Date: 20130412
Docket: T-1466-11
Citation: 2013 FC 365
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 12, 2013
PRESENT: The Honourable Mr.
Justice Boivin
BETWEEN:
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Applicant
|
|
and
|
|
|
MARC-ANDRÉ BERGERON
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 18.1 of the Federal
Courts Act, RSC 1985, c F-7, of a decision by a Public Service Labour
Relations Board (PSLRB) adjudicator dated August 12, 2011. In that
decision, the adjudicator found that the termination of employment of the respondent,
who was working for the Canadian Security Intelligence Service (CSIS) on
probation, was abusive because the employer had failed to provide him, in
accordance with its policies and procedures, with a written notice of shortcomings
before terminating his employment, and no employment-related reason was
demonstrated. The adjudicator allowed the respondent’s grievance and reversed
his termination. The applicant is seeking a declaration that the adjudicator
lacked jurisdiction to deal with the respondent’s grievance. In the alternative,
the applicant is asking this Court to refer this matter back to a different
adjudicator for redetermination.
Background
[2]
Marc-André
Bergeron (the respondent) had been an intelligence officer with the Canadian
Security Intelligence Service (CSIS or the Service) since January 6, 2003
(Applicant’s Record, Vol 1, pp 115-21). In accordance with his offer of
employment, the respondent was on probation for a five-year period, throughout
the course of his Intelligence Officer Development Program (Applicant’s Record,
Vol 1, p 116).
[3]
The
respondent successfully completed the training for new intelligence officers,
which ran from January 6 to April 11, 2003 (Applicant’s Record, Vol
1, pp 123-28). Comments following the training indicate that the respondent needed
to improve in the areas of reasoning and analysis, planning and organization (difficulty
meeting deadlines; Applicant’s Record, Vol 1, p 125). Between April 11,
2003, and December 6, 2005, the respondent received four performance
evaluations. The passing score for performance evaluations is 2.5 out of 4.0. The
respondent received the following scores:
a.
from April 11, 2003,
to January 6, 2004: 3 (Applicant’s Record, Vol 1, pp
130-39);
b.
from January 6,
2004, to January 6, 2005: 2.3 (Applicant’s Record, Vol 1, pp 141-50);
c.
from January 17,
2005, to April 5, 2005: 2.6 (Applicant’s Record, Vol 1, pp
152-62); and
d.
from April 6, 2005,
to December 6, 2005: 2.5 (Applicant’s Record, Vol 1, pp 165-75).
[4]
No
areas for improvement were indicated on the evaluation of April 11, 2003,
to January 6, 2004. The evaluation for January 6, 2004, to January 6,
2005, made note of the respondent’s serious difficulties in performing his
duties adequately in several areas of responsibility and his great difficulty
in meeting deadlines. It also mentioned improvements required in the areas of
communications, confidence, professionalism, planning, analysis and, in
particular, judgment (Applicant’s Record, Vol 1, pp 144-45). The same
evaluation also indicated that the respondent was not performing at a
satisfactory level and that some areas were particularly serious, as the
respondent did not seem to grasp the importance of what was at stake and the
need to make adjustments (Applicant’s Record, Vol 1, p 148). It stated that the
respondent’s performance had declined since June 2004 and that he seemed
to have an attitude of complacency (Applicant’s Record, Vol 1, p 149).
[5]
In
the two subsequent applications (covering the periods from January 17 to
April 5, 2005, and April 6 to December 6, 2005), it was noted
that the respondent’s productivity should have been higher; that an improvement
in his judgment had been detected through more thorough checks but that this
needed to be more consistent; and that there [translation]
“is still room for improvement and there are certain shortcomings that need to
be addressed to make him fully operational” (Applicant’s Record, Vol 1, p 156).
It was also noted that the respondent [translation]
“is still demonstrating certain shortcomings in his work” and [translation] “is somewhat inconsistent
in his work” (Applicant’s Record, Vol 1, p 169), and that he needed to improve
in the areas of judgment, analysis, communication and professionalism.
[6]
The
respondent passed the Intelligence Officer Investigator Course that ran from
January 9, 2006, to February 24, 2006 (Applicant’s Record, Vol 1, pp 178-83). The
evaluation stated that the respondent required improvement in the areas of
interviewing techniques and the collection of relevant information and that he would
have to demonstrate that he could use appropriate strategies during interviews
to meet his objectives.
[7]
In
June 2006, the respondent was assigned to the Quebec Region as an investigator.
He was initially supervised by an acting supervisor who did not evaluate him.
The respondent’s new supervisor took up his duties on September 5, 2006. The
respondent was therefore evaluated for the period from September 5, 2006,
to January 6, 2007, and he received a score of 2.4 (Applicant’s Record,
Vol 1, pp 188-98). Under necessary improvements, the evaluation mentions an
inadequate operational report dated October 12, 2006, inadequate production
and inadequate performance (Applicant’s Record, Vol 1, p 192). It is also noted
that the operational report prepared by the respondent contained incorrect
facts, that he needed to increase the frequency of his interviews and that he
had serious shortcomings but showed a desire to improve (Applicant’s Record,
Vol 1, p 193).
[8]
The
respondent later received two special performance evaluations. In his first
special performance evaluation, covering the period from January 7, 2007,
to May 7, 2007, he earned a score of 2.3 (Applicant’s Record, Vol 1, pp
203-16), and in the second, covering the period from May 8, 2007, to
September 8, 2007, he earned a score of 2.2 (Applicant’s Record, Vol 1,
pp 218‑31). The special evaluations indicated, among other things,
that the respondent
a.
had left an interview
early to keep a social commitment (Applicant’s Record, Vol 1, p 207);
b.
had lacked initiative
in attempting to obtain the contact information of an interviewee (shortcomings
in interview techniques/ability to interview and judgment) (Applicant’s Record,
Vol 1, p 207);
c.
had failed to inform
his supervisor that he was leaving the office (Applicant’s Record, Vol 1, p 207);
d.
had failed to inform
his supervisor of the interviews he was planning to conduct (Applicant’s Record,
Vol 1, p 207);
e.
had asked poorly
formulated questions during interviews, providing answers to the interviewee (Applicant’s
Record, Vol 1, p 208);
f.
had conducted an
unsatisfactory investigation, delivered an unsatisfactory report (Applicant’s
Record, Vol 1, p 208) and delivered an unsatisfactory interview report
containing inaccurate information (sometimes incomplete, sometimes
contradictory) (Applicant’s Record, Vol 1, p 222);
g.
had provided an
incorrect e-mail address to an interview subject using an operational pseudonym
(Applicant’s Record, Vol 1, pp 212 and 214);
h.
lacked judgment and
professionalism (Applicant’s Record, Vol 1, p 223); and
i.
was incapable of
distinguishing fact from fiction (Applicant’s Record, Vol 1, p 226).
[9]
During
a meeting with the evaluating supervisor, Ms. Stewart, in May 2007, the
respondent had indicated that he understood the gravity of the situation, which
led Ms. Stewart to expect increased effort and significant improvement
from the respondent. She nevertheless noted that the shortcomings remained
(Applicant’s Record, Vol 1, p 226). During a meeting in June 2007, a
manager, Mr. Boyer, stated that the respondent seemed to understand the
gravity of the situation (Applicant’s Record, Vol 1, p 231). He was told
during a meeting on June 8, 2007, that if he did not improve, he would be
given a written notice of shortcomings, and that if his performance did not
improve after he received the notice, steps would be taken that could result in
his termination (Applicant’s Record, Vol 1, p 215). The respondent stated
in June 2007 that he wished to improve his performance significantly (Applicant’s
Record, Vol 1, p 213).
[10]
The
respondent’s employment was terminated on October 2, 2007, three months
before the end of his probationary period (Applicant’s Record, Vol 1, p 233).
The respondent’s letter of termination refers to the evaluations of September 5,
2006, to January 6, 2007; January 7, 2007, to May 7, 2007; and
May 8, 2007, to September 8, 2007.
[11]
The
respondent filed a grievance on October 17, 2007, which was dismissed at both
levels of the Service’s grievance process, on November 7, 2007, and
December
20, 2007 (Applicant’s
Record, Vol 1, pp 235-37). The respondent’s grievance was referred to a
PSRLB adjudicator for adjudication on January 17, 2008. The hearing before
the adjudicator was held on May 9, 2008; from January 5 to 7, 2011;
and from March 15 to 18, 2011. The adjudicator’s decision was rendered on
August 12,
2011.
The impugned decision
[12]
The
applicant objected to the adjudicator’s jurisdiction to hear the respondent’s
grievance because his employment had been terminated during probation for
employment-related reasons. The adjudicator decided to reserve her decision on
the objection and hear the evidence on the merits of the grievance (Applicant’s
Record, Vol 1, pp 7-8, para 5 of the decision). The applicant’s
evidence consisted of the testimony of Michel Coulombe, Director General of the
Quebec Region. The latter stated that he had terminated the respondent’s
employment after examining all of his performance evaluations and noting the
same shortcomings arising in each one, namely, a lack of judgment and rigour,
over the course of more than four years. The respondent’s evidence consisted of
his own testimony, the testimony of two other CSIS employees, the testimony of
the regional employee representative, and several e-mail exchanges between the
respondent and his supervisor. The respondent argued that he had discharged his
burden of demonstrating that the employer had violated its own policies and that
there was a personality conflict between himself and his new supervisor.
[13]
The
adjudicator identified two issues that she had to resolve in light of the
parties’ claims, namely: (i) Did the employer respect its own policies and procedures
regarding termination of employment during probation, and (ii) did the employer
establish an employment-related reason?
[14]
As
for the first issue, the adjudicator began by pointing out a contradiction
between the fact that the respondent was subject to a five-year probationary
period, while the letter of termination refers to an evaluation period of only
13 months, from September 5, 2006, to September 8, 2007 (paragraphs 89-91
of the decision). The adjudicator stated that during the first 44 months after
he was hired, the respondent’s performance was acceptable, since the Service
did not terminate his employment. The adjudicator rejected evidence of the
respondent’s shortcomings prior to September 5, 2006, considering them
irrelevant for two reasons: first, because the letter of termination referred
only to the period from September 5, 2006, to September 8, 2007, and
second, because although the respondent received a score of 2.3 for the period
from January 6, 2004, to January 6, 2005, he later received scores of
2.6 (from January 17 to April 5, 2005), and 2.5 (from April 6 to
December 6, 2005), and a score of 3 for his investigator training. The
adjudicator stated that the employer had to accept the positive scores that it
had itself attributed to the respondent.
[15]
The
adjudicator then turned to the issue of the notice of shortcomings, which the
respondent did not receive before his employment was terminated. The
adjudicator noted that according to a CSIS procedure entitled Performance
Evaluation Program (HUM‑306), this notice is discretionary, stating
that a [translation] “written
notice of shortcomings may be issued to an employee” (at section 3.6 of
the earlier version and section 4.1.4 of the version dated July 18,
2007). However, the adjudicator also noted that the Performance Evaluation
Program refers to a provision of Procedures – Performance Evaluation
(HUM-306-01) that is not discretionary, stating at paragraph 5.2 that if
after at least two special evaluations, the employee’s performance does not
improve, “[t]he supervisor must meet with the employee to provide him or her
with a written notice of shortcomings” (emphasis in the original). The
adjudicator also noted that, in this case, the respondent’s evaluation covering
the period from January 7 to May 7, 2007, stated that the respondent
would be provided with a written notice of shortcomings and that if the
situation persisted after this notice, steps could be taken to terminate his
employment (Applicant’s Record, Vol 1, pp 41-2, para 96 of the decision).
[16]
The
adjudicator noted that the purpose of the Performance Evaluation Program
(HUM‑306) is to promote ongoing communication between managers and
employees regarding performance, and that the respondent did not benefit from
such communication in this case. The adjudicator found that the respondent’s
supervisor had not met with him to establish a work plan together, had not
given him the necessary advice, had failed to provide guidance and ensure that
he had the proper training, and had failed to inform him of the steps he had to
take to improve his performance. The adjudicator noted that these steps are
listed in sections 2 and 5 of the Performance Evaluation Program
(HUM-306).
[17]
The
adjudicator also took into account the testimony of the regional representative,
who said that it was unusual for an employee to be surprised by a termination, and
that an employee generally receives a written notice of shortcomings before his
employment is terminated. The adjudicator ultimately held that if the Service terminates
employment on the basis of its own policy, it must consider not only the
provisions that operate in its favour, but also those that favour the employee.
According to the adjudicator, the employer skipped an essential step by terminating
the respondent’s employment without first issuing him a notice.
[18]
The
adjudicator then considered the second issue that she had identified, that is, whether
the employer had established an employment-related reason for termination. The
adjudicator noted the respondent’s argument that his performance had met the
Service’s standards until he ended up under the supervision of his new
supervisor. She also took into account the respondent’s argument that the
performance evaluations did not reflect his overall performance, that his
supervisor had already made up his mind and that the Service had failed to
follow its own guidelines before terminating his employment.
[19]
The
adjudicator also stated that in the case of a termination, the burden of proof
lies initially with the employer, who must provide the reasons for the
termination. The adjudicator cited a few cases that stated that the employer’s
burden of proof is less stringent for terminations during probation (Jacmain
v Canada (Attorney General), [1977] SCJ no 111 (QL), [1978] 2 S.C.R. 15 [Jacmain];
Canada (Attorney General) v Penner, [1989] 3 FC 429, 99 NR 213 (FCA) [Penner];
Canada (Attorney General) v Leonarduzzi, 2001 FCT 529, 205 FTR 238 [Leonarduzzi]).
The adjudicator held that the employer had to prove that the reason for the
termination was employment-related, at which point it would fall to the
employee to demonstrate that the employer’s decision was abusive.
[20]
In
this case, the Service stated that it had employment-related reasons for terminating
the respondent’s employment, namely, the performance evaluations, and that
these evaluations constituted a sufficient warning to the respondent, given
that he was still on probation. The adjudicator noted that the evidence of this
was limited to Mr. Coulombe’s testimony. The respondent, on the other
hand, presented several e-mails demonstrating his exchanges with this
supervisor and the weekly objectives he would set, as well as the supervisor’s
response to these objectives. The adjudicator noted that the respondent’s supervisor
had stated that his workplace achievements were insufficient in an e-mail dated
November 21, 2006, but that the respondent had then begun exceeding his
weekly objectives. There was no further mention of insufficiency after
November 21, 2006. The adjudicator reviewed 58 e-mail exchanges initiated
by the respondent between September 5, 2006, and October 2, 2007, of
which only 3 involved negative feedback. The adjudicator held that the
respondent had demonstrated to her satisfaction that his supervisor had not
clearly expressed his dissatisfaction and the ways in which he could improve.
[21]
On
the basis of this finding, the adjudicator said that she was of the view that
the respondent had demonstrated that his dismissal was arbitrary and therefore
unjustified. She stated that this caused the burden of proof to shift, and that
the Service had to respond to the respondent’s evidence to support its position
that it had an employment-related motive. In the adjudicator’s view, the
Service failed to do so.
[22]
The
applicant offered as an employment-related reason the respondent’s failure to meet
the basic requirements of the position of intelligence officer as a result of
his lack of rigour, planning, organization and judgment and his poor-quality
interviews. The respondent also allegedly damaged the Service’s credibility and
effectiveness and compromised its security on more than one occasion. The
adjudicator stated that the respondent had countered most of the incidents for
which he had been criticized with examples of instances in which his supervisor
had approved his work. After identifying several examples drawn from the e-mail
exchanges, the adjudicator found that the Service had failed to persuade her
that the termination of the respondent’s employment had been justified or that
there had been a legitimate, employment-related reason.
[23]
The
adjudicator held that the termination of the respondent’s employment had been
abusive because the Service had failed to give him a written notice of shortcomings
before the termination and did not meet its burden of demonstrating an
employment-related reason. Accordingly, the adjudicator held that she had the
jurisdiction to allow the grievance and reverse the termination, which she did.
Issues
[24]
The
following issues arise from this case:
a.
What
is the applicable standard of review?
b.
Did
the adjudicator err in determining the issues and the parties’ burdens of
proof?
Analysis
Standard of review
[25]
In
this case, there are two aspects to the standard of review issue: the
identification of the applicable burden of proof and the adjudicator’s findings
of fact. Although the context was different, the Federal Court of Appeal made
this distinction in Cyprus (Commerce and Industry) v International Cheese
Council of Canada, 2011 FCA 201 at para 19, 420 NR 124 [Cyprus]: “The
Judge therefore did indeed apply the standard of correctness to the
identification of the applicable burden of proof and the standard of
reasonableness to the Registrar’s findings of fact.”
[26]
The
standard of correctness applies to the identification of the burden of proof
applicable in the case of termination of employment during probation. This is a
question of law arising from the interpretation of the case law and the
decisions rendered by the courts and tribunals in this area. There are not two
ways to identify the burden of proof imposed on each party—there is only one.
Any error by the adjudicator with respect to identifying the burden of proof to
impose on each party therefore calls for no deference on the part of this Court
and is subject to the standard of correctness (Cyprus, above, at para
19; Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC
40, [2005] 2 S.C.R. 100). Accordingly, it is open to this Court to substitute its
own conclusions for those of the adjudicator in the case of an error (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 50, [2008] 1 S.C.R. 190 [Dunsmuir]).
[27]
With
respect to the second issue, i.e., in the event that the adjudicator has
correctly identified the burden of proof but has applied it erroneously, it is
the standard of reasonableness that applies. The issue of whether the evidence
before the adjudicator discharges the burden imposed on each party is a
determination made by examining questions of fact, as well as questions of mixed
fact and law, which calls for a standard of reasonableness, given the
adjudicator’s expertise in the field of public service labour relations and the
privative clause at section 233 of the Public Service Labour Relations
Act (Dunsmuir, above, at paras 52-55). In such cases, it must be
acknowledged that more than one finding is possible and that the adjudicator’s
expertise plays an important role in that determination (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paras 25 and 59, [2009] 1 SCR
339; Canada (Attorney General) v King, 2009 FC 922 at para 10, [2009] FCJ
no 1137 (QL)). Deference is therefore owed to the adjudicator’s findings
regarding questions of fact and questions of mixed fact and law; what is to be
examined is the reasonableness of her findings about whether the burden of
proof was met. The Court must therefore limit its review to “the existence of
justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47).
[28]
In
this case, regardless of the applicable standard of review, the adjudicator’s
decision cannot be upheld even on a standard of reasonableness.
Introductory remarks
[29]
The
wording of the legislative provisions relevant to judicial review is provided
in the annex to these reasons for judgment and judgment. It is worth noting
that under Schedule V of the Financial Administration Act, RSC 1985,
c F-11 [Financial Administration Act], CSIS is a separate agency. CSIS
has been delegated the authority to manage its human resources. In fact, under
section 8 of the Canadian Security Intelligence Service Act, RSC
1985, c C-23 [CSIS Act], the Director of the Service has the exclusive
power to appoint Service employees, determine their conditions of employment
and perform the functions of the Treasury Board under the Financial
Administration Act and of the Public Service Commission under the Public
Service Employment Act, SC 2003, c 22, sections 12 and 13. This
delegation of functions to the Director of the Service is made notwithstanding,
among other statutes, the Public Service Employment Act, above, which is
therefore not applicable to this case. The CSIS has adopted its own human
resources policies, including HUM-407, entitled “External Recruitment”, which
deals specifically with termination during probation at section 7.3 (Applicant’s
Record, Vol 1, p 311). Moreover, labour relations at CSIS are not governed by
the Public Service Labour Relations Act, SC 2003, c 22, s 2 [PSLRA],
except for the provisions on grievances from Part 2 of the PSLRA (subsection 2(1)
of the PSLRA, definition of “employee”). Section 209 of the PSLRA sets out
the circumstances in which such a grievance may be referred to adjudication; paragraph 209(1)(b)
in particular applies to this case.
Burden of proof
[30]
Essentially,
the applicant alleges that the adjudicator erred in her identification and application
of the burden of proof, and the respondent disagrees. The respondent submits
that the adjudicator applied the appropriate legal principles and that it was
therefore reasonable for her to find that she had the jurisdiction to consider
the grievance and that the dismissal should be set aside.
[31]
At
this stage it is appropriate to review the legal principles applicable when
dealing with termination during probation. In the context of termination during
probation, the adjudicator’s jurisdiction is not removed solely because the
employer is calling the situation a termination (Canada (Treasury Board) v
Rinaldi, [1997] FCJ no 225 (QL), 127 FTR 60). On the basis of the principle
that form should not take precedence over substance, the adjudicator is
entitled to look into the matter to ascertain whether the case is really what
it appears to be (Penner, above, pp 440-41).
[32]
A
long line of case law has established that the adjudicator may hear the
evidence, but with some caveats (Penner; Leonarduzzi; Rinaldi).
To this effect, the case law has developed the following procedure: the
employer has the initial burden of demonstrating that the reason for the termination
during probation was genuinely employment-related. If so, the burden shifts to
the grievor to demonstrate that the termination was in fact a sham, a
camouflage or in bad faith (Archambault v Canada (Customs and Revenue Agency),
2005 FC 183 at paras 8-12, [2005] FCJ no 229 (QL) and Archambault v Canada
Customs and Revenue Agency, 2003 PSSRB 28 at paras 51 to 61, [2003] CPSSRB
no 25). There has been no legislative amendment altering the application of
this principle, and the parties have not raised any before this Court.
[33]
Therefore,
in order to demonstrate that the reason for the termination was employment-related,
“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” (Leonarduzzi, above, at para 37; emphasis
added). This can be described as a “low threshold”, as the adjudicator noted in
her decision (Applicant’s Record, Vol 1, p 50, para 124).
[34]
At
paragraph 42 of Leonarduzzi, above, the Court nuanced the
respondent’s argument as follows: “The respondent submits the employer must
make a prima facie case that the grievor was terminated for just cause.
This is not so. A distinction must be made between an employment related reason
and ‘just cause’”. Furthermore, the following passage from Penner, above,
at p 438, cited at paragraph 42 of Leonarduzzi, above, presents
what the Federal Court of Appeal has designated as the correct approach in the
circumstances:
Other adjudicators have adopted quite a different attitude and accepted
that they had no jurisdiction to inquire into the adequacy and the merit of
the decision to reject, as soon as they could satisfy themselves that
indeed the decision was founded on a real cause for rejection, that is to say a
bona fide dissatisfaction as to suitability. In Smith (Board
file 166-2-3017), adjudicator Norman is straightforward:
In effect, once credible evidence is tendered by the
Employer to the adjudicator pointing to some cause for rejection, valid on its
face, the discharge hearing on the merits comes shuddering to a halt. The
adjudicator, at that moment, loses any authority to order the grievor
reinstated on the footing that just cause for discharge has not been
established by the Employer.
[Emphasis
added.]
[35]
The
onus was on the respondent to demonstrate that the termination was in fact
based on a cause other than a bona fide dissatisfaction as to
suitability, in other words, that the employer had acted in bad faith or that
the termination was a camouflage or sham. This is admittedly a heavy burden.
[36]
In
short, if an adjudicator is of the view that the employer had an employment-related
reason for terminating the employment during probation and that the termination
was not “camouflaged”, he or she has no jurisdiction.
[37]
In
this case, the Court notes that the adjudicator correctly describes the burden
on each of the parties at paragraph 113 of her reasons, stating that
. . . for a termination during
probation, the employer must present evidence that the termination was
justified by an employment-related reason. The grievor then must demonstrate
that the employer’s decision was abusive or that, to use the usual terms, the
employer's actions were a sham or camouflage or that the employer acted in bad
faith. This is a very high standard for grievors to meet.
(Applicant’s Record, Vol 1, p 47)
[38]
The
difficulty lies in the fact that the adjudicator’s statement—which is
consistent with the principles set out in the case law respecting the
termination of an employee during probation—is not further reflected in the
decision and remains a theoretical statement. It is difficult to draw any
correlation between paragraph 113 of the adjudicator’s decision and the
rest of her reasons.
[39]
For
example, some excerpts from the adjudicator’s reasons indicate that she erred
in her application of the burden of proof:
a.
“Therefore, the
grievor submitted evidence that his termination was arbitrary and,
consequently, unjustified. Thus, the burden of proof shifted. To support its
position that it had an employment-related reason, the employer had to provide
a response to the grievor’s evidence. The employer did not produce that
rebuttal evidence.” (Applicant’s Record, Vol 1, p 49, para 120 of the decision)
b.
“I believe that the
grievor’s cross-examination did not draw out the admissions needed to warrant
the employer’s decision to terminate him while on probation.” (Applicant’s
Record, Vol 1, p 49, para 122 of the decision)
c.
“Although an
‘employment-related reason’ might seem like a relatively low threshold, the
employer had to persuade me nonetheless that its decision was neither frivolous
nor arbitrary and that it had a genuine employment-related reason to warrant
termination.” (Applicant’s Record, Vol 1, p 50, para 124 of the decision)
d.
“In this case, I
believe that the grievor discharged his burden of proof to demonstrate that the
termination of his employment was unjustified. The employer did not convince me
to the contrary, on a balance of probabilities.” (Applicant’s Record, Vol 1, p
52, para 134 of the decision)
[40]
These
excerpts show that the adjudicator’s application of the burden of proof was
confused. If the adjudicator believed there was bad faith or a sham on the
employer’s part, she had to analyse the evidence in the second stage of the
burden of proof, and the onus was on the respondent to persuade her, not the
applicant. However, the adjudicator seems to have imported elements of the respondent’s
burden of proof into her analysis of the first stage of the burden,
simultaneously increasing the applicant’s burden of proof and reducing the
respondent’s. In fact, the adjudicator’s analysis (and the issue) stops at the
first stage of the burden (employment-related reason) as though there were
nothing more to consider. There is no analysis of the second stage of the
burden (sham, camouflage, bad faith). This error in the application of the
burden has repercussions for the interpretation of the facts.
[41]
If
CSIS has indeed established an employment-related reason through the testimony
of Mr. Coulombe, who decided to dismiss the respondent on the basis of
repeated unsatisfactory performance evaluations, the onus shifts back to the
respondent to prove that CSIS acted in bad faith or used a camouflage or sham
in terminating his employment during the probationary period. However, the
respondent’s evidence was presented in support of the argument that his termination
was unjust. That was not the respondent’s burden; what he needed to demonstrate
was that his termination was a camouflage or a sham, or had been carried out in
bad faith (Owens, above).
[42]
The
respondent submits that he did establish camouflage and bad faith in his
termination by demonstrating a conflict of personality between himself and his
supervisor. The Court notes, however, that the respondent’s shortcomings were
identified in his initial performance evaluations, even before he was evaluated
by his last supervisor, who took up his duties in September 2006. Even
those evaluations in which the respondent received a score higher than the
average of 2.5 indicate shortcomings and necessary improvements that remained
consistent throughout the years (the need to display more rigour,
professionalism, judgment and better time management skills).
[43]
It
is unreasonable to have found that the evidence contradicting the performance
evaluations is sufficient for the respondent to discharge his burden. The
adjudicator herself acknowledges that this “is a very high standard” (Applicant’s
Record, Vol 1, p 47).
[44]
With
respect, this finding is not within the range of possible, acceptable outcomes regarding
the evidence and the heavy burden on the respondent, particularly in light of
the consistent record of his performance shortcomings since June 2004. Shortcomings
in an employee’s performance certainly constitute an employment-related reason
and are especially relevant to cases of termination during probation. Mere disagreement
with the conclusions in the evaluations is not enough to establish bad faith on
the part of the employer.
[45]
The
adjudicator states that the e-mails adduced in evidence do not convince her that
the respondent’s supervisor had given him the full story during the evaluation
period. Instead, the adjudicator should have asked whether the e-mails
convinced her that the employer had acted in bad faith or engaged in camouflage
or a sham. The same can be said for the respondent’s argument regarding the HUM-306
and HUM-306-1 documents and the notice of shortcomings.
JUDGMENT
THE COURT ORDERS that the application for
judicial review be allowed and that the decision be referred back to a
different adjudicator to be decided in accordance with the reasons of this
Court.
“Richard Boivin”
Certified true translation
Francie Gow, BCL, LLB
Email this Content