Date: 20220713

File: 566-34-13606

 

Citation: 2022 FPSLREB 59

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

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

Between

 

PURANDHAR SETLUR

Grievor

 

and

 

Canada Revenue Agency

 

Employer

Indexed as

Setlur v. Canada Revenue Agency

In the matter of an individual grievance referred to adjudication

Before: James R. Knopp, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Kourosh Farrokhzad, Grievance and Adjudication Analyst

For the Employer: Adam Feldman, counsel

Heard at Ottawa, Ontario,

via videoconference, August 16 to 20, 2021.

REASONS FOR DECISION

I. Overview and summary

[1] Purandhar Setlur (“the grievor”) was with the Canada Revenue Agency (“the employer” or “CRA”) for 28-and-one-half years before he was terminated for unsatisfactory performance in September of 2016.

[2] In each of the five years preceding his termination, on his performance evaluations, he did not meet expectations, and he was subject to performance-improvement and action plans. He received training and was paired with experienced mentors to improve his performance, all to no avail.

[3] The grievor felt harassed and micromanaged. He felt his shortcomings received a disproportionate amount of attention and that his successes were overlooked.

[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 and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

[5] The grievance was referred to adjudication pursuant to s.209(1)(d) of the Act and was heard in a videoconference on the Zoom videoconferencing platform from August 16 to 20, 2021, inclusively.

[6] The grievor was represented by a Grievance and Adjudication Officer from the Public Service Alliance of Canada. During the hearing, the grievor made many comments about discrimination related to race and age, but also indicated, more than once, that his grievance did not contain an allegation of discrimination. I also note that the grievor did not provide notice to the Canadian Human Rights Commission of the issue. As a result, I will not refer to or comment on that particular evidence in the decision.

[7] For the reasons that follow, the grievance is denied. It was reasonable for the employer to find the grievor’s performance unsatisfactory.

II. Summary of the evidence

[8] The grievor was part of what is known as the Refund Integrity Team at the CRA, which deals with taxpayers who have registered for a goods and services tax (GST) number. For this reason, these taxpayers were referred to throughout the hearing as “registrants”.

[9] Registrants, when they file a GST return, expect a refund. Frequently, they rely on the GST refund to meet their expenses and to pay salaries, so they hope for a quick turnaround when they file their returns.

[10] For this reason, examiners do not need to spend much time tracking them down, as the registrants are eager to receive their refunds and frequently contact the CRA of their own accord to check on the progress of their files.

[11] The refund integrity team of which the grievor was a part usually had from six to nine examiners. The work consisted of auditing and processing registrants’ files. The examiner would send out an initial contact letter to the registrant seeking documents. Upon receipt, the examiner would review them, and they would form part of the file. The audit consisted primarily of reviewing the information, to confirm if it was consistent with what the registrant was being asked for on their tax return.

[12] The employer’s witnesses testified that these files are not complex.

[13] All witnesses referred frequently to INTEGRAS, which is software that pulls working papers, such as letters, spreadsheets, diary notes, reviews, and other documents, from a database to allow work to be performed or reviewed.

[14] The grievor’s performance was assessed as satisfactory for the fiscal years 2007-2008, 2008-2009, and 2009-2010, when he was supervised by Hans Hubert, who retired in 2010 and did not testify at the hearing.

[15] Richard Friel took over the role as supervisor in 2010/2011, at which time he documented the grievor’s failure to meet expectations in some areas. Mr. Friel did not testify at the hearing.

A. Performance from September 1, 2010, to August 31, 2011

[16] In this performance report, Mr. Friel indicated that the overall assessment was “Results Do Not Meet Expectations” and that an action plan had been prepared to address the grievor’s documented shortcomings. Under the heading, “Complete budgeted number of audits”, the following comment appears, in part: “Purandhar has not met this objective. Purandhar completed 16 ... cases with much assistance from his team leader... It is expected that SP5 office auditors complete a minimum of 47 cases ...”.

[17] In this same assessment, under the heading “Manage workload”, the following comment appears, in part: “Purandhar has not met this objective. Purandhar’s completed cases averaged 50.5 hours per case that is in excess of the budgeted 22 hours per case... Purandhar’s average days for completed cases were 207 days that is above the target of 180 days.”

[18] That same paragraph indicates as follows:

Results confirm that audit effort is inconsistent, not focussed and not directed to areas of risk. The statistics illustrate that Purandhar has difficulties in managing and bringing his cases to a conclusion on a timely basis and, consequently, has not met the target budgeted hours (22) or average elapsed time of 180 days.

 

[19] Under the heading “Excellence in Program Delivery/Audit Quality”, Mr. Friel wrote, “Purandhar has not met this objective.” The following comments appear:

... came to my team July 19, 2010.

... inventory [was] 25 category 1 rental cases.

... stored his cases in a disorganized manner in a 2 drawer cabinet.

... away from his desk often, socializing or distracted by activities not job related ...

... Assigned tasks ... took excessive time for completion.

... having difficulty with elements of quality. Letters often required editing ....

... audit effort ... not consistent [sic] with applied hours.

... There is a troubling lack of concern and sense of urgency considering his performance. Although he is periodically reminded about budgeted time, he continues to book excessive hours to his cases, even after his action plan was implemented.

... usually required assistance in planning the audit and audit conclusions.

... Written communication ... not always easily understood, or composed with appropriate language.

 

[20] Under the heading “Active participation and support for a positive and cooperative working environment”, Mr. Friel wrote, “Purandhar has not met this objective.” The following commentary appears:

... does not competently and effectively contribute to the team’s common goals and performance.

... does not conduct himself in a manner that fosters and contributes to a positive team environment.

... cannot be said that he works effectively in any way.

... started an action plan ... He has agreed to strive to reduce applied and elapsed time as well as improve quality through corrective actions and changes to workload as noted in the action plan... The new workload assigned at the SP5 level is intended to assist Purandhar to meet his goals. Applied hours continue to be excessive since the implementation of the action plan.

 

B. Performance from September 1, 2011, to August 31, 2012

[21] Mr. Friel also completed this performance appraisal. For objective 1.1, “Complete budgeted number of audits”, Mr. Friel wrote, “Purandhar has not met this objective”, and added, “Purandhar completed 17 regular program 42 cases with considerable assistance from his team leader during period. It is expected that SP5 office auditors complete a minimum of 47 cases based on budgeted audit
hours ...”.

[22] For objective 1.2, “Manage workload”, Mr. Friel again wrote, “Purandhar has not met this objective”, and added, “Purandhar’s completed cases averaged 94 hours per case that is in excess of the budgeted 22 hours per case and a marked increase over the previous fiscal period... Results are not commensurate with the complexity.”

[23] Mr. Friel also wrote:

... As part of the action plan, Purandhar was assigned less complex limited review category 9 cases (self employed individuals on a commission basis). The audits were restricted to 4 or 5 high risk current year expenses. This workload was intended to reduce complexity and thereby reduce applied and elapsed time. As well, expectations regarding working papers, letters and report were agreed to. He was provided all required templates for his work. There was also expectation for Purandhar to control the decisions and outcome of his examinations, again with the intent to reduce interruptions and delays as well as reducing applied and elapsed time. Unfortunately, this has not resulted in a reduction to applied and elapsed time.

 

[24] Mr. Friel rated the grievor as having met the objective of “Appropriate application of audit policies and procedures, tests, assessing techniques and legislative tools”.

[25] Mr. Friel rated the grievor as “mostly meets” the objective of “Excellence in the workplace”, but with respect to “Active participation and support for a positive and cooperative working environment”, Mr. Friel rated him as “has not met this objective”, and added the following commentary:

Purandhar does not competently and effectively contribute to the team’s common goals and performance. He does not conduct himself in a manner that fosters and contributes to a positive team environment. Purandhar is cooperative with his team leader. Purandhar does attend meetings and participates. It cannot be said that he works effectively in managing applied and elapsed time.

 

[26] The final page of this performance evaluation indicates that an action plan is required. The evaluation concludes with this:

...

... The quality of Purandhar’s work is improving. Unfortunately, applied and elapsed time continue to be excessive since the implementation of the action plan. Overall, Purandhar has not met performance expectations as a Senior Office Examination Officer.

 

C. Performance from September 1, 2012, to August 31, 2013

[27] Mr. Friel again assigned an overall assessment of “Results Do Not Meet Expectations”.

[28] Under the heading, “Complete budgeted number of audits”, Mr. Friel wrote:

Purandhar has not met this objective. (Results Do Not Meet Expectations)

Purandhar completed 11 regular program 42 cases with considerable assistance from his team leader during period. It is expected that SP5 auditors complete a minimum of 47 cases ....

 

[29] Under the heading for objective 1.2, “Manage workload”, Mr. Friel wrote, “Results Do Not Meet Expectations” and included this comment:

...

... completed cases averaged 87 hours per case that is in excess of the budgeted 22 hours per case... All cases exceeded the budgeted hours ....

... average days for completed cases were 454 days that is above the target of 180 days... Results confirm that audit effort is inconsistent, not focused and not always directed to areas of risk. The statistics illustrate that Purandhar has difficulties in managing and bringing his cases to a conclusion on a timely basis and, consequently, has not met the target budgeted hours (22) or average elapsed time of 180 days....

 

[30] Still under that heading, Mr. Friel stated, “Purandhar has not met this objective. (Results Do Not Meet Expectations)”. Mr. Friel commented, “Purandhar’s completed cases averaged 87 hours per case that is in excess of the budgeted 22 hours per case, a slight decrease over the previous fiscal period. All cases exceeded the budgeted hours ...”. Mr. Friel added:

There were no extenuating circumstances or reasons that caused any significant impact on applied or elapsed time. Results confirm that audit effort is inconsistent, not focused and not always directed to areas of risk. The statistics illustrate that Purandhar has difficulties in managing and bringing his cases to a conclusion on a timely basis and, consequently, has not met the target budgeted hours (22) or average elapsed time of 180 days....

 

[31] Mr. Friel indicated that the grievor met the objective of “Appropriate application of audit policies and procedures, tests, assessing techniques and legislative tools” and that he mostly met the objective of “Ensure all Agency initiatives, policies and values are supported ...”.

[32] Under the heading, “Objective 3.2 Active participation and support for a positive and cooperative working environment”, Mr. Friel wrote, “Results Do Not Meet Expectations”. His comments include the following:

... does not competently and effectively contribute to the team’s common goals and performance.

... does not conduct himself in a manner that fosters and contributes to a positve [sic] team environment.

... It cannot be said that he works effectively in managing applied and elapsed time.

 

[33] In the section of the report entitled, “Supervising Manager’s Summary of Performance”, Mr. Friel wrote this:

Purandhar has been on an action plan during the period. He has agreed to strive to reduce applied and elapsed time as well as improve quality through corrective actions and changes to workload as noted in the action plan... The new workload assigned at the SP5 level is intended to assist Purandhar to meet his goals. This is a simplified workload with a reduced scope and a simplified approach with close team leader monitoring.

Purandhar has taken more ownership and control of his cases with less team leader involvement during the period. The quality of Purandhar’s work is improving. Unfortunately, applied and elapsed time continue to be excessive since the implementation of the action plan. Overall, Purandhar has not met performance expectations as a Senior Office Examination Officer.

 

[34] The grievor testified to a difficult working relationship with Mr. Friel. In particular, he referred to an incident in March of 2013 after he applied for a promotion which stipulated, “Candidates must have the support and approval of their supervisor”. He sought Mr. Friel’s support and approval but did not receive it. He described Mr. Friel’s reaction to his request in an email dated May 22, 2013. Mr. Friel arrived unexpectedly at the grievor’s workstation, where he openly questioned the grievor’s ability. In this email, and in his testimony, the grievor stated that he felt Mr. Friel ridiculed him.

[35] The grievor testified to his opinion that Mr. Friel was biased and gave him negative assessments because of the conflict between them.

D. Performance from September 1, 2013, to August 31, 2014

[36] This was the last performance report that Mr. Friel completed. The following appears at page 5 of the assessment, showing the category names on the left and Mr. Friel’s evaluation of each on the right:

Ownership of Responsibilities ... Not Demonstrated

Policies and Procedures ... Occasionally

Works within Time Frames ... Not Demonstrated

Prioritizes work ... Not Demonstrated

Maintains Required Skills ... Occasionally

Positive Work Environment ... Rarely

Works well With Others ... Occasionally

...

 

[37] In the section entitled “Summary of Core Performance”, Mr. Friel wrote:

Purandhar completed 9 regular program 42 cases with considerable assistance from his team leader during period. It is expected that SP5 office auditors complete a minimum of 47
cases ....

...

Purandhar’s completed cases averaged 145 hours per case that is in excess of the budgeted 22 hours per case, a marked increase over the previous fiscal period. All cases exceeded the budgeted hours ....

Purandhar’s average days for completed cases were 510 days that is above the target of 180 days ....

There were no extenuating circumstances or reasons that caused any significant impact on applied or elapsed time.

...

 

[38] On April 4, 2014, a performance improvement plan was implemented, specifying the area in which improvement was expected.

[39] For September 1, 2013, to August 31, 2014, Mr. Friel assessed the grievor’s overall core performance as unsatisfactory and not meeting expectations.

[40] Mr. Friel documented the grievor’s attendance issues, suggesting they might be contributing to his poor performance. Mr. Friel required the grievor to report the times of his arrivals at work, break periods, and departures from work.

[41] Gordon McCutcheon supervised the grievor for approximately one year, as Mr. Friel approached retirement. Mr. McCutcheon was in frequent contact with Mr. Friel about the grievor’s performance deficiencies. He testified that Mr. Friel, who usually had between seven and nine members on his team other than the grievor, spent two-thirds of his time managing the grievor’s poor performance.

[42] Mr. McCutcheon and Mr. Friel met with the grievor on October 9, 2014, to discuss his attendance issues as well as his lack of progress under the performance improvement plan that had been implemented six months earlier. In an email dated October 10, 2014, Mr. McCutcheon advised the grievor that “... we have seen no improvement...”.

[43] Mr. McCutcheon questioned whether medical reasons might underlie the grievor’s performance deficiencies. The grievor replied that there were none. Mr. McCutcheon concluded his email with a summary of their discussion and added the following warning:

I emphasized the seriousness of the situation. I indicated even with a lower grade/level workload, you are not meeting your performance objectives. I indicated that the next six months will be critical to show improvement. I indicated that if no measurable improvement was demonstrated that further action may result, including demotion or termination of employment.

 

[44] In the email, Mr. McCutcheon committed to additional training to help the grievor meet expectations.

[45] Basil Cole testified to providing learning events that the grievor attended. He referred to the grievor’s training record, which confirmed three different orientation sessions, on May 5 to 8, 2013, May 19 to 22, 2015, and January 5 to 8, 2016. Mr. Cole testified that normally, employees were given these sessions only once, because they are designed to familiarize new employees with the necessary audit practices and procedures. This course gives them the tools they need to do the job. Mr. Cole drew no negative inference, and suggested that none should be drawn, from the fact that the grievor took it three times. Whenever the grievor was a student of his, Mr. Cole found him interested and engaged and a good student.

E. Performance from September 1, 2014, to August 31, 2015

[46] On December 22, 2014, Elaine Armstrong-Kyne took over the grievor’s supervision from Mr. Friel. She testified to being aware of the grievor’s performance issues. She felt that he spent an inordinate amount of time away from his desk, socializing or preparing meals. She was also aware of his expressed opinion that some of his performance issues might have been attributable to a knee injury. She wrote him a memo dated March 10, 2015, in which she referred to these concerns as follows:

...

I realize you may be suffering pain at the moment, however it is still possible for you to be responsible to your employer for the quality and quantity of your work.

I have already provided you with your current performance review, and noted that you spend less than 70% of your time in the workplace actually working.

...

The purpose of this email is to place you on notice that if I observe repeated, unwarranted absences from your work space, when you should be working, discipline up to and including a requirements letter will be issued requiring you to report all breaks, lunches and absences from the work place [sic].

My goal is to assist you in increasing both the quality and quantity of your file work. If you are not well, and unable to be in the work place [sic] you should be seeking assistance from ... a medical practitioner and availing yourself of sick leave.

...

 

[47] Ms. Armstrong-Kyne testified to seeing the grievor use a walking stick from time to time, but she did not receive a doctor’s note or request for accommodation for his knee injury. When she did not see his habits improve, she obliged him to report his arrival and departure times from work as well as his break times throughout the working day. She testified that he complied with her directions but that over the brief period she supervised him, she did not notice an improvement in his performance.

[48] On March 12, 2015, Ms. Armstrong-Kyne emailed the grievor, detailing some errors she had noted in certain files and specifying the changes he had to make. She testified that the errors were characteristic of the typographical, calculation, and analytical errors she continually saw in his work.

[49] In April of 2015, Ms. Armstrong-Kyne placed the grievor on an improvement plan. Under the heading “Required Performance Improvement”, she wrote:

Planning and Conducting: Focus on the risk. Continually assess the $ [sic] value of the item under review.

Professionalism: Avoid delays in responding to registrants and their representatives.

Timeliness: Days outstanding and hours are excessive.

 

[50] It specified the required corrective actions:

Decrease the hours and days outstanding on cases by following up in a timely manner.

Decrease the hours on “no change” files. In cases where you have multiple periods for the same registrant, charge hours to 1 case only. If you do not get a change, the remaining cases can be downscreened [sic].

Downscreen [sic] files where the risk is minimal.

 

[51] Finally, it described some performance indicators:

· Hours on completed cases should be commensurate with the audit work on the case (in accordance with Program Expectation of an average of 8 to 10 hours)

· Reduction in the Average Days Outstanding per Completed Case and current inventory age (movement towards 75 days commensurate with nature and circumstances of the case).

· Reduced time spent completing low/no change cases

· Appropriate use of down screening tool per policy.

· Examiner will document the reasons for delays (hours and days) and have regular discussions with the Team Leader.

...

 

[52] Ms. Armstrong-Kyne completed the grievor’s annual performance assessment for September 1, 2014, to April 27, 2015. Her overall assessment was “Level 2”, which meant he failed to meet the expectations of his position. This rating was quantified in a series of drop-down responses for the following categories, entitled “Fundamental Performance Indicators”:

Ownership of Responsibilities ... Not Demonstrated

Policies and Procedures ... Rarely

Works within Time Frames ... Not Demonstrated

Prioritizes work ... Rarely

Maintains Required Skills ... Occasionally

Positive Work Environment ... Occasionally

Works Well with Others ... Occasionally

 

[53] Ms. Armstrong-Kyne’s comments on the evaluation form are extensive and refer specifically to performance deficiencies in specific files. This year-end evaluation contains the note, “Employee was informed March 3 2015 that he did not meet the goals and objectives of his position for the mid term review.”

F. Performance from September 1, 2015, to August 31, 2016

[54] Ms. Armstrong-Kyne ceased to be the grievor’s supervisor on April 27, 2015, at which time Lorraine Brugaletta took over. Ms. Brugaletta was aware of the improvement plan that Ms. Armstrong-Kyne had implemented and measured the grievor’s performance against the deficiencies noted in that plan. She testified that she knew of the grievor’s attendance issues but stated she did not feel they were still a factor in his non-performance.

[55] Ms. Brugaletta testified to leading a team of six to nine members, including the grievor, and to spending a disproportionate amount of time supervising him. She found his work needed extensive review because of the number of calculation and analysis (as well as typographical) errors. He frequently got simple things wrong, like dates and addresses. She testified to her frustration at pointing out to him how simple it would be for him to just proofread his work to eliminate such errors. She saw no improvement after making this suggestion.

[56] In May of 2015, she asked him to send initial contact letters on five files. Each letter had errors and had to be redrafted. The errors were small, but had the letters been sent, they would have appeared unprofessional.

[57] Ms. Brugaletta testified to the difficulty she experienced getting the grievor to consistently and methodically advance his files. She mentioned long periods in which the CRA received documents related to his files, which he did not review. He did not keep his files current.

[58] The grievor prepared submissions in advance of a September 14, 2015, performance management meeting. They consisted of eight single-spaced typed pages and included a lengthy and detailed summary of his public service career. He also summarized his successful appeals of both Public Service Commission and Federal Court rulings about a 1996 job selection process. Also included were summaries of conflicts with his previous supervisors.

[59] Rob Coelho and Andy Schmaus, both directors, testified that they did not feel the grievor’s eight pages of comments pertained to the performance management issues that were being brought to the grievor’s attention in September of 2015. Mr. Schmaus characterized these submissions as a “smokescreen” — an attempt by the grievor to deflect attention from his performance issues. As a result, management took no action on any of the issues that the grievor raised in his letter.

[60] Ms. Brugaletta described how, in November of 2015, the CRA received 12 sets of documents related to the grievor’s files and how for 11 of them, no action had been taken. As a result, the timelines were pushed back, and new files could be assigned not to him but only to others.

[61] A couple of times, she suggested that he create a simple reminder system in Outlook’s calendar to help him control his file inventory and meet deadlines. To her knowledge, he never did it.

[62] In an email to Mr. Schmaus dated January 28, 2016, Ms. Brugaletta summarized the performance management issues she experienced with the grievor, including examples of the types of errors he made and the difficulties he experienced completing his files in a timely manner.

[63] The grievor’s performance improvement plan, effective from January 29, 2016, to August 31, 2016, specified the core performance issues which resulted in Ms. Brugaletta rating him as not having met expectations.

[64] Ms. Brugaletta, along with Fiona Glanville, the section manager, met with the grievor on January 14, 2016. Again, his performance deficiencies were brought to his attention, and the performance improvement plan’s objectives were discussed.

[65] In his response to the meeting, on February 24, 2016, the grievor wrote a long letter to Ms. Glanville, which included the following:

...

You may vividly remember that my team leader, Ms. Lorraine Brugaletta ... asked me whether I took help with my files from her team. I told her that I took help from Mr. [GK] and Ms. [CL] to which she immediately blurted out that I not go to CL in future, but instead, go to GK and Mr. Basil Cole. I asked whether CL was incompetent and LB had no answer and you looked on passively. Besides GK kindly answering my questions when needed, on my files, CL too was very helpful to me and she even went further to hand me a copy of INTEGRAS NOTES – REVISED FEB 2015 to refer to in using the INTEGRAS program to review and close a file. LB, GL and [Mr. Cole] are Caucasians and CL and myself are Brown. I have a reasonable apprehension of bias on the part of LB against CL and myself on the basis of the colour of our skin that I believe to permeate in her review of our files, especially mine, in the workplace, since I started in Refund Integrity on or about May 1, 2015.

I was certified sick the week of February 1^st 2016. On Wednesday, February 3, 2016, at 9:04 AM, [Ms. Brugaletta] sent an e-mail to me that she retrieved documents from my filing cabinet after receiving a complaint against me from a registrant. She added that it was in the presence of your administrative assistant ... and [Mr. Cole]. In her e-mail she even thanked [Mr. Cole] for taking the file. I returned to the office on Monday, February 8, 2016 and [Ms. Brugaletta] failed to update me with the nature of the registrant’s complaint, a courtesy that extends both ways in such instances.

I normally scan registrants’ documents almost immediately upon receipt depending upon the availability of a scanner. In this particular complainant’s case, the documents were already scanned and [Ms. Brugaletta] could have easily printed the documents from my WIP without resorting to accessing my file cabinet in the presence of other employees thereby humiliating me during my absence on certified sick leave. I was also led to believe that Mr. Andy Schmaus, Assistant Director of GST/HST, was an onlooker. It is to be noted that team leaders have access to their team files on INTEGRAS while working on them or not.

I vehemently believe that the onslaught on my file cabinet to retrieve documents of the registrant complainant by [Ms. Brugaletta] was simply a fishing expedition by her thereby violating the Ontario Region Values and Ethics of the Canada Revenue Agency ... on the much advertised ... (Professionalism, Respect, Integrity, and Cooperation). It is plausible that something could be planted in my file cabinet by [Ms. Brugaletta] in future thereby placing me in a situation necessitating severe disciplinary action by the senior management.

It is not easy to go to work everyday with butterflies in my stomach worrying about whether I am dotting the i(s) and crossing the t(s) correctly so as not to be picked upon daily. No matter how much I try my best to do my job within the guidelines of the Refund Integrity program, I am of the firm belief that there is a reasonable apprehension of bias against me on the part of [Ms. Brugaletta] that is supported by the following excerpt, inter alia, from my own court case represented by myself in docket number A-165-99 at the Federal Court of Appeal, Canada.

“[27] The appellant does not have to prove actual bias, and the Court does not have to seek it out. Rather, he has the burden of satisfying the Court that a reasonable apprehension of bias existed in the circumstances of the case. Having regard to the objective facts and the concurring submissions of counsel that a reasonable apprehension of bias has been raised, he has discharged this burden.”

In view of the above, I expect your office to intervene by taking corrective action to remove the harassment, and humiliation because of my colour and age by individuals and team leaders like [Ms. Brugaletta] who flout at the established Values and Ethics of PRIC of the CRA.

It is to be further noted that I was unable to compose this letter at the office and send it yesterday because of work-related time constraint.

[Sic throughout]

[Emphasis in the original]

 

[66] Ms. Brugaletta was questioned about opening the grievor’s file cabinet while he was on sick leave. She testified to a query she received from a registrant about the status of its file, which the grievor was working on. To respond to the query, she had to see documents that apparently the grievor possessed but had not scanned or uploaded. Had they been scanned and synchronized properly, she testified, she would not have had to resort to unlocking his cabinet to retrieve them.

[67] The grievor testified as follows: “To the best of my knowledge, I scanned and synchronized the documents properly.” Therefore, he felt the documents were available electronically for management’s review. He maintained that Ms. Brugaletta’s sole purpose behind going into his file cabinet was to humiliate him in front of others.

[68] Mr. Schmaus and Mr. Coelho testified to taking the grievor’s age- and race-related bias allegations seriously. In a meeting with the grievor on March 7, 2016, Mr. Schmaus asked him to substantiate his claims.

[69] In his testimony, the grievor acknowledged that his grievance, which is the subject of this hearing, does not contain discrimination allegations on the basis of age or race. When asked about what he had written in his February 24, 2016, letter, he replied, “I want to take it back. I don’t know why I wrote that.”

[70] Mr. Schmaus testified that he concluded his investigation fairly quickly, in the absence of any evidence substantiating the grievor’s claims of bias. He reiterated that the grievor’s complaint seemed to be another smokescreen intended to deflect attention from his poor performance.

[71] On February 29, 2016, Ms. Brugaletta summarized a performance management meeting held the same day with the grievor. She wrote the following:

...

Today at 3:15 we met in the small boardroom to discuss the Performance Review and the Personal Improvement Plan that I provided to you on Jan. 29^th, 2016. To date you have not acknowledged these documents in ESS. As per our agreement today, you will review them in ESS, make your comments and return both documents to me by noon on Monday March 7^th, 2016.

Today we discussed the rating of “Does Not Meet” in your performance review for the period Sept. 1, 2015 to Jan. 29, 2016. In addition, we discussed the areas where you need to improve. All areas where you need improvement are detailed in your Personal Improvement Plan, which we reviewed in depth. I provided you with a paper copy of both of those documents today and you acknowledged receipt by signing them.

We discussed the consequences of not meeting your goals. The consequences are demotion or termination.

Finally, we both agreed that the best outcome is to completed [sic] your files within the required time frames and in accordance with the six elements of quality.

...

[72] Ms. Brugaletta testified to frequent meetings with the grievor over his performance from April of 2015 to September of 2016. She frequently had to prioritize his work for him. It was the only time in her CRA career that she ever had to do that for a subordinate.

[73] Not only did the grievor’s performance fail to improve, testified Ms. Brugaletta, it actually became worse. Instead of processing his files faster, he took longer. The gravity of the situation increased, which she brought to his attention, but she felt that no matter how many times it was pointed out to him, it did not seem to make a difference.

[74] The grievor responded to each and every deficiency that Ms. Brugaletta pointed out in the latest performance review. With respect to the errors on his written work, he wrote:

...

... Not dotting the i(s) and crossing the t(ees) do not constitute multiple corrections when the Management ... put pressure on examiners to complete files assigned on a day and expect to be completed the previous day. The position of team leader ought to be redundant in an “Utopian office” where all files are expected to be free of errors.

...

... When the pressure is on the examiners to complete files assigned one day and expected to be completed the previous day, errors are bound to occur from examiners. I reiterate that [Ms. Brugaletta’s] position as team leader would be redundant if all files completed by examiners were expected to be perfect.

...

[Sic throughout]

 

[75] With respect to spending an average of 34 hours on files even though the standard was 8 to 10 hours, the grievor wrote:

...

... It is to be noted that the time sheet records time as follows: .25, .50, .75, 1.00 etc.. Recording time in minutes is not possible. Telephone calls from registrants need to be entered on Memo for File (“T2020”) and a call that is just a minute or two takes up .25 hr. on the time sheet. This can add up hours on a file to skew the average.

...

Management very rarely equate [sic] complexity on a file for they consider every file to be easy....

...

 

[76] The grievor claimed that his knee surgery and the sick leave taken during his recovery affected his productivity. Ms. Brugaletta testified that he was absent from June 17 to August 21, 2015, for his knee surgery and that upon his return on August 24, 2015, she spoke to him about his file inventory, in particular about letters that had to be sent on each file. It was a priority task. She reminded him that the letters had to be sent the following day, on August 25, 2015. By the end of the day on August 26, 2015, they had still not been sent.

[77] With respect to Ms. Brugaletta’s observation that he had to have his work prioritized for him, the grievor wrote the following:

...

... When a file is being worked on it is difficult to do multi-tasking by jumping to documents received one after another and reviewing them simultaneously. The train of thought of working on a file gets lost. Moreover, the Examination Report (“ER”) on INTEGRAS requires repetitive information that cause delays in completion of files. [Ms. Brugaletta’s] latest e-mail requires same information contained in the Conclusion section of the ER to be repeated on Business Number (“BN”) notes. This adds to the time charged on a file. I could not object to the prioritization of my inventory by the team leader as that would be tantamount to insubordination.

...

 

[78] Ms. Brugaletta testified that every examiner faced those same issues. No other examiner had the same degree of difficulty as the grievor did in meeting deadlines and completing files in a timely manner. The expected average of 8 to 10 hours per file had been calculated by observing the work product of many examiners over a period of many years. The grievor’s average of 34 hours was more than triple the time needed, on average, to do the work.

[79] On March 7, 2016, the grievor met with Mr. Schmaus and Ms. Glanville, with two union representatives present. Mr. Schmaus sought additional facts about the grievor’s claims of race- and age-related bias in his February 24, 2016, letter.

[80] In response to the March 7, 2016, meeting, on April 12, 2016, the grievor sent Mr. Schmaus a very long, 16-page single-spaced letter. In the second paragraph, the grievor stated, “The diabolic Management culture of ... CRA has not changed at all.”

[81] The grievor went on to itemize what he felt were incidents of workplace harassment. First, he referred to an email from Mr. Schmaus instructing him to attend a meeting about his performance review. He wrote as follows:

...

Although your office has the right to discuss with me my work, it is apparent that your office along with your subordinate offices are and were waiting for any and every opportunity (especially after my return from sick leave or vacation) to pounce upon me like a tiger and tigresses waiting for their prey. When I came to work that day from my vacation with butterflies in my stomach, I didn’t know what was in store for me, how it was going to unfold during the day, the following days, and what transpired with collusion against me, among your three offices, during my absence. It happens every morning when I come to work. Yes, this kind of repeated spewing out of uncouth Management behaviour has very negative effect on any employee’s energy, performance, personal life, health, which extends to the immediately related family, their lives, their health, and their well-being....

...

[Sic throughout]

[Emphasis in the original]

 

[82] With respect to deadlines, the grievor wrote this:

...

... the actions of your office and your subordinate offices are only hindering the RI programme goals ... rather than allowing Examiners, the likes of myself, to work on their files calmly and diligently to earnestly attempt to meet the targets set. I can name, give details, and defend the specific files that I worked on where hours were forced upon them by my team leader, [Ms. Brugaletta], only to call upon me later for repeated meetings on my work performance. According to the Management, assigned hours and quality on a file must be met to get a positive performance review. The Management, to uphold the RI mandate of the HO, expects a robotic automotive assembly line operation from Examiners in order for them to meet the assigned hours and get a positive performance review. In other words, a file assigned on a particular day is expected to be completed the “previous” day. Hypothetically, it is possible only in a Utopian RI environment where an Examiner needs to travel faster than the speed of light....

...

 

[83] The grievor also wrote:

...

I vehemently hesitate to let your office or your subordinate offices to what I believe to be your intended goal of frustrating and repeatedly discriminating against and harassing me to the extent of forcing me out involuntarily.

The Courts are normally hesitant to award the taking away of a person’s livelihood where sufficient, and satisfactory causes to the Court are not established.

No employee; Commissioner, Director, Manager, or a low level employee; is a majority shareholder or has permanence at the CRA that is a quasi-government entity formed for the intended benefit of the Canadian society at large. I am at the fag-end of my career with the CRA, the clock is ticking on my desk and only the next season will tell me whether to turn its hands backward and remove the battery or wait until the following season to turn it forward and keep going. The ruffled raven, that I love, is well perched on my divider wall and with it I’ll fly when we mutually agree to do so leaving behind the ugly Management culture behind and moving on like in the late Frank Sinatra song, I did it, My Way, the beautiful lyrics of which penned by Paul Anka.

...

[Sic throughout]

 

[84] The grievor then described some of his successes as an examiner assisting clients and their gratitude toward him.

[85] He also referred to his knee surgery and other medical ailments in this letter.

[86] The grievor acknowledged he had written a “long, long letter”. He concluded: “You sought facts. I have given facts ... from the past, present, and hopefully may not have more to give in the future depending upon the action taken by your office.”

[87] Mr. Schmaus testified to his reaction to the grievor’s April 12, 2016, letter. He felt that the grievor had not substantiated any bias, discrimination, or harassment allegation. Mr. Schmaus restated his opinion that this was simply a smokescreen and a diversion from the real issue, which was a team leader trying to get him up to speed. Mr. Schmaus felt that nothing in the letter warranted an investigation and dismissed the grievor’s allegations.

[88] Mr. Schmaus issued a performance letter to the grievor dated April 13, 2016, entitled, “Performance Warning Letter”, and it opens with the following:

...

On September 14, 2015, you met with Rob Coelho, Director, Toronto West Thunder Bay TSO and Fiona Glanville, Manager, to discuss management’s concerns related to your five consecutive Does Not Meet performance assessments for the periods from September 1, 2010 to August 31, 2015. For the period in question, you were assigned to workloads as an SP05 Income Tax Auditor and as an Excise Tax Auditor/Examiner. These two positions required you to perform similar duties.

The purpose of this letter is to inform you that you are not meeting the performance requirements of your position, and to advise you of the consequences that will be triggered due to the continued failure to meet these requirements.

... The deficiencies in your work have been identified in the following areas:

Planning and conducting examinations:

· When conducting examinations, the focus should be on the areas of risk. This will avoid processing changes under $500 or those with multiple periods and low potential.

The end product:

· The letters and examination reports should support the findings and be clear and accurate.

· Files have not been actioned on a timely basis. The time charged to files and the days outstanding on your files are above what can reasonably be considered to be commensurate with the complexity of the issue.

Professionalism in dealing with registrants:

· When records are received, they should be prioritized and reviewed on a timely basis in order to avoid situations in which registrants call to inquire about their refund.

You joined the GST/HST division on April 27, 2015. Since then, you have been provided with the following training:

Course / Learning Event	Date
Self Study - GST/HST	Apr. 27-30, 2015
Orientation to Refund Integrity	May 5-8, 2015
Orientation to Refund Integrity	May 19-22, 2015
INTEGRAS Training	Sept. 17, 2015
Refund Integrity Town hall - Mapping Process	Nov. 2, 2016
Orientation to Refund Integrity	Jan. 5-8, 2016
HQ1083-000 Penalties ETA	Feb. 9-11, 2016

 

The training received May 5-8, 2015 was repeated January 5-8, 2016, because you advised your team leader that you would benefit from retaking the course. You were taught the legislation applicable to your position and provided with INTEGRAS systems training. Your team leader also provided you with job aids (Excise Tax Act references), as well as ongoing feedback on your work.

You have met with your team leader on several occasions and have been advised on a regular basis in regards to the status of your files and what actions and next steps should be undertaken. Your team leader has discussed with you the management and prioritization of your workload; provided you with advice and Outlook tools to help you prioritize your workload in order to process your files within the required timeframes.

Your team leader has also discussed with you her concerns that your examination reports and letters contain inaccuracies such as: technical and grammatical errors, incorrect addresses, business number or errors in the amounts being disallowed. These errors increased the time it took to process the file because the reports and letters had to be sent back for corrections. This negatively impacted the quality and quantity of output required to meet performance objectives and expectations.

You have been provided with extensive training, both formal and on-the-job, as well as one-on-one coaching by your team leader and mentor to improve your performance and meet the requirements of your position. Your have been informed of the requirements of your position as well as the established goals and objectives. Feedback has been provided to you on a regular basis, and you have been given many opportunities to discuss your performance expectations and training needs.

Despite all the measures taken, your performance during this review period (since September 1, 2015) is unsatisfactory and does not meet the requirements of your position. On January 28, 2016, your team leader provided you with a written performance improvement plan to address the deficiencies in quality and unacceptable time frames for completing the files in your WIP. I note that you have not provided any reasonable explanations for these gaps despite your tenure as an SP-05 Income Tax Auditor and as an Excise Tax Auditor/Examiner since April 2, 2001.

I hereby inform you that if by August 31, 2016, your performance has not improved to the point where you meet the requirements of your substantive position as an SP-05 Excise Tax Auditor/Examiner; I may proceed in recommending that you be demoted or terminated from your position for reasons of incompetence.

In accordance with the CRA Procedures on Performance Management, I remain willing to explore alternative solutions to resolving this situation and I am available to discuss any proposal that you may have to improve your performance and meet your performance expectations.

Please note that the Employee Assistance Program is available to you should you feel the need for their support.

...

[Emphasis in the original]

 

[89] Ms. Brugaletta completed the grievor’s performance assessment for September 1, 2015, to August 31, 2016, indicating he did not meet expectations. Ms. Brugaletta assessed him at Level 1, lower than the Level 2 he had received the previous year under Ms. Armstrong-Kyne.

[90] Ms. Brugaletta quantified her rating as follows for these “Fundamental Performance Indicators” categories:

Ownership of Responsibilities ... Rarely

Policies and Procedures ... Rarely

Works within Time Frames ... Rarely

Prioritizes work ... Not demonstrated

Maintains Required Skills ... Occasionally

Positive Work Environment ... Often

Works Well with Others ... Rarely

 

[91] Summarizing the grievor’s core performance for the period, she wrote:

Purandhar closed 11 cases from September 1, 2015 to January 20, 2016. All cases required multiple corrections before approval. The average hours per file were 34. The standard was 8 to 10, depending on complexity. The average days outstanding were 97, the standard was 75. The change rate was 46%, the goal was 70%. Purandhar had 15 files in inventory as of the end of January 2016. The average days outstanding were 150, average hours were 8. None of these files are near completion.

Taxpayer documents were received and not reviewed until instructed to do so. Some of these documents were received on September 23, 2015 and remained un-touched [sic] until the team leader had a WIP review with him on November 18, 2015. All that time the team leader prioritized the work for him.

In total, 12 sets of documents were received and 11 has [sic] no action taken. Purandhar didn’t take ownership nor follow through with his assigned files.

Letters to registrants often contained errors such as incorrect amounts to be disallowed and incorrect addresses.

Technical training was provided to Purandhar when he joined the team in May 2015. Since then he has taken the basic training course with the students twice. In addition, he received coaching from other team members. Further basic training is not warranted.

 

[92] With respect to the line “... taken the basic training course with the students twice”, Ms. Brugaletta and Mr. Cole both testified that the session, entitled “Orientation to Refund Integrity”, is a basic training module offered to summer or co-op students arriving at the CRA for a four-month period of on-the-job learning. It is also offered to new arrivals to the unit. The grievor took it three times.

[93] Ms. Armstrong-Kyne testified that eight students who took the course at the start of their training sessions worked alongside the grievor, carrying out the same kind of work. Ms. Armstrong-Kyne and Ms. Brugaletta both testified that the students, after their four-month training period, were invariably more productive than he was.

[94] Mr. Schmaus was questioned as to whether he had considered demoting the grievor or having him work under a different team leader. Mr. Schmaus stated categorically that placing him under a different team leader was not an option because of his pattern of unsatisfactory performance under other team leaders. Mr. Schmaus felt it would simply have meant starting the process all over again.

[95] Mr. Schmaus turned his mind to demotion, but the grievor was already in an entry-level position, and there was nothing more basic. He observed that the grievor had come from an SP-05 office audit position and that he had struggled there as well. Mr. Schmaus also considered administrative-support positions at the SP-04 or SP-03 level but noted that the nature of the grievor’s performance issues would have also prevented him from carrying out those duties.

[96] Mr. Schmaus noted that the grievor seemed to have performed satisfactorily while he was in Client Services as a PM-01, but the CRA no longer has such a section because those services are now provided through an outreach program and its website.

[97] Mr. Schmaus acknowledged that when the grievor was dismissed, he had over 28 years of service, but stated: “at the end of the day, there was nowhere we could put him, because we cannot rely on his work.”

[98] Ms. Brugaletta, Mr. Schmaus, and Mr. Coelho testified to no perceptible improvement in the grievor’s performance from the date of this letter, April 13, 2016, to September 2016.

[99] Mr. Coelho signed the letter of termination dated September 9, 2016. The letter includes the following:

...

This is to inform you of our decision regarding your employment with the Canada Revenue Agency.

On April 13, 2016, you received a letter from management which clearly stated that if your performance did not improve to the point that you met the requirements of your substantive position of SP-05 Excise Tax Auditor/Examiner by August 31, 2016, management may proceed with a termination of your employment for reasons of incompetence.

Prior to this, management notified you on several occasions that a continued failure to demonstrate improvement and the ability to achieve a Level 3, or “Performance Results Achieved All Expectations”, would result in a review of your continued employment with the Canada Revenue Agency. Management had numerous meetings with you where your performance expectations, as well as strategies for obtaining those expectations, were discussed, and the consequences of your failure to improve your performance were communicated. Management also undertook extensive training efforts with you to assist you in reaching your performance expectations. However, despite management’s ongoing efforts over several years, no improvement in your performance was observed.

I am satisfied that you have been provided with ample opportunities to make the necessary improvements, and there has been no indication that performance improvements will be realized. As such, I have concluded that you are not capable of fully meeting the performance standards of your substantive SP-05 Excise Tax Auditor position.

Therefore, by virtue of the authority delegated to me, and in accordance with paragraph 51(1)(g) of the Canada Revenue Agency Act, your employment with the Canada Revenue Agency is hereby terminated for reasons of incompetence. Your termination takes effect at the close of business today, September 9, 2016.

...

[100] The grievor acknowledged the negative performance reviews and testified to the factors underlying the time he took to process files by repeating the observations he made on his performance evaluation; namely, the way time is accounted for on files does not account for telephone calls of less than 15 minutes.

[101] The grievor maintained that Ms. Brugaletta, Ms. Armstrong-Kyne, and Mr. Friel targeted him unfairly and that the negative performance assessments were more indicative of a personality conflict than of anything else. He noted his favourable performance assessments under Mr. Huber, with whom he said he got along well.

[102] The grievor took approximately 30 minutes to summarize the unsuccessful 1996 job selection process and the ensuing lengthy legal battle. The case went through the courts for approximately 7 years, during which he received a favourable Federal Court of Appeal ruling. He was self-represented throughout almost all the process, and he testified to the burden in terms of time and energy it imposed upon him. He testified to receiving unsatisfactory performance assessments, which resulted directly from the time and effort he expended outside working hours pressing his case forward.

[103] The grievor also testified to conflicts with previous section managers and team leaders who were critical of his performance.

[104] The grievor repeated his assertion that his grievance did not involve a discrimination allegation.

[105] He testified to his intention to continually improve his performance. However, he felt that he was under a microscope, which made it difficult to improve. Every little mistake was picked up, which created a negative impression of his work that he felt was not warranted. He said that he tried his best.

[106] The grievor testified that sometimes his knee hurt and that he would have to walk to relieve the pain. He agreed that he never asked for any form of accommodation.

III. Summary of the arguments

A. For the employer

[107] The employer pointed to the sincere efforts made by all its witnesses to help the grievor succeed at his job. When performance is an issue, there is invariably a strained relationship. Rather than engaging in what the grievor characterized as a grotesque and diabolical exercise, management simply did its job and tried to find a way to bring him up to speed.

[108] Disguised discipline never really surfaces in this case, submitted the employer. Although the grievor might have felt that being placed under strict reporting requirements to monitor his attendance and time away from his desk amounted to a disciplinary sanction, it was not. Nothing of a disciplinary nature was at stake; the issues involving the grievor were entirely about his poor work performance. This is especially true after he improved his attendance record. After his arrival in the GST unit, attendance was never an issue, and discipline was never on the horizon. The only issue was his performance or lack of it.

[109] As for the grievor’s insinuation that race- and age-related bias complaints were never investigated, the employer submitted that on the contrary, management took them seriously, inviting him to substantiate them, which the grievor did not do.

[110] The employer pointed to Ms. Brugaletta’s testimony that even with the attendance issues resolved and the grievor spending less time away from his desk, he was still nowhere close to meeting productivity expectations. Furthermore, he still did not use his time to proofread his work, to avoid unnecessary spelling or grammar mistakes or calculation errors, or to ensure correct addresses.

[111] At no time, either in his written responses to his performance assessments or in his testimony at the hearing, did the grievor admit to any shortcomings in his work. According to the employer, he seemed satisfied with his explanation of having to record the time he spent on telephone calls. It strains credibility, submitted the employer, to justify spending up to 34 hours on a file, when the average was 8 to 10, by means of such telephone calls.

[112] The employer pointed to the many tools used to help the grievor improve. There were yearly action plans and regular meetings at which the details of his failures to meet expectations were quantified. Supervisors explained many times exactly what was missing from his work and exactly what he had to do to improve it, but it never improved. In fact, matters appear to have worsened toward the end.

[113] It referred to Forner v. Canada (Attorney General), 2016 FCA 136 (Forner), at paragraph 18, in which the Federal Court of Appeal stressed the importance of not making an independent analysis of a grievor’s performance.

[114] The employer stated that in cases of termination for cause due to unsatisfactory performance, the applicable test is set out in Raymond v. Treasury Board, 2010 PSLRB 23 as follows:

131 ... I do not see how it would be possible to find that it was reasonable for a deputy head to consider the performance of one of his or her employees unsatisfactory if the evidence showed the following:

· the deputy head or the supervisors who assessed the employee’s performance were involved in a bad faith exercise;

· the employee was not subject to appropriate standards of performance;

· the employer did not clearly communicate the standards of performance to the employee that he or she was required to meet; or

· the employee did not receive the tools, training and mentoring required to meet the standards of performance in a reasonable period.

 

[115] The employer submitted that there is no evidence of bad faith in this matter. Any conflict between the grievor and any supervisor was always attributable to the efforts of a given supervisor to document aspects of his performance, to suggest ways to improve it, or to evaluate it. Any case involving a termination for poor performance will always include friction, which the grievor admitted to in his testimony.

[116] The employer submitted McLaren v. Deputy Head (Statistics Canada), 2020 FPSLREB 58, which states that there must be proof of bad faith by way of clear, convincing, and cogent evidence, on the balance of probabilities. A grievor’s suspicions that the employer is acting in bad faith are not sufficient.

[117] The grievor was subjected to the same performance standards as any other employee at his group and level. These standards, submitted the employer, were routinely communicated to him in his action plans, his regular meetings with supervisors, and, especially, his performance evaluations from year to year and at mid-term. The performance standards and the work objectives are clearly linked.

[118] The employer submits that the testimony and documentation that its witnesses provided detailed the training sessions and the mentoring provided to the grievor. All the employer’s witnesses testified to making sincere efforts to help him. He received training, the benefit of experienced mentors, and five full years to turn things around.

[119] The employer submitted Kalonji v. Deputy Head (Immigration and Refugee Board of Canada), 2016 PSLREB 31, and stated that the termination for unsatisfactory performance in that case took place after six months. In this case, the grievor had over five years to turn things around, and he never did.

[120] Furthermore, the evidence is replete with examples of written warnings to the grievor about the consequences of continued unsatisfactory performance. His reactions to them are telling, submitted the employer. In his lengthy rebuttal to Ms. Brugaletta’s final performance assessment, as well as in his lengthy letter to Mr. Coelho, the grievor fails to acknowledge or take ownership of his poor performance. Instead, he deflects the blame elsewhere, claiming unrealistic expectations or making spurious accusations of age- and race-related bias, which he later recanted.

[121] The employer submitted Plamondon v. Deputy Head (Department of Foreign Affairs and International Trade), 2011 PSLRB 90, and Reddy v. Office of the Superintendent of Financial Institutions, 2012 PSLRB 94 , alongside Kalonji, with respect to the issue of whether demotion might have been a reasonable alternative to termination. It submitted that these cases align on the important point that alternative measures are subservient to s. 230 of the Act and the Board’s jurisdiction. Simply stated, the Board has jurisdiction to examine whether it was reasonable for the employer to deem the grievor’s performance unsatisfactory.

[122] The grievor persistently refused to take ownership of his work or to acknowledge his shortcomings, and despite over five years of sincere effort from the employer to help him, he did not demonstrate any measurable improvement. It is difficult to imagine what more the employer could have done. It submitted that the grievance must be denied.

B. For the grievor

[123] The grievor submitted he felt harassed and belittled at work, and that management unfairly singled him out. He had done well under Mr. Hubert; the trouble began after Mr. Hubert’s retirement.

[124] The grievor did everything he could to abide by his action plans. He took what he felt was necessary training, and he consulted the people he was told to consult and did his best to meet expectations. When his attendance was thought to be an issue, he did his best to address it and improved to the point that he no longer had to report his attendance.

[125] He was threatened with discipline over his attendance record. He was indeed being monitored closely, to the point that he felt he had to report being absent to go to the washroom. No other employee faced this level of scrutiny, and he felt unfairly singled out.

[126] Eventually, the grievor documented his concerns in letters to management. He raised issues of bias, which he felt the employer did not take seriously.

[127] The grievor felt that his supervisors expected perfection. He not only testified to this, but also, he wrote it several times in his responses to unsatisfactory performance evaluations. He referred to Brown and Beatty, Canadian Labour Arbitration, 5^th Edition, at Chapter 7, on discipline, which states:

7:3510 – Incompetence/incapacity

...

In judging whether an employee has performed his or her services satisfactorily, arbitrators have rejected the idea that management is entitled to insist on perfection in every conceivable task that is assigned to a job classification. Rather, the test for assessing the qualifications and capabilities of an employee to perform a particular job is that of reasonable ability, or the ability of a reasonably able, skilful and efficient worker or the same classification.

...

 

[128] Later in that same text, at paragraph 7:3520, on insufficient or careless work:

... As a general principle, arbitrators have expressed the opinion that before an employer decides to terminate someone for not doing the job properly, they must establish that the employee is unlikely to respond to some lesser sanction such as a suspension or a transfer or demotion to another position.

 

[129] In March of 2006, when he was in conflict with a supervisor, he requested a transfer to western Canada, but it was denied. The grievor felt this would have alleviated the performance issues and was unhappy with the decision to deny such a transfer.

[130] The grievor argued that a demotion to another position should have been considered. He referred to I.A.M., Local 1772 v. Remington Rand Ltd. (1953), 4 L.A.C. 1400, in which the issue was the termination of the employment of an assembly-line worker who, according to the employer in that case, made too many errors. It states as follows at paragraphs 9 and 12:

9 The Company officials feel that Gregory knew how to assemble these machines, as most of them were properly assembled, and concluded from that that he wilfully disregarded the Company’s instructions....

...

12 This Board has come to the conclusion that, since Gregory was transferred to assembler by the Company and not at his own request, and since the Company was not satisfied with his work in that position, the Company, if it had deemed it advisable, should have taken some course other than that of discharge and that the Company has not shown just cause for discharge.

 

[131] The employer in Remington Rand was obligated to reinstate the employee. The same should be done in this case, argued the grievor, because the employer did not explore options, such as a transfer or demotion.

[132] The grievor characterized the micromanagement as a form of discipline. In Canada (Attorney General) v. Frazee, 2007 FC 1176, the Federal Court examined disguised discipline and stated as follows at paragraphs 23 to 25:

[23] It is accepted, nonetheless, that how the employer chooses to characterize its decision cannot be by itself a determinative factor. The concept of disguised discipline is a well known and a necessary controlling consideration which allows an adjudicator to look behind the employer’s stated motivation to determine what was actually intended. Thus in Gaw v. Treasury Board (National Parole Service) (1978) 166-2-3292 (PSSRB), the employer’s attempt to justify the employee’s suspension from work as being necessary to facilitate an investigation was rejected in the face of compelling evidence that the employer’s actual motivation was disciplinary; also see Re Canada Post Corp. and Canadian Union of Postal Workers (1992) 28 L.A.C. (4^th) 366.

[24] The problem of disguised discipline can also be addressed by examining the effects of the employer’s action on the employee. Where the impact of the employer’s decision is significantly disproportionate to the administrative rationale being served, the decision may be viewed as disciplinary: see Re: Toronto East General & Orthopaedic Hospital Inc. and Association of Allied Health Professionals Ontario (1989) 8 L.A.C. (4^th) 391 (Re Toronto East General). However, that threshold will not be reached where the employer’s action is seen to be a reasonable response (but not necessarily the best response) to honestly held operational considerations.

[25] Other considerations for defining discipline in the employment context include the impact of the decision upon the employee’s career prospects, whether the subject incident or the employer’s view of it could be seen to involve culpable or corrigible behaviour by the employee, whether the decision taken was intended to be corrective and whether the employer’s action had an immediate adverse effect on the employee: see Re St. Clair, above, and Re Civil Service Commission, above.

 

[133] The grievor submitted that termination after 28-and-a-half years was an extreme reaction, and a suspension, demotion, or transfer should have been considered.

[134] Finally, argued the grievor, the CRA’s Principles on Non-Disciplinary Termination and Demotion were not followed. He submitted them for reference, as follows:

...

Principles

Delegated managers are guided by the following principles of fairness when determining whether to demote or terminate the employment of an employee for reasons other than breaches of discipline or misconduct:

· duty to act in good faith;

· duty to inform the employee, and

· duty to assist the employee, as applicable.

In accordance with the above principles, the following provides general guidance in recognizing employee rights and understanding the employer’s obligations when considering taking action to demote an employee or terminate their employment for reasons of:

Unsatisfactory performance

· The required level of job performance is determined;

· The required level of performance is communicated to the employee;

· The employee is provided with reasonable levels of supervision and instruction;

· The employee is allowed a reasonable period of time to meet the required level of job performance;

· The employee is provided with reasonable warnings about the consequences of their continued failure to meet the required level of job performance; and

· Once the inability to meet the required level of job performance has been established, reasonable alternative employment, including demotion, within the competence of the employee is considered.

...

[Emphasis in the original]

 

[135] Thus, argued the grievor, this grievance should be allowed, and he should be reinstated.

IV. Decision and reasons

[136] The main thrust of the grievor’s argument, as I understand it, is that he was unfairly targeted, micromanaged, and held to an unreasonably high standard and that these practices were part of a concerted effort to get rid of him at all costs rather than simply demote him.

[137] Both parties submitted numerous cases in support of their respective positions, but not all were referred to in their submissions. I read them all and I will refer only to those cases I feel are relevant to my decision.

[138] The grievor filed his grievance under s.209(1)(d) of the Act, which reads as follows:

209 (1) An employee who is not a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to	209 (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, le fonctionnaire qui n’est pas un membre, au sens du paragraphe 2(1) de la Loi sur la Gendarmerie royale du Canada, peut renvoyer à l’arbitrage tout grief individuel portant sur :
...	[...]
(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.	d) soit la rétrogradation ou le licenciement imposé pour toute raison autre qu’un manquement à la discipline ou une inconduite, s’il est un fonctionnaire d’un organisme distinct désigné au titre du paragraphe (3).
...	[...]
(3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)(d).	(3) Le gouverneur en conseil peut par décret désigner, pour l’application de l’alinéa (1)d), tout organisme distinct

 

[139] The grievor was an employee of CRA, a separate agency designated by the Governor in Council under s.209(3) of the Act.

[140] He argued that his termination amounted to disguised discipline.

[141] However, given the current legislative context, when the Board deals with terminations resulting from non-disciplinary grounds, it is no longer necessary for the Board to resort to the concept of disguised discipline to establish its jurisdiction since the Board has complete jurisdiction under s.209(1)(d) to deal with non-disciplinary terminations (see Canada (Attorney General) v. Heyser, 2017 FCA 113). As such, given that the CRA is a designated separate agency, the parties’ arguments with respect to disguised discipline are no longer relevant since the Board has full jurisdiction on all terminations.

[142] The Federal Court of Appeal in Heyser explained it as follows at paragraph 79:

... In regard to non-disciplinary terminations, the Board has full jurisdiction to inquire into the circumstances of the termination and into the revocation which led to the termination. Thus, if the Board determines that there was no cause for the termination (i.e. that the revocation was not made on legitimate grounds) it becomes irrelevant what the specific reason for the revocation was. In other words, whether the revocation is the result of disguised discipline or some other non-legitimate ground, the result is that the Board will set aside the termination and may order the reinstatement of the employee. In that sense, it is my view that in the current legislative context the concept of disguised discipline no longer has the importance that it had under the previous case law.

 

[143] The Board’s jurisdiction related to a termination for unsatisfactory performance is set out in s.230 of the Act:

230 In the case of an employee in the core public administration or an employee of a separate agency designated under subsection 209(3), in making a decision in respect of an employee’s individual grievance relating to a termination of employment or demotion for unsatisfactory performance, an adjudicator or the Board, as the case may be, must determine the termination or demotion to have been for cause if the opinion of the deputy head that the employee’s performance was unsatisfactory is determined by the adjudicator or the Board to have been reasonable.

230 Saisi d’un grief individuel portant sur le licenciement ou la rétrogradation pour rendement insuffisant d’un fonctionnaire de l’administration publique centrale ou d’un organisme distinct désigné au titre du paragraphe 209(3), l’arbitre de grief ou la Commission, selon le cas, doit décider que le licenciement ou la rétrogradation étaient motivés s’il conclut qu’il était raisonnable que l’administrateur général estime le rendement du fonctionnaire insuffisant.

 

[144] The adjudicator in Plamondon articulated the Board’s role when hearing cases in which an employee is demoted or terminated due to unsatisfactory performance:

...

[48] Under such a legal framework, the adjudicator’s role is to determine, based on the evidence adduced, whether it was reasonable for the employer to deem the employee’s performance unsatisfactory. Should the adjudicator find that the employer was reasonable in its assessment of the employee’s performance, the adjudicator must dismiss the grievance. For example, the adjudicator cannot decide that the employer’s decision to terminate the employee rather than demote him was not justified or reasonable or that the employer failed in its obligations by not helping the employee find another position. Should the adjudicator decide that the employer’s assessment of the employee’s performance was reasonable, then the adjudicator’s jurisdiction is exhausted.

...

 

[145] The Board’s role, as stated in Forner, is not to make “... an independent analysis of the [grievor’s] performance”.

[146] Therefore, I must answer the following question: Was it reasonable, based on the evidence adduced by the parties, for the employer to deem the grievor’s performance unsatisfactory?

[147] The criteria for determining whether the employer’s assessment of an employee’s unsatisfactory performance was reasonable were articulated in Raymond. However, those criteria have since been reworded by the Board in Dussah v. Deputy Heady (Office of the Chief Human Resources Officer), 2020 FPSLREB 18, at para. 434, which provides added clarification. There is no fundamental difference between Raymond and Dussah; therefore, I will apply the Dussah criteria:

· Did the employer set reasonable work objectives for the grievor and clearly communicate them to [him] in advance?

· Did the employer set reasonable performance indicators for her and clearly communicate them to [him] in advance?

· Did the employer give her reasonable time to meet the work objectives and performance indicators that it set for [him]?

· Did the employer provide [him] with all the support [he] needed to meet the work objectives and performance indicators that it set within the time that [he] was given?

 

[148] I will address each criterion in turn.

A. Did the employer set reasonable work objectives for the grievor and clearly communicate them to him in advance?

[149] The grievor testified extensively about the many and varied conflicts he experienced with every one of his supervisors who found that his work did not meet expectations. The only supervisor whom he seems to have gotten along with in the last decade or so of his CRA career was Mr. Hubert, whose supervision period predated the five years of unsatisfactory performance at the heart of this case.

[150] The grievor tendered as evidence Mr. Hubert’s performance evaluations. They include measurements of the grievor’s performance that seem similar to the ones that the employer’s witnesses cited, and it would appear that under Mr. Hubert’s supervision, the grievor was capable of completing his cases within the accepted periods.

[151] Only after he stopped performing satisfactorily did the close monitoring and action plans begin. The grievor’s supervisors had to closely monitor him because he was not getting his work done. His unhappiness had nothing to do with bias or harassment; he simply did not enjoy being told that he was underperforming.

[152] The grievor was placed on action plans, he was given performance letters, and he was brought into performance-related meetings on a regular basis over a period of many years. All of these efforts were designed to make him accountable for his performance and hopefully improve it. The grievor was made aware, over a period of many years, exactly which objectives he had to improve upon and how to go about doing it.

[153] I find that the employer set reasonable work objectives for the grievor and clearly communicated them to him in advance.

B. Did the employer set reasonable performance indicators for him and clearly communicate them to him in advance?

 

[154] The performance indicators were mentioned in action plans, regular meetings with supervisors, yearly and mid-term performance evaluations, and the warning letters. They were not arbitrary; they resulted from many years of observation and analysis at the CRA. They applied to all examiners at the grievor’s group and level. The grievor’s own written reactions to being rated as an unsatisfactory performer, as well as his testimony at this hearing, reveal that this criterion has been satisfied. He did not contend otherwise, and everything he wrote and said indicates that he clearly understood what was expected of him at every turn.

[155] Mr. McCutcheon’s October 10, 2014, email, and Mr. Coelho’s April 13, 2016, warning letter both contain explicit warnings about poor performance. However, the grievor had been warned long before then. He seemed to have met Mr. Hubert’s expectations, but the grievor testified about his lengthy period of poor performance before Mr. Hubert took over as his supervisor. The grievor entered into evidence documents showing he had been warned about demotion or termination prior to Mr. Hubert’s arrival on the scene.

[156] The Remington Rand case involves performance issues attributable, at least in part, to difficulty in performing unfamiliar tasks. This was certainly not an issue in the present case. I do not find Remington Rand applicable because no evidence indicates that the grievor was ever launched into unfamiliar territory. He was terminated because of a demonstrated inability to perform the work with which he was already familiar.

[157] The grievor did not testify to feeling out of his depth at any point. He felt the expectations of him were unrealistic. I do not agree. I accept the testimony of Mr. McCutcheon, Ms. Armstrong-Kyne, Mr. Cole, and Ms. Brugaletta where they stated that the grievor’s workload was customized to give him less-complex material to work on, in order to help him succeed. Mr. McCutcheon explained that the plan was to give him small successes to build on.

[158] Unfortunately, the grievor could not meet expectations with even the less-complex files, which is why Mr. Coelho explained that it was impossible to demote him rather than terminate him. The type of errors he was making, along with their frequency, would not be acceptable at any lower level.

[159] The performance evaluations speak for themselves. For no apparent reason, the grievor took almost 3 times as long to complete his files. I am unimpressed with the grievor’s comment about files that would be assigned one day “... and expected to be completed the previous day.” I accept the testimony of the employer’s witnesses, who described how the CRA studied, for many years, the type of work that examiners like the grievor performed in order to arrive at the applicable standards.

[160] I do not accept the grievor’s claims that perfection was expected. There is no evidence that a standard of perfection was applied to his work. Some of his errors were reproduced on his performance evaluations, and the employer’s witnesses testified that these errors resulted from carelessness. Incorrect dollar amounts, spelling mistakes, calculation errors, and misstated addresses all can be caught by double-checking and proofreading. It would appear he never did this consistently, if at all. His supervisors acted reasonably when they pointed these errors out to him as examples of how he needed to improve.

[161] I find that the grievor was subject to appropriate performance indicators and that they were communicated to him in advance.

C. Did the employer give him reasonable time to meet the work objectives and performance indicators that it set for him?

[162] Five to six years is more than reasonable. By granting the grievor such a long period in which to turn his performance around, the employer showed a considerable degree of patience and dedication to giving him opportunities to show progress.

[163] Important parallels must be drawn between this case and Kalonji. In both, employees were expected to be comfortable with their duties in a fairly brief period; in Kalonji, it was 6 months. In this case, it seems to have been around 4 months, because this is the time in which co-op students were engaged to perform the same duties as the grievor. Both Ms. Armstrong-Kyne and Ms. Brugaletta testified that the students, who were provided with the same orientation course that the grievor took three times, outperformed him after their 4-month co-op periods. In Kalonji, the dismissal took place after approximately 16 months of performance monitoring. The grievor in this case had 5 five full years.

[164] The grievor’s workload was also deliberately lightened to allow him to turn his performance issues around, to no avail.

[165] As such, I find that the employer gave the grievor reasonable time to meet the work objectives and performance indicators that it set for him.

D. Did the employer provide him with all the support he needed to meet the work objectives and performance indicators that it set within the time that he was given?

 

[166] The grievor testified to taking the introductory course three times, and Mr. Cole said that he was a good student. Training was available and he took full advantage of it. Mr. Coelho also testified to the deliberate placement of the grievor under the supervision of highly valued and trusted employees.

[167] I find that the grievor was provided with all the training and support he needed to meet the work objectives and performance indicators within the time set by the employer.

[168] On the basis of the evidence brought before me, I find it was reasonable for the employer to form the opinion that the grievor’s performance was unsatisfactory.

[169] For all of the above reasons, I make the following order:

(The order appears on the next page)

V. Order

[170] The grievance is denied.

July 13, 2022.

James R. Knopp,

a panel of the Federal Public Sector

Labour Relations and Employment Board