Date: 20251113

File: 566-02-47721

 

Citation: 2025 FPSLREB 149

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

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

BETWEEN

 

emmanuel bourdeau

Grievor

 

and

 

DEPUTY HEAD
(Shared Services Canada)

 

Respondent

Indexed as

Bourdeau v. Deputy Head (Shared Services Canada)

In the matter of an individual grievance referred to adjudication

Before: Renaud Paquet, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Nicolas Daignault, Professional Institute of the Public Service of Canada

For the Respondent: William Legault-Lacasse, counsel

Decided on the basis of written submissions,
filed October 10, 24, and 31, 2025.

[FPSLREB Translation]

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Individual grievance referred to adjudication

[1] On June 15, 2022, Emmanuel Bourdeau (“the grievor”) filed a grievance against Shared Services Canada’s decision (for the purposes of this decision, “the employer”) to terminate his employment on June 1, 2022. According to the employer, it was a rejection on probation. According to the grievor, his probationary period had ended when he was dismissed, so the employer was not entitled to rely on the probationary period to dismiss him.

[2] This grievance arose from the parties’ different interpretations of what had to be taken into account when calculating the employment period to arrive at the 12-month probationary period to which the grievor was subjected.

[3] The Federal Public Sector Labour Relations and Employment Board (“the Board”) agreed to the parties’ request to address this issue based on written submissions.

II. Summary of the facts, which the parties submitted

[4] Statistics Canada hired the grievor as a user support technician at the GT-02 group and level for a defined term from September 14, 2020, to August 27, 2021. The appointment was made under the Statistics Canada Census and Survey Related Term Employment Exclusion Approval Order (SI/2017-75; “the Exclusion Order”).

[5] While still working for Statistics Canada, the employer met with the grievor for a job interview. On July 2, 2021, he received an email that he described as confirmation from the employer that he would obtain a job with a start date of August 30, 2021. On July 7, 2021, he forwarded his security certificate to the employer. It determined that the certificate in question was not valid and required redoing the security-screening process. The new certificate was issued after August 30, 2021, on a date that the parties did not specify.

[6] On September 29, 2021, the employer offered the grievor a CS-02 group and level support analyst position for a defined term beginning on October 18, 2021, and ending on October 14, 2022. The job offer indicated that it was a non-advertised external appointment and that he would be subjected to a 12-month probationary period under s. 61 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA). He accepted the offer. He signed it on October 4, 2021, confirming that he had read and understood it.

[7] On December 13, 2021, the grievor and his team leader signed a mid-year performance agreement. In the box “[translation] is the employee still on probation”, the team leader checked, “No”. Then, on March 15, 2022, the team leader wrote to the grievor, stating that he was still on probation, since the break in his employment from August 28, 2021, to October 17, 2021, had the effect of restarting the probationary period.

[8] On June 1, 2022, the employer informed the grievor that he was being rejected on probation immediately and that he would receive two weeks’ pay in lieu of notice. It supported its decision as follows:

[Translation]

…

As you know, many meetings between you and members of management have taken place, to guide and support you and to help you meet the expectations and skills of your position. During its meetings, management also reminded you that you are on probation, and, more recently, it stated that a decision would be made in that respect. In addition, a letter was sent to you on May 2, 2022, in which your shortcomings were identified and management’s expectations were reiterated about your performance. Despite our efforts to bring your performance to an acceptable level, I find that you are unable to meet your position’s requirements, and you are unable to demonstrate an ability to comply with established policies, procedures, practices, and codes of conduct.

…

 

[9] The grievor filed the grievance on June 15, 2022, challenging the employer’s decision to reject him on probation. By the parties’ agreement, it was referred directly to the second level of the grievance process. The employer denied it at the second level. It stated the following, among other things, it its December 8, 2022, reply:

[Translation]

…

… You were hired under the order of the Statistics Act as part of the federal census. The order provides that the Public Service Commission shall exempt from the application of the Public Service Employment Act (PSEA) any person appointed for a specified period to be employed by Statistics Canada in the population census ….

…

 

[10] In its June 12, 2023, third-level decision, the employer reiterated as follows the same argument that it raised at the second level:

[Translation]

…

Having carefully reviewed all the information available to me about your grievance, I find that your termination was done while you were on probation. You were hired under the Statistics Canada Census and Survey Related Term Employment Exclusion Approval Order, which provides that the Public Service Commission is to exempt from the application of the Public Service Employment Act (from here on, “PSEA”) all term appointees whom Statistics Canada is to employ in the population census. Consequently, during the period of your Statistics Canada contract, you were not considered a public service employee within the PSEA’s meaning. Thus, your probationary period began when Shared Services Canada hired you (from here on, “SSC”).

…

[Emphasis in the original]

 

III. Summary of the arguments

A. For the grievor

[11] Section 61(1) of the PSEA provides that a person appointed through an external appointment will be considered a probationary employee for the period set out in the Regulations Establishing Periods of Probation and Periods of Notice of Termination of Employment During Probation (SOR/2005-375; “the Regulations Establishing Periods of Probation”). Those regulations provide for a 12-month probationary period for appointments such as the grievor’s.

[12] In his first position, the grievor was recruited by Statistics Canada under the Exclusion Order, which provides that certain PSEA provisions do not apply to the contract that was then signed. However, s. 61(1) of the PSEA is not included in the list of provisions that do not apply.

[13] Therefore, as it did in its second- and third-level responses in the grievance process, the employer could not claim that the grievor’s months of Statistics Canada employment could not have been included when calculating his probationary period. On the contrary, it should have included the time worked at Statistics Canada when calculating the probationary period.

[14] The probationary period in the core public administration is set by regulation, not contract. Therefore, the employer cannot add new terms and conditions to a probationary period. Nor can it unilaterally extend or reduce such a period. It is a specific period prescribed by regulation.

[15] The employer’s position had the effect of extending the grievor’s probationary period well beyond 12 months, which is not allowed.

[16] The grievor was on probation for 11 months and 2 weeks at Statistics Canada. He was 18 calendar days short of completing his probationary period. Since nothing in the PSEA or in the Regulations Establishing Periods of Probation provides that the periods must be successive, then the grievor’s probationary period ended 18 days after the start of his contract with the employer, on or about November 5, 2021.

[17] Since it did so, the employer could not have rejected the grievor on probation because his probationary period had been over for several months when it dismissed him on June 1, 2022. If the legislator’s intent was not to accumulate periods of employment in the public service, it would not have specifically referred to the “… total length of the specified periods of employment …” in the public service. Resetting the probationary period on a later hire was equivalent to extending it to 19 months in the grievor’s case, instead of the 12 months provided in the Regulations Establishing Periods of Probation. Under that reset logic, an employee could accumulate 15 or 20 years in different positions during interrupted periods and still be subjected to a probationary period. Clearly, this would be contrary to the Regulations Establishing Periods of Probation.

[18] In his written submissions, the grievor indicated that he would not make further submissions if the Board concluded that he was still on probation when he was dismissed.

[19] The grievor referred me to the following decisions: Jodoin v. Deputy Head (Department of Employment and Social Development), 2025 FPSLREB 44; and Gill v. Deputy Head (Correctional Service of Canada), 2018 FPSLREB 55.

B. For the employer

[20] The grievor’s Statistics Canada employment ended on August 27, 2021. That interrupted his employment relationship with the federal public administration, as defined in the PSEA. Then, on October 4, 2021, he signed the employer’s offer letter, thus accepting the support analyst position. It was a term appointment made through a non-advertised external appointment process. The offer letter expressly set out a 12-month probationary period from the appointment date.

[21] The grievor was appointed to his position on October 18, 2021, at which point he had been out of the public service for about seven weeks. He lost “[translation] employee” status, in the PSEA’s meaning, when he left the public service on August 27, 2021. He recovered it on his October 18, 2021, external appointment. Thus, it was an external appointment that started a new probationary period.

[22] The time worked at Statistics Canada could not have had the effect of reducing the new probationary period, which was also linked to a job filled through an appointment process external to the public service. Had the legislator wished to allow accounting for prior periods despite a service break, it would have expressly indicated so. Adopting the grievor’s position would be tantamount to allowing amalgamating probation periods that were interrupted or even separated by several years, which would undermine the very purpose of the probationary period. A different interpretation would be unreasonable.

[23] The employer referred me to the following decisions: Gill; Kot v. Deputy Head (Royal Canadian Mounted Police), 2020 FPSLREB 29; Butlin v. Treasury Board (Department of Public Safety and Emergency Preparedness), 2023 FPSLREB 72; Hicks v. Treasury Board (Human Resources Development Canada), Board File No. 166-02-27345 (19970326); Canada (Attorney General) v. Alexis, 2021 FCA 216; Holowaty v. Deputy Head (Correctional Service of Canada), 2022 FPSLREB 44; Sandhu v. Deputy Head (Correctional Service of Canada), 2020 FPSLREB 77; Knox v. Treasury Board (Canadian Food Inspection Agency), 2017 PSLREB 40; Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529; Melanson v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 33; Wright v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 139; and Canada (Attorney General) v. Bergeron, 2013 FC 365.

IV. Reasons

[24] The question before me is relatively simple: when he was dismissed on June 1, 2022, was the grievor still on probation?

[25] The following PSEA provisions are relevant to answering that question:

 

[26] Section 61(1) of the PSEA states that probationary periods are prescribed by regulation, which are the Regulations Establishing Periods of Probation. They stipulate that the probationary period for an employee in an employment category such as the grievor’s and appointed for a specified period of 1 year or less is 12 months. Those regulations also stipulate the following about the probationary period’s duration: “The total length of the specified periods of employment or 12 months, whichever is shorter”.

[27] The facts relating to the grievor’s employment periods are not in dispute. Statistics Canada employed him from September 14, 2020, to August 27, 2021. The employer did so from October 18, 2021, to June 1, 2022, which was the date of his rejection on probation. According to him, his probationary period should have ended after 12 months of employment, around the end of October 2021. According to the employer, the probationary period began on October 18, 2021, when it hired him. According to it, he was no longer an employee when he was hired, which was done through an external appointment process.

[28] The PSEA defines the term “employee” as a “person employed in … the public service”. In this case, the grievor ceased to be an employee on August 27, 2021, at the end of his Statistics Canada contract, as he was no longer a person employed in the public service (see Loiselle v. Treasury Board (Service Canada), 2021 FPSLREB 101 at para. 18). And s. 58(1) of the PSEA states that “… an employee whose appointment or deployment is for a specified term ceases to be an employee at the expiration of that term …”. In this case, the specified term ended on August 27, 2021.

[29] According to the grievor, the employer certainly would have hired him as soon as his Statistics Canada contract ended, but he was not hired because of the delays caused by the process of obtaining his security certificate. It is of no importance. The sad reality for him is that he was no longer an employee when the employer hired him on October 18, 2021.

[30] The employer hired the grievor through an external appointment process. It could not be otherwise, because when it hired him, he was no longer an employee within the PSEA’s meaning. In such a case, as stated in s. 61(1), “A person appointed from outside the public service is on probation for a period …”. Thus, as soon as he was hired, he began his probationary period, which, but for the rejection on probation, would have run from October 18, 2021, to October 17, 2022.

[31] I conclude that when he was dismissed on June 1, 2022, the grievor was still on probation.

[32] I carefully read Jodoin and Gill, to which the grievor referred me. They do not support his arguments that his probationary period was already over when he was dismissed. I also reviewed the decisions that the employer referred me to. They do not deal with situations comparable to the grievor’s.

[33] In fact, none of the decisions to which the parties drew my attention deal with the interpretation to be given to the Regulations Establishing Periods of Probation on the question of the “[t]he total length of the specified periods of employment or 12 months, whichever is shorter”. Regardless of the interpretation given to it, it is certain that those regulations cannot contradict s. 61(1) of the PSEA, from which they derive. Section 61(1) states explicitly that a person appointed through an external appointment is considered on probation.

[34] While that does not in any way change my findings in this grievance, I cannot overlook the employer changing its position in this case. On December 13, 2021, on the performance agreement, the grievor’s team leader checked “No” in the box that stated, “is the employee still on probation”. On March 15, 2022, the team leader changed their mind and wrote to the grievor, stating that he was still on probation. Then, in its responses to the grievance, the employer argued that the grievor was on probation when he was dismissed. According to the employer, his months of work at Statistics Canada could not be accounted for in the probationary period because he was hired then under the Exclusion Order. Finally, in its October 24, 2025, written submissions, the employer ignored that argument and alleged that the grievor was still on probation when he was dismissed because he had been hired from outside the public service. That type of back and forth is unhealthy for labour relations, is counterproductive, and should be avoided as much as possible.

[35] In this case, I find that the grievor was on probation when he was dismissed and that compensation in lieu of notice was paid to him under s. 62(2) of the PSEA. In addition, the employer supported its decision to terminate the probationary period on employment-related grounds (see paragraph 8). He did not challenge those grounds; nor did he argue that the dismissal was done in bad faith or was a sham or a camouflage of other grounds. Instead, he chose to limit the debate to whether he was on probation when he was dismissed.

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

(The Order appears on the next page)

V. Order

[37] The grievance is denied.

November 13, 2025.

FPSLREB Translation

Renaud Paquet,

a panel of the Federal Public Sector

Labour Relations and Employment Board