Date: 20240925
Citation: 2024 FPSLREB 131
BETWEEN
Patrick Simard
Grievor
and
(Department of Employment and Social Development)
Employer
Indexed as
Simard v. Treasury Board (Department of Employment and Social Development)
In the matter of individual grievances referred to adjudication
Before: Guy Grégoire, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: Kundera Provost-Yombo, counsel
For the Employer: Caroline Richard, counsel
October 23 and 24 and November 22 and 23, 2023.
Written submissions filed
November 28 and December 4 and 5, 2023.
[FPSLREB Translation]
REASONS FOR DECISION
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FPSLREB TRANSLATION
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I. Individual grievances referred to adjudication
[1] Patrick Simard, the grievor (“the grievor”) worked for the Department of Employment and Social Development (“the employer”) in the Temporary Foreign Worker Program (“the TFWP”) in Montréal, Quebec, from June 26, 2018, until his termination during his probation period on May 31, 2019.
[2] The grievor then filed two grievances with the Federal Public Sector Labour Relations and Employment Board (“the Board”): 566-02-42033, challenging his termination during his probation period, and the second, 566-02-42034, challenging his annual performance appraisal (APA).
[3] The employer objected that the Board did not have jurisdiction on the ground that this was a rejection on probation as set out in the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA) and the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA).
II. Objection to the Board’s jurisdiction
[4] The employer’s representative argued that the grievor was on a probation period as set out in ss. 61 and 62 of the PSEA. She contended that the grievor knew his conditions of employment and knew them during the probation period. She argued that the grievor’s termination occurred during this probation period and in application of s. 211 of the FPSLRA, which stipulates that nothing in ss. 209 or 209.1 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to any termination of employment under the PSEA.
[5] The grievor argued that the evidence on the merits must be heard so that I can dispose of the objection.
[6] I decided to take the objection under advisement to hear the evidence and establish the merits put forward by the grievor before ruling on this objection.
[7] The grievances were heard over 5 days, at the end of which, at the Board’s request, the parties submitted their written arguments (41 pages from the employer, 69 pages from the grievor, and 10 other pages in reply from the employer).
III. Summary of the evidence
A. For the employer
[8] The grievor was appointed to the position of program officer at the PM-02 group and level on June 22, 2018, under a contract within the TFWP group. This was a term position for one year, from June 26, 2018, to June 25, 2019, by the end of which, if the grievor received the “Succeeded” rating in his year-end APA, the term of his employment would be changed to indeterminate.
[9] The grievor’s appointment to the TFWP was consecutive to a Memorandum of Settlement (“the Memorandum”) reached between the grievor; the employer, represented by Esther Lessard; and union representative Sylvain Archambault.
[10] Apart from the grievor’s appointment and various other clauses, the Memorandum specified that the employer committed to providing accommodation as described in the “[translation] Duty to Accommodate Request and Agreement Form” (“the Form” or “the Agreement”), to follow up with respect to the grievor’s performance and convert the position’s tenure from term to indeterminate if the grievor received the “Succeeded” rating in his 2018–2019 APA.
[11] The accommodation essentially sought to assist the grievor in managing his schedule.
[12] Program officers interact with various external partners, including Quebec’s Ministère de l’immigration, de la diversité et de l’inclusion (“MIDI”); Immigration, Refugees and Citizenship Canada (“IRCC”); the Canada Border Services Agency (“CBSA”); private sector employers and other individuals. They process applications from private employers to hire temporary foreign workers, and determine whether applications are admissible. There are at least two streams for processing applications: the facilitated process (“FP”) and the regular process (“RP”). Each process has its own specific traits: the first is simpler, while the second is more demanding in terms of documentation for applicants and processing of TFWP members.
[13] The organizational structure of the TFWP was as follows: a director general, a manager and a team leader. It was up to the team leader to ensure sound accommodation management, monitor the grievor’s comings and goings and complete mid-year and year-end performance appraisals.
[14] During the year, in October 2018, a new medical condition arose affecting the grievor, forcing him to take breaks longer than those set out in the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Programs and Administrative Services group, which expires on June 20, 2025 (“the collective agreement”).
[15] The parties agreed that the accommodation would be modified to take account of the grievor’s new condition and to allow him to take additional breaks as required by his new condition. The grievor could take as many breaks as he needed, but he had to either make up his time by working later or submitting sick leave time sheets for periods not worked during the day. In the event that the grievor exhausted his bank of sick leave hours, he had to take leave without pay. He could not substitute it with annual leave or any other leave set out in the collective agreement.
[16] The mid-year performance appraisal covered the period from the hiring date on June 21, 2018, to September 30, 2018. The grievor had in general received the grade “On track to meet” the objectives. It included a suggestion that the grievor pay close attention to the information in the files to avoid back-and-forths with employers and two reminders, the first being to shut down his computer when he left the office and not to leave “Protected B” documents on his desk in plain sight when he left.
[17] After this, performance and attendance problems arose, which required several meetings and emails, to the point that at the year-end APA, the grievor received a “Succeeded Minus” rating for substandard attendance and unsatisfactory performance, which was followed by his termination.
B. Ahmad Haidar, TFWP manager
[18] In June 2018, Mr. Haidar was the manager of the TFWP. In this capacity, he was responsible for the operations of around 80 employees and 5 team leaders. The purpose of the TFWP was to hire temporary foreign workers to work in Canada. The applications come from private Canadian companies. TFWP officers work closely with the employees of various organizations, including IRCC, MIDI and private companies.
[19] He briefly explained the process for hiring foreign workers. The TFWP receives hiring applications from private employers, for Quebec, and checks are conducted with MIDI. A clerk receives the application, and the program officer (the grievor’s position) sorts applications according to the type of employment. The process varies from one type to another. The person ensures that the application is complete and eventually makes a decision, either accepting or rejecting the application. The process normally takes a month to complete. There is a financial cost attached to an employer’s application for a foreign worker.
[20] Mr. Haidar stated that he was the manager of team leader Émilie Audet-Labonté, to whom the grievor reported. He filed in evidence the offer letter dated June 22, 2018, sent to the grievor. The letter stated that the job began on June 26, 2018, and that the grievor was subject to a work schedule of 7.5 hours per day and 37.5 hours per week. Among other things, the letter also stipulated that “[translation] [a]ll appointments ... from outside the Public Service are subject to a 12-month probationary period ...”. Mr. Haidar affirmed that the grievor had accepted his conditions of employment by signing the offer letter. It should be noted that an amended offer letter had been sent to the grievor to amend the number of the position that the grievor had held and had no other impact in this case.
[21] Mr. Haidar presented the agreement that had been initiated by his predecessor in June 2018 but signed by him on July 10, 2018.
[22] The second page of the agreement listed the accommodations that had been put in place for the grievor. One of them allowed the grievor to arrive at the office between 7:00 a.m. and 10:00 a.m., as he needed. However, he could leave no later than 6:00 p.m., except when overtime was approved.
[23] Mr. Haidar referred to an email dated August 16, 2018, the subject of which was “[translation] [f]ollow-up on our meetings”. It contained a summary of a meeting between the manager, his team leader and Mr. Haidar, prepared by the team leader.
[24] In the section on schedule management, Mr. Haidar specifically mentions an event during which the grievor occupied a training room, which he had not reserved, to make a personal telephone call when the same room was reserved for training. In addition, in this document, it is stated that the grievor had to keep all his appointments (those with clients, those for meetings with coworkers at the office and those with the employer).
[25] In this summary minutes, management reviews the medical condition affecting the employee, which required him to spend more time in the washroom. The grievor reportedly explained that this was a one-time situation. However, it is stated in the debriefing that, if this was a recurring situation, the grievor would be required to present a medical certificate.
[26] Mr. Haidar stated that the written summary of the meeting on August 16, 2018, and all other written summaries on the record were part of the accommodation, which specifies that there must be a summary of each meeting with the grievor.
[27] He stated that several contact persons were made available to the grievor to answer his questions about his duties, in particular his team leader and two senior program officers (PM-04). In addition, he testified that the grievor asked many questions and that he submitted them as they arose. For efficiency, the team leader asked him to group his questions together over the day and ask them all at the same time.
[28] In a letter to Dr. Pierre Charbonneau dated August 16, 2018, and signed by himself, Mr. Haidar submitted a request for a fitness-to-work and functional abilities assessment. The request specified that he wanted to know “[translation] ... specifically the [grievor’s] abilities and all functional limitations”. The request informed the doctor that the grievor was away from his workstation between 20 and 60 minutes to go to the washroom outside of the permitted breaks.
[29] Mr. Haidar presented the doctor’s reply in the fitness-to-work and functional abilities assessment form dated October 1, 2018, which was completed and signed by the doctor. Mr. Haidar stated that the report did not mention any further accommodation beyond what was already in place.
[30] In an email dated October 24, 2018, filed in evidence by Mr. Haidar, the team leader duly noted the grievor’s medical condition that obliged him to take breaks to go to the washroom outside the normal breaks. The following is the relevant excerpt of the email:
[Translation]
...
After receiving your medical certificate, which indicates that you have [medical condition], we understand that you need time outside your breaks to go to the washroom. I would therefore ask you to send me an email when you are away from your desk outside normal break times and when you return to your desk (as you already do when you enter/leave the office and for lunch). You will need to make up the time that you are not at your desk outside your breaks granted in the collective agreement.
...
[31] Mr. Haidar referred to the mid-year performance appraisal dated November 22, 2018. He stated that when the APA mentioned recommendations, it was because there were shortcomings on the grievor’s part. He specified that in September and October, the grievor was in “[translation] post-training”, that is, he had finished his training but still had to submit his work for review before completing it. In addition, the “On track to meet expectations” ratings did not necessarily have a negative connotation.
[32] Mr. Haidar referred to an email dated December 10, 2018, in which the team leader asked for clarifications about break times and asked the grievor to send an email to report any break that exceeded the time allowed by the collective agreement, that is, 15 minutes in the morning and 15 minutes in the afternoon. This email was part of an email chain that ended on December 20, 2018, and is related to the grievor’s attendance. The team leader informed him of the onerous nature of monitoring his breaks and asked him to notify her when he exceeded his break times.
[33] Mr. Haidar discussed a processing error by the grievor that was raised by another team leader where a file was clearly identified for “[translation] facilitated processing”, but the grievor had sorted it as “[translation] regular processing”. This filing error resulted in more documentation than necessary being requested from the private employer that made the application, the Public Relations section being called upon, a decrease in public confidence (among domestic private employers and foreign individuals who are waiting) in the services rendered by the employer, additional financial costs for the private employer and communication with MIDI to clarify the situation. This other team leader informed the grievor’s team leader in her email that she had discussed the situation with him and had “[translation] ... asked him to pay closer attention when sorting”.
[34] Mr. Haidar submitted an email dated January 16, 2019, that mentions the key points of a management meeting with all his staff that was held on January 9, 2019. The email was addressed to all the employees under his responsibility. In it, he dealt with regular working hours and schedules for everyone, specifically mentioning that everyone enters their work schedule in a table. He also gave them the flexibility to take more than 30 minutes for lunch and add this time to the end of their workday if they wished.
[35] Mr. Haidar recounted the follow-up on the APA, relying on the summary of a meeting on March 20, 2019, attended by the grievor, his union representative and his team leader. The APA had confirmed that the grievor had not met his objectives, that he made many mistakes and that several follow-ups about making up his time had been done, both orally and in writing. The APA confirmed that only three files had been reported as erroneous, but other errors had been made without being documented. He stated that several files had been returned by the team leader and that they involved mixing up the files of employers, clients of the department.
[36] Mr. Haidar mentioned that the grievor made many mistakes during his involvement in the sorting committee. This was an operational committee responsible for analyzing incoming files, sorting them and sending them to the sections responsible for processing that type of application. This work amounted to a team effort. He stated that the number of mistakes made by the grievor had increased since October 2018.
[37] He testified that the grievor did not carry out the required follow-ups with respect to his absences and his duty to make up the time needed. He testified that there was an inconsistency between the number of emails sent by the grievor to inform him of an absence (22 emails sent from February 21 to April 8, 2019) and a complete absence of emails for the previous period. He stated that the grievor only reported his additional absences when he was being watched.
[38] Mr. Haidar referred to an email dated April 10, 2019, the subject of which was “[translation] RE: Minutes – Meeting on February 21, 2019”. This is the same email that dealt with the follow-up on the APA, which includes the grievor’s comments expressed by the union representative and the employer’s reply.
[39] He stated that in April 2019, the employer had provided full accommodation to the grievor and argued that neither the grievor nor his union representative had complained about a lack of cooperation from the employer. He stated that the grievor had received feedback about his work many times.
[40] Mr. Haidar said that the grievor’s working conditions had been tightened up as of April 11, 2019, as evidenced by the email on that same date. From then on, the grievor had to send an email at the start and at the end of every 15-minute break, as he had done when arriving at or leaving the office or for lunch breaks. The times would be considered to be those of the emails and not the ones proposed by the grievor in his emails. His arrival time remained flexible, between 7:00 a.m. and 10:00 a.m., but his break times and lunch times would be set, and they corresponded to the times that the grievor himself had determined. The mandatory departure time remained 6:00 p.m., to comply with personal safety advisories, since the premises were empty by this time. The email advised the grievor as follows: “[translation] If you do not comply with these requirements, administrative and/or disciplinary action may be taken, which may include rejection on probation”. Mr. Haidar acknowledged that, as stated in the summary, this warning to the grievor had not been made to him during the meeting. During this meeting, Mr. Haidar said that additional training was planned and that a resource person had been designated for him to support him with his work.
[41] He stated that this action was taken because the grievor was taking more breaks to do things other than what was required by his medical condition—for example, to get a coffee.
[42] Mr. Haidar referred to an email from the union representative dated April 17, 2019, that dealt with the summary dated April 11, 2019. He stated that he did not believe tightening up the grievor’s working conditions was a departure from the recommendations proposed by the doctor. He stated that it was up to the grievor to request a review of his accommodation if he felt the need.
[43] Mr. Haidar referred to a medical note from Dr. Charbonneau dated May 15, 2019, in which the grievor was diagnosed with attention deficit disorder, and he stated that the doctor did not request any new accommodation. He stated that he had not received a letter from the neuropsychologist dated May 29, 2019, describing the characteristics of “[translation] one of the frequent symptoms of ADHD”.
[44] Mr. Haidar said that in an email chain dated May 28, 2019, the employer tried to organize a meeting with the grievor and his union representative, but scheduling conflicts made things difficult. He ended his email by stating that the meeting had to take place despite the absence of the union representative, to whom he offered to have him represented by someone else. The meeting was ultimately scheduled for Friday, May 31, at 10:00 a.m.
[45] Mr. Haidar referred to the email dated May 31, 2019, that accompanied his mid-year and year-end performance appraisals for the grievor. He asserted that the grievor had not met his objectives. In his testimony, he reviewed the various shortcomings listed in the grievor’s year-end APA, including a security breach due to the fact that he did not turn off his computer when leaving his office at the end of the day, putting information at risk. He stated that the employer drew a negative conclusion from the fact that the grievor did not verify his available leave hours before submitting a request for leave, as well as the fact that he did not accept the advice given to him by his team leader or coworkers.
[46] Mr. Haidar stated that the rejection on probation letter dated May 31, 2019, had been delivered by hand to the grievor. The letter referred to the persistent attendance problems and his failures to report his breaks. He insisted that the grievor had not been terminated because of the breaks he needed to go to the washroom, accommodation requirements, his flexible hours or his medical conditions.
C. Émilie Audet-Labonté, team leader
[47] Ms. Audet-Labonté was the grievor’s team leader for the entirety of his employment at the TFWP. She testified that she began her career in the federal public service in November 2013.
[48] Ms. Audet-Labonté stated that she knew about the accommodation agreement signed by the grievor and the manager. She stated that the grievor’s accommodation was as follows: give the grievor flexible arrival and departure times (he could arrive between 7:00 a.m. and 10:00 a.m. and had to leave no later than 6:00 p.m.); provide written summaries after every meeting with the grievor; have him take breaks and lunch at times he could set himself; and inform his team leader when he exceeded the time for his breaks.
[49] She stated that to comply with the agreement, she had produced all the emails sent to the grievor that followed her meetings with him. She also referred to the one dated July 9, 2018, which followed their meeting on July 6, 2018. She suggested methods to help him complete his tasks, as she was aware of his limitations.
[50] Relying on the summary of a meeting on July 11, 2018, she testified that, in an email dated July 17, 2018, the scheduled time for the meeting with the grievor had to be moved from 1:00 p.m. to 1:30 p.m. to accommodate him and allow him to go to the washroom.
[51] Ms. Audet-Labonté referred to a summary in an email dated August 16, 2018, for a meeting on August 10, 2018, between the grievor, the manager and herself. This was a follow-up on their meeting about accommodation. She reiterated that the grievor used meeting rooms, without reserving them, for personal calls. Ms. Audet-Labonté also stated that there was no bilateral meeting planned, but she met with the grievor as often as possible to help him perform his tasks.
[52] She referred to a summary of a meeting on September 20, 2018, in an email dated September 21, 2018, in which she made a list of operational instructions and warnings as follows: “[translation] ... please be sure to write the correct email title by using the template ...”. She concluded the summary by informing him that she had received positive comments from business expertise advisors who had evaluated his first files and recognized that the grievor had applied the feedback he had been given, not to repeat the mistakes for which he had been given tools.
[53] She testified that, on September 19, 2018, the grievor had been released from his training and that he no longer needed follow-up.
[54] She testified that an email on procedures had been sent to all program officers on September 20, 2018, but that she had resent it specifically to the grievor on October 16, 2018, reminding him to use the provided templates for his correspondence.
[55] She testified that, in an email dated October 24, 2018, she informed the grievor that he had to make up the time when he went to the washroom for purposes related to his medical condition.
[56] She referred to an email from the manager to the grievor’s union representative dated November 30, 2018. In it, it is stated that the grievor must make up the work time that he spends in the washroom and that it is his responsibility to inform his team leader when he leaves and when he returns. She said that the grievor had to notify her every time he left his workstation and returned to it. In addition, if he did not make up his work time, he had to submit a sick leave form. If he no longer had sick leave credits, he had to take leave without pay.
[57] Ms. Audet-Labonté discussed the grievor’s mid-year performance appraisal, which covered the period from the start of his appointment to September 30, 2018. She was the one who had prepared it and had made the comments that accompanied it. She sent it to the grievor by email on November 22, 2018. She stated that in general, the APA was good and that the “On track to meet expectations” comments did not necessarily mean that there was a need for improvement. She stated that in the section for comments, she reminded him that he had to pay close attention to sorting and make sure that applications were complete, that all required documents were present and that the payment had been made. She referred to weaknesses that the grievor had to remedy; for example, sending meeting requests by Outlook when he wanted to meet with his team leader for issues as they had agreed to do previously, but which he had still never done.
[58] She discussed two emails from December 10 and 11, 2018, that reported a need for training for two people, including the grievor, because mistakes had been seen in their work. The mistakes occurred during sorting, when an FP application had been submitted as an RP application. The initials of the responsible officer appear on the file to show who made the mistake, if any. The consequences of such a mistake are significant, she stated, since it led to the rejection of the application in the amount of $1000 for the employer that had submitted the application and obliged it to reapply at the cost of $1000 a second time and added additional delays to correct the mistakes and process the application as it should have been. Ms. Audet-Labonté confirmed that the training had in fact been offered to the grievor by an email dated December 12, 2018.
[59] Ms. Audet-Labonté discussed an email chain dated from December 10 to 20, 2018, that she had sent to the grievor to clarify how to manage his breaks. She said that she had reminded him that all the time taken because of illness had to be made up or a sick leave form had to be submitted. She reminded him that he had to send an email every time that he left his workstation and when he returned to it, and that since November 23, 2018, she had not received any. She also discussed an unexplained absence for two hours on December 12. The grievor was absent, and it was only afterward that she found out that he had a medical appointment. She notified him that these requests had to be made before taking leave, not after he had taken it.
[60] In the same email chain, in the email dated December 20, 2018, she referred to a table that presented the absences, reasons and time to be made up by the grievor between December 12 and December 20, which is as follows: 2 hours on December 12 for a medical appointment—he had forgotten to inform his team leader about it in advance; 1.75 hours on December 19 for another medical appointment—he had forgotten to inform his team leader about it in advance; and 0.5 hours on December 20 because of public transit and because he had to pick up his son. In this same email, she notified him that “[translation] this type of monitoring is laborious” and asked him to keep her informed of his extra time on breaks and absences and to tell her in advance how he planned to make up his time.
[61] She testified that another team leader, Hélène Grégoire (no relation to the undersigned), discussed the grievor’s late arrival in an email dated January 9, 2019. She confirmed that as an exception, he could make up his 45 minutes because of his late arrival in the morning and his early exit at day’s end. The team leader repeated to him that he had to make up his time in the same day; otherwise, he had to request leave.
[62] Ms. Audet-Labonté referred to another email dated January 9, 2019, in which the other team leader had informed her that the grievor had made an error in sorting and processing an application and that she had met with him to review “[translation] ... the items with him and [had] asked him to pay more attention when sorting”. She contended that if the error had not been discovered in time, the application would have been considered to be incomplete, leading to additional delays and costs. She stated that the grievor had received additional training for sorting in December 2018.
[63] Supported by her email dated January 15, 2019, she testified that on that same day, the grievor stayed 15 minutes past the set departure time of 6:00 p.m. She stated that because of a security measure, all employees had to leave at 6:00 p.m., unless overtime was approved.
[64] She presented the email dated January 23, 2019, to relate how the grievor had mixed up various employer profiles and how one of them had received the other’s correspondence. She stated that this error jeopardized public trust. She elaborated on the error, specifying that he had partly corrected it, but that she had to intervene to finalize the correction.
[65] She testified that she had to clarify the grievor’s work schedule with respect to his breaks. She had noted that at the scheduled time for returning from lunch, he was not at his desk and that he had not sent an email to notify her about it. In her email dated January 23, 2019, she reminded him of the times that he had to comply with. She stated that the grievor told her that his late return was not due to his medical condition.
[66] She filed in evidence an email chain dated from December 13, 2018, to February 7, 2019. She reported the various circumstances when the grievor was absent without notifying her and she did not remember whether he had made up the time that he had to.
[67] She referred to an email dated February 6, 2019, which she had sent to the grievor. This is a relatively long email, one page in length, starting with her reiterating to the grievor “[translation] ... the importance of properly checking all the documents in a file when you analyze an application”. In that email, she noted a processing error for a file that could have been avoided by a more in-depth analysis of the file. Beyond this error, she informed him that he had “[translation] ... sent a decision letter with incorrect information”.
[68] She also referred to an email exchange dated February 13, 2019, between the grievor and herself about a snowy morning when he arrived at work 1 hour and 30 minutes late, without notifying her. She reminded him that he had to call before 10:00 a.m. if he planned to arrive late according to the terms of the accommodation agreement.
[69] She testified that the emails dated February 18, 2019, detailed another file processing error. She stated that the error that she was talking about here was a different error from the one mentioned previously and that this error had initially been caused by the client employer.
[70] She testified that on February 19, 2019, the grievor arrived at a work committee meeting 15 minutes late, as evidenced by the email from the same day. The grievor admitted that he was late and also admitted that he had not reported it and had offered to make up his time.
[71] She referred to a series of emails from February 18 to February 20, 2019, with respect to another error made by the grievor, who had closed a file by mistake. At the time, she had explained to him the consequences of this error in terms of lost productivity.
[72] She referred to the email dated March 20, 2019, intended as a summary of their meeting on February 21, 2019, which followed up on the mid-year performance appraisal. She testified that all the comments included in this document were supported by a justification. She denied that she was monitoring the grievor’s movements, but she sometimes saw that he was not at his workstation.
[73] She filed in evidence an email from her, dated March 4, 2019, concerning another mistake, reported by another team leader, that the grievor had made when processing a facilitated application. Yet another mistake was reported in the email dated March 5, 2019, when an employer submitted two simultaneous applications that the grievor had processed as a single application. She stated that the impact was major. She stated that the grievor had received training when he started and again in December, on the same topic.
[74] She testified about another error made by the grievor and reported in an email dated March 13, 2019, which involved MIDI and was caused by confusion between a facilitated application and a regular application. Another mistake was reported in the email dated March 20, 2019. She listed the six consequences of the mistake. She stated that all these consequences could have been avoided if the file had been analyzed correctly. She testified about other errors identified in two emails dated March 27 and 28, 2019. Another error was identified in the email dated April 2, 2019.
[75] She included a table of the grievor’s absences, showing the time to make up and the absences for which no email had been received to confirm that he had in fact made up his time. She stated that he should have sent emails for that purpose. The absences ranged from 0.25 to 0.5 hours. With respect to his absences, she had repeated to the grievor in an email dated March 29, 2019, that he had to submit his time spent in the washroom as sick leave when these absences occurred outside of his normal break time.
[76] In this same table, she reported that he no longer had enough sick leave to cover his request and that he had to take leave without pay. She stated that the grievor had then chosen to take leave without pay instead of making up the time taken for his medical condition.
[77] She referred to an email chain from March 29 to April 2, 2019, in which he informed her that he had to leave earlier and she had allowed him under the circumstances to use compensatory time and to make up a portion of the time by working.
[78] She testified about processing errors for two files documented in the emails from April 2 to 4, 2019. The errors had been reported by another team leader. They concerned two separate files that prevented their respective processing from being finalized.
[79] Supported by the email dated April 9, 2019, she testified that the grievor was again working on a file past 6:00 p.m.; it was 6:04 p.m., but the time to leave was 6:00 p.m. She reminded him that this was a security measure and resent him the January email about this matter. She repeated that his accommodation agreement gave him the flexibility to leave between 3:00 p.m. and 6:00 p.m., and that the only exception for leaving after 6:00 p.m. was when employees were permitted to work overtime. In this case, he was not permitted to do overtime.
[80] She testified about an email that she had sent to follow-up manager Dimitrios Panagakos, who had the same title as Mr. Haidar, on April 9, 2019, in which she reported the following comments from Marie-Hélène Dagenais, Senior Project Officer (SPO).
[Translation]
...
... she found that Patrick was rarely at his desk. He often asked her operational questions, and she told me that she often goes to his desk to discuss them, but he is never there. She also told me that he is often late for meetings of the low salary committee and that she frequently needs to set him straight.
...
[81] Ms. Audet-Labonté testified that she had reminded the grievor to take notes when he attended meetings and that it was his responsibility. She wrote to him about it in the email dated April 9, 2019.
[82] She referred to an email from Mr. Panagakos to the union representative dated April 10, 2019, about the grievor’s APA since their last meeting in November 2018. She stressed the statement that the grievor had to do his part because the employer considered that it had done its part. She admitted that the medical condition forced the grievor to take more breaks to go to the washroom, but the time taken for these breaks had to be taken as sick leave. She stated that the functional limitations did not prevent him from doing his job; they only affected his work time. She continued by stating that the grievor had to show integrity and said that between July and November 2018, he had taken breaks for his condition but had never reported them. She stated that by comparison, more than 20 emails about these breaks had been sent between January 28 and March 19, 2019.
[83] She testified that the grievor had made another error when processing a file two weeks before her summary email dated April 11, 2019. In this email, she had mentioned all the involvement and effort needed to correct the situation. In it, she repeated the following: “[translation] ... the importance of looking at all the items in a file before confirming it”. This error led to many more additional resources being needed not only from the TFWP but also from the employer and MIDI. She testified that after this error, she had written back to him about all the steps required to process this type of application, to train him and to keep him from making the same mistakes in the future.
[84] She recalled that all the summary emails to which she had referred during her testimony had been prepared to comply with accommodation, which required such summaries to ensure that the messages conveyed during meetings with the grievor were properly understood.
[85] She referred to a second email dated February 11, 2019, to state that she had given the following instruction to the grievor: “[translation] As of now, I am asking you to send me an email at the start and end of your 15-minute breaks, like how you already do for when you enter/leave the office and for your lunches, in addition to your emails when you need to take time”. She had also notified him that the times that were considered would be those stamped on the emails and not those stated by the grievor in his email. She also informed him that if he did not comply with these requirements, he risked administrative or disciplinary action. She admitted that this final warning had not been mentioned during their meeting, but she had wanted to convey it to him all the same. She stated that these measures became necessary because the grievor would tack his breaks on to those for lunch and to his leaving time. She stated that these requirements did not apply to breaks for going to the washroom, but he still had to submit a timesheet.
[86] She testified that his manager had tasked her with monitoring the grievor’s comings and goings for 2 days, April 8 and 9, 2023. She had counted 1.25 hours not working and without reporting the time for the 1st day and 64 minutes for the 2nd day.
[87] She referred to a series of emails from April 11 to May 17, 2019, which followed the entry into force of the new requirements mentioned above. These emails describe a discussion between the grievor and Ms. Audet-Labonté. They also address the issue of the hours of work and the time to be made up by the grievor. She referred to the email dated May 9, 2019, in testifying that she reviewed the items addressed during their meeting on April 11, 2019. She testified that she reiterated the importance of adhering to the schedule and the times for breaks and lunch. In an email dated May 17, 2019, she informed the grievor that another team leader would replace her during her absence and that all existing procedures with respect to his hours of work and email requirements would remain in place.
[88] She referred to an email dated May 17, 2019, which detailed another file processing error by the grievor.
[89] She referred to the year-end APA and stated that she was the one who had made all the comments. She stated that all the errors mentioned in the emails had been discussed with the grievor. She stated that she had given him the “Did not meet” rating. This evaluation had been written in Word, not in the human resources system.
[90] She gave an example of a comment found under the “Showing initiative and being action-oriented” heading. She stated that the grievor did not take any initiative and did not propose any solutions. Among other things, she had written the following:
[Translation]
...
Patrick has not demonstrated that he has shown initiative or that he is action-oriented when analyzing his files. As soon as there is an issue, he transfers the emails to his team leader or a senior program officer (SPO) so that they can take action to resolve a problematic situation. Patrick may transfer up to five emails per day to his team leader. He mentions the various situations with which he is confronted in his work yet expects his team leader or his SPO to follow up. He never takes action himself and does not propose any possible solutions.
...
[91] She also discussed his attendance and integrity as follows:
[Translation]
...
Patrick is often absent from his desk without management knowing what he is doing. The bond of trust has been broken, and management must now ask Patrick to send at least eight emails per day (comings and goings for two breaks and lunch, arrival at and departure from the office, plus any additional time taken outside of breaks) to ensure that he complies with his hours of work. A set schedule was put in place for Patrick.
...
D. Cross‐examination of Ms. Audet-Labonté
[92] Ms. Audet-Labonté testified that she had read about the accommodation made by the employer and that she was the one who had implemented it. According to her testimony, in exchange for his flexible schedule, the grievor agreed to inform his team leader by email of his comings and goings. These measures were the only measures implemented.
[93] She testified that from June 26 to September 30, 2018, the grievor performed well. However, she noted that in July and August, he took longer breaks. She had also noted this in the mid-year performance appraisal. She had also suggested methods to help him with his schedule management. She stated that these were suggestions and not an obligation for the grievor.
E. Caroline Harès, Director General
[94] Ms. Harès was the director general of the TFWP in 2018. At the time, she had been working with Service Canada since 2015. Her role was, among other things, to manage operations through her managers. She testified that the number of applications had doubled and that the spring and summer periods had been very busy. Private employers were unhappy with the service that they were receiving from the TFWP.
[95] In June 2018, her predecessor, Ms. Lessard, had asked her to include the grievor on her team because things were not going well on her team. Ms. Lessard had wanted the grievor to succeed on her team, and she had told her that she had faith in her and that she would manage to incorporate him into the TFWP.
[96] She referred to the Memorandum of Settlement (“the Memorandum”) between the grievor, Ms. Lessard and the union representative that was signed on June 27, 2018. She stated that under paragraph 9 of the Memorandum, the grievor was hired as a new employee and he was subject to the same conditions as any other new employee. Under paragraph 11, the employer committed to “[translation] implement accommodation as described in the attached accommodation agreement form”. She stated that in accordance with paragraph 12, if the grievor received the “Succeeded” rating in his APA, he would be confirmed in his position as a program officer at the PM‐02 group and level for an indeterminate period. Under paragraph 13, the employer committed to ensuring follow-up with the grievor and holding meetings every two months with his team leader, depending on the parties’ availability. She stated that follow-ups with the team leader had taken place at a greater frequency than every two months.
[97] In reference to the form, she stated that she had discussed the grievor’s condition with his union representative, although she did not remember the exact date or whether there had been other people present at that time. During the meeting, the union representative reportedly stated that the grievor was not satisfied with how he was being accommodated. She told him that she wanted the grievor to in fact be better accommodated and that a second meeting would be planned to discuss it.
[98] She referred to a long email chain from August 16 to December 7, 2018, particularly the email dated December 7, 2018, from Mr. Archambault, the union representative, to herself. The discussion reported in the previous paragraph followed this email. Three items had been discussed: the flexibility of break times granted to the grievor (15 minutes in the morning, 30 minutes for lunch and 15 minutes in the afternoon); the use of compensatory leave instead of sick leave when the grievor was absent for his medical condition-related needs; and a third item, which she could no longer remember.
[99] She testified that she had tried to find out why the grievor was not allowed to use compensatory time instead of sick leave and consulted with Human Resources. They apparently advised her that this decision was made in compliance with the collective agreement and that the time taken by the grievor with respect to his medical condition had to be taken as sick leave.
[100] She stated that she expected to be involved in all decisions affecting the grievor and expressed her desire to see the grievor succeed. She stated that her team put everything in place to ensure the grievor’s success at his position. She stated that she was informed of the grievor’s mid-year performance appraisal. She recognized that he was on track to meet his objectives, but it was still too early to draw any definitive conclusions.
[101] She stated that there were two significant issues with the grievor’s performance: (1) his time management and presence at his workstation; and (2) his performance at work. He made many mistakes.
[102] She referred to the year-end APA. She testified that the grievor had not met his objectives and had not kept up his side of the accommodation with respect to his attendance at work, and the analysis of his performance showed shortcomings in his analysis of employer files. She stated that, despite all the guidance for the grievor to help him meet his objectives, he had failed, which led to the letter of termination dated May 31, 2019.
[103] She stated that the termination was absolutely not connected to the fact that the grievor needed accommodation or because of his medical condition.
F. Summary of the grievor’s evidence
[104] The grievor said that he is currently working for Uber Eats and has occasionally been working as a substitute teacher since May 2019. He stated that he had a Bachelor of Education degree since 2008. He started working for the federal government in 2009 in the New Horizons Program, which is intended for seniors, and afterward, he was appointed to various casual positions. In 2015, he received a term position; this was the position he held when the Memorandum was signed on June 18, 2018. During this job, he had to go on sick leave. He consulted a neuropsychologist, who prepared a report on February 10, 2017. By the end of that contract, his appointment was not renewed, which led to the filing of a grievance that led to the Memorandum.
[105] The Memorandum included a brief introductory paragraph, 17 numbered paragraphs and a concluding paragraph. The grievor had agreed to the various items numbered 5 to 8, and the employer had agreed to the various items listed in paragraphs 9 to 17.
[106] The Memorandum provided for, among other things, the grievor to withdraw his grievance and accept a one-year term position with a one-year probation period. It was expected that if he received the “Succeeded” rating, his term position would be converted into an indeterminate position. The employer committed to following up on the grievor’s performance through meetings with his team leader every two months, depending on the availability of the parties. The employer also committed to implementing accommodation as described in the form. The employer also committed to reviewing the grievor’s APA and withdrawing any comments in it that referred to his functional limitations.
[107] The grievor testified that he was afflicted with two medical conditions, the first being ADHD, as diagnosed by a neuropsychologist, and the second, a medical condition that requires him to go to the washroom more often. He testified that the second medical condition had not been considered when accommodation was implemented. He stated that he himself was unaware that he was suffering from this second medical condition at that time. It was only later that he was diagnosed with this condition. He stated that this condition was linked to the stress that he was under.
[108] He testified that the conclusions in the neuropsychologist’s additional notes indicate that he has difficulties managing his time but can maintain full-time employment. The neuropsychologist states, “[translation] In summary, the results obtained [from a test] are marked by some disorganization and some impulsivity”. The functional abilities form completed by Dr. Charbonneau on March 29, 2016, indicates that flexible hours of work and a flexible work schedule would be desirable as accommodation.
[109] The grievor testified that, in his view, the employer was aware of the report dated April 21, 2016, and that it identified the cognitive limitations related to constant vigilance, sustained concentration, organizational skills, and time management. He testified that his accommodation specified that he could arrive at work between 7:00 a.m. and 10:00 a.m.
[110] He testified that when he started in his position at the TFWP, he had met Ms. Fernandez, the manager at the time, accompanied by his union representative, to discuss accommodation. He first held a position as a clerk to improve his training until August and then he held the position of program officer. The washroom problem arose during the training period, and the trainer had asked him to make up the time that he spent in the washroom.
[111] He testified that a clerk’s tasks included analyzing applications and then sorting them and entering the data. After analyzing the files in accordance with the TFWP’s various criteria and streams, the clerk would then issue an opinion on the application. He stated that initially, the feedback was positive, although he admitted that he probably made a few mistakes and could improve on some aspects of his work. He stated that it was also going well with his team leader until his medical problem appeared. He stated that he felt incompetent when the office reorganization placed his team leader close to him. He felt he was being spied on and monitored.
[112] The grievor referred to the email that served as a summary dated July 9, 2018, from his team leader following their meeting on July 6, 2018. He recognized that these emails, which served as summaries, complied with the prescribed accommodation of providing a written summary of each of their meetings. He stated that for the first two weeks, he felt comfortable and that everything was going well. It was during this meeting that he told her about his inability to take notes and that he had not had any training follow-up. She provided him with tips to make his learning and work at the TFWP easier. He stated that it was after this email that he started to feel increasingly unwell.
[113] He talked about the email dated July 17, 2018, which is a summary of the meeting on July 11, 2018, during which various topics were discussed, including TFWP 101 training and the workload, note taking and time management. In the email, the team leader wrote, “[translation] The following is what we agreed upon to improve your time management ...”. He stated that he had never agreed to the proposed measures and did not feel that he could object to them. He added that he was never offered the opportunity to be accompanied by his union representative. From then on, he had to use the time for his morning, afternoon and lunch breaks to go to the washroom. He stated that it was very difficult to carry this out, along with compiling all his questions and not submitting them until a specific time of day. For someone affected by ADHD, this was very difficult to carry out because he could not set a file aside while waiting for a reply; the file remained on his mind. He stated that this and the obligation to send a multitude of emails had had an impact on his performance. It caused him to lose focus on his work. He felt that he was working on two things: his own work and email management. He felt as if he were walking on eggshells. Getting his knuckles rapped made him make mistakes.
[114] The email dated August 16, 2018, was the summary for two meetings: one on August 10 and the other on August 15, 2018. He stated that he had met with the employer, without his union representative present, about his schedule management, medical condition, use of the washroom, a medical certificate and compliance with his break and lunch times. He was also criticized for making personal calls, but he stated that he had no choice but to make them; since when he was making up time and staying at the office later than expected, he had to make arrangements for his work-family balance. He felt that the discussion surrounding his absences to go to the washroom, during his training, was like a police interrogation. He stated that on August 15, 2018, at the time of this meeting, he was still unaware that he was suffering from a medical condition.
[115] On August 16, 2018, the employer submitted a “[translation] Request for Fitness to Work and Functional Abilities Assessment” for the grievor to Dr. Charbonneau. The request stated that his frequency of trips to the washroom was increasing. The grievor stated that given his condition, he could not predict when and how many times he would have to go to the washroom.
[116] The grievor testified that, in an email dated August 16, 2018, the team leader told him, during training, to make up one hour of work to compensate for his absences, which totalled one hour. He stated that after a meeting with the union, she changed her mind and no longer asked for the hour to be made up, acknowledging that “[translation] ... the strict training schedule was not ideal if you had to go to the washroom”.
[117] He testified that his team leader had made positive comments about him in her email dated September 21, 2018, acknowledging that he had analyzed his files well and no longer made the same mistakes. However, he testified that he was not comfortable with the last 2 items on the list, 1 asking him not to see his coworkers repetitively to ask them questions but to see his “coach” so that he could have consistent answers, and another requiring all questions with respect to MIDI to be addressed to his team leader. He stated that this had a negative impact on his performance and caused him to make mistakes in his files. It also caused him to make decisions that sometimes were right, but other times were not. He stated that he sometimes only completed 3 files because he could not ask his questions, but if he had been able to ask them, he would have completed 10.
[118] He argued that being required to group his questions together to submit them all at the same time was inconsistent with the neuropsychologist’s report. He experienced a great deal of difficulty complying with this requirement. He stated that he had not agreed to this instruction. He argued that not complying with it clearly demonstrated that he did not consent to it.
[119] The grievor testified that the mid-year performance appraisal was generally positive and that he was on track to meet expectations. What stood out was that he was learning from his mistakes, and he considered that it was normal to make mistakes at a new position. He stated that two weeks after the start, he did not feel comfortable in his position.
[120] He testified that he had submitted the fitness to work and functional abilities assessment form to his union representative, who then apparently submitted it to the employer. He argued that the report stated that he needed breaks to go to the washroom when necessary and that his ADHD-related limitations vis-à-vis cognitive demands were already known. He stated that his medical condition mainly manifested itself during stressful times, such as when he knew that he had to report his time spent in the washroom. He added that the stress caused him stomach pain, particularly when dealing with a set schedule. He repeated that he needed a flexible schedule and that, when he did not have to hurry, he did not experience these sensations. He testified that he suffered the same pains when he had custody of his son and feared that he would arrive at school late. He experienced this same problem every time he had a deadline.
[121] He testified that, in the email dated October 24, 2018, the employer had acknowledged receipt of the medical certificate that he had submitted confirming a medical condition, but it had not offered additional accommodation. Instead, his team leader had asked him to send emails whenever he was away from his desk (upon leaving and returning). He stated that this new measure only added to his stress and worsened his condition. He stated that he had not agreed to this measure. When he had received the email, he believed that it was a joke. He said that he was unable to comply with such a request because of his ADHD. He testified that he had waited until the end of his shift to go to the washroom but had been reprimanded for leaving the office after 6:00 p.m. He testified that this measure had impacted him in the workplace, to see his comings and goings monitored in such a way, and he considered that this measure did not comply with the measures in the Memorandum. He said that he felt terrible, to the point that he thought of taking sick leave.
[122] The grievor referred to a series of emails from December 10 to 20, 2018, about his presence at his workstation. The team leader repeated that he could not exceed his break times, to which he replied that he had not exceeded them, except on December 4 and 6. She had required him to send her emails before leaving his workstation and when he returned to it, and if she noted that he was absent and had not sent her an email, she would ask him to make up his time. He stated that he felt terrible after receiving this email and that it had an impact on his work performance. He also stated that he felt insulted to be told that they wanted to help him through these measures. He stated that these emails, combined with the need to check that he still had leave time or to see whether he could make up his time at the end of the day and make arrangements for his family obligations, added considerably to his workload. In addition, he felt that these emails had a very moralizing tone.
[123] In his email dated January 8, 2019, the grievor confirmed that he had arrived late because it had snowed and he had had to take his son to school. He testified that he had shared custody of his son, with a variable schedule.
[124] The grievor testified about an email exchange on January 15, 2019, in which he was criticized for leaving the office at 6:16 p.m., after the scheduled departure time of 6:00 p.m. He had also been asked for clarification about his absence from his desk at around 5:00 p.m. He testified that this email had greatly insulted him, that he was being asked if he had gone to the washroom during his afternoon break and that he felt like he was being closely monitored. He stated that these requests ultimately distracted him from his work while he tried to reduce his visits to the washroom as much as possible. He admitted that he could forget to send his emails. In addition, on that occasion, he had not noticed that he had gone past 6:00 p.m. because his telephone’s battery had run out of charge and he had not seen the time. He also testified that, if he arrived at 10:00 a.m., that would not allow him to make up his time after 6:00 p.m. and that if he did not do so, he had to take leave without pay. That caused him additional stress.
[125] The grievor commented on the email chain dated January 23, 2019. In the first email, the team leader questioned him about whether he had taken his morning break at 10:00 a.m. He replied that he had taken his lunch break at 10:00 a.m. He contended that he did not need 30 minutes for lunch. He repeated that this email had insulted him to the point that he had to turn to the Employee Assistance Program. He stated that the employer had never reviewed his obligations with respect to sending emails.
[126] The grievor commented on the emails dated January 23, 2019, and from February 6 to 20, 2019. He stated that these were mistakes for which he was criticized. He described these errors as “[translation] oversights”, and he attributed responsibility for them to the work climate that was distracting him, along with all these demoralizing emails. He stated that his team leader was putting pressure on him; he felt that he was being watched. He argued that she would even look at his screen from her desk. He felt as if he always had the boss looking over his shoulder, which caused him a great deal of stress, increased his need to go to the washroom and made him feel incompetent. He complained that his team leader only reported the files with errors and never commented on the ones that he did correctly.
[127] He referred to his email dated February 6 and the reply from the team leader on February 7, 2019. He informed his team leader that he had exceeded his 15-minute break because he had gone to the washroom. In reply, she had thanked him and had expressed her appreciation for his honesty. He stated that this was the type of email that he had to send and that he felt that this method did not accommodate his medical condition.
[128] In another email exchange, on February 18, 2019, the team leader criticized him for not sending his email for his lunch break and for arriving 15 minutes late for the “[translation] low salary” committee meeting. He testified that, to the best of his recollection, he had gone to the washroom. He stated that his team leader was spending all her time monitoring him.
[129] The grievor acknowledged in the email exchange on February 18 and 19, 2019, that he had failed to send his email when he left for lunch and when arriving late for the “[translation] low salary” committee meeting, and that his team leader had asked him when he planned to make up his time. He repeated that the email from his team leader had made him feel terrible.
[130] He acknowledged that he had made a mistake by closing a file in error and that the emails confirmed that he had quickly corrected it. He testified that the obligation to send a multitude of emails to his team leader and the moralizing tone that she used led to a reduction in his productivity. He argued that the work atmosphere was not ideal. He constantly felt as if he were being watched and micromanaged. He stated that he did not feel that his personal needs were being accommodated. The employer never reviewed the accommodation or requested other medical certificates.
[131] The grievor mentioned that the emails dated March 4, 5 and 20, 2019, were about errors that he had made. He argued that these were oversights, which in one case had no impact because the clerks had caught it in time. He contended that if these were misunderstandings or if his competency had been cast into doubt, he expected that the employer would have offered him training.
[132] The grievor referred to the email dated March 27, 2019, from Mr. Archambault, his union representative, with whom he said he shared the remarks that the general assessment of his mid-year performance appraisal was “OK” and that he himself had shown initiative. He asked why the employer had not asked him to find a way other than emails to monitor his attendance. He stated that he did not receive an answer to this question. He stated that he still felt just as bad, that the atmosphere was very tense and that he felt as if he was being interrogated with each email. All of that required a lot of energy from him and had a direct impact on his concentration, thus increasing his need to go to the washroom.
[133] He stated that the emails dated March 22 and 27, 2019, showed other oversights. The email chain from March 22 to 28 recounted another error, and the team leader reminded him of the steps to follow to complete a file. He repeated that these errors were due to being distracted.
[134] The grievor discussed his team leader’s email dated March 29, 2019, with respect to his obligation to submit a timesheet for his trips to the washroom, using either sick leave or leave without pay. He stated that he did not manage to make up his time through working, owing to family obligations. He stated that he had consented to this obligation because he could not consent to measures that were not set out in the agreement. In addition, he argued that his union had not been consulted about this obligation.
[135] He discussed the emails from April 1 and 2, 2019, in which he asked his team leader a question about correspondence with MIDI. He stated her reply had made him feel “[translation] stupid, even irrelevant” when she replied to him that, “[translation] [a]s an officer, your tasks include ensuring that the decision letter is compliant, so you can send it to MIDI again yourself.”
[136] He argued that another email, dated April 2, 2019, showed the type of correspondence with respect to the leave time available in his leave bank. His team leader had asked him to make up the missing time or take it as leave without pay. He stated that during the day, he did not really have break time because he spent it in the washroom. Even during his breaks, he was stressed because of the fear of exceeding his break time. He stated that he ate while he worked.
[137] He stated that the email dated April 4, 2019, reported another oversight where he had written 2018 instead of 2019. He testified that, in the email dated April 9, 2019, his team leader criticized him for still being at work after 6:00 p.m. He replied that she had also stayed after 6:00 p.m. He argued that the employer had never reviewed his obligation to leave before 6:00 p.m.
[138] In another email dated April 9, 2019, the team leader reminded him of his responsibility to take notes during meetings. He stated that the agreement did not state that he was obliged to take notes.
[139] The grievor referred to the email from his team leader dated April 11, 2019, on which their manager and the union representative were copied. This email reviewed the items discussed that morning. It is a relatively long email that included many instructions. The team leader asked him to send her an email to tell her when he left on and returned from his breaks, as he already did for when he arrived at and left the office and for his lunches. She informed him that the accepted times would be the times of the emails and not what he indicated in the emails. She stated that they, i.e., she and the grievor, had agreed on set times for his breaks and lunches, and that he could arrive at work between 9:00 a.m. and 10:00 a.m. In this email, she gave him general instructions and informed him of the following, despite their not having discussed it during their morning meeting: “[translation] If you do not comply with these requirements, administrative and/or disciplinary action may be taken, which may include rejection on probation”.
[140] The email continued with instructions about time to be made up or taken as leave without pay. She also informed him of action taken to support him with his learning and stated that he had to refer exclusively to “Sylvia” if he had any questions. She informed him that she would release him from his duties for two hours the next day so that he could reread his documentation and train himself on the procedures. Lastly, she asked him to contact her if he wanted to meet with her, because in her view, his visits to her desk when he had a question prevented her from accomplishing her tasks.
[141] The grievor testified that he had not consented to all these measures nor had he agreed to them. He stated that he had not discussed these measures or the risk of termination with his team leader either after the meeting or after the summary email. He argued that establishing a set schedule was against the Memorandum. He stated that he was not able to satisfy his employer and that is why he was terminated.
[142] He stated that all these measures worsened his anxiety and increased the risk of making a mistake. He argued that this was against the neuropsychologist’s recommendations in his report dated February 10, 2017, namely, “[translation] ... work would be more effective in a calm room, if possible away from peers” to avoid noise and distraction. He stated that he felt as if he was constantly being monitored and that this deterred him from going to the washroom. He acknowledged that he normally arrived at work between 9:00 a.m. and 10:00 a.m. and that the employer had imposed measures on him knowing that he could not comply with them. He testified that he rounded off his times when he totalled them up; for example, a 20-minute absence was rounded down to 15 minutes and 25 minutes, up to 30 minutes.
[143] The reply to the previous email was in an email chain from April 11 to 17, 2019. In it, the grievor expressed his desire to consult his union representative before answering her. In response, she gave him until the next day to reply to her about making up his time; otherwise, she would consider the time taken as leave without pay.
[144] On April 17, 2019, the union representative wrote to the team leader’s manager to say that he considered the actions laid out by the team leader with respect to digitization procedures to be greatly exaggerated, and he criticized the other actions taken. He quoted the manager, who told him that he was not in a disciplinary situation, despite the warning of termination in case the grievor failed. He concluded his email by stating the following:
[Translation]
...
Lastly, we know that we (management, Mr. Simard and the union) are all bound by an accommodation agreement. It is directly linked to Mr. Simard’s functional limitations. In my view, we should take the time to review it, since I believe that you are departing from the medical specialist’s recommendations.
...
[145] The grievor stated that his union representative asked for a review of his accommodation. He stated that he had not had any contact with the employer, nor had he asked for new medical reports from them.
[146] He referred to another email exchange from May 7 to 9, 2019, which began with the grievor informing his team leader at 2:35 p.m. that he was taking his meal break later, since he was not hungry at 2:00 p.m. She replied that the purpose of the schedule that they had set was to help him better manage his schedule. The grievor replied by asking how a set schedule would help him, and she replied to him in another one-page email. He argued that being required to send emails worsened his stress and increased the risk of making mistakes.
[147] The grievor stated that he felt insulted to find out that he had been under surveillance by his team leader on April 8 and 9, 2019. He spent a lot of time checking the information in the table that reported the time that his team leader wanted him to make up outside working hours. He testified that this also increased his stress, his risk of making mistakes and his need to go to the washroom.
[148] He referred to an email chain from April 11 to May 17, 2019, mainly the email dated May 7, 2019, from the grievor to his team leader. This was a detailed response by the grievor to the concerns raised by his team leader. He stated that he testified about everything that was written in blue. He argued that all the actions taken remained the same until the end, despite the union representative’s request to review his accommodation.
[149] The grievor testified that he was not surprised at his year-end performance appraisal, since his medical condition had been accommodated. He argued that, although he did not know how, the moralizing tone of all his team leader’s emails had had a negative impact on him, along with the fact that his oversights had not been considered in his APA.
[150] He referred to a document from the neuropsychologist, dated May 29, 2019, which discusses the condition linked to symptoms of ADHD. He stated that he had submitted this document to the union but not to his employer.
[151] He testified that his termination had an enormous impact on his personal life, and that he has a job as a delivery man and works 12 hours per day. That caused him significant financial stress. He still lives with the consequences of his physical condition of stomach pain and the need to go to the washroom frequently. He never managed to find a job in the federal government because he is always asked for references from his last employer.
G. Cross‐examination of the grievor
[152] The grievor acknowledged that the functional abilities form had identified only those functional limitations that applied to his condition. He admitted that he was never criticized for either his productivity or the number of files that he processed per day, and that he was not pressured to increase his workload but did have to improve the quality of his work. He never complained that his workload was too heavy; he only complained about the emails.
[153] He recognized that at the time of signing the Memorandum and the “[translation] Duty to Accommodate Request and Agreement Form”, he was represented by his union representative, that he had not been pressured or coerced into signing it, and that, in so doing, he accepted a term position that would be converted at the end of 1 year if the APA received a “Succeeded” rating. He admitted that he had signed the letter of offer, which included a 12-month probationary period. He acknowledged that when he signed the Memorandum, it complied with the limitation agreement at that time, which stipulated, among other things, that he had to work 37.5 hours per week and 7.5 hours per day; that he could arrive at work between 7:00 a.m. and 10:00 a.m. and that this was the only area of flexibility in the agreement; that he had to comply with the work times and break times as set out in the collective agreement; that he had to send an email to his team leader when arriving at and when leaving work; and that, whenever he was late, he had to provide a plan to make up for lost time. He acknowledged that the Memorandum would be reviewed every 4 months.
[154] He acknowledged that he was not opposed to sending emails about when he arrived and when he left and that he had to leave no later than 6:00 p.m. He confirmed that his hours of work were between 7:00 a.m. and 6:00 p.m. He stated that he did not remember whether he had informed his team leader that his obligation to send emails distracted him from his work or that it caused him increased stress. His employer never prevented him from being accompanied by his union representative at his meetings with his team leader. He stated that he did not know that he could report his hours in fractions of an hour, for example, 20 minutes as 0.33 hours.
[155] He acknowledged that the “[translation] Fitness to Work and Functional Abilities Assessment Form” had been completed by his doctor, who recognized his cognitive and mental limitations, and that he had been granted accommodations for these limitations, along with washroom breaks when necessary. He acknowledged that the employer had identified a contact to help him with his work and that his union representative, in his email dated September 10, 2018, conceded that if the grievor exceeded the time granted for his breaks, he would make arrangements to make up the missing time.
[156] The grievor acknowledged that he had not filed a grievance because of the employer’s refusal to change its email procedure for monitoring his attendance or to amend his accommodation. He admitted that the employer had never prevented him from going to the washroom. He also acknowledged that the employer had an obligation to notify him of his errors, but not in a moralizing tone, he specified. He stated that each time an email mentioned “[translation] it was agreed”, that had not been agreed but imposed.
[157] The grievor admitted to giving the medical note from Dr. Charbonneau dated May 15, 2019, to his union representative but not to his team leader, and that he did not know whether he had forwarded it to the employer. It was agreed that this note did not demonstrate anything new about his medical condition and, in fact, confirmed what was already known, that is, that he needed a flexible schedule. It was the same for the neuropsychologist’s note dated May 29, 2019. He submitted it to the union representative, and he did not know whether the employer had received it. He admitted that he had not discussed the moralizing tone with his team leader, only with his union representative.
[158] He testified that, since his termination, he had worked as a substitute teacher from 2019 to 2022. He never applied for a full-time teaching position, for personal reasons.
IV. Summary of the arguments
A. For the employer
[159] The employer’s representative submitted the following issues:
1) Was the APA completed in good faith, for an employment-related reason, without a sham, a camouflage or discrimination?
2) Was the APA completed in good faith, for an employment-related reason, without a sham, a camouflage or discrimination?
3) Does the Board have jurisdiction to grant the remedial action claimed by the grievor?
1. Was the APA completed in good faith, for an employment-related reason, without a sham, a camouflage or discrimination?
[160] Relying on Mazerolle v. Deputy Head (Department of Citizenship and Immigration), 2012 PSLRB 6, the employer argues that the adjudicator’s power is limited with respect to the contents of a performance appraisal and that its jurisdiction is limited to reviewing the reasonableness of the appraisal. It argues that this test sets a higher bar than the one imposed on the employer who rejects an employee on probation, even though, despite this fact, the APA was completed in good faith, for an employment-related reason, without a sham or discrimination. It argues that the employer accommodated the grievor’s functional limitations, that the APA considered them and was based on the grievor’s performance as accommodated, and that, despite the accommodation, the grievor “[translation] ... was unable to meet the standards expected of a program officer for reasons not related to his functional limitations or medical conditions”.
[161] The employer argues that appropriate performance standards had been set and states that it is reasonable to believe that the grievor did not challenge them. The mid-year performance appraisal uses the same standards as a year-end performance appraisal, and it was only at the end of the year that he challenged them. The employer therefore drew the conclusion that the performance standards used were appropriate.
[162] It contends that the performance standards were clearly communicated to the grievor and claims that it is reasonable to conclude that the grievor is not alleging the contrary. It lists the occasions on which they were communicated: during the mid-year performance appraisal on November 23, 2018; during a meeting with the union representative and the grievor on February 21, 2019; and at the year-end performance appraisal on May 31, 2019.
[163] The employer asserts that recourse to another way of presenting the APA, other than through the typical form, reflects an administrative problem that has no impact on the merits of the APA.
[164] The employer states that it gave the employee the necessary tools, training and guidance to allow him to achieve the set performance standards in a reasonable period of time. In addition, during his testimony, the grievor testified that his errors were due to distraction, not a lack of understanding. The grievor also acknowledged that the respondent had identified a contact person to answer his questions, although he would have liked to ask his questions whenever he had one to ask.
[165] The employer argues that the Memorandum gave it the flexibility to select the contact person and guide how she would respond to the grievor’s requests. It argues that it was reasonable for the team leader to discourage the grievor from asking questions of team members so that the contact person alone would provide the answers and thus ensure consistent answers and not mislead him. In addition, this guidance was necessary because the grievor had a habit of interrupting his team leader several times per week. It argues that it complied with the neuropsychologist’s recommendations and with the Memorandum.
[166] The employer stated that it had warned the grievor in writing of the consequences of not meeting the set performance standards in its email dated April 11, 2019. The employer states that failing to discuss it beforehand during their first meeting had no impact on the grievor or the union, and that they could have spoken out against it after receiving the summary email.
[167] The employer argues that the grievor did not meet the set performance standards. It argues that, in the mid-year performance appraisal, the grievor was notified of shortcomings in his performance and that despite these warnings, he continued to make mistakes when analyzing his files, which had significant impacts. It contends that the grievor was again informed of his lapses during a meeting on February 21, 2019, which was confirmed by the summary dated March 20, 2019. Despite clear instructions, he continued to make serious errors after receiving this last email.
[168] The employer argues that the grievor claims that these were mere oversights and downplays their importance. However, his team leader testified to significant impacts on his coworkers and clients. It states that the grievor’s argument is contradicted by the neuropsychologist, who indicated that he is fit to perform the work with the following accommodation: “[translation] The availability of overtime will enable him to limit errors ...”. It contends that on cross‐examination, the grievor acknowledged that the employer did not impose a quota or time limit for analyzing his files.
[169] The employer contends that the evidence shows that, despite his accommodation and the fact that no time limit was imposed on the grievor, he continued to make mistakes that had significant impacts. It stated that aside from one error, the reported errors are not mere oversights and are not connected to his medical conditions or functional limitations.
[170] The employer argues that the grievor complained about having to send as many as eight emails per day to show when he was present at his workstation despite this not being set out in the Memorandum, and that his APA would have dealt with this matter. The grievor alleged that as a result, the APA was discriminatory and was made in bad faith. The employer argues that the Memorandum specified that the grievor had to inform his team leader of any break overruns. The employer decided that the best way to stay informed was by sending emails to the team leader. It argues that the grievor’s failure to comply with this request contravened the agreement and could be considered in his APA. It states that this instruction was put in place starting on July 17, 2018, because the grievor was not informing the team when his breaks went too long.
[171] The employer contends that this instruction was reasonable; it allowed the flexibility requested by the grievor according to his needs but obliged him to inform his team leader about it. Additionally, no medical certificate indicated any constraint that would prevent the grievor from being obliged to send the required emails.
[172] The employer argues that the grievor did not submit his medical certificate dated May 15, 2019, to the employer and that consequently, it could not consider the certificate in his 2019 APA.
[173] The employer states that the grievor admitted to making mistakes and, as a result, not meeting the set standards. These repeated errors are not due to the fact that he had to send emails or to his functional limitations, since he was under no time constraints for analyzing his files.
[174] The employer cites Mazerolle extensively to state that the evidence shows that the year-end performance appraisal was reasonable, considered the grievor’s functional limitations and was based on significant errors made and acknowledged by the grievor. Lastly, it submits that the APA was completed in good faith and without any camouflage, sham or discrimination.
2. Was the grievor’s rejection on probation for an employment-related reason, without a sham, a camouflage or discrimination?
[175] The employer submits that the grievor was rejected on probation in good faith and for an employment-related reason. It submits that the evidence demonstrates that the employer accommodated all of the grievor’s functional limitations, that the APA considered these functional limitations, that the APA is premised on the grievor’s performance as accommodated, and that despite the accommodation, the grievor was unable to meet the expected standards for the position of program officer. It refers to s. 62(1) of the PSEA and the Supreme Court of Canada’s judgment in Jacmain v. Attorney General (Canada), [1978] 1 S.C.R. 15, which itself refers to Re United Electrical Workers & Square D Co. Ltd. (1956), 6 Lab. Arb. Cas. 289. It also references Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134.
[176] The employer argues that the grievor received a term appointment from June 26, 2018, to June 25, 2019, and had to undergo a 12-month probation period, as specified in his job offer letter. The grievor, accompanied by his union representative, was notified of his termination during their meeting on May 31, 2019. The termination letter states the reasons for it, and the grievor received 2 weeks’ pay in lieu of notice in accordance with s. 62(2) of the PSEA. The employer concluded that it discharged its burden of proving that it had an employment-related reason to reject the grievor on probation.
[177] The employer argues that it made efforts between 2018 and 2019 to assist the grievor with his job and that it negotiated an accommodation agreement, with the union and grievor, that was based on the grievor’s functional limitations and in accordance with the recommendations of his neuropsychologist and his doctor. The employer also argues that the grievor received many training sessions and follow-ups to accomplish his tasks. It states that the grievor testified that his errors were not caused by a lack of understanding and that confirms that he received complete training and that none of the errors he made were attributable to the employer. It contends that the grievor never notified his team leader that the requirement to provide numerous emails had caused the errors he made.
[178] The employer states that the grievor testified that he was not surprised by his APA and that this demonstrates that he was aware that the employer had employment-related reasons to conclude that he had not met his objectives.
[179] The employer states that despite the guidance it provided, the grievor’s attendance proved to be problematic. Mr. Haidar’s and Ms. Harès’ testimonies are unequivocal—the grievor was not terminated because of his functional limitations, medical conditions or frequent breaks to go to the washroom. It argues that the grievor’s shortcomings were caused by his lack of initiative and his inability to take charge of his own accommodation.
[180] The employer cites Currie v. Deputy Head (Department of Fisheries and Oceans), 2010 PSLRB 10, and Barber v. York Street District School Board, [2011] O.H.R.T. No. 206, which refers to the Supreme Court of Canada decision Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), which concluded that the grievor was responsible for helping to find more appropriate accommodation if what was in place was insufficient.
[181] The employer argues that the grievor never contacted his team leader to discuss how the accommodations were being reported and that this was a breach by him of his duty to collaborate in the accommodation process. It argues that, if the grievor considered the accommodations he received to be insufficient, he was obliged to provide additional information to his employer. He testified that he had only discussed it with his union, which informed the employer of it in a passing remark in its April 2019 email.
[182] The employer cites A v. Canadian Security Intelligence Service, 2013 PSLRB 3, to support its argument that I have no jurisdiction to decide this grievance. It states that the grievor did not provide evidence that the decision to reject him on probation was discriminatory, so it asks that the grievance be denied.
3. Does the Board have jurisdiction to grant the remedial action claimed by the grievor?
[183] The employer argues that if I conclude that the grievance is founded, relying on Mazerolle, I have no jurisdiction to substitute my opinion for that of the employer or to direct the employer to amend or redo its appraisal of the grievor’s performance. In light of this assertion, the corrective action requested by the grievor must be rejected, and the year-end performance appraisal must remain unchanged.
[184] The employer cites Rabah v. Treasury Board (Department of National Defence), 2008 PSLRB 83, and Chouinard v. Deputy Head (Department of National Defence), 2010 PSLRB 133, citing Rabah, which concludes that I have no jurisdiction to direct that the grievor be reinstated to his position when his term position expires. It argues that the grievor received the relief provided for in the PSEA, that being two-weeks’ pay in lieu of notice. It asks that the grievor’s request to be reinstated be denied.
[185] The employer contends that the grievor is not entitled to damages under the Canadian Human Rights Act (R.S.C. 1985, c. H-6; CHRA) since he did not establish the pain and suffering that the employer’s conduct caused him, in accordance with s. 53(2)(e) of the CHRA. It argues that the financial losses suffered by the grievor do not constitute pain and suffering or a loss of dignity but are in fact a typical hardship experienced by employees who have lost their job.
[186] It contends that all oral and written interactions between the team leader and the grievor were factual, professional and respectful. There was no vulgar, inappropriate, humiliating or embarrassing language that could have been interpreted as insulting or demoralizing.
[187] Should I conclude that there was pain and suffering or an affront to dignity, the employer suggests $2000 for pain and suffering under s. 52(2) of the CHRA and no amount under s. 53(3) of the CHRA.
[188] Ultimately, the employer argues that, given the oral and testimonial evidence, I have no jurisdiction to decide the grievance with respect to the rejection on probation and requests that I reject the grievance with respect to the APA.
B. For the grievor
[189] The grievor’s representative refers back to the Memorandum and the accommodation agreement that resulted from it, noting that they are the product of the fact that he lives with ADHD. He stated that upon taking up his position, he became the victim of micromanagement, which caused him to develop a medical condition.
[190] He argues that he never consented to the additional obligations of providing emails beyond those set out in the agreement.
[191] The grievor’s representative refers to an email chain from November 2018 and states that the union representative had objected to the proposed measures and suggested that the grievor be able to make up his time only when breaks went 20 minutes beyond his breaks set out in the collective agreement. He argues that, despite this email, the manager suggests that there is an agreement between them and that the grievor had to make up all the time taken outside his breaks. He claims that the union representative did not agree to it.
[192] These are the issues according to the grievor:
1) Does the Board have jurisdiction to decide the issue of the grievor’s rejection on probation?
2) Was the grievor’s rejection on probation based on a ground of discrimination?
3) Was the grievor’s rejection on probation in bad faith?
4) Was the year-end performance appraisal unreasonable?
5) What is the appropriate corrective action in this case?
1. Does the Board have jurisdiction to decide the issue of the grievor’s rejection on probation?
[193] The grievor’s representative argues that it is settled law that the Board has jurisdiction over a rejection on probation if the grievor manages to establish, on a balance of probabilities, that the rejection on probation was in bad faith, discriminatory or a sham and therefore can be referred to adjudication under ss. 209(1)(a) and (b) of the FPSLRA. He cites Hamel v. Parks Canada Agency, 2022 FPSLREB 61, to support his argument.
[194] He argues that the termination was in bad faith and on grounds of discrimination and that, for this reason, I have the jurisdiction necessary to decide the grievance on the rejection on probation and dismiss the employer’s preliminary motion.
[195] He alleges that the termination contravened article 19 of the collective agreement, which prohibits all discriminatory treatment, and therefore could be referred to adjudication under s. 209(1)(a) of the FPSLRA. Alternatively, he proposes that the termination was in bad faith and constituted disguised disciplinary action, thus making it subject to adjudication under s. 209(1)(b) of the FPSLRA.
[196] He argues that the preliminary objection only concerns the grievance bearing number 566-02-42033 with respect to the termination and that, despite my decision on the preliminary objection, I necessarily have jurisdiction over the grievance bearing number 566-02-42034 with respect to the year-end performance appraisal.
2. Was the grievor’s rejection on probation based on a ground of discrimination?
[197] The grievor’s representative argues that his termination resulted from differential treatment based on his disability. He refers to Moore v. British Columbia (Education), 2012 SCC 61, and Kirby v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 41, to define the applicable two-branch test to determine whether there was discrimination.
[198] He argues that the first branch of the test is indisputable. The grievor was allegedly suffering from ADHD when he started working for the employer, and his medical condition developed shortly after that. According to his claim, that satisfies the first branch of the test, namely, that he had a protected characteristic and that it was “... a factor in the adverse impact” (Moore). He states that, upon receiving his medical certificate, the employer imposed obligations that were not imposed on other employees, namely, the obligation to send emails when he was away from his desk and to make up the time that he spent in the washroom outside of his break times. He argues that objectively, he was treated differently on the basis of his disability.
[199] He contends that the grievor’s breach of his obligation to send a multitude of emails was expressly included in his APA and his rejection on probation letter. In his APA, the employer criticized him for not being diligent in sending emails every day; the termination letter mentioned the same.
[200] He argues that the second branch of the test is undisputed, that is, that discrimination has been established because the documentary evidence establishes that he was rejected on probation; the burden therefore shifts to the employer to justify its conduct (Moore).
[201] The grievor’s representative argues that, if not for the grievor’s disability, the employer would not have imposed these email obligations, which were not imposed on any other employee and would not have been used for a basis for his rejection on probation. He argues that the grievor was terminated because of his disability.
[202] He argues that the differential treatment imposed on the grievor because of his disability had a negative impact on his performance, which also contributed to his termination. He argues that there is a direct correlation between the number of errors he made and the differential treatment he received. He states that the employer even limited the number of people of whom he could ask questions and how often he could ask them.
[203] In his arguments, he states as follows:
[Translation]
...
i. The obligation to restrict his questions causes him significant stress, since it is difficult for him not to ask his questions when they come to mind. He had to act against nature and against his medical condition to try to contain his desire to ask questions throughout the day.
...
[204] He contends that this restriction made him have to guess at the proper procedure, thus causing errors.
[205] He argues that the grievor did not have the same 7.5 hours of work as the other employees, since he had to send a minimum of 8 emails per day, in addition to steps he had to take to plan how he was going to make up his time. He argues that it was inevitable that the grievor would make more errors in his files since he did not have the same amount of time as the others to ensure that he was completing his files error-free every day. He no longer had access to the same resources as the others or the frequency of access to these resources, and that worsened his stress. He argues that the stress level is directly linked to the employer’s differential treatment. He states that, according to the grievor’s testimony, the medical evidence on record confirms that in times of stress, he is more subject to oversights caused by distraction. He even testified that a host of errors documented in the evidence were mere oversights, such as entering the wrong date (2018 instead of 2019).
[206] The grievor’s representative argues that the grievor’s rejection on probation resulted from the failure to accommodate his functional limitations. He relies on Seeley v. Canadian National Railway, 2010 CHRT 23, Richards v. Canadian National Railway, 2010 CHRT 24, and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3. He states that an employer has a procedural and substantive duty to accommodate employees who need accommodation because of their functional limitations resulting from a disability. He argues that this duty is fluid and does not end once the initial accommodations have been put in place. The employer has the duty to review accommodation as needed to ensure that it evolves with the employee’s condition. He considers that, in this case, the employer was reckless and failed to accommodate his functional limitations throughout his employment, clearly failing in its substantive and procedural duty to accommodate.
[207] The grievor’s representative made a long list of arguments that show the employer’s breaches of its substantive duty to accommodate. I will not list all of them here but will summarize a few. He refers to the neuropsychologist’s report, which lists a series of the grievor’s functional limitations that result from his ADHD and states that the employer knew about them. It knew that the grievor needed a flexible schedule and more time to perform his duties, and that he had impulsive tendencies that made it difficult for him to inhibit his desire to ask questions.
[208] He contends that despite the employer’s knowledge of the listed functional limitations, it imposed a set work and break schedule on him. The employer imposed limitations on him that systematically increased in restrictiveness with respect to the possibility of asking questions, starting with a fixed timeslot for asking his team leader questions and a contact person and ending with a ban on consulting his coworkers. This limitation on being able to ask questions directly contradicted his functional limitations.
[209] The time constraint also applied to the time he left work for the day, which could not be after 6:00 p.m. and prevented him from making up his time. That added to his concern about completing the same volume of files as his coworkers, as he did not have the same 7.5 hours of work per day because of his medical condition-related absences. He claims that this time constraint forced him to be more efficient than his coworkers to produce as much as them, but in less time.
[210] The grievor’s representative asserts that the employer learned of the grievor’s new medical condition, which compelled him to go to the washroom more often, on October 2, 2018. The employer allowed him to go to the washroom as needed, outside his normal breaks, on the condition that he make up the lost work time. The employer refused to limit the make-up time to just washroom breaks that exceeded 20 minutes.
[211] He argues that the obligation imposed on the grievor to make up his time was not feasible, since according to the agreement, he could arrive at work between 7:00 a.m. and 10:00 a.m. and leave no later than 6:00 p.m. For example, if he started his shift at 10:00 a.m. and had to complete 7.5 hours of work, plus a 30-minute break for lunch, that inexorably brings him to 6:00 p.m., and as a result, he could not make up his time and therefore had to take leave without pay.
[212] The grievor’s representative claims that the fact that the grievor had difficulty sending all the emails that he had to send should have been an indication that these measures were not appropriate to his circumstances. He argues that the employer “[translation] ... knowingly turned a blind eye through [the grievor’s] work ...”. The employer never reviewed the accommodations, despite the “[translation] explicit requests” from the union representative to review them. He states that in addition to the request to review the accommodations, the agreement specified that it had to be reviewed every four months, but it was not.
[213] He states that the employer never called upon the grievor’s attending physician before imposing the additional obligations. He argues that the agreement signed in July 2018 did not authorize the employer to impose whatever obligations it wanted. He argues that the employer had the duty to ensure that the additional obligations accommodated the grievor’s functional limitations.
[214] The representative states that the employer clearly violated its procedural duty to accommodate because it never reviewed the grievor’s accommodations. He claims that the employer knew, or should have known, that the grievor’s medical conditions could have been one of the causes of his inability to meet his additional obligations. According to the grievor’s representative, the employer should have consulted the grievor’s physician before imposing new obligations on him or obtained the grievor’s consent. He alleges that before rejecting the grievor on probation, the employer should have been able to do more research to find out whether his shortcomings could have been linked to his medical condition. He argues that the employer should have known that the grievor’s performance problems were linked to his medical condition, and that it should have done more to determine whether it could have accommodated the grievor in a different way.
[215] He contends that it would have been possible to allow the grievor to make up his time by using his compensatory time or annual leave, but the employer refused. In addition, the employer did not have to require the grievor to make up his time in the same work week. He argues that it would have been easy to allow him to make up his time at an appropriate moment. Lastly, he argues that the employer should have been able to allow him to stay after 6:00 p.m. since it gave permission to other employees to do so. Thus, the grievor would not have had to face the additional pressure of submitting requests for leave without pay. In addition, the employer has not demonstrated that allowing the grievor to stay after 6:00 p.m. was an undue hardship.
[216] Relying on the above arguments, he argues that it is clear that the employer breached its substantive and procedural duty to accommodate. He claims that the grievor did not get a fair chance to perform well in his workplace because his personal limitations were not appropriately accommodated and that the Board must overturn his rejection on probation.
3. Was the grievor’s rejection on probation in bad faith?
[217] The grievor’s representative argues that the grievor’s rejection on probation was in bad faith, partly on grounds other than employment-related ones, and constituted disguised disciplinary action. He states that the grievor did not have a fair and equitable chance to succeed in his workplace because his employer systematically imposed additional obligations on him that doomed him to fail. He argues that the employer demonstrated its bad faith by limiting the times when the grievor could ask questions; by limiting the individuals of whom he could ask questions; by preventing him from asking questions of his coworkers; through the moralizing emails that his team leader sent; by replying that he should know the answers to the questions he was asking; and by drawing the conclusion in the APA that the grievor did not ask enough questions and that he asked his team leader too many questions. He claims that this demonstrates the inconsistency in the APA, as well as the employer’s intention to find any “[translation] immaterial point” it could to justify his termination.
[218] He argues that the employer drew a negative conclusion from the fact that the grievor did not adopt the suggestions made by his team leader, considering that they were not obligations with which he had to comply. He concludes that this demonstrates that the employer tried to find grounds unrelated to the quality of his work to justify his rejection on probation.
[219] He also argues that the employer drew a negative conclusion in the APA that the grievor submitted sick leave requests when he no longer had the necessary credits.
[220] He argues that the employer increased the grievor’s workload by obliging him to submit a multitude of emails and did not consider this when it was alleged that he made errors when analyzing his files. He likened this situation to the one experienced in Pugh v. Deputy Head (Department of National Defence), 2013 PSLRB 123.
[221] He states that the employer cultivated a toxic work environment that was not conducive to performance by monitoring the grievor’s slightest actions. He returned to the incident during which the team leader had monitored his comings and goings for two consecutive days almost down to the minute. He contends that it is unthinkable for an employee to perform their best under these conditions.
[222] He states that the bad faith continued up to his termination in the email dated April 11, 2019, which detailed a meeting with the union representative present but hid the fact that a breach of his additional obligations could lead to his rejection on probation. He claims that when the union representative asked for a subsequent meeting, the request was ignored. Additionally, when the time came to discuss the year-end performance appraisal, the employer waited for the union representative not to be available to attend the meeting, to add an item for discussion: the grievor’s employment contract. That led to the grievor’s termination without Mr. Archambault being present.
[223] He argues that, in light of the above arguments, the employer’s conduct constitutes bad faith and disguised disciplinary action, and that the Board must overturn his rejection on probation.
4. Was the year-end performance appraisal unreasonable?
[224] The grievor’s representative recalls that the grievance bearing the number 566‐02-42034 alleges that the year-end performance appraisal was unreasonable, vitiating the decision to reject the grievor on probation.
[225] He states that he agrees with the application of the test for this determination, which was proposed by the employer and supported by Mazerolle. He acknowledges that the employer set appropriate performance standards, that they were clearly given to the grievor and that he was notified of the consequences, in writing, if he did not meet the set standards.
[226] However, he contends that the employer did not act in good faith with respect to the year-end performance appraisal and it did not provide him with the necessary accommodations, such that it did not provide the guidance needed for him to meet the set standards within a reasonable time. He bases his argument on those that were raised previously in his arguments. He claims that the APA is entirely arbitrary and tarnished by bad faith, and that I must conclude that it is flawed.
[227] He argues that the APA was not submitted in the appropriate format. He claims that the format normally used includes objective assessment standards, while the format used by the employer only includes subjective standards, that is, subjective comments without any objective assessment standards. He contends that the employer did not present any evidence with respect to an objective assessment standard that was applied to the grievor’s APA. He claims that the grievor could have been given the “Succeeded” rating if the objective APA form had been used. He finds that without this objective assessment, the evaluation is arbitrary because it lacks any objectivity.
[228] He submits that “[translation] ... if the Board allows the Employer to use a fabricated and entirely subjective form that only applies to a single employee, this gives licence to the Employer to change the assessment standards as it pleases and for the employees that it wants”. He claims that this would allow the employer to evaluate its employees without consistent or objective standards. He argues that such a conclusion is particularly problematic in this case, as we are “[translation] ... in an accommodation situation where bias can easily seep into the employee’s appraisal”.
[229] To conclude his arguments, the grievor’s representative submits that I should conclude that the grievor’s rejection on probation was based on grounds of discrimination and on bad faith, according to an unreasonable APA.
5. What is the appropriate corrective action in this case?
[230] The grievor requested the following:
1) A declaration that the employer violated article 19 of the collective agreement, which prohibits discrimination in the workplace, and violated the CHRA.
2) A declaration that the grievor’s rejection on probation was flawed.
3) A declaration that the year-end APA was flawed.
4) The grievor’s reinstatement in his PM-02 position as of the date of his termination, May 31, 2019.
5) The reimbursement of back pay to May 31, 2019.
6) $20 000 under s. 53(2) of the CHRA because he suffered for many months because of the failure to accommodate his functional limitations.
7) $20 000 in damages under s. 53(3) of the CHRA because the employer knowingly ignored the grievor’s functional limitations and acted in bad faith.
8) The grievor’s reinstatement in the term PM-02 position that he would have held, if not for the discrimination, under the Memorandum.
9) Referral of the matter of back pay to the parties for determination while I retain jurisdiction over the case in the event of a deadlock.
10) In the alternative, a declaration that, if not for the discrimination of which he was a victim, he would have successfully completed his probation period.
C. Employer’s reply to the grievor’s arguments
[231] In reply, the employer’s representative argues that the grievor’s disability was not a factor that led to his rejection on probation. She acknowledges that the CHRA obliges the employer to accommodate the grievor’s disability. She argues that the accommodation sought by the grievor was that he could take additional breaks to go to the washroom when necessary. She argues that the accommodation in question does not become discriminatory if it requires the grievor to provide the employer with additional information.
[232] She argues that the employer was required to accommodate the grievor in accordance with the medical certificate and that, unlike his coworkers who had no disabilities, he was entitled to take additional breaks to accommodate his functional limitations. She argues that, since his coworkers did not have disabilities, they were not entitled to breaks beyond those set out in the collective agreement and therefore had to stay at their workstations.
[233] She contends that the grievor himself had a role to play in the duty to accommodate. He had to send notice of when he took breaks to go to the washroom beyond the breaks set out in the collective agreement and make up the time that he had not worked. The obligation to email his team leader about his breaks is not a form of discrimination but a means of implementing the accommodation requested by the grievor.
[234] She states that, if not for his disability, the grievor would not have taken excess breaks to go to the washroom. He would not have had to notify his team leader of his breaks and make up the time that he did not work.
[235] She states that the grievor’s disability had no impact on his performance. She reiterates that, according to the evidence filed at the hearing, the disability was fully accommodated and had no impact on the grievor’s performance. She adds that the medical evidence on the record does not establish a direct correlation between the number of errors made by the grievor and his obligation to send emails.
[236] In reply to the grievor’s allegations, she argues that he received additional, tailored support to which his coworkers were not entitled, since they did not have disabilities. The grievor received additional training and had access to a specialized contact person. The employer did not require him to handle a specific number of files per day or per week. She argues that the employer provided the grievor with working conditions that were adapted to his functional limitations and that the errors he made were not caused by the workplace.
[237] She argues that the grievor downplays the significance of his errors while the evidence demonstrates that they had consequences for clients. She argues that the grievor had the opportunity to revise his files before submitting them for review and processing. She states that the grievor was not penalized for the time that he took to determine when he had to make up his break time. She contends that he felt he was being watched because he did not fulfill the employer’s requests and that he could have remedied this by following the instructions.
[238] She states that the instructions from the emails were simple. He only had to write “[translation] I have arrived” and “[translation] I am leaving”, and she argues that the grievor is exaggerating the time required to send these emails.
[239] She contends that the grievor had no time constraints with respect to completing his files. She submits that the stress that he claims to have experienced was due to a mistaken perception that could have been dispelled if he had talked about it with his team leader.
[240] She contends that the medical evidence confirms that the grievor simply needed a bit more time than his coworkers to complete his tasks without any oversights. She states that the employer demonstrated that he had all the time needed and that he had additional resources related to the accommodation agreement. She reiterates that he was accommodated for his medical condition, that the employer provided him with the optimal conditions to perform and that there is no nexus between his termination and his medical condition. She contends that the employer’s decision to reject the grievor on probation was not tarnished by discrimination and that the termination must be upheld.
[241] The employer’s representative states that it complied with the grievor’s functional limitations and accommodations, and that, contrary to what the grievor asserts, the employer did not “[translation] knowingly turn a blind eye”. She states that the employer met with the grievor throughout his period of employment and opened the door to discussions about requests. The grievor chose many times not to discuss the requests for emails with his team leader. He had the opportunity to reply to every summary email from his team leader, but he did not.
[242] She argues that the evidence shows that the grievor shifted all of the responsibility for managing his personal limitations onto the employer. The grievor did not implement any strategies to correct his errors and did not take notes, although he testified that he did take some when he met with his union. She states that he never made any requests for adjustments to his accommodations; instead, he waited for the employer to ask him for or offer him changes. There is no evidence on the record that he brought up any other ideas for solutions.
[243] She states that the grievor never informed the employer that the implemented accommodations did not fit with his personal limitations. He chose to discuss it only with his union representative and therefore did not participate in the accommodation process. She argues that, after the events, he cannot allege that the employer failed in its duty to accommodate. The grievor testified that he did not know whether his union representative forwarded the information to the employer and that, for this reason, the grievor was blameless. She states that the employer could not guess that he had concerns about its requests. She states that the grievor lacked credibility in his testimony because he did not take the time to read the emails that were presented to him during the hearing; he did not answer the questions, and he replied that too much time had passed for him to remember.
[244] She argues that the grievor’s functional limitations, which were listed in the neuropsychologist’s report, were included in the accommodation agreement and were accommodated throughout his period of employment.
[245] The employer’s representative argues that the medical report dated May 29, 2019, does not require the grievor to use a contact person every day for the entire day, and that and the neurologist made no suggestions to adjust his work or his workload.
[246] She states that the grievor did not have a limited amount of time that he could spend in the washroom. She argues that, if he himself limited his breaks to go to the washroom, it was because he wanted to avoid taking time outside of his breaks under the collective agreement and preferred not to make up his time used for additional breaks.
[247] She responded to the grievor’s argument that he lacked time throughout the day to make up his time and that he had the flexibility to arrive at work between 7:00 a.m. and 10:00 a.m. His arrival time was under his control and was not imposed by the employer. The other employees had to arrive at work at a set time and leave no later than 6:00 p.m. The other employees also could not bank break time and then make it up at the end of the day.
[248] She stated that the grievor was seeking perfect accommodation, that is, being able to use his compensatory time and vacation time to compensate for his additional breaks. She argues that the CHRA does not require perfect accommodation, only reasonable accommodation. She states that the duty to accommodate does not require the employer to provide the grievor with additional paid breaks. She states that the evidence shows that the accommodation was reasonable and complied with the CHRA.
[249] The employer’s representative argues that, although the agreement was not reviewed every four months, it was a recurring topic during meetings between the grievor and the employer. She states that the union did not take any steps to review the agreement and that, despite the union representative stating that a discussion would be necessary in April 2019, nothing was done.
[250] She states that the employer did not act in bad faith. She submits that it created a framework for the grievor’s questions by designating a contact person for him so that he would not be misled by his coworkers. She argues that there is no evidence of micromanagement as alleged by the grievor or that this had led to his second medical condition (the first being ADHD). She contends that this medical condition already existed while he was in training and that he had to excuse himself, well before the email requirement was implemented.
[251] She contends that, under the agreement, the employer had the duty to assist the grievor with managing his time. She states that the employer tried to help him by giving him suggestions, which the grievor chose to ignore. The employer concluded that the grievor was not taking the initiative by applying the suggestions given to him.
[252] The employer’s representative argues that the employer could consider the fact that the grievor did not check his leave bank before making a request for leave. He had access to his leave bank but chose not to consult it before making leave requests. She contends that this shortcoming could be included in the APA.
[253] She contends that the medical evidence confirms that the grievor is fit for work so long as he has the time needed to carry out his tasks. She argues that, contrary to Pugh, the time taken by the grievor to carry out his tasks and the quantity of files were not subject to negative comments in the APA. In addition, the quality of the grievor’s work was never compared to the work done by his coworkers.
[254] She argues that the meeting on May 31, 2019, had to proceed and that the union had been notified of it. Although Mr. Archambault could not be present, the union delegated another representative to accompany the grievor. She states that Mr. Archambault’s non-availability was not a factor in the decision to proceed with the meeting on May 31, 2019.
[255] She contends that, contrary to the grievor’s statement, the objective criteria are listed in the year-end performance appraisal. She states that the APA is based on concrete, documented examples of the grievor’s actions and omissions. She argues that this method of evaluating the grievor is reasonable and follows the principles established by case law and that, contrary to the grievor’s claims, there is no evidence to suggest that the APA assessment criteria applied to the grievor are different from those applied to his coworkers. The only difference is the form, not the substance.
V. Reasons
[256] I grouped the issues proposed by the parties into the following three issues:
1) Do I have jurisdiction to decide the issue of the grievor’s rejection on probation?
2) Was the year-end performance appraisal reasonable?
3) What is the appropriate corrective action in this case, if any?
A. Do I have jurisdiction to decide the issue of the grievor’s rejection on probation?
[257] The following are the sections of the acts that apply to this case. Sections 61 and 62 of the PSEA:
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[258] Sections 209(1) and 211 of the FPSLRA:
[259] Section 12(1)(d) of the Financial Administration Act (R.S.C. , 1985, c. F-11):
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[260] Section 211(a) of the FPSLRA states that any individual grievance with respect to termination of employment under the PSEA cannot be referred to adjudication. The PSEA specifies that while an employee is on probation, the deputy head may notify the employee that his or her employment will be terminated at the end of the notice period.
[261] Case law establishes that the adjudicator’s jurisdiction over rejections on probation is limited by the above-listed sections of the PSEA and the FPSLRA. Indeed, I will have jurisdiction if the reasons for the termination are other than employment-related or are in bad faith based on a camouflage or a sham. I refer to Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), of the Federal Court of Appeal, which presents an in-depth analysis of the Supreme Court of Canada’s Jacmain decision.
[262] The grievor’s representative argues that, under Hamel, I will have jurisdiction if the grievor manages to establish, on a balance of probabilities, that the rejection on probation was in bad faith or a sham.
[263] He argues that the termination was in bad faith, on grounds of discrimination and in contravention of article 19 of the collective agreement. He asserts that the termination of employment was disguised disciplinary action and therefore subject to adjudication. He argues that the preliminary objection only concerns the grievance bearing number 566-02-42033 with respect to the termination and that, despite my decision on the preliminary objection, I necessarily have jurisdiction over the grievance bearing number 566-02-42034 with respect to the year-end performance appraisal.
[264] Case law has already established the burden that falls on the parties when determining the Board’s jurisdiction in a rejection on probation. At paragraphs 111 and 112 of Tello, the Board states:
111 In my view, the change between the former PSEA and the new PSEA, when viewed in the context of the recent jurisprudence of the Supreme Court of Canada on the appropriate approach to public employment, does not significantly alter the substance of the approach that adjudicators should take to grievances involving the termination of a probationary employee. However, the omission of the words “for cause” in section 62 of the new PSEA does change the burden of proof requirements. The burden of proof on the deputy head has been reduced. The deputy head’s burden is now limited to establishing that the employee was on probation, that the probationary period was still in effect at the time of termination and that notice or pay in lieu has been provided. The deputy head no longer has the burden of showing “cause” for the rejection on probation. In other words, the deputy head does not have the burden of establishing, on a balance of probabilities, a legitimate employment-related reason for the termination of employment. However, the Treasury Board Guidelines for Rejection on Probation require that the letter of termination of employment of a probationary employee set out the reason for the decision to terminate employment. The deputy head is still required to tender the letter of termination as an exhibit (normally through a witness) to establish that the statutory requirements of notice and probationary status have been met. That letter will usually state the reason for the decision to terminate the employment of the probationary employee. The burden then shifts to the grievor. The grievor bears the burden of showing that the termination of employment was a contrived reliance on the new PSEA, a sham or a camouflage. If the grievor establishes that there were no legitimate “employment-related reasons” for the termination (in other words, if the decision was not based on a bona fide dissatisfaction as to his suitability for employment: Penner at page 438) then the grievor will have met his burden. Apart from this change to the burden of proof, the previous jurisprudence under the former PSEA is still relevant to a determination of jurisdiction over grievances against a termination of a probationary employee.
112 As I have concluded earlier in this decision, the provisions of the new PSEA have changed the burden of proof for cases involving the termination of employment of probationary employees. The deputy head no longer has the burden of proving a legitimate employment-related reason for the termination of employment, apart from providing the letter of termination which sets out the reason for its decision. The burden is on the grievor to show the deputy head’s contrived reliance on the new PSEA or that the rejection on probation was a sham or a camouflage. A termination of employment not based on a bona fide dissatisfaction as to suitability (or for no legitimate “employment-related reason”) would be a contrived reliance on the PSEA, a sham or a camouflage.
[265] Therefore, it must be determined whether the parties discharged their respective burdens, to establish whether I have jurisdiction to decide the grievance.
1. The employee was on probation at the time of the rejection and a notice was given
[266] In this case, the grievor received his employment offer letter on June 22, 2018, for a term position from June 26, 2018, to June 25, 2019. He received his rejection on probation letter on May 31, 2019, under s. 62(1) of the PSEA. The letter also specifies that the grievor was relieved of his duties as of that day, May 31, 2019, but he continued to be paid until June 14, 2019, inclusively as two weeks’ notice.
[267] The letter refers specifically to two breaches on the grievor’s part. It states the following:
[Translation]
...
... Despite the efforts that we made to support you in your job, your performance does not meet the standards expected of a program officer. In addition, your attendance at work proved to be problematic, despite the guidance that we provided throughout your contract.
...
[268] The evidence clearly shows that the employer terminated the grievor’s employment while he was on probation under s. 62(1) of the PSEA. The grievor knowingly signed the employment offer letter that had been proposed to him. The grievor knew his conditions of employment and knew them during the probation period. He also received a termination letter and compensation equivalent to two weeks’ notice. The grievor’s termination did indeed occur during this probation period. The termination led to the application of s. 211 of the FPSLRA, which stipulates that nothing in ss. 209 and 209.1 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to any termination of employment under the PSEA.
[269] Relying on the sections cited above, case law and the termination letter, I conclude that the termination occurred under the PSEA. I must now determine whether the termination of employment was a contrived reliance on the PSEA, a sham or a camouflage.
2. Did the grievor demonstrate that the reason for termination was merely a sham or a camouflage, or that it was invoked in bad faith?
[270] The analysis of all the evidence does not demonstrate that the grievor’s rejection on probation was based on a ground of discrimination or was in bad faith. Rather, I conclude that it is related to his employment and does not involve a sham, a camouflage or discrimination.
[271] The grievor’s representative argued that the termination was in bad faith, on grounds of discrimination and in contravention of article 19 of the collective agreement.
[272] The leading case for establishing prima facie discrimination and the applicable test is Moore, at paragraph 33 of which the Supreme Court of Canada states:
[33] As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
[273] I must therefore determine whether the grievor discharged his burden of making out a prima facie case of discrimination.
a. The grievor did not make out a prima facie case of discrimination
[274] The matter of the grievor’s disability was not challenged by the employer in this case. Thus, the grievor has a characteristic that is protected under the CHRA. The evidence shows that the agreement between the grievor and the employer, which was also signed by the union representative, explicitly acknowledged the grievor’s disability and that measures were taken to accommodate him. This agreement and the accompanying measures were signed by all parties and were never reviewed until the grievor’s termination. He also suffered a negative effect because he was rejected on probation. However, I conclude that his disability was not a factor in his adverse treatment. Consequently, the grievor has not made out a prima facie case of discrimination.
[275] In his arguments, the grievor’s representative contends that objectively, he was treated differently on the basis of his disability. I consider this statement valid with respect to the accommodation that was made for his disability; his coworkers did not benefit from these measures. I find, however, that it is mistaken to state that the obligation to send emails to report his absences only applies to the grievor. All employees are required to do so; what distinguishes them is the frequency of absences and the number of emails that result.
[276] The grievor’s representative argued that the grievor’s obligation to send a multitude of emails was part of the APA and that this ground was cited in the termination letter with respect to attendance. He argued that if not for his disability, this obligation would not have been imposed and could not have been used as a basis for his termination.
[277] In his arguments, the grievor’s representative referred to a chain of emails from November 2018 involving the union representative, who apparently objected to the grievor making up all the time spent in the washroom. However, his last email to the manager seems to concede that all the time from extra breaks taken to go to the washroom did indeed have to be made up. The grievor’s representative made much of it in his arguments and asked that this argument be assigned considerable weight. The fact remains that the case before me rests on the emails and the testimonies of witnesses that I heard, to interpret these emails. The union representative was not called to testify about this email chain.
[278] I note that, in the email chain, the manager and the union representative agreed that the manager would send him his position on the grievor’s medical situation. The union representative stated, “[translation] Although we do not share all of [the employer’s position], we have noted the items you have indicated”. I also note that the agreement between them resembles the outcome of a discussion that led to an agreement between two parties and that, even though one of them expressed some disappointment, it still accepted the agreement as formulated.
[279] In addition, the grievor testified as to remarks that his union representative allegedly made, which were demonstrated in his written arguments: “[translation] Mr. Simard also confirms in his testimony that Mr. Archambault informed the employer, on his behalf, of his opposition to this additional measure”. This testimony is hearsay. Hearsay is admissible before the Board. However, it is up to me to determine the probative value to assign to it. I can certainly believe that the union representative did in fact make the remarks reported by the grievor, but I have no evidence that he said them to the employer. Mr. Archambault could have testified at the hearing, but he did not do so. Therefore, considering the union representative’s email and the fact that it expresses no objection to the proposed measures, and despite the remarks reported by the grievor, I conclude that he was in fact opposed to the measures proposed by the employer but still agreed to comply with them. Because of this, he accepted the obligation to send those emails.
[280] With respect to discrimination, the grievor asserts that objectively, the obligation to submit a large number of emails was imposed on him alone, because of his medical condition. However, the testimony from the team leader highlights that, in fact, the obligation to send many emails, while stemming from his medical condition, also stemmed from the fact that he had to report the time that he was not dedicating to work. According to her testimony, any other employee who is away from work because of illness must also submit a form to the employer justifying the lost time. In this case, the grievor was not prevented from taking the time needed for his medical condition, but he still had to submit this time as sick leave or time to be made up. Once again, no evidence supports the argument that being required to send many emails caused the grievor any sort of additional stress. The team leader stated that instead, it was his failure to submit the time that he was absent from his workstation that caused him stress.
[281] The evidence showed that the employer did not penalize the grievor for the time spent writing his emails or consulting his leave bank. The evidence also demonstrated that the employer did not place a time limit on processing his files or stipulate that he had to analyze a specific number of files within a given period. Additionally, the elements raised by the grievor, that is, the amount of work produced by the grievor, were not mentioned in his APA and did not result in any negative impacts in his APA.
[282] Contrary to the argument raised by the grievor, the employer did not overload him with work by requiring these emails. He had all the time he needed to complete them. The employer asked him to be at his workstation when his personal medical obligations did not require him to be away.
[283] I note that, when he started working at the TFWP, plans were made for the grievor to send numerous emails to his team leader, and the grievor accepted this condition. Although the evidence did not expressly demonstrate this, it can be deduced that this obligation stemmed from concerns about the grievor’s attendance. This obligation became more burdensome with the addition of the grievor’s second medical condition.
[284] The grievor testified that, in his email dated February 6, he informed his team leader that he had gone over his 15-minute break time because he was in the washroom. In response, in her email dated February 7, she thanked him and expressed her appreciation for his honesty. It appears to me from this exchange of emails that if the grievor had voluntarily submitted or tabulated the extra time taken for his medical condition, his circumstances could have been very different.
[285] The evidence showed that apart from a passage in an email from the union representative that mentions that it may be time to review the accommodations, they were never reviewed. On several occasions during the hearing and in his arguments, the grievor asserted that the accommodations had not reviewed or discussed again, as was planned in the agreement. The evidence shows that the grievor and his employer, whether it was his team leader or his manager, had a very high number of meetings. The summary emails from the team leader demonstrate this extensively. The grievor would have then been free to raise this matter for discussion. If he felt uncomfortable doing so, the evidence establishes that he had many exchanges with his union representative, who could have made a more formal request rather than a mere passage in an email.
[286] Additionally, the grievor and his representative were both involved in developing the agreement and never proposed other changes. At the hearing, the grievor testified that he would have liked for the accommodation to be more flexible. However, he failed to mention what additional flexibility that he would have liked. In fact, the agreement allowed him to arrive at work between 7:00 a.m. and 10:00 a.m. and to set his lunch and 15-minute breaks himself, and he had no production quotas to meet.
[287] The grievor was obliged to make up the time that he missed or to submit sick leave. He testified that if he arrived at the office at 10:00 a.m. and had to leave at 6:00 p.m., that did not leave him any time in this day to make up his time. This argument is not consistent with the schedule flexibility that he was given.
[288] On May 7, 2019, the team leader restricted this flexibility by asking him to notify her when he wanted to alter his schedule. She mentioned that the purpose of this was to help him manage his schedule. She also reminded him that changing his lunch time had an impact on his break times and made tracking his time difficult, both for him and for her. On this, the grievor had asked in an email how establishing set times in his schedule for his breaks and lunch was going to help him manage his schedule.
[289] I do not consider this restriction of the schedule to be a breach of the agreement or a violation of accommodation. The team leader asked the grievor to notify her if he wanted to change his hours of work. She did not prevent him from changing them and thus maintained the schedule flexibility set out in the agreement. She mentioned that this would help with tracking his hours of work.
[290] With respect to the tone of the email, the grievor testified on several occasions and for nearly every email that his team leader filed in evidence that he perceived a moralizing tone in the emails. It is rather difficult and quite subjective to perceive the tone of an email, whether moralizing, sarcastic, malicious or filled with good intentions. The employer’s representative argued that the grievor felt persecuted because he knew that he had failed to fulfill his duty.
[291] The team leader was responsible for preparing a summary email for the grievor after each meeting. My reading of the team leader’s emails is that they were always respectful and factual. I believe that in each of them, she maintained a professional and courteous tone, whether to inform him that an error had been made or that there were discrepancies in the time worked. I reject the grievor’s argument or claim that the emails had a moralizing tone that could have amounted to discrimination.
[292] The grievor’s representative attributed fault for the errors made by the grievor when analyzing his files to the email obligation and claimed that, if not for his disability, these errors would not have occurred. Apart from the grievor’s claims in his testimony, there is no evidence to support this argument. The evidence shows on a balance of probabilities that the grievor received extensive training during his employment with the employer. He testified that he expected that if his errors were due to misunderstanding on his part, his team leader would have sent him for training. He stated that his errors were mere oversights, which he attributed to his obligation to send his numerous emails. The employer filed evidence of the significant consequences of these errors and argued that, even if the errors were oversights, these consequences were serious. The employer also asserted that the grievor did not have a level of production to maintain, so there could not have been any pressure that would have caused these errors.
[293] I find that the grievor did not demonstrate that the decision to reject him on probation was a factor linked to his disability. All employees are required to report their absences, and the grievor was not penalized for the time spent preparing his emails or consulting his leave bank, and no quota of files to process was imposed. In addition, the dissatisfaction with the grievor’s performance was due to significant errors made when he performed his duties. Even if my conclusion about this had been different, I find that the employer provided a reasonable explanation demonstrating that the grievor was fully accommodated, as was the case in Nash v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 4.
[294] Having analyzed all the documentary evidence, testimony and arguments, I find that the grievor has not demonstrated, on a balance of probabilities, that his rejection on probation was based on a ground of discrimination or was in bad faith. I conclude that the rejection on probation was employment-related, without a sham, a camouflage or discrimination.
[295] I find that I do not have jurisdiction to deal with the grievance bearing the number 566-02-42033.
B. Was the year-end performance appraisal reasonable?
[296] The second grievance (bearing the number 566-02-42034) deals with the year-end performance appraisal. The grievor’s representative asserted that the APA form was improvised and disparate and ignored the grievor’s functional limitations. He argued that in its APA and its termination decision, the employer had demonstrated discrimination, bad faith or a sham and that, ultimately, the termination decision was flawed.
[297] Section 230 of the FPSLRA limits the Board’s ability to intervene in such a grievance:
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[298] The adjudicator in Mazerolle referred to paragraph 131 of Raymond v. Treasury Board, 2010 PSLRB 23, to set out the applicable test to determine whether it was reasonable for a deputy head to consider the performance of an employee unsatisfactory:
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127 Considering the criteria set out in Nnagbo in light of section 230 of the PSLRA, the adjudicator in Raymond noted that some related more to the deputy head’s decision to terminate employment for unsatisfactory work performance than to the actual assessment of performance. The adjudicator held as follows that only the criteria applicable to assessing performance would be relevant under section 230:
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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.
...
1. The employer acted in good faith
[299] The grievor’s representative alleges that the employer did not act in good faith because it did not provide the grievor with the accommodation or guidance needed for him to be able to meet the applicable standards within a reasonable time.
[300] As previously discussed, the evidence demonstrates that the grievor was accommodated. The functional limitations listed in the neuropsychologist’s report were included in the accommodation agreement. This agreement and the accompanying measures were signed by all parties and were never reviewed until the grievor’s termination.
[301] More important still, the grievor’s disability had no impact on his performance because he was fully accommodated. In fact, the employer did not impose a number of files per day or per week on him, and the grievor did not have any time constraints to complete his files.
[302] The grievor has not succeeded in demonstrating that there is a correlation between his limitations, the accommodation provided and the determination that his work was unsatisfactory. He has not proved that the employer acted in bad faith.
2. The employer set appropriate standards of performance and clearly communicated to the grievor the standards of performance that he had to meet
[303] The grievor’s representative acknowledged in his arguments that the employer had set appropriate performance standards, had communicated them to the grievor and had warned the grievor in writing of the consequences of not meeting them. He argues that the APA was not submitted in the appropriate format and that the assessment standards were not used.
[304] He alleges that the APA was unreasonable on its face, completely arbitrary and tarnished by bad faith. It was therefore flawed and warranted my intervention. The employer’s representative asserts that conducting the APA in another way, other than through the typical form, has no impact on the basis.
[305] A comparative analysis of the mid-year and year-end performance appraisals revealed that they have the same work objectives. In both cases, the appraisal is narrative and does not use a letter or number rating to establish whether the objective was met or not. I reject the grievor’s argument that the lack of a letter or number rating makes the appraisal completely subjective. It is not the form that makes the appraisal objective or not, but whether it is consistent with the achievements that were observed or reported throughout the period. In addition, a discrete letter or number rating with no text to justify such a rating, while appearing objective, would be completely subjective. However, a fully narrative appraisal that presents an employee’s results for which the final rating is established is, in my view, very valid.
[306] In this case, the team leader testified that she was the one who prepared the year-end performance appraisal and concluded that the grievor had not attained the “Succeeded” rating. She testified that she was not able to carry it over into the human resources system that is normally used, owing to an administrative problem.
[307] I do not in any way see how this method would make the APA flawed, much less have the “Succeeded minus” rating changed to “Succeeded”. Reading of the year-end performance appraisal shows that it is very factual and reflects what can be read in all the summary emails on the record. The grievor testified that he was not surprised by the results of his APA. I find that the conclusion in the APA is indeed, on balance of probabilities, supported by the evidence on the record.
3. The employee received the tools, training and guidance required to meet the standards of performance in a reasonable period
[308] Mazerolle mentions the employer’s duty to provide the grievor with the guidance and tools he must have to meet the standards that were set. In this case, the evidence shows on a balance of probabilities that at all times, the grievor had a contact person to whom he could turn to ask questions and that he also received group training and additional training.
[309] The evidence shows that several contact persons were made available to the grievor to answer his questions related to his duties, particularly his team leader and two senior project officers. Afterward, the grievor stated that the employer had identified one contact person to help him with his work. The team leader oversaw access to this person for operational and efficiency reasons, which in no way hindered access to this person.
[310] Additionally, the grievor also received various training sessions, both in a group and by himself, to help him meet the set standards. In addition, when he was notified about his file sorting errors in December 2018, he received additional training. On April 11, 2019, his team leader released him from his duties for two hours the next day so that he could reread his documentation and train himself on the procedures. The grievor even stated that his errors were not caused by a lack of understanding. This supports the fact that he had received full training.
[311] The evidence establishes that the employee received the tools, training and guidance required to meet the standards of performance in a reasonable period.
[312] I find that the conditions identified by Mazerolle and Raymond were satisfied and that the year-end performance appraisal is reasonable. Therefore, I deny this grievance.
C. What is the appropriate corrective action in this case, if any?
[313] The last issue deals with the appropriate corrective action to take. In light of my findings, I have no corrective action to take.
[314] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VI. Order
[315] The grievances are denied.
FPSLREB Translation
Guy Grégoire,
a panel of the Federal Public Sector
Labour Relations and Employment Board