that there were three vacant positions that needed filling when she arrived, including an ecologist, someone in geomatics, and an aboriginal product development officer (“APD Officer”) on the visitor-experience side of the organization.

[86] The grievor said that the predominant language in the area that would comprise the LSNMCA was English and that the First Nations peoples in the region, in addition to speaking their own language, spoke English. She further testified that Mr. Lessard was insistent that more positions in the NMCA should be bilingual; however, this was not required by Parks Canada, and all the positions within the NMCA that were required to be bilingual were filled by persons who were bilingual.

[87] Early in her tenure, the grievor stated that she proposed that for the posting of the position of the APD Officer, they say that a First Nations language such as Ojibwe or Anishinaabe would be an asset. She said that she felt that this was important for the NMCA as part of the IMP provided that Parks Canada was committed to First Nations employment. She said that this was a perfect opportunity for Parks Canada and the NMCA to fulfil this commitment as well as to build bridges and repair the relationship with the predominant First Nations communities and leadership. This was part of her job and was crucial to the creation of the NMCA. She said that Mr. Lessard was against this and that he continually blocked her efforts to move this hiring process forward on this issue of an indigenous language being listed as an asset for the job poster.

[88] The grievor stated that the organizational chart, which was in existence at the time she arrived at the LSNMCA, provided for the APD Officer position as English-only. It was not a bilingual position, and French was not required. She said that during one of their meetings, in which she was pleading her case that the job poster should have wording to the effect of “Ojibwe would be an asset”, Mr. Lessard stood up and said this to her: “Sue, you are never to say the word ‘Ojibwe’ to my face!”

[89] The grievor testified that this action by Mr. Lessard was devastating to her. She said that she had to remove herself from the meeting and that she felt that she was being set up to fail. She said that building or more accurately at this point “rebuilding” the Parks Canada and First Nations relationship was very important; in fact, it was in the job posting for her position.

[90] Entered into evidence was an email dated July 5, 2016, sent by the grievor to Mr. Lessard and Ms. Gingras on this subject, which stated as follows:

...

I do not have any concern with our Bilingual positions and strength, in our VE Org Chart though I understand that it is in question.

I want to make something very clear, at the heart of our concerns, is: to prevent Employment barriers to local people, both Aboriginal and Non-Aboriginal community members along the north shore of Lake Superior.

This is not at an exclusion of our capacity for providing service to Visitors and Partners in both official languages.

At the meeting tomorrow at 11:30, can Robin and Mona please share:

-where the HR policy is regarding bilingual positions within Parks Canada?

-what the numbers of identified bilingual staff positions that are identified currently in ORG charts at NOFU office, Pukaskwa, and at Sault Ste Marie? + Closest Field Unit to the West of us? A

-suggest any creative ways we could solve this for, we are desperate for bums in seats/feet in hiking boots here to get much needed work committed to, done

Bilingualism and the LSNMCA currently

-We currently have two positions identified as Bilingual in the VE [visitor experience] ORG chart. PM02 (starting in a week) and a NHE presenter

-In addition, we have 4 more staff currently at the LSNMCA who are competent in both official languages (Sue Hamel ...)

Other potential options going forward:

-to list french as an asset in all job posters, and, have as an expectation that the staff could place in work plans to work towards improving their french - with PC support, as part of our internal plan!

-ask CURRENT staff already hired, in indeterminate positions, if they would be willing to work towards a higher level of french, and plan to identify their position Bilingual at a later date (Site Manager, or PM03 as examples)

I look forward to solving this in a timely manner, and finding a solution that satisfies PCA and, the commitments to our local communities, both Aboriginal and non-Aboriginal

...

[Sic throughout]

 

[91] The grievor testified that she did not back down on this issue of Ojibwe as an asset for the job poster for the APD Officer and that she continued to pursue it. She was shown an email she sent on September 29, 2016, at 21:36, with the subject line, “Bilingualism and the LSNMCA”. The email referenced the organizational chart and the bilingual positions at the LSNMCA. In her testimony before me, when speaking about this email, she said that she sent this email, as she was still being prevented from hiring into the positions required and was being directed by Mr. Lessard to increase the number of bilingual positions in her unit.

[92] Entered into evidence was an email sent on October 5, 2016, at 10:47, from Ms. Gingras to the grievor and her subordinate, Mr. Pelletier. The email states as follows: “We have a call scheduled with official languages. Sue is aware that the VE positions (org chart) will be discussed.” While the grievor could not specifically recall the email, she did state that she recalled the call with Official Languages. She stated that she and Mr. Lessard as well as Ms. Gingras were on the call, as were HR representatives from Parks Canada’s national office. During the call it, was confirmed to them that they had exceeded the official languages requirements and that nothing further need be done. The grievor made notes of the call, which were entered into evidence. The notes disclosed that the call with Official Languages took place on October 14, 2016, and that there were no requirements to have any of the positions that were being filled, including that of the APD Officer, bilingual.

[93] The grievor stated that at the end of the call, she confirmed that there was no requirement for the APD Officer position to be bilingual, and she sought approval to post for the staffing of the APD Officer position. She said that the HR representatives told her that they had no authority over hiring in the field unit, so she turned to Mr. Lessard and asked if she could post the position as she had requested, and she was met with a negative response. The grievor sent Mr. Lessard an email on October 15, 2016, at 11:27, which stated as follows:

...

Based on yesterday’s meeting with you (+ Mona, N.O. HR) to get clarification about official languages where you told me I still don’t have the go ahead to hire staff in my two approved Org charts, even though we have met and exceeded any obligations for service in official languages –

I am feeling that I am not able to live up to my leadership responsibilities as Site Manager, and set the nmca [sic] up for success by hiring critical positions to get long awaited work completed.

To remind you, I need to post the following posters asap:

...

 

[94] The grievor testified that this issue persisted and that it came to a head at a mediation session on November 29, 2016, when once again, the grievor stated that Mr. Lessard became furious, yelled at her across the table, and said, “I told you never to use the word Ojibwe in my presence again.” She said that she was stunned, that she cried, and that there was a recess at that point.

[95] In cross-examination, counsel for the grievor put it to Mr. Lessard that the grievor left the mediation room because he had raised his voice and referred to Ojibwe as not an official language. Mr. Lessard said that what he remembered was that after the grievor had left the room, he asked Ms. Dalton if he had done anything wrong. He then said that he could not believe that he would say anything like that or that he would say anything inappropriate but then said that English is his second language. He then said, “I am pretty fluent.”

[96] In his examination-in-chief, Mr. Lessard was asked why he held off hiring for certain positions. He stated that the grievor had two teams and that the organizational charts (often referred to as “ORG” charts in the documents filed) had to be approved at a higher level. He then referred to his vice president (“VP”) and then himself having to make some changes and that the formal approval would have been around the start of October. He said that it is a long process. He said that his VP had a lot of experience in visitor experience and that she was concerned about the second-language issue. He said that he asked the grievor to give him a plan with respect to official languages. He said that northern Ontario is predominantly English-speaking. He said that they needed a French aspect. He said that the grievor had pointed out that there was a sufficient ratio, but he said that they needed to greet people in both official languages. He said that programs have to be delivered in both official languages. He said that he wanted to ensure that they had a plan. He said that he was not getting an answer on this, so he was holding off on answering.

[97] The grievor testified that this was an issue throughout her tenure and that Mr. Lessard finally agreed to allow wording to the effect that Ojibwe would be an asset only in the mediation session with Ms. Dalton on November 29, 2016.

D. The grievor’s deteriorating relationship with Mr. Lessard, and the mediation process

[98] The evidence disclosed that by October of 2016, the grievor’s relationship with Mr. Lessard appeared to be very strained. In an email dated October 16, 2016, Mr. Lessard was instructing the grievor on a number of items, the first of which was that she was to provide him with her signed performance agreement by noon on October 31 and that if she had comments, to schedule a call before mid-November. The grievor testified that she wanted to meet with Mr. Lessard to go through the performance agreement, to be able to nail down exactly what was expected of her. She stated that this was ongoing by her. She said that Mr. Lessard would not sit down and discuss these things.

[99] Mr. Lessard testified that he had no difficulty sitting down and discussing the performance agreement and criteria; however, every time it was on a meeting agenda, it was never reached.

[100] On October 20, 2016, the grievor and Mr. Lessard had a meeting. After that meeting, the grievor sent Mr. Lessard two emails with respect to her concerns, which state as follows:

[At 14:26:]

...

Almost 7 months into my position as a Site Manager for the LSNMCA, and, after several meetings with you – sharing with you my needs in order to be able to do my job successfully, and to be at my best – I continue to struggle to be able to feel as though I can ‘do my job,’ which is affecting my levels of: morale, satisfaction, and stress. I want to feel productive and healthy – while in my role with this inspiring project (and spectacular location) with Parks Canada.

I need:

-more autonomy

...

-to feel supported (as per my training, decision-making, + needs identified at the Site level)

-to feel part of a high-functioning team at NOFU

-to feel that there are efficient, productive and strategic decision-making processes within our Field Unit (and Agency)

-to be able to do my job, and to do it well – in a timely manner, in a ‘healthy workplace.’ (see ccohs.ca)

There are significant pressures that I have been under while making sense of a complicated file ... and comprehending the complexity and depth of work that needs to be accomplished to bring the NMCA to become fully established and operational in a way that the Lake Superior National Marine Conservation Areas is successful at becoming a:

-’world renowned tourism destination’

-’a role model for ecologically sustainable use’

I have tried to prioritize a number of areas, that also align with both the ‘2016 Mandate letter’ (plus recent additions by CEO) and my ‘performance goals,’ as per my ‘Performance Agreement’ and Strategic Planning Framework 2015-2018.

I can share with you specific examples and areas in which I am struggling to achieve within our working relationship in the Field Unit over the last months, the following is one:

#1 – Staff hiring at the nmca:

I need to:

-hire a qualified staff team to accomplish the work that lies before us in developing Res Con and VE operational priorities and tasks, some of which are described in the LSNMCA Strategic Planning Framework 2015-2018

-according to my ‘Performance goals,’ relating to goals requiring staff to accomplish the tasks:

-complete and submit org models and begin staffing positions with appropriate priorities assigned... (done within my first month on the job, and after months of waiting, as of Friday, I am still waiting for the ‘go ahead’ from you to post and begin hiring processes for the ones identified as priorities at the Site in both teams, see below)

-provide recommendation for Law Enforcement – ( Ecologist needed)

-develop a priority list of work for operational plan to be in place (visitor safety, fisheries mgt, cultural resources) (Ecologist and Geomatics positions needed)

-work with marine team on developing guidelines and legislation for NMCAs (Ecologist and Geomatics positions needed)

...

Actions at my Site (my team and I):

-VE Org Model was completed over a year ago with input from National Office and Carole Sheedy, and the Org Chart finally reached full approval in July, 2016. Despite this, you have held up my ability to continue hiring the critical positions the NMCA needs to complete work stating your question of OL offer at the NMCA – even after N.O. HR Manager clarifies that we do not have any obligation to offer bilingual service, as per the Treasury Board assessment, and our site and Org model have currently met and exceeded it. (Currently, 2 positions in Org Chart are BBB, plus 4 staff already working at the Site including myself are comfortable speaking in French, and, 1 in Ojibwe. We have also created an open environment in our office to practice and learn more in both of these languages – for example: we host ‘French Fridays/Wiisnidaa’ to practice our French and learn a new Ojibwe phrase over lunch weekly)

-Res Con Org model was completed with input and direction from National Office in April 2016, and has been verbally described as ‘Approved’ though I have not seen it yet in writing. We have posted the Ecologist (PC02) position as ‘anticipatory,’ and have been requesting to post the Geomatics position, and your latest request was for a list of ‘duties and workplan’ to which we provided to you on October 17th.

Next Steps I am asking of you:

- I need the ‘go ahead’ from you to be able to work independently with the HR Manager in our Field Unit, to move on staffing priorities for the NMCA (as per the approved Org Models/Charts and financial plan) to fill much needed critical positions to accomplish operational priorities (next steps as per discussions and emails shared with you over the past several months: post Geomatics position; complete AbVepdo hiring process; post Trails (as stated before snow); post CR04 position).

 

[At 14:41:]

...

-we clearly need to follow up on our difficult discussion today, so I would like to pursue a resolution that feels like it may bring upon the change I need , and as mentioned today and in the past, I’d like to explore options of bringing in an external to help mediate , and, I would like to play a role in the selection process

...

[Emphasis in the original]

[Sic throughout]

 

[101] Mr. Lessard responded to the October 20, 2016, emails on October 21, 2016, at 14:46, stating as follows: “Let’s discuss. I can set a timing or prefer to wait for a third person (I made the request today)”.

[102] The grievor stated that she contacted Rebecca Dalton, who worked in the Agency’s Centre for Values and Ethics (“the V&E Centre”). She said that before she did this, she spoke to a colleague, who told her not to do it because Mr. Lessard would go after her. She said that she felt she had to do this, as the only other two options were to do nothing and let things remain as they were and become chronically ill, or quit. The grievor’s email to Ms. Dalton, dated October 24, 2016, stated as follows:

...

I am 7 months into my new role as the Site Manager of the Lake Superior National Marine Conservation Area, and, am struggling with some very serious issues here in my Field unit.

I have tried calling your office a couple of times over the last couple of months, and met your (and others) answering machine, and did not leave a message. I really need to connect ASAP. Is there a time today (or tomorrow) that you or someone in your office would be available for me for 30 minutes?

...

 

[103] The grievor stated that she spoke to Ms. Dalton on October 25, 2016, and explained her situation. She said that she told Ms. Dalton that she did not feel safe with Mr. Lessard in meetings. They discussed having a mediator, and Ms. Dalton said that she would be a mediator. On October 25, 2016, the grievor emailed Ms. Dalton, stating as follows:

...

Thank you for the call this morning, and for listening, for I am experiencing a very challenging and very stressful time with my direct supervisor over the 7 months I have been in the job. I need outside help. Ultimately, I want to feel that we have the conditions for success to accomplish what we need to accomplish in our Field Unit, and for me, it is bringing the NMCA to establishment and to become fully operational.

I look forward to having our conversation together with Robin about:

-my request for a workplace scan at NOFU

-addressing the need for significant improvements to decision making processes in the Field Unit

-having my needs met relating to feeling empowered, supported and to have a sense of autonomy in my role as a Site Manager including being able to ‘move’ important ‘files’ and set my Site up for success (this is affecting my level of job satisfaction and my level of stress/mental health significantly)

-co-creating a high-functioning mgt team for the Field Unit –with clear decision making processes, that are efficient and clear: ‘team’ feeling, where input is heard and valued;

FYI : Below is a message I sent to Robin last week, after meeting with him in person, reiterating what I shared in person:

[See the email dated October 20, 2021, at 14:26, reproduced earlier in this decision.]

...

 

[104] She said that it was agreed that a full-day mediation would take place.

[105] On October 26, 2016, Mr. Lessard wrote to the grievor again with a list of tasks that he was following up on, and the first was again her performance agreement. He again restated what he had said in the email of October 20, 2016.

[106] The grievor testified that after she had gotten in touch with the V&E Centre and it had made some recommendations, the situation between her and Mr. Lessard became worse. Entered into evidence was an email she sent to Ms. Dalton on October 31, 2016, which stated as follows:

...

I just got off the phone with Robin, and, it did not go well.

Please tell me what a potential ‘B’ plan could be, either in your team or outside, to begin to participate in our meetings (robin [sic] and I) in the coming days/and weeks.

I have requested this for months with Robin, and now, made the step forward last week with you and Robin, and feel that this working environment is affecting my health and well-being.

I would really like help sooner if possible.

...

 

[107] On November 1, 2016, the grievor emailed Ms. Gingras, asking her what options she had to take time off due to work-related stress. Her email stated as follows:

...

What options do I have, to take time off due to work-related, stress reasons?

So far I have brought up my concern about my levels of stress getting to unhealthy levels to:

-my direct supervisor

-centre for Values and Ethics

-employee and family centre

I would like to ask what, as HR Manager, can you direct me to do to proceed?

I may be looking at taking off to start, this coming Thursday and Friday, November 4+5 (I’d leave today, though it has taken over 5 months to secure an important meeting with the RRIB Chief, which is scheduled for tomorrow, Wednesday, Nov 3rd),

...

[Sic throughout]

 

[108] On November 3, 2016, Ms. Dalton wrote to the grievor and Mr. Lessard, stating as follows:

...

Hello Robin and Sue

For your discussion on November 8, please consider the following:

Topic: Communication

Describe a time when the communication went well: What was the topic? How did you contribute to the conversation? (assumptions, words, tone of voice)

Describe a time when the conversation did not go well: What was the topic? How did you contribute to the conversation? (assumptions, words, tone of voice)

...

 

[109] The evidence disclosed that the actual in-person mediation session that took place with Mr. Lessard and Ms. Dalton was on only one day, Tuesday, November 29, 2016, in Thunder Bay. The grievor believed that the November 3, 2016, email referred to the one-on-one sessions she and Mr. Lessard had with Ms. Dalton before the mediation or could have been a three-way telephone call. She stated that she recalled several discussions with Ms. Dalton before November 29.

[110] On November 14, 2016, Mr. Lessard sent the grievor an email, again about a number of different items, and again, the first item on the list was the grievor’s performance agreement. In the email, Mr. Lessard states that he has not received any comments and therefore is assuming that the grievor was in agreement with it and was asking for it to be provided by November 18, 2016. The grievor stated that by this time, she was very frustrated with Mr. Lessard, as he kept directing her to sign. She said that she kept telling him that she had questions, that there were too many to put in an email, and that they had to sit down and discuss.

[111] On November 28, 2016, the grievor emailed Mr. Lessard with an agenda for their meeting set for that day. Again, set out on that agenda was the performance agreement. She stated that despite putting both training and her performance agreement on the agenda, they were again never reached in the meeting.

[112] The grievor testified that the relationship with Mr. Lessard was unhealthy. She stated that she could never get issues resolved; she provided examples of a number of items that she had worked on from early in her tenure that continued to be upended by Mr. Lessard. She said that he had an angry tone. She stated that on one occasion, she had a working group work through lunch and had made a number of inroads. She said that when she told him about it, he was angry about a $17 lunch invoice she presented. She said that rather than focus on the substantive nature of the work, he focused on the minutiae of the $17 lunch charge.

[113] She said that it was the use of his voice, which was an angry tone, that made her feel unsafe. She stated that by this juncture, this approach by Mr. Lessard was becoming the norm. She stated that she felt helpless, and as such, she did not want to be caught one-on-one with him, either in person or on the phone.

[114] The evidence of the grievor with respect to the mediation was that not a lot of progress occurred. She said that Ms. Dalton had asked for examples of the issues, and the grievor told her about the issue of the hiring for the visitor experience position and having someone who spoke Ojibwe. She said that Mr. Lessard became angry, yelled across the table, and told her to never use the word “Ojibwe” in his presence again. She said that she was stunned, cried, and asked for a recess. After an hour, the mediation continued.

[115] At the end of the mediation, the grievor stated that Mr. Lessard agreed to two action items requested by the grievor, as follows:

1. the grievor could visit a national park with a marine component with a high-functioning manager for one to two weeks; and

2. Ojibwe could be listed as “an asset” on job opportunity posters for the positions being advertised at the Lake Superior NMCA.

 

[116] With respect to the first action item, in cross-examination, Mr. Lessard confirmed that this was something that the grievor had been asking to do for some time. With respect to the second action item, I have already addressed it in the previous section.

[117] The grievor said that she felt the mediation had made things worse. She said that on November 30, 2016, she attended a meeting with representatives of the Red Rock Indian Band, including its chief, at their band council office. She said that it was clear to her from the very start of her employment at Parks Canada that the relationship between this particular band and the NOFU was quite damaged. It had been one of her goals to repair that relationship, since that band was an important part of the establishment of the LSNMCA.

[118] During the meeting, a prior incident was relayed to her by one of the band representatives about a meeting that had taken place involving several groups and Parks Canada. According to the grievor, at the particular meeting described, the Red Rock Indian Band representative was a little late and, in turn, was told by a Parks Canada representative that if the representative showed up late again, the representative would not be admitted to the meeting. At the next meeting, the Red Rock Indian Band representative was on time, and the Parks Canada representative was late.

[119] The grievor said that what had been conveyed to her by the Red Rock Indian Band was that there appeared to be a lack of respect being shown by Parks Canada toward them, and in turn, an issue of trust had arisen. The grievor said that she told the representatives of the Red Rock Indian Band, “I am sorry you experienced that”. She said that she did not apologize for what had been done. She said that the meeting itself was generally positive and that after the meeting, she emailed Mr. Lessard to brief him on the meeting. The email was dated November 30, 2016, and stated as follows:

...

Greetings, the following is a brief update re: my meeting that took place this morning from 10 a.m. and 12:00 pm

Overall:

– intention of the meeting was to improve relations between RRIB and PC LSNMCA, and now on the file, was open to the invite and meeting

– no agenda was set, though I began with simply asking about the history of the rel’p as she knows it, so that I can be aware of how things have not gone well, and how we can change things going forward with the spirit of strengthening our relations btw the two (PCA and RRIB)

– overall the meeting went very positive, and with a mutual feeling of movement in the right direction, and, on behalf of PCA, I apologized for the experiences she shared that do not meet our expectations, and, I assured her we would do everything we could to work to not repeat (what is below) and are committed to strengthen our rel’p with RRIB and other FNs and Indigenous groups in the region (see below what I shared, of concrete ways)

– we covered such topics as history of the rel’p, present, and potential ways moving forward, plus questions around the building came up, and I updated her somewhat on some ‘good news’ stories relevant to FNs, and, some of what happened at the Working Group meetings over the last month and a half ....

...

[Sic throughout]

 

[120] The grievor testified that after she sent the email, she received a call from Mr. Lessard, who, she said, had nothing positive to say and was angry about what he characterized as an apology. From the evidence, it appears that this call came on December 2, 2016. She said that she expected the call to be a positive experience and that it would involve a discussion about the substantive steps being taken, and instead, it turned out to be all about why she could not apologize. She said that she told Mr. Lessard that if she was not supposed to do certain things, he should have clarified these things. She said that if she is in charge of discussions with the First Nations with respect to the LSNMCA, she has to know what the rules are. She said this:

· she could not get a sentence in;

· she asked him to lower his voice five times;

· his voice was so loud, she had to hold the phone away from her ear; and

· he kept interrupting her as she tried to speak, and she finally told him that if he did not stop that, she would hang up; he did not stop, and she hung up.

 

[121] The grievor stated that this call caused her to contact Ms. Dalton. She also forwarded to Ms. Dalton the email she had sent to Mr. Lessard on November 30, 2016, which appeared to be the catalyst for the problematic phone call between the two later that day. She said that other than the incident on the telephone on December 2, 2016, she received no instructions or clarity on what she could or could not say to representatives of First Nations.

[122] Mr. Lessard was asked about his relationships with First Nations and their chiefs. In cross-examination, he was asked about his professional and working relationships and said that he could not recall. He then said that his relationship with one particular Chief was difficult; this was the same Chief identified by the grievor earlier in this decision. When he was asked how he addressed the difficulties, he said that he met with them once in a while. When he was asked when was the last time he met with the chiefs before the grievor started to work at Parks Canada, Mr. Lessard said that he could not recall. When he was asked about the period in which he had meetings or regular meetings with the chiefs, he said that he did not have regular meetings with them and that he did not recall the last meeting.

[123] In cross-examination, it was put to Mr. Lessard that the grievor did a good job developing relationships with the First Nations, to which he said, “Sue is good in developing relationships; I don’t know if it was personal or working.” When he was asked to explain, Mr. Lessard said that he thought that the grievor was doing it more for herself personally rather than for Parks Canada. When it was put to him that a personal connection was important, Mr. Lessard agreed. When it was put to him that a personal relationship would require a personal commitment, he also agreed. When he was asked if he thought that the grievor was deriving a personal benefit, he said that he did not, but then added that he did not think she had been thinking of Parks Canada. It was put to Mr. Lessard that the grievor had many discussions with First Nations representatives in which she had to acknowledge how they felt in the relationship, to which he agreed. However, he said that the grievor apologized for what Parks Canada had done, which is different from showing empathy. When it was put to him that there was a difference between apologizing for how someone feels about something and apologizing on behalf of Parks Canada, Mr. Lessard said that there is a nuance.

[124] As the cross-examination on this point continued, it was put to Mr. Lessard that it was his evidence that the grievor issued an apology to the particular First Nation, to which he said that it was the grievor’s evidence that she did so. When the grievor’s counsel put it to Mr. Lessard a second time that the grievor’s evidence would be that she acknowledged what had happened, he said that he understood that she had apologized on behalf of Parks Canada.

[125] When Mr. Lessard was asked if he contacted the member of the First Nation with whom the grievor had had this discussion, to get the member’s side of it, Mr. Lessard stated that he had not. When asked if he spoke to anyone else, he said that he had not. When counsel for the grievor suggested that since this was one of the reasons he had decided to terminate the grievor’s employment, should he not have made sure that he had the facts clear about what had happened, Mr. Lessard said, “I told Sue she couldn’t do that.” He then said, “What bothered me most wasn’t that she apologized on behalf of Parks Canada; the problem was she wouldn’t admit she did it and she couldn’t do it. She didn’t learn.”

[126] I was provided with no Parks Canada policy, directive, or guideline with respect to negotiating with or dealing with First Nations; nor was I provided with any other guiding material of any source on this topic from either the TB or any other federal government source.

[127] When Mr. Lessard was asked about the status of the agreement for the grievor to visit a fully operating NMCA and if it was scheduled or if it materialized, he said, “No,” and that the grievor initiated it. Then, he said that he did not recall how advanced they were in the process. He then said that it was wintertime and that it was not the best time do it.

[128] When Mr. Lessard was asked if there were any discussions of performance issues, he said that the mediation was confidential. He later said that he did not believe that they discussed performance issues; she had to adapt to him.

[129] In his examination-in-chief, Mr. Lessard said that they had agreed that the mediation session would reconvene in January; yet, in the same breath he stated that it was his expectation that their relationship should have improved by the date of the mediation. He then stated that it was clear that the relationship was not working because a few days later, he received a call that he described as the grievor apologizing to a First Nation. He said that the grievor was not understanding her role.

[130] Shortly after that, on or about December 3, 2016, the grievor travelled to Ottawa, to visit her critically ill mother. She returned to Thunder Bay two days later, only to hear that her mother had died shortly after she had left. The grievor then took five days of bereavement leave and returned to work on December 13, 2016.

[131] On December 5, 2016, Mr. Lessard emailed the grievor, requesting that she schedule a time with his office for her mid-year performance review. When asked why he would do this, he said that he was doing mid-year performance appraisals for all his managers. When he was asked if December was considered mid-year, he said that it was after the height of the season.

[132] On December 14, 2016, Ms. Dalton emailed both Mr. Lessard and the grievor and proposed that they reconvene via phone after she returned to work after an undisclosed date, which was redacted from the documents submitted in evidence. The grievor said that she fully expected that the mediation process would continue with the involvement of the V&E Centre.

[133] Shortly after the termination of the grievor’s employment, the chiefs of the 3 First Nations that were designated as representatives of the 14, Fort William First Nation, the Red Rock Indian Band, and the Pays Plat First Nation, as well as the Regional Chief, wrote to the minister responsible for Parks Canada. The letter stated as follows:

...

We, the Chiefs of the North Superior Region, have been negotiating with your staff for over a decade on the creation of the Lake Superior National Marine Conservation Area (LSNMCA). We are writing this letter to express our concerns over a number of issues that have resulted in a loss of confidence in the Parks Canada Agency and its representatives. Although we have faithfully participated in the consultation process to this point, in recent months there has been a shift in the way your staff have engaged with our communities. What had been evolving into a collaborative relationship has turned into one with little communication, unilateral decision making, and clear lack of respect for the commitment we have made to this process.

We were just recently informed of yet another Site Manager who was dismissed from your organization and our negotiating table; this is two (2) Site Managers in just over one (1) year. We developed professional working relationships with both of these managers over the months we worked together and we do not understand why these changes have happened. It took a great deal of time to establish the trust necessary for them to understand the complexity of this file and because of this change in staff, we are no closer to completing this agreement. Furthermore, we hear from various sources that your Field Unit Superintendent doesn’t follow your own hiring policies and harasses employees with verbal abuse. In fact, there have been five (5) staff members in the past two (2) years that have either left or have been dismissed. So we ask you, how can we trust that a complex relationships with external groups like First Nations can be established when relationships inside Parks are so dysfunctional?

...

... Additionally, we request an internal review of your organization in Northern Ontario and that our communities are part of that review. We have certain expectations of the Northern Ontario Field Unit Superintendent (NOFUS) as the key contact point in our relationship and at this time we feel those expectations are being unmet within your organization and within the terms of our co-management arrangement.

...

 

[134] The letter from the four chiefs was shown to Mr. Lessard in cross-examination, and he was asked if he had seen it, which he confirmed he had. He was then asked if he had spoken to any of the chiefs to discuss the grievor’s relationships with the First Nations, to which he said he had not. Mr. Lessard was asked a number of questions about the letter and its contents, including whether he reached out to them. His initial answer was, “I think I tried to reach out to Chief [name withheld] right away.” He insinuated that he thought that he would have, yet when he was asked a second time, he said that he was sure he did, and then he said that he did not recall.

III. Summary of the arguments

[135] The employer submitted that the Board has no jurisdiction and that the grievance should be dismissed. The employer referred me to the Act and to Alexis v. Deputy Head (Royal Canadian Mounted Police), 2020 FPSLREB 9, Bilton v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 39, Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529, Canada (Attorney General) v. Penner, [1989] 3 FC 429, Faryna v. Chorny, [1952] 2 D.L.R. 354, Grant v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 37, Kagimbi v. Canada (Attorney General), 2015 FCA 74, Kot v. Deputy Head (Royal Canadian Mounted Police), 2020 FPSLREB 29, Maqsood v. Treasury Board (Department of Industry), 2009 PSLRB 175, Melanson v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 33, Monette v. Parks Canada Agency, 2010 PSLRB 89, Ondo-Mvondo v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 52, Peck v. Parks Canada, 2009 FC 686, Raveendran v. Office of the Superintendent of Financial Institutions, 2009 PSLRB 116, Rousseau v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 91, Salib v. Canadian Food Inspection Agency, 2010 PSLRB 104, Sandhu v. Deputy Head (Correctional Service of Canada), 2018 FPSLREB 63, Sved v. Deputy Head (National Parole Board), 2012 PSLRB 16, and Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134.

[136] The grievor submitted that the Board has jurisdiction and that the termination of her employment was a sham or camouflage, done in bad faith, and disguised discipline. She also referred me to the Act, the PSEA, the PCAA, Alexis, Leonarduzzi, and Tello and to Chaudhry v. Canada (Attorney General), 2007 FC 389, Dyson v. Deputy Head (Department of Fisheries and Oceans), 2015 PSLREB 58, and Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109.

IV. Reasons

A. Preliminary objection to jurisdiction

[137] The Board and its predecessors have regularly heard and determined cases that arose out of terminations of employment that had, as a preliminary issue, an employer objection to the Board’s jurisdiction under s. 211 of the Act because it was maintained by the employer that the termination was a rejection on probation. Section 211 states as follows:

211 Nothing in section 209 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; or (b) any deployment under the Public Service Employment Act, other than the deployment of the employee who presented the grievance.

211 L’article 209 n’a pas pour effet de permettre le renvoi à l’arbitrage d’un grief individuel portant sur : a) soit tout licenciement prévu sous le régime de la Loi sur l’emploi dans la fonction publique; b) soit toute mutation effectuée sous le régime de cette loi, sauf celle du fonctionnaire qui a présenté le grief.

 

[138] There is no mystery in how these cases arrive before the Board or in the issues to be determined. The jurisprudence is well established. It is well-settled law that under s. 211 of the Act (which is similar to the legislation from the days of the Board’s predecessors), the Board does not have jurisdiction to deal with any termination of employment under the PSEA. This jurisprudence, colloquially known as “rejection-on-probation cases”, has become established over the decades, and it follows the same pattern. The employer ostensibly terminates a grievor by rejecting the grievor while on probation. Then, the grievor files a grievance against that termination that is referred to the Board for adjudication. In these rejection-on-probation cases, the grievor must establish that on a balance of probabilities, his or her termination was a sham, camouflage, or done in bad faith and as such that it falls within the Board’s jurisdiction (usually under s. 209(1)(b) of the Act), alleging that it was in fact a disciplinary action.

[139] The process involving rejection-on-probation grievances has largely been the same under the Act and the former Public Service Staff Relations Act (R.S.C., 1985, c. P-35) until the decision in Tello, which altered it somewhat.

[140] Before Tello, the process proceeded on the basis of the employer establishing a valid employment-related reason for rejecting an employee on probation. As set out as follows in Leonarduzzi, at para. 42, citing Penner, at 438:

[42] ...

In Smith (Board file 166-2-3017), adjudicator Norman is straightforward:

In effect, once credible evidence is tendered by the Employer to the adjudicator pointing to some cause for rejection, valid on its face, the discharge hearing on the merits comes shuddering to a halt. The adjudicator, at that moment, loses any authority to order the grievor reinstated on the footing that just cause for discharge has not been established by the Employer....

[Emphasis in the original]

 

[141] Before Tello, once the employer established a valid cause for the rejection, the jurisprudence held that “... the burden of proof then shifts to the grievor to demonstrate that the employer’s actions are in fact a sham or a camouflage, and therefore not in accordance with section 28 of the PSEA” [emphasis in the original], which is in Leonarduzzi, at para. 45.

[142] Tello slightly altered the jurisprudential landscape, providing that in these types of hearings before the Board (or its predecessors, the Public Service Labour Relations Board and the PSLREB), grievances filed by employees rejected on probation no longer require the employer to establish a valid employment-related reason for the rejection. It merely has to establish that the grievor was terminated within the probation period, was provided with a termination letter setting out the reason for the decision, and was paid in lieu of notice.

[143] In this case, the parties argued the matter as if both the PSEA and s. 211 of the Act applied; however, the PSEA is not applicable to Parks Canada, and as such, s. 211 of the Act is irrelevant. In short, the Board has jurisdiction if the termination of employment otherwise falls under s. 209 of the Act. In this matter, the only part of s. 209 that the Board could potentially have jurisdiction under is s. 209(1)(b), being a termination of employment arising from a disciplinary action. This is because Parks Canada is not in the core public administration as set out in s. 209(1)(c) of the Act; nor is it an agency so designated by the Governor in Council for the purpose of s. 209(1)(d) of the Act.

[144] Given that s. 211 of the Act does not apply, the Board need not proceed in the usual manner, as set out in cases referred to adjudication that have as their preliminary issue the objection of jurisdiction under s. 211 of the Act. However, this does not end the matter, as the Board has jurisdiction only if the grievor was terminated for disciplinary reasons. For the reasons that follow, I find that the grievor’s employment was terminated for reasons that were in bad faith and that it was disguised discipline. As such, the Board has jurisdiction under s. 209(1)(b) of the Act, and the grievance is allowed, as set out later in this decision.

B. The merits of the grievance

[145] This case largely turns on the documents entered into evidence and the testimonies of the grievor and her direct supervisor, Mr. Lessard. The grievor also called Dr. Russell, but her testimony was largely with respect to the grievor’s character, and she did not have any direct evidence with respect to the grievor’s performance or behaviour at work.

[146] The jurisprudence dictates that good faith shall be assumed. For the reasons that follow, I find that the evidence disclosed that Mr. Lessard acted in a manner that can only be described as bad faith. The evidence of the grievor and Mr. Lessard was largely contradictory. Early on in Mr. Lessard’s testimony, it became clear that he often did not know what he was talking about, often made assumptions, and either did not document events as they occurred or, if he did, did not produce the documentation. At other times, he made statements that were just not believable and that did not withstand the test for credibility set out in Faryna, in which the British Columbia Court of Appeal stated as follows:

...

If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility ... A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions....

...

 

[147] A period of probation, be it in the federal public sector or any other job, is used to see if the employee is a good fit for the position. Each situation will obviously be different, depending on the organization, where in the organization the new employee will be working, and the job the new employee will be doing.

[148] I heard evidence about the staffing process that led to the grievor’s hiring. It reflected the fixed process in the federal public service, which involves the posting of the criteria that are required and that prospective candidates must establish that they possess. However, the fact that a candidate may be successful in the process and that he or she meets the criteria as set out does not mean that the candidate can do all the tasks incumbent to the position that the candidate is hired into on day one. There will always be a learning curve; depending on a number of factors related to the specific job in question, the learning curve can be short or long.

[149] For example, the Department of Justice may initiate a hiring process for lawyers. The criteria set forth for that staffing process may require, for example, lawyers (members of a specific provincial bar association) who have a certain level of experience in advocating before trial courts or administrative tribunals (such as this Board). Those lawyers hired would be expected to have certain specific knowledge and skills. However, at the same time, someone coming from outside the federal public sector, even as a lawyer with the skills required, may not know some of the other things peculiar to working as a litigation lawyer within the confines of the Department of Justice. This hypothetical new lawyer would not inherently know these things, and as such, would have to be provided with the information and the opportunity to learn these things to be successful in the position.

[150] For most new hires into the public service, as defined by the Act, there is a clear statutory framework that sets out probationary terms in the core public administration. In this respect, s. 61(1)(a) of the PSEA states that a person appointed from outside the public service (as defined in the PSEA) is on probation for a period established by regulations of the TB. Section 2(2) of the Regulations Establishing Periods of Probation and Periods of Notice of Termination of Employment During Probation (SOR/2005-375) provides what the periods of probation are and how they are calculated.

[151] Additionally, the TB has established a framework for terminating employees while on probation; these, identified as the TB guidelines, were entered into evidence. Also in this respect, entered into evidence was the TB Directive on Performance Management, the relevant provisions of which were set out earlier in this decision. This directive deals with managing the performance of employees. It sets out the responsibility of deputy heads or their delegates with respect to employee performance management and does refer to requirements involving employees who are on probation.

[152] Counsel for the employer stated that the TB guidelines apply to Parks Canada; however, Mr. Lessard, who was brought through the TB guidelines in detail, stated on more than one occasion that Parks Canada had its own guidelines governing employees on probation and that he followed them. If such guidelines exist, none were entered into evidence. The same is true with respect to the existence of any Parks Canada document similar to the TB Directive on Performance Management.

[153] Section 13 of the PCAA, the section that is preceded by the heading “Human Resources” and the subheadings “Personnel” and “Human resources management”, simply states that the Parks Canada Chief Executive Officer has the exclusive authority to establish standards, procedures, and processes governing employment and terms and conditions of employment, including termination of employment; however, if they exist, none were produced into evidence.

[154] Entered into evidence was the Parks Canada staffing policy, which has 11 parts, of which part 8 is entitled “Probation”. It states that a policy on probation is required. It then makes a policy statement that employees are all subject to a maximum 12-month probationary period, which it further states may be extended, shortened, or waived. It then states that permanent employees must be given a minimum of 1 months’ notice of a rejection on probation. It provides no other provisions, directives, or guidelines with respect to what should be done with respect to the management of new employees who are on probation.

[155] Mr. Lessard testified that the decision to terminate the grievor’s employment was his and that it was based on these three areas:

· her lack of receptivity to guidance from the FUS;

· her continuing struggle adhering to Parks Canada’s vision, strategy, policies, and procedures; and

· her questionable situational judgement in some important situations.

 

[156] He also testified that:

· he provided the grievor with clear goals and coaching;

· he provided the grievor with numerous opportunities to make necessary adjustments through regular feedback and discussions; and

· training had been made available to her.

 

[157] The issues Mr. Lessard used as justification to terminate the grievor fall into seven general subject areas, which sometimes overlap, as follows:

1. objectives were provided and explained and were not met;

2. the grievor was provided appropriate training or was provided the opportunity for training and did not avail herself of it;

3. the grievor struggled adhering to Parks Canada’s vision, strategy, policies, and procedures;

4. the grievor disregarded the policies surrounding official languages;

5. the grievor exercised poor situational judgement;

6. the grievor had a negative attitude, communicated poorly, did not collaborate, and was inefficient in executing tasks; and

7. the grievor was not receptive to advice and guidance from Mr. Lessard.

 

[158] These subject areas and issues were things that he also referred to in his Dec. 16 memo to his supervisor, Ms. Upton. The difficulty with what Mr. Lessard set out in the termination letter, the Dec. 16 memo, and his testimony before me is that so much of it was verifiably untrue.

1. Objectives were provided and explained and were not met

[159] The grievor’s tenure with Parks Canada lasted a little more than eight months; however, Mr. Lessard had determined that he was going to terminate her employment on December 2, 2016. Therefore, Mr. Lessard’s period of assessment of the grievor’s performance and conduct was seven months and one week: from April 25, 2016 (her first day on the job), to December 2, 2016.

[160] When the grievor started, she was given a binder of material (the orientation binder). The evidence as to what was in that binder was, at best, sketchy. While Mr. Lessard said that he gave instructions that a binder be produced and given to her, and she did receive a binder, and documents allegedly from that binder were produced for this hearing, the following can be gathered from the evidence I heard on this topic:

· all the documents produced to the hearing as ostensibly from the binder could not be confirmed to have actually been in the binder;

· Mr. Lessard could not identify what was in the binder;

· the grievor was not sure what was in the binder;

· no other witness testified as to what was in the binder;

· a blank performance agreement was in the binder;

· a blank learning plan was in the binder; and

· it was unclear if the grievor’s correct work description was in the binder.

 

[161] In the public service, the TB and the separate agencies, including Parks Canada, operate on a fiscal year that starts on April 1 of any given year and ends on March 31 of the next year. It is well known that employees in the public service are provided, in some form or another, a performance plan or some document of the same ilk, at or around the start of any given fiscal year, which sets out for them the tasks or objectives that they are expected to achieve over the course of the coming fiscal year. As part of this process, they are given information so that they know not only their goals but also how their performance in achieving those goals is going to be measured.

[162] In conjunction with this process, employees also have learning plans that are to focus on what they and their supervisors (or management) feel would be helpful for them in carrying out their jobs and often, building skills to enhance their abilities to move into different positions within the public service. The development of the performance plan and learning plan is a cooperative one, with supervisors or managers sitting down with individual employees, agreeing on the plans, and signing off on them. In short, it is so the employee knows what the organization expects of him or her and against what standard his or her performance is being measured. For new and probationary employees, since they may not be with the organization at the start of the fiscal year, they are not left without any plans but should have put into place their plans at or very close to the start of their employment.

[163] It is trite to say that it is difficult for an employee to know what the goals are that they are to achieve and against what scale they are being measured if they are not told. In addition, it is also trite to state that in a position such as the one the grievor was hired into, which had as its project goal the establishment of an NMCA, there were many different and complex tasks, objectives, and project milestones that needed to be planned, reviewed, and assessed, and the specifics of these goals and the time frames for their achievement, based on the evidence before me, could take months, if not years. This was a job without simple set tasks and goals. The end goal, the achievement of the LSNMCA, would have been the culmination of several lesser, but still substantial, projects and goals, which from the evidence before me, appeared to be both complex and fluid in their nature.

[164] The grievor was not given a performance plan or learning plan upon her commencing in her job. In fact, she was not given a draft performance plan and learning plan until August 30, 2016. Based on the time frame Mr. Lessard used to assess her (roughly seven months), the grievor spent the first four full months without any plans. Her evidence was that when she received the performance plan, it was not at all reflective of the work she was doing or the objectives that she needed to meet. Given the complex nature of the goals and tasks involved in the creation of the LSNMCA, providing the grievor with very general draft performance and learning plans, so late into her tenure was absurd. These should have been produced to her as soon as she started, such that there was no question as to what work she was being asked to do and, what the deadlines, project milestones, and criteria were, against which she was being assessed.

[165] In addition, employees new to an organization and new to the federal public service, like the grievor, are likely not to know the peculiarities of operating within that organization. The grievor was hired as a manager. There were tasks that were critical to her being able to carry out a management role that someone from outside the federal public service just would not know until being trained. Budgets, staffing, delegated authorities, language policies, labour relations, purchasing, and briefing notes are but a few things that are particular to the federal public service that new employees and new manager employees would not necessarily have knowledge of before starting work.

[166] While the evidence disclosed that the grievor certainly grasped the larger goal of her job, or what is colloquially called the “big picture”, which was the creation of the LSNMCA, what she was not provided was the more detailed roadmap that would have told her how she was to lead this project and against what standards her work and her team’s work would be measured. I spoke about this in Slivinski v. Treasury Board (Statistics Canada), 2021 FPSLREB 35. While the facts in that case are different, the general concept is the same. In Slivinski, the grievor was suffering from a disability that affected her ability to meet the objectives of her performance plan. What was clear in the facts of that case in addressing the issue of her performance plan and goals was that her objectives were not necessarily clear, and when her disability was identified, they were not adjusted to accurately reflect the reality of the work environment and that grievor’s situation.

[167] Performance objectives for certain jobs may be very fixed and static; however, in positions such as the grievor’s, a middle-management position creating and bringing into existence an NMCA with all its inherent complexities, while the larger goal may stay the same, the building blocks or smaller subgoals that build to the larger one may be and usually are fluid and ever-changing. The grievor had no control over many aspects of the process, the least of which were negotiations with a group of 14 First Nations. This in and of itself, the evidence disclosed, was a much larger issue, as at the time the grievor started working, it appeared that a fractured and barely functioning relationship existed. The LSNMCA would go nowhere without their cooperation.

[168] Mr. Lessard was brought to the TB guidelines and the TB Directive on Performance Management. He said that he was not comfortable speaking about these documents. Mr. Lessard was asked questions about what processes and guidelines he followed in assessing the grievor that led to his decision to terminate her employment while on probation. He gave a generic answer that he did what he would have done with any other employee and that he would have had discussions with his supervisor and LR personnel to ensure that the decision he was making was in accordance with the guidelines.

[169] Given that he could not identify the guidelines or policies applicable and that he provided no evidence that he had ever dealt with any other employee on probation, let alone terminate one while on probation, I just do not believe he did anything he alluded to having done.

[170] Given the totality of the evidence, I have no doubt that Mr. Lessard’s suggestion that the grievor was given clear objectives that were explained to her was not at all accurate.

2. The grievor was provided appropriate training or was provided with the opportunity for training and did not avail herself of it

[171] It is the evidence of Mr. Lessard in this particular area that troubles me the most.

[172] While it is true that some minimal basic training had been provided to the grievor, namely, in the areas of financial management and HR, the evidence disclosed that the grievor was not provided any training whatsoever in project management. Most stunning was that there was no training for her particular to Parks Canada, its vision, strategy, policies, and procedures, let alone specifics related to NMCAs and the creation of an NMCA, and what appears to have been an integral part of this particular process, dealing with First Nations.

[173] In short, Mr. Lessard’s statement and suggestion that training had been made available to the grievor is not accurate; nor is it truthful in the least, and it is quite disingenuous. The suggestion advanced by Mr. Lessard in the Dec. 16 memo (forwarded to his supervisor, Ms. Upton) that stated, “efforts have been made to provide training opportunities when available ... the employee did not take full advantage of the training ...” and, “She received opportunities for additional training and did not follow through or communicate why she did not follow through”, are blatantly untrue. There is absolutely no evidence of this whatsoever, and the opposite is true.

[174] On August 9, 2016, the grievor wrote to Mr. Lessard about the Gros Morne workshop that was being held in late October of 2016. She said to him that it had been brought to her attention by Mr. Pelletier, who indicated that it would be valuable as it would explain how NMCAs worked and how to work with local, regional, and community groups. The grievor’s evidence was that Mr. Lessard told her that it was not a priority but did not explain why. Mr. Lessard’s evidence was initially that he could not recall the Gros Morne workshop; he then said that maybe it could have been that it was discussed. He then said that he was sure he did and then that he was not sure. He then said that it is expensive to travel to Gros Morne.

[175] Based on all the evidence I heard with respect to what the grievor’s job entailed, the description of the Gros Morne workshop seemed to be something that would have greatly assisted the grievor in learning what an NMCA was and how it was to operate, which I expect would have been key to her being able to spearhead the creation of the LSNMCA.

[176] Mr. Lessard first suggested priorities for training in the Oct. 19 email. This was a mere 6 weeks before he decided that he was going to terminate her employment. In this email, he gives the grievor 3 priority suggestions, the top priority being a 5-phase process that she was to complete within 12 months of October of 2016. This was the Manager Development Program offered by the CSPS. The evidence disclosed that the grievor had registered for this and that she was actively taking this training at the time of the termination of her employment.

[177] The second priority set out in the Oct. 19 email is for the grievor to take BN training. This is ironic, given that back in September, the grievor had written to Mr. Lessard and had requested approval for a BN-writing training course, which was not approved. She testified that for reasons unbeknownst to her, in late October, Mr. Lessard began suggesting to her that it was a priority, albeit a second priority. When Mr. Lessard testified, he said that the grievor had asked for the BN training and that initially, it had not been approved. When he was asked why it had first not been approved and then later approved, he stated that he and the grievor had had a discussion; he immediately qualified that and said that he thought they had had a discussion. He did not actually offer any explanation about why it was not approved when she asked; nor did he explain why it became a priority. BNs are used to brief upwards in the government organizational information chain. They are particular to governments and are required only by certain employees at certain levels.

[178] Finally, the third priority listed in the Oct. 19 email, and identified as a medium-low priority by Mr. Lessard, was business case training. Entered into evidence was an email sent to Mr. Lessard two days before the Oct. 19 email, on October 17, 2016, in which the grievor asked to be approved for a course on preparing a business case, which was being given on December 1 to 2, 2016, in Ottawa. The grievor was not approved for this course, and when this point was put to Mr. Lessard, he said that he did not remember. He then said that the grievor’s failure to take this course was not a factor in the decision to terminate her employment. He then said that it was a question of how many persons were taking the course and that he did not believe that the course would affect her ability to adapt to the government.

[179] Mr. Lessard said that he did not believe that the business-case course (priority no. 3) and the BN course (priority no. 2) would make the grievor a good manager; yet, these were two of the three training opportunities he recommended that she take. When he was asked if the training plan for someone coming into the public service would be different from the one for someone internal to it, Mr. Lessard said that the grievor was required to identify what she needed. He then said that the grievor was struggling with how government worked. Perhaps the number one training priority would have been the Manager Development Program offered by the CSPS, which is something she should have been put on immediately in April, not suggested some six months later.

[180] I was and still am stunned by what Mr. Lessard said about the grievor and training. The grievor had no experience in government, yet he did not provide her with a learning plan, as he was required to, or with any guidance with respect to courses that would be helpful, until six months into what would have been slightly more than a seven-month period of assessment. He then said to me that two of the three priorities he identified would not have helped her be a good manager. How was the grievor, an outsider to government, supposed to know how government processes and procedures worked, unless someone educated her on them? The only training that was available and required with respect to basic financial issues and staffing matters was taken by her early on. She then requested other training that was turned down, only to be identified by Mr. Lessard as a priority later on.

[181] With respect to Mr. Lessard’s suggestion that the grievor could have visited the Saguenay NMCA, I am skeptical of both the appropriateness and value of this. The evidence of both Mr. Lessard and the grievor was that the point in time that Mr. Lessard offered for the grievor to visit the Saguenay NMCA coincided with his vacation, when he would have been in the vicinity of the Saguenay NMCA, and that he would have accompanied the grievor at that time. The time frame was not convenient for the grievor, given her family responsibilities, so she did not go. I am unclear as to why the grievor could not attend the Saguenay NMCA at a time that coincided with her work schedule as opposed to Mr. Lessard’s vacation. I am unclear as to why Mr. Lessard thought that it was either required or appropriate for the grievor to have to attend the Saguenay NMCA at a time that was not convenient to her but during his vacation time. In any event, no other visit to the Saguenay NMCA or any other NMCA was ever coordinated or approved by Mr. Lessard until only days before he testified that he had decided to terminate her employment.

[182] What is even more striking is that the catalyst for Mr. Lessard’s termination of the grievor’s employment was her alleged apology to a representative of a First Nation. While I will address this in more detail in a later section, given that the evidence before me required the grievor, in her position, to expend a great deal of energy in relationship repairing and negotiating with 14 First Nations in the area that was to encompass the LSNMCA, there is no evidence that the grievor was provided with any training that would have enabled her to understand the “ins and outs” and the “dos and don’ts” of this process. It seems obvious to me that this would have been as good of a starting point as any with respect to training. At the very least, it would have guided her as to what Parks Canada’s policies, procedures, guidelines, and directives may be when dealing with First Nations.

[183] At one point in his evidence, Mr. Lessard said that it was up to the grievor to identify what she needed. This is not entirely accurate. A new employee is hired and should, like the grievor did, meet the basic qualifications set out in the hiring criteria. However, new employees are not going to be fully aware of all of the ins and outs of a particular job. While they should have the skill set to bring to the job that will allow them to be successful, they cannot necessarily be expected to know everything there is to know about the job, let alone what they may or may not be required to learn, to accomplish their goals in the job. As set out in the previous section, knowing what the goals are goes a long way to knowing what training is going to be needed. As set out in the previous section, this is something that should have been addressed early on in the grievor’s tenure, not six months in. When the grievor actually did identify things she thought she needed training in, they were not approved, and then only later did Mr. Lessard identify two of the same ones and note them as her second and third priorities.

[184] What is equally as troubling is that he suggested that she was not registered for the Manager Development Program offered by the CSPS, when in fact, she was not only registered but also was taking the course.

[185] It is clear to me that the allegation and suggestion by Mr. Lessard that the grievor was provided appropriate training or offered appropriate training and turned it down is false. The grievor was not provided with anything other than nominal training and nothing substantive whatsoever that was specific to her position as the site manager of the LSNMCA or that could help her achieve the goals specific to that position and to bringing forward the implementation of the LSNMCA.

3. The grievor struggled adhering to Parks Canada’s vision, strategy, policies, and procedures

[186] Earlier in this decision, I set out the Parks Canada vision as written in the IMP. There was absolutely no evidence brought forward in any document produced that disclosed that the grievor had difficulty or struggled adhering to the vision, strategy, or policies and procedures as mandated by Parks Canada.

[187] There was nothing in the testimony of Mr. Lessard in which he provided any concrete examples that disclosed that the grievor had difficulty or struggled in adhering to the vision, strategy, or policies and procedures as mandated by Parks Canada. Mr. Lessard’s mere saying it was so in a generic fashion does not make it so.

[188] It is clear from the evidence that the steps that the grievor was taking certainly appeared to be in line with the vision and strategy as well as the limited policies and procedures of Parks Canada, as disclosed to the hearing. What was also crystal clear is that while the grievor was attempting to follow policies and procedures, she was being thwarted by Mr. Lessard. I will discuss this point later when addressing the suggestion that the grievor had difficulty with respect to official languages, something Mr. Lessard suggested was one of her failures in this respect. In short, the evidence clearly disclosed that the grievor was following the Parks Canada policy and that in fact it was Mr. Lessard who was making it impossible for the grievor to fulfil her staffing obligations and to proceed with staffing pursuant to the policies.

[189] What became clear as the evidence was adduced was that Mr. Lessard was trying to micromanage the grievor, and when the grievor appeared to not do things in the manner he felt they should be done or according to some undisclosed process or procedure, a broken work relationship between the two quickly developed.

[190] While I heard some limited evidence of things that can only be described as de minimis, I was not provided with any evidence of the grievor somehow failing to adhere to policies and procedures. Mr. Lessard would say that she was not following the processes and procedures and would cite an example, such as trying to purchase a computer. However, the evidence did not disclose that these actions were failures to adhere to policies and procedures, merely examples of a new employee working their way through what can be done and how things are done. Specifically, with the computer purchase, the evidence did not disclose that the grievor was trying to purchase something that was inappropriate, or not needed. It is important to note that for someone coming from outside the federal public service, and particularly joining a separate agency such as Parks Canada, there may be specific policies and procedures to learn that are peculiar to that organization and that the grievor should have been provided with specialized training on these issues such that she could know and understand any nuanced rules and processes.

[191] As I addressed in the previous section on training, it is clear that this was not provided, and is difficult to understand Mr. Lessard’s allegations in this respect. Indeed, despite Mr. Lessard saying that the grievor did not follow procedures or policies, I was not provided any specifics of any action by the grievor that breached a Parks Canada policy, procedure, or guideline.

[192] I find that based on the evidence before me, Mr. Lessard’s suggestion that the grievor had difficulty with Parks Canada’s vision and its policies or procedures is entirely without foundation.

4. The grievor disregarded the policies surrounding official languages

[193] This area, like that of the allegation about training, is very troubling.

[194] In the Dec. 16 memo to Ms. Upton, Mr. Lessard wrote, “Ms. Hamel disagrees with the Agency’s shared vision regarding official languages and first nations [sic] relations.” While in the Dec. 16 memo, Mr. Lessard provides an example in relation to the alleged apology of November 28, 2016, this event had nothing to do with official languages. The evidence disclosed only one issue involving official languages, which I set out in detail in the facts.

[195] In short, the grievor wished to hire a person into the APD Officer position and wanted the staffing poster to have wording to the effect that being able to speak and understand Ojibwe would be an asset. The position itself was already approved as English essential and was not required to be bilingual. The evidence disclosed that this part of the country and the region had a significant indigenous population, and in addition, the grievor testified and the evidence disclosed that the relationship with the First Nations was strained. Her reasoning with respect to adding the provision about the Ojibwe language was that it could benefit Parks Canada in a number of ways, including going a long way to repairing the fractured relationship between the First Nations and the NOFU.

[196] Despite this request by the grievor, which process the grievor started in May of 2016, Mr. Lessard would not sign off on this provision in the staffing process. The evidence disclosed that despite taking all the necessary steps, including a conference call on October 14, 2016, with all the appropriate authorities, including Official Languages and HR, Mr. Lessard not only did not want to include this provision about Ojibwe being an asset on the staffing poster, but also, he was insisting on the position being bilingual. It was not until the mediation session of November 29, 2016, just three days before he decided that he would terminate her employment that he agreed that the staffing poster for the APD Officer position would have wording to the effect that knowledge of Ojibwe would be an asset.

[197] There is certainly no evidence of the grievor disregarding the official languages policy; if anything, the evidence disclosed a pattern by Mr. Lessard of thwarting the legitimate hiring of someone into a position for which the language requirement was set and approved and that was within policy.

[198] The evidence in this respect would suggest that if anyone was breaching the official language provisions, it was Mr. Lessard.

[199] I find that based on the evidence, there is absolutely no merit whatsoever to the suggestion by Mr. Lessard that the grievor was acting in a manner that was inconsistent with the Agency’s official-language policies.

5. The grievor exercised poor situational judgement

[200] The issue here is about the alleged apology that the grievor made on behalf of Parks Canada to a First Nation.

[201] As set out earlier in this decision, I have no evidence that apologizing, as it was alleged that the grievor did, was inappropriate, except for Mr. Lessard’s allegation that it was. I was provided with no policy that suggests that what the grievor did was wrong. There was no evidence brought forward that sets out what the Government of Canada or Parks Canada’s policy is with respect to negotiating with or carrying out discussions with First Nations.

[202] What the grievor said she did was that she said to a representative of a First Nation that she was sorry that this person felt the way the representative did. Mr. Lessard was not involved in the meeting at which the interaction between the grievor and this First Nation representative occurred; nor did he speak to anyone at that meeting, except the grievor. He interpreted what the grievor told him as apologizing to the particular First Nation on behalf of Parks Canada. The evidence does not reflect this.

[203] I have no evidence that what the grievor did was an exercise of poor situational judgement.

6. The grievor had a negative attitude, communicated poorly, did not collaborate, and was inefficient in executing tasks

7. The grievor was not receptive to advice and guidance from Mr. Lessard

[204] I have grouped these last two together, as they largely are in the same vein.

[205] The only evidence I have of the grievor having a negative attitude, communicating poorly, not collaborating, and being inefficient was from Mr. Lessard. Other than Mr. Lessard’s saying so, there is no other evidence and no documentary evidence from anyone identifying that the grievor had any of the difficulties that Mr. Lessard alleged she had.

[206] In the letter signed by the four chiefs and sent to the minister responsible for Parks Canada, they indicate that they had a professional working relationship with the grievor, which they developed over the months working with her. This letter certainly does not disclose that the grievor had difficulty communicating or collaborating.

[207] Given that the oral evidence before me was either from the grievor or Mr. Lessard and that with respect to many issues, including these, it was contradictory, and given all my findings with respect to the evidence of Mr. Lessard on the other issues, I am not prepared to accept his evidence on these issues.

C. The disguised discipline

[208] It is clear to me that by the mid- to late fall of 2016, the relationship between the grievor and Mr. Lessard had deteriorated to such an extent that the grievor testified that she did not want to have one-on-one discussions with him either in person or on the telephone. She testified that she was afraid for her job and afraid of Mr. Lessard. This led her to contact the V&E Centre. A mediation session was arranged for November 29, 2016. Ms. Dalton, from the Centre, would conduct the mediation, and both Mr. Lessard and the grievor testified that they had some one-on-one pre-mediation discussions with Ms. Dalton.

[209] The evidence also disclosed that the mediation session did not go smoothly; the grievor testified that Mr. Lessard yelled at her again for mentioning the Ojibwe language. Despite the rocky nature of the mediation and the relationship, two things came out of the mediation: one was that the grievor would visit a fully functioning NMCA, and two was that the staffing poster for the ADP Officer position would have wording to the effect of “knowledge of the Ojibwe language would be an asset”.

[210] The next day, the grievor had a meeting with the Red Rock First Nation, including its chief, at the band council office. As set out earlier, the evidence before me disclosed that the relationship between this First Nation and the NOFU was particularly strained. During the meeting, an incident was conveyed to the grievor by a representative of that First Nation about what was said when one of their representatives was late to a meeting with the NOFU. The representative said that the representative was told that showing up late again would meant not being admitted to the meeting; yet, at the next meeting, the Parks Canada representative showed up late, and the Red Rock First Nation representative was on time. The implication being conveyed was that there was one set of rules for Parks Canada and a different, more onerous, set for the First Nation. The grievor’s reaction to the conveying of this incident led her to say that she said to that representative that she was sorry that the representative had experienced that.

[211] The grievor was the only person who was at that meeting who testified. No one else from that meeting testified. Mr. Lessard interpreted what the grievor had done as apologizing to the First Nation on behalf of Parks Canada. I do not. The grievor’s evidence was that she did not apologize to the First Nation but that she said that she was sorry that the person had experienced that situation. More importantly, Mr. Lessard, who was not at the meeting, did not contact anyone from that meeting to see what had happened. I interpret what she said as expressing empathy for someone who experienced something that hurt that person in some manner.

[212] However, whether the grievor did apologize, as Mr. Lessard alleges she did, or she expressed empathy, as she said and I have found as a fact, is largely irrelevant, as nowhere in the evidence is there any sort of policy or procedure that would dictate that what was done or was alleged to have been done was in any way inappropriate. The only person who stated that it was wrong was Mr. Lessard.

[213] I would expect that if this was something that was important for the grievor to know going into her job, in which she would be spearheading delicate negotiations and discussions with 14 First Nations, someone would have provided her with the policies and procedures or, at the bare minimum, a list of “dos and don’ts”. Perhaps training in this respect should have been provided; perhaps it should have been number one on the list of priorities. This was nowhere to be found in any of the discussions with respect to objectives or training or in any of Parks Canada’s policies, procedures, or guidelines provided.

[214] While I appreciate that there may be some subtle nuances to discussions that the federal government and in particular Parks Canada may have in dealing with First Nations and negotiations, the fault here lies with Mr. Lessard and with no one else. Whatever the rules or processes or dos and don’ts there were, it was incumbent on him to educate the grievor on the peculiar nuances and rules so that someone coming into the particular job that she held would understand what was expected. As set out in earlier sections of these reasons, he failed to do so. He should have taken the time at the outset of her employment to set objectives and provide her with the necessary training. It was clear to me, not just in the documentary evidence or the testimony of the grievor but from the testimony of Mr. Lessard that the relationship between the NOFU and the First Nations involved in the LSNMCA project were strained. It was also clear from the evidence that incumbent on having the LSNMCA project become a reality was coming to terms with the First Nations.

[215] This alleged apology happened on November 30, 2016, one day after the mediation session. It was a session that the grievor had caused to happen due to her reaching out to the V&E Centre out of her concern about the deteriorating relationship with Mr. Lessard. Mr. Lessard admitted that he decided to terminate her employment on December 2, 2016. This was the same day he had the discussion with her about this alleged apology.

[216] I have no doubt that Mr. Lessard was upset and angry at having to go through the mediation session and, his unreasonable belief that the grievor had apologized to a First Nation on behalf of Parks Canada, together with all the other reasons set forth by him in the termination letter, were nothing more than a sham or camouflage used by him to justify his termination of the grievor’s employment for behaviour that he viewed as wrong. As I have already set out, the evidence provided by Mr. Lessard about the alleged reasons behind the termination, related to the grievor’s performance while on probation, does not withstand the test set out in Faryna. It is also clear that the reasons put forth by Mr. Lessard were put forth in bad faith in an attempt to disguise his action of terminating the grievor’s employment, which was clearly a disciplinary action for her contacting the V&E Centre.

[217] In addition, the evidence disclosed that in December of 2016, Mr. Lessard, after he had decided to terminate the grievor’s employment, tried to set up a meeting with respect to carrying out a mid-year performance appraisal. If he had serious concerns about the grievor’s performance, documentation of this should have been created and performance management should have been implemented such that the weaknesses in performance could be pointed out, discussed, and addressed much sooner in the grievor’s tenure, such that she would have the best chance to be successful in her position. I find Mr. Lessard’s evidence in this regard, like much of his other evidence, to be just not believable given not only the timing (after he had decided to terminate her) but that he said he had written up a document about her performance shortcomings, which was never produced either to the grievor, or this hearing.

[218] Mr. Lessard’s evidence, be it before me or in the Dec. 16 memo to his supervisor, was either untruthful or, at best, misleading, it was concocted as a basis to terminate the employment of the grievor, who it would appear, to him, was not doing as he said. As such, I find that the termination of the grievor’s employment was disguised discipline, and as such, it is within the jurisdiction of the Board under s. 209(1)(b) of the Act.

[219] As I have found that the termination of employment was disciplinary and within the jurisdiction of the Board, hearings with respect to discipline under s. 209(1)(b) of the Act are hearings de novo, and the burden of proof is on the employer.

[220] The usual basis for adjudicating discipline issues is by considering the following three questions (see Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1976] B.C.L.R.B.D. No. 98 (QL); “Wm. Scott”): Was there misconduct by the grievor? If so, was the discipline imposed by the employer excessive in the circumstances? If it was excessive, what alternate penalty is just and equitable in the circumstances?

[221] For the reasons that I have already set out, I found that the grievor was terminated for a disguised disciplinary purpose. As I have also set out, there was no basis on which to discipline the grievor, and as such, the employer has not established the first part of the Wm. Scott test, which is that there was misconduct. As the misconduct has not been established, and the test has not been met, the grievance is allowed.

D. Conclusion

[222] The grievor shall be reinstated into her PM-06 site manager position in the NOFU as soon as practicable, based on the assumption that she is employed in another job at the time this decision is issued. If she is not employed at the time this decision is issued, she shall be reinstated into that position immediately.

[223] If the grievor is employed in another position at the time this decision is issued, there may be notice provisions with respect to that position that the grievor is required to adhere to. Steps will have to be taken to allow her time to leave that position and be reintegrated into the Parks Canada workforce in her PM-06 site manager position in the NOFU. The parties shall immediately, upon receipt of this decision, discuss and come to an agreement with respect to the timeline of the grievor’s return to Parks Canada.

[224] The grievor shall be paid any loss of the gross amount of her PM-06 salary from the date of her termination of employment until she is reinstated into her position, less any gross salary she earned in any job she worked in after her termination of employment from Parks Canada. In calculating this amount, the parties shall ensure that the salary amount of the PM-06 position shall take into account any salary increases that the grievor would have received had she not been terminated from her position.

[225] The grievor shall be paid interest on all amounts at the rates of prejudgment and postjudgment interest set out under the Ontario Courts of Justice Act (R.S.O. 1990, c. C.43).

[226] I shall remain seized for a period of 120 days from the date of the issuance of this decision to address any issues arising out of the remedy ordered.

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

(The Order appears on the next page)

V. Order

[228] The grievance is allowed.

[229] The grievor is to be reinstated into her position as the site manager III in the employer’s Northern Ontario Field Unit at the PM-06 group and level.

[230] The grievor shall be paid an amount equal to the difference between what her gross PM-06 salary would have been from January 11, 2017, to the date of her reinstatement, less any gross salary she earned due to being employed in another position.

[231] The grievor shall be paid interest on all amounts at the rates of prejudgment and postjudgment interest set out under the Ontario Courts of Justice Act (R.S.O. 1990, c. C.43).

[232] I shall remain seized of this matter for a period of 120 days to address any issues related to the implementation of this order.

July 28, 2022.

John G. Jaworski,

a panel of the Federal Public Sector

Labour Relations and Employment Board