Date: 20070413
Docket: T-374-06
Citation: 2007 FC 389
Vancouver,
British Columbia, April 13, 2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
MOHAMMAD
ASLAM CHAUDHRY
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Mohammad
Aslam Chaudhry is a self-represented party (the Applicant). He seeks judicial
review of a decision dated July 13, 2005, made by Ian Mackenzie in his capacity
as an adjudicator (the Decision) dismissing the Applicant’s grievance and upholding
his Rejection on Probation dated February 6, 2004. The Decision also dismissed
a complaint the Applicant had submitted on June 16, 2004.
[2]
Ian
Mackenzie considered the grievance in his capacity as an adjudicator under
section 92 of the Public Service Staff Relations Act, R.S. 1985, c. P-35
(the Act) and considered the complaint under section 23 of the Act in his
capacity as a Vice Chairperson of the Public Service Staff Relations Board.
[3]
This
Court does not have jurisdiction to review the Decision as it relates to the
complaint and, for this reason, the Applicant initially filed his application
for judicial review with the Federal Court of Appeal. However, by order dated
February 9, 2006, Décary J.A. transferred the application to this Court because
he concluded the complaint to be “… for all practical purposes an attack on the
decision rendered by Mr. Mackenzie as an adjudicator.”
II. The Facts Related To The Grievance
– A Brief Overview
[4]
The
Applicant commenced term employment as an Administrative Services Assistant
with the Correctional Service of Canada (CSC) in the Central Registry at Bath
Institution on February 17, 2003. He was hired from outside the public service
and his engagement letter therefore stipulated that his probationary period would
be twelve months and would run from February 17, 2003 to February 16, 2004 (the
Probationary Period).
[5]
On
June 16, 2003, the Applicant was appointed to an indeterminate position in the
Central Registry at Millhaven Institution (Millhaven). The engagement letter
for that position indicated that he would be required to complete his
Probationary Period.
[6]
At
Millhaven, the Applicant was assigned the position of Transfer Clerk. His
supervisor, Ms. Susan Sly, arranged for one week of on-the-job training. As a
Transfer Clerk, the Applicant was responsible for transferring files as the
inmates left Millhaven to go to other institutions. According to Ms. Sly, it was
a demanding position. Soon after the Applicant took up his new post, Ms. Sly became
concerned that he was having trouble keeping up with the workload.
[7]
On
September 9, 2003, Ms. Sly advised her staff that a job rotation was to occur
on October 6, 2003. She did not reveal to the Applicant or to the other
employees that she was using the rotation as an excuse to transfer the
Applicant to another position. The Applicant became an Input and Releases Clerk
at the beginning of October 2003. During his training for that position he reportedly
adopted a confrontational attitude.
[8]
Shortly
thereafter, the Applicant again fell behind in his work. He stayed late several
times to try to catch-up, but stopped after Ms. Sly informed him that he could
not be compensated and that he should not work overtime. He then fell even further
behind and his relations with his co-workers deteriorated. Some complained that
he was confrontational. His backlog began to affect other departments and Ms. Sly
received complaints.
[9]
In
order to address some of the problems being experienced with the Applicant’s
work and attitude, Ms. Sly arranged for a mediator to come and speak with some
of the employees. At that time, the Applicant had a one-on-one meeting with the
mediator on October 22, 2003.
[10]
On
October 27, 2003, the Applicant complained to his union representatives about
pressure he was receiving from his supervisor and his co-workers. He also
explained that his supervisors were neglecting to fill vacant positions at the
Registry and that this was unfairly adding to his workload. Ms. Sly testified
at the hearing that the vacant positions were unrelated to the Applicant’s
position and that, even if filled, would not have decreased his workload. She
also testified that she had made the Applicant aware of this fact.
[11]
Due
to ongoing tensions and unresolved work performance issues, Ms. Sly asked the
Applicant to attend an informal counselling session. This meeting took place on
January 20, 2004. Ms. Sly attended with her supervisor, John Stevenson, who was
the Assistant Warden, Management Services. The Applicant was accompanied by his
union representative, John Nugent. The Applicant was told that being behind in
his work was unacceptable.
[12]
However,
the Applicant’s performance did not improve. Ms. Sly testified that she fielded
complaints regarding missing files and two inmate files that ought to have been
forwarded to other institutions.
[13]
The
Applicant admitted that he made a mistake with the inmate files, but denied
that the missing files were his fault. He also claimed that newcomer files were
not his responsibility. However, in the Decision, the adjudicator noted that
the Desk Manual, which served as the job description for the Applicant’s
position, clearly stated that new admissions were his responsibility.
[14]
It
is unclear precisely when Ms. Sly and her supervisor learned of the date on
which the Applicant’s Probationary Period was to expire. According to the
Decision, as late as January 26, 2004, they were both under the impression that
the Probationary Period had begun when the Applicant started to work at
Millhaven and therefore ended on June 16, 2004. With that in mind, on January 26,
2004, on her supervisor’s recommendation, Ms. Sly began preparing a Performance
Evaluation Report setting out the problems with Mr. Chaudhry’s performance.
[15]
During
a meeting with the Applicant on January 29, 2004, Ms. Sly asked him to suggest
other steps she could take to assist him in his performance. She testified that
she told him at that time that the number of files which required his attention
was the same as it had been in previous years.
[16]
On
January 30, 2004, Ms. Sly directed one of the Applicant’s co-workers to assist
him with his file backlog.
[17]
On
February 6, 2004, the Applicant was given a memorandum which rejected him on
probation due to his inability to perform his duties and his poor relationships
with office colleagues (the Rejection on Probation). The Applicant was also
provided with his Performance Evaluation Report. Thereafter, he was escorted
from the building and was not allowed to return to work. He received one
month’s pay in lieu of notice. Ms. Sly and her supervisor testified that they
decided to reject the Applicant on probation once they learned that his
Probationary Period would expire on February 16, 2004.
[18]
The
hearing of both the grievance and the complaint was held in Kingston, Ontario, from June
6-8, 2005.
III. The Issues
A. The Standard of Review
[19]
The
Applicant had no submissions on this issue. The Respondent suggested patent
unreasonableness as the appropriate standard.
B. Failure to Comply with subsection
28(2) of the Act
[20]
The
Applicant said that he should have received prior written notice of the
Rejection on Probation, and because he was not so notified, the Rejection on
Probation is invalid for being contrary to subsections 11(a) and (e) of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
(Charter) and subsection 2(e) of the Canadian Bill of Rights, S.C. 1960,
c. 44, reprinted in R.S.C. 1985, App. III (Bill of Rights).
C. Errors and Omissions
[21]
The
Applicant said that the Decision is replete with factual errors and omissions, which
undermine its reliability, demonstrate bias and show a disregard for the
presumption of innocence.
D. Legal Representation
[22]
The
Applicant said that the fact that he was required to use a representative provided
by his bargaining agent deprived him of a fair hearing contrary to subsection
2(e) of the Bill of Rights.
E. A Treasury Board Guideline
[23]
The
Applicant said that a Treasury Board document marked as Exhibit E-17 at the
hearing and entitled Chapter 7 Non Disciplinary Demotion or Termination of
Employment for Cause applied in his case and was not followed.
F. Deployment
[24]
The
Applicant said that his rotation to a new position in October 2003 was not
accomplished in accordance with the provisions of the Act which relate to
Deployment.
G. Reliance on an Irrelevant Decision
[25]
The
Applicant said that the adjudicator relied on the decision in Porcupine Area
Ambulance Service and Canadian Union of Public Employees, Local 1484
(1974), 7 L.A.C. (2d) 182 (Beatty), at p. 185 and that it does not apply in his
circumstances. He said that, since he had very high scores on the public
service admission tests and excellent results in his post–secondary education,
a probationary period to assess his ability was unnecessary.
IV. Analysis of the Issues
A. Standard of Review
(1) Privative
Clauses or Appeals
[26]
The
mechanism for review of the Decision is an application for judicial review
under the Federal Courts Act, R.S.C. 1985, c. F-7. I therefore conclude
that this factor suggests less deference. There is no privative clause.
(2) Relative
Expertise
[27]
The
adjudicator’s role was, in large measure, to ascertain the true facts and assess
the credibility of the Applicant and his supervisor, Ms. Sly. In my view,
deference is owed to the adjudicator when he is making findings of fact and credibility
determinations.
(3) Legislative
Purpose
[28]
The
purpose of section 92 is to provide for the hearing and resolution of grievances
and the grievance process in turn is part of a scheme to promote healthy labour
relations in the Federal Public Service. Since in this respect the legislation
is polycentric, it favours a deferential approach.
(4) Nature
of the Question
[29]
In
this case, the question the adjudicator was called on to answer was a legal
question dealing with whether he had jurisdiction to consider the grievance on
its merits. This suggests a less deferential approach.
[30]
I
have concluded that reasonableness is the appropriate standard of review in
this case.
B. Subsection 28(2) of the Act
[31]
Section
28(2) reads as follows:
|
Probationary period
…
Rejection
28. (2) The deputy head may, at any
time during the probationary period of an employee, give notice to the
employee that the deputy head intends to reject the employee for cause at the
end of such notice period as the Commission may establish for that employee
or any class of employees of which that employee is a member, and the
employee ceases to be an employee at the end of that period.
|
Durée du stage
…
Renvoi
28. (2) À tout moment au cours du
stage, l’administrateur général peut aviser le fonctionnaire de son intention
de le renvoyer, pour un motif déterminé, au terme du délai de préavis fixé
par la Commission pour lui ou la catégorie de fonctionnaires dont il fait
partie. Le fonctionnaire perd sa qualité de fonctionnaire au terme de cette
période.
|
[32]
The
Applicant submits that, under this subsection, giving notice of intention to
reject on probation and rejecting an employee with notice are separate steps
and that, because he received his Performance Evaluation and Rejection on
Probation simultaneously, he was not given prior written notice which would
have afforded him time to correct the problems identified in the Performance Evaluation.
[33]
However,
in the context of employment law, notice is not given to afford an employee an
opportunity to address problems. Rather, it is given to provide the employee
with a paid opportunity to seek new employment. In this regard see Bramble
v. Medis Health and Pharmaceutical Services Inc., [1999] N.B.J. No. 307
(N.B.C.A.), at para. 57 and Lethbridge v. Newfoundland (Minister of Health) (1992), 47 C.C.E.L.
258, [1992] N.J. No. 325, at p. 300.
[34]
In
view of these decisions, I am unable to agree with the Applicant’s
interpretation of subsection 28(2). In my view, there is only one notice to
which an employee on probation is entitled and that is the notice the Applicant
received. It was to the effect that he would be rejected on probation for cause
at the end of a one-month period of leave with pay.
[35]
However,
the Applicant also submits that if subsection 28(2) does not mean that he was
entitled to notice in time to correct his performance problems, then the
section is unconstitutional as a violation of subsections 11(a) and (b) of the Charter.
They read as follows:
|
11. Any person charged with an offence has
the right
a) to be informed without unreasonable
delay of the specific offence;
b) to be tried within
a reasonable time;
|
11. Tout
inculpé a le droit :
a) d'être
informé sans délai anormal de l'infraction précise qu'on lui reproche;
b) d'être jugé
dans un délai raisonnable;
|
[36]
The
Applicant suggested that the word “penal” includes all forms of punishment and
would therefore apply to a termination of employment. However, it is well
recognized that section 11 of the Charter applies to those charged with a
criminal offence.
[37]
The
Applicant also said that the Rejection on Probation offends subsection 2(e) of
the Bill of Rights. It reads as follows:
|
2. Every
law of Canada shall, unless it is expressly declared by an Act of the
Parliament of Canada that it shall operate notwithstanding the Canadian
Bill of Rights, be so construed and applied as not to abrogate, abridge
or infringe or to authorize the abrogation, abridgment or infringement of any
of the rights or freedoms herein recognized and declared, and in particular,
no law of Canada shall be construed or applied so as to
…
|
2. Toute loi du Canada, à moins qu’une loi
du Parlement du Canada ne déclare expressément qu’elle s’appliquera
nonobstant la Déclaration canadienne des droits, doit s’interpréter et
s’appliquer de manière à ne pas supprimer, restreindre ou enfreindre l’un
quelconque des droits ou des libertés reconnus et déclarés aux présentes, ni
à en autoriser la suppression, la diminution ou la transgression, et en
particulier, nulle loi du Canada ne doit s’interpréter ni s’appliquer comme
…
|
|
(e) deprive a person of the right to a fair hearing in
accordance with the principles of fundamental justice for the determination
of his rights and obligations
|
e) privant une personne du droit à une
audition impartiale de sa cause, selon les principes de justice fondamentale,
pour la définition de ses droits et obligations
|
[38]
The
Applicant said that this section guarantees him the right to written notice
setting out reasons why he is at risk of being rejected on probation and an
opportunity to respond to the notice.
[39]
In
my view, the Applicant has misunderstood the applicability of subsection 2(e).
The law is clear that the protections in subsection 2(e) operate only if there
are proceedings before a court, tribunal or similar body. The Bill of Rights
does not create a right to a hearing; it simply ensures that, when adjudication
is mandated, hearings are conducted in accordance with the principles of
fundamental justice.
C. Errors and Omissions
[40]
The
Respondent objected to the Applicant’s introduction of this issue on the
grounds that it was not mentioned in the Applicant’s Memorandum of Fact and
Law. In response, the Applicant acknowledged that the nine points he made under
this heading first came to his attention while he was preparing for the hearing
of this application.
[41]
Accordingly,
since the Respondent had no prior notice of this issue, it will not be considered.
D. Legal Representation
[42]
The
Applicant acknowledged that the question of whether he was denied counsel of
his choice before the adjudicator was raised for the first time at the hearing
before me. Accordingly, since the Respondent had no prior notice, it will not
be addressed.
E. A Treasury Board Guideline
[43]
It
is clear to me that the document marked as Exhibit E-17 at the hearing before
the adjudicator has no application in a situation in which an employee on
probation is rejected. I have reached this conclusion because the note at the
end of point 3 on the second page of the document reads as follows:
Note:
The Public Service Employment Act continues to provide the authority for
rejection on probation, layoff, dismissal for political partisanship and
revocation of appointment.
|
Remarque : La Loi sur l’emploi dans la fonction
publique continue de régir les cas de renvoi en cours de stage, de mise
en disponibilité, de renvoi pour activités politiques et d’annulation de
nomination.
|
F. Deployment
[44]
This
issue was raised for the first time before me and, since the Respondent had no prior
notice, it will not be considered.
G. Reliance on an Irrelevant Decision
[45]
The
Applicant said that the adjudicator relied on the decision in Porcupine,
supra, which he said was not relevant in his circumstances. In Porcupine,
supra, the adjudicator said:
…one
must also recognize the legitimate interests of the employer in attempting to
secure the most competent, compatible and suitable workforce it can acquire.
One cannot reasonably expect an employer to be able to assess the full
capabilities and potentiality of a job applicant from a brief interview, an
application form, references and the like. Rather he must be entitled to an
opportunity to view the new hire in the particular context of his own work
environment. That is the sole purpose of the probationary period. It is, as we
have said, a legitimate purpose.
[46]
The
Applicant said that the fact that he had exceptional test scores and grades meant
that his suitability was a given and did not need to be assessed. However, in
my view, there is more to suitability than excellent academic and test records
and probation is an entirely appropriate approach when employees first join the
Federal Public Service. I, therefore, see nothing wrong with the adjudicator’s
reliance on the Porcupine decision.
V. Conclusions
[47]
The
Applicant equated his Rejection on Probation with a criminal charge and his job
loss with a punishment and concluded that the Charter applies. He also feels,
based on the Bill of Rights, that he was entitled to advance written notice so
that he could correct the problems with his job performance. These views are
incorrect.
[48]
As
described in the Porcupine decision, once capacity to do a job is
demonstrated during the interview process, probation allows an employer to
determine suitability.
[49]
The
Applicant acknowledged that he could not cope with his workload and he made his
concerns known to Ms. Sly. He asked for help from colleagues and suggested that
the workload was unreasonable and that his position was not correctly described
in the Desk Manual.
[50]
His
attitude was sometimes confrontational. He refused to accept his supervisor’s
assurances that the job description and workload had not changed over the
years, that filling the vacant positions would have had no impact on his
workload, and that the responsibilities of his position were properly described
in the Desk Manual.
[51]
In
these circumstances, the employer satisfied the adjudicator that it had met the
burden of proof which required it to show some evidence of an
employment-related reason for a rejection on probation. In this regard see Canada (Attorney General) v.
Leonarduzzi
(2001), 205 F.T.R. 238, at para. 37, where Lemieux J. wrote:
Specifically,
the employer need not establish a prima facie case nor just cause but simply
some evidence the rejection was related to employment issues and not for any
other purpose.
[52]
The
adjudicator held at paragraphs 111 and 112 of the Decision that the employer
had discharged its burden and concluded that there were a number of
employment-related reasons for the Applicant’s Rejection on Probation. He said:
The
evidence on Mr. Chaudhry’s performance after his rotation to the Input and
Releases Desk shows that there were a number of employment-related reasons for
his rejection on probation. Ms. Sly testified as to a number of concerns about
delays in his work, as well as personal conflicts and mistakes that were made
in the performance of his duties.
[53]
Once
the employer’s onus was met, the burden shifted to the employee to show bad
faith. In this regard, the adjudicator concluded that the Applicant had not
shown that the Rejection on Probation was a sham or made in bad faith.
[54]
In
my view, the adjudicator’s conclusions were entirely reasonable.
JUDGMENT
For all these reasons, this
application for judicial review is hereby dismissed with costs.
"Sandra
J. Simpson"
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