Docket:
T-773-13
Citation: 2013 FC 1007
Ottawa, Ontario, October
2, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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ATAUR RAHMAN
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This is a judicial review of the decision of an
adjudicator [Adjudicator] of the Public Service Labour Relations Board [Board]
dismissing the termination grievance of Mr. Rahman. The Adjudicator found that
the Board had no jurisdiction over the grievance because termination of
employment occurred before the expiry of the Applicant’s probationary period.
[2]
At the hearing the style of cause was ordered
amended to name only the Attorney General of Canada as the Respondent.
II. STATUTORY
PROVISIONS
[3]
The relevant statutory provisions are:
Public Service Labour Relations Act, SC
2003 c 22
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209. (1) An employee may refer to
adjudication an individual grievance that has been presented up to and
including the final level in the grievance process and that has not been
dealt with to the employee’s satisfaction if the grievance is related to
…
(c) in the case of an employee in the core public administration,
(i) demotion
or termination under paragraph 12(1)(d) of the Financial Administration
Act for unsatisfactory performance or under paragraph 12(1)(e) of
that Act for any other reason that does not relate to a breach of discipline
or misconduct, or
(ii)
deployment under the Public Service Employment Act without the
employee’s consent where consent is required;
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209. (1) Après l’avoir porté jusqu’au
dernier palier de la procédure applicable sans avoir obtenu satisfaction, le
fonctionnaire peut renvoyer à l’arbitrage tout grief individuel portant sur :
…
c) soit, s’il est un fonctionnaire de l’administration publique
centrale :
(i) la
rétrogradation ou le licenciement imposé sous le régime soit de l’alinéa
12(1)d) de la Loi sur la gestion des finances publiques pour
rendement insuffisant, soit de l’alinéa 12(1)e) de cette loi pour
toute raison autre que l’insuffisance du rendement, un manquement à la
discipline ou une inconduite,
(ii) la
mutation sous le régime de la Loi sur l’emploi dans la fonction publique
sans son consentement alors que celui-ci était nécessaire;
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211. Nothing in section 209 is to be
construed or applied as permitting the referral to adjudication of an
individual grievance with respect to
(a) any termination of employment under the Public Service
Employment Act; or
(b) any deployment under the Public Service Employment Act,
other than the deployment of the employee who presented the grievance.
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211. L’article 209 n’a pas pour effet de
permettre le renvoi à l’arbitrage d’un grief individuel portant sur :
a) soit tout licenciement prévu sous le régime de la Loi sur
l’emploi dans la fonction publique;
b) soit toute mutation effectuée sous le régime de cette loi, sauf
celle du fonctionnaire qui a présenté le grief.
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Public
Service Employment Act, SC 2003 c 12 ss 12 and 13
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62. (1) While an employee is on probation,
the deputy head of the organization may notify the employee that his or her
employment will be terminated at the end of
(a) the notice period established by regulations of the Treasury
Board in respect of the class of employees of which that employee is a
member, in the case of an organization named in Schedule I or IV to the Financial
Administration Act, or
(b) the notice period determined by the separate agency in respect of
the class of employees of which that employee is a member, in the case of a
separate agency to which the Commission has exclusive authority to make
appointments,
and the employee ceases to be an employee
at the end of that notice period.
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62. (1) À tout moment au cours de la
période de stage, l’administrateur général peut aviser le fonctionnaire de
son intention de mettre fin à son emploi au terme du délai de préavis :
a) fixé, pour la catégorie de fonctionnaires dont il fait partie,
par règlement du Conseil du Trésor dans le cas d’une administration figurant
aux annexes I ou IV de la Loi sur la gestion des finances publiques;
b) fixé, pour la catégorie de fonctionnaires dont il fait partie,
par l’organisme distinct en cause dans le cas d’un organisme distinct dans
lequel les nominations relèvent exclusivement de la Commission.
Le fonctionnaire perd sa qualité de
fonctionnaire au terme de ce délai.
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[4]
The effect of these provisions is that an
employee who is on probation has no right to grieve to the Board any
termination of employment. Termination may only be reviewed where the
termination was contrived, a sham or camouflage (Tello v Deputy Head
(Correctional Service Canada), 2010 PSLRB 134, [2010] CPSLRB No 133) to
terminate for some other reason than performance.
III. BACKGROUND
[5]
The Applicant was appointed on January 28, 2008
to an indeterminate position as an environmental scientist at the Department of
Indian Affairs and Northern Development [INAC] in Iqaluit, Nunavut. The
appointment was subject to a 12-month probationary period.
[6]
The central issue in this case is the date of
termination – whether it was January 28, 2009 and within the probationary
period or February 2, 2009 and therefore outside the probationary period. If
notice was given within the probationary period and was not a sham, contrivance
or camouflage, the Board has no jurisdiction.
The
case revolves around events on and between those dates.
[7]
The last date for notice of termination was
complicated by the fact that the Applicant took two days’ leave without pay in
October 2008 which extended the probationary period to January 29, 2009. INAC
says that notice of termination was given on January 28, 2009; the Applicant
claims he only received such notice on February 2, 2009.
[8]
The essence of the Applicant’s grievance is that
starting on April 15, 2008, he was subjected to sexual harassment by his direct
supervisor, Ms. Abernethy-Gillis. These acts consisted of repeated invitations
and demands that he spend time with her. He also alleged that his constant refusals
to become intimate were met by anger and threats to prejudice his employment.
The harassment allegedly extended from April 2008 until just before his
termination.
[9]
The supervisor vehemently denied any and all
parts of the Applicant’s allegations of harassment and retribution. She
outlined difficulties she had with his work and his adherence to instructions
and policies. None of this “harassment” was ever reported until after
termination.
[10]
The Applicant was called to a meeting to be held
on January 27, 2009 with his supervisor and Michael Nadler, Regional Director,
Nunavut Regional Office, INAC. From their perspective, the meeting was to
discuss the Applicant’s employment and to give him notice of termination of his
probation.
[11]
Shortly before the meeting the Applicant says he
fell ill and went to the hospital. He subsequently advised his supervisor that
he would be on sick leave until January 30, 2009 which was a Friday and
therefore back in the office on February 2, 2009. Therefore, he would not be
back at work until after his probationary period expired.
[12]
It is at this point that positions and
recollections diverge. The Applicant says that Nadler telephoned him, that they
spoke briefly about his health and agreed to meet upon the Applicant’s return
on February 2, 2009.
[13]
Nadler had a different recollection. He
testified that since the January 27 meeting was to inform Rahman of the
rejection of his probation, when he did not appear a letter of rejection was
mailed to the Applicant; attempts were made to hand deliver the letter to his
home. On January 28, Nadler reached Rahman by phone, told him that a letter had
been sent the previous day, that he should retrieve it and it pertained to his
dismissal and that Rahman should contact him once he had received it.
A
copy of the rejection letter was faxed to the Applicant’s bargaining agent that
same day, January 28, 2009.
[14]
On the issue of timeliness and validity of the
rejection of probation, the Adjudicator preferred Nadler’s evidence and
concluded that it was more likely than not that Nadler notified Rahman of his
termination in the telephone call of January 28, 2009. One can do no better
than to quote the paragraph containing the key finding and the reasons for it:
On balance, I prefer
the evidence of Mr. Nadler on that issue for a number of reasons, including
that he signed and mailed the letter of rejection on the previous day, that he
faxed a copy of it to the grievor’s representative that day after speaking to
the grievor, that he went to the local post office to obtain a valid address
for the grievor, and that he attempted to deliver the letter to the grievor at
his home, without success. Given those actions, it is more likely than not that
he also notified the grievor of his termination during the January 28, 2009
telephone conversation. It even seems inconceivable that Mr. Nadler would go
through such efforts and not mention the rejection during the phone call. In
addition, I agree with the respondent’s suggestion that the grievor’s actions
on that day cast doubts as to his alleged unawareness that his employment had
come to an end, including that he never denied speaking to Mr. Nadler on that
day, that he communicated with Mr. Atiomo shortly afterward to confirm his
willingness to accept a term position in Manitoba, that he informed Mr. Atiomo
that a deployment or secondment would not be possible from Iqaluit, and that
the contact information he provided consisted of a Toronto address and phone
number. It is also worth noting that the grievor’s position in Iqaluit was
indeterminate and yet he was prepared to accept a term position elsewhere on
January 28, 2009.
[15]
The Adjudicator rejected any suggestion that the
Applicant was so ill as to be unable to appreciate what was happening. As
noted, the Applicant was able to write several coherent e-mails, both to his
supervisor and to an INAC official (Mr. Atiomo) in Winnipeg indicating his
willingness to take a term position there rather than to maintain his possible
indeterminate position in Iqaluit.
[16]
The Adjudicator made the principal finding that
Rahman was notified of his rejection on probation on January 28, 2009. The
finding meant that the Board did not have jurisdiction.
[17]
The Adjudicator made a further finding that the
grievance was filed outside the 25-day period prescribed in the collective
agreement. This finding rests on notice being given on January 28, 2009.
[18]
In addition to this finding on jurisdiction, the
Adjudicator went on to consider, in accordance with Board precedent, whether Rahman
had discharged his burden of establishing that there was a contrived reliance
on the Public Service Employment Act or that his termination was a sham
or a camouflage.
[19]
In addressing what was described as the classic
“he said, she said” scenario, the Adjudicator found that Rahman’s testimony
“was not in harmony with the preponderance of probabilities that a practical
and informed person would readily recognize as reasonable in the
circumstances”. The Adjudicator cites several instances which he found to be
improbable that Rahman’s supervisor engaged in the alleged acts of harassment
and retribution.
[20]
The Adjudicator did not find the Applicant’s
story credible. As part of his consideration, the absence of prior complaint
and the absence of corrobative evidence played an important role. Therefore,
the Adjudicator held that the Applicant had not met his burden.
[21]
Moreover, the Adjudicator noted that there were
concerns about the Applicant’s work performance, that he had notice of the
concerns and that his supervisor tried remedial action to address these
concerns. Therefore, the Adjudicator concluded that the evidence did not
support the allegation that the rejection of probation was for reasons
unrelated to his work performance and suitability.
[22]
As a consequence of these findings, the
Adjudicator concluded that the Board had no jurisdiction over the grievance and
that the grievance was filed outside the time limit prescribed.
[23]
The Applicant filed for judicial review. In the
course of the proceedings leading to the hearing, the Applicant filed several
documents which were not part of the record. The Respondent has objected to the
admissibility of this evidence.
IV. ANALYSIS
[24]
There are three issues to be addressed:
•
the admissibility of the additional evidence;
•
any denial of procedural fairness; and
•
the validity of the Adjudicator’s decision.
A. Admissibility
[25]
The additional documents are:
•
the Applicant’s letter summarizing his
grievance;
•
various hearing notes of the Applicant’s bargaining
agent representative;
•
various handwritten notes;
•
the Applicant’s Employee Performance Plan (ruled
irrelevant and inadmissible by the Adjudicator);
•
employment offer to the Applicant after
termination;
•
notes re threat from Bernie McIsaac relating to
events after termination;
•
letter withdrawing offer of employment referred
to above;
•
Board decision in O’Leary v Treasury Board
(Department of Indian Affairs and Northern Development), 2007 PSLRB 10,
[2007] CPSLRB No 16 [O’Leary]; and
•
letters from bargaining agent firstly refusing
to represent the Applicant and then confirming that it would represent the
Applicant.
[26]
Even according some leeway to a self-represented
litigant in respect of procedural steps, on substantive matters the law must be
applied evenly. The admissibility of additional evidence in a judicial review
is not some procedural nicety but is a substantive matter.
[27]
The general rule, as filed in such decisions as Tibilla
v Canada (Attorney General), 2011 FC 163; Barm v Canada (Minister of Citizenship
and Immigration), 2008 FC 893, 169 ACWS (3d) 171, is that judicial review
is to be confined to the evidentiary record before the tribunal. However, Rule
312 permits the Court to admit fresh evidence where the evidence is necessary
to establish a jurisdictional fact or a breach of procedural fairness. In Mazhero
v Canada (Industrial Relations Board), 2002 FCA 295, 116 ACWS (3d) 146, the
Court summarized some of the factors to be considered:
•
the additional material will serve the interests
of justice;
•
the additional material will be of assistance to
the Court;
•
the additional material will not seriously
prejudice the other side;
•
the additional material could not have been made
available at an earlier date; and
•
the admission of the additional material will
not result in an undue delay in the proceedings.
[28]
The Applicant has alleged breach of procedural
fairness but none of the documents address the substance of that allegation
except the two letters from the bargaining agent firstly refusing to act for
the Applicant and then agreeing to act. The Applicant has claimed as the breach
of procedural fairness that he had insufficient time to prepare for the
grievance hearing.
[29]
Many of the remaining documents are either
irrelevant as arising after the hearing, inadmissible, or rejected at the
hearing. Some documents, such as the bargaining agent representative’s notes,
are hearsay, not supported by affidavit and prejudicial because no
cross-examination could be conducted on them.
[30]
The O’Leary decision is irrelevant as the
case before the Board related to the duty to accommodate. It was submitted as
evidence of Nadler’s propensity to be abusive to new employees.
The
admission of this decision at this stage is highly prejudicial because it was
never put to Nadler by the Applicant despite Nadler testifying at the grievance
hearing. Its admission offends the rule against similar fact evidence, as
applicable in civil cases (see Kajat v Arctic Taglu (The), [2000] 3 FC
96 (FCA).
[31]
Therefore, only the two letters from the
bargaining agent are admitted. The remaining documents are considered as
inadmissible and not part of the record.
B. Breach
of Procedural Fairness
[32]
It was difficult to determine from the Applicant
in what manner the Adjudicator breached a principle of natural justice other
than the claim that the Applicant had insufficient time to prepare for the
hearing because he received notice of the hearing in mid-May.
[33]
The hearing occurred over four days in Iqaluit
from May 29 to June 1, 2012 and a further day in Toronto on August 27, 2012. It
is difficult to see how the Applicant could not have gathered his evidence and
argument over that period of time.
[34]
Further, there was no request for an
adjournment. Importantly the bargaining agent on May 25, 2012 accepted the
hearing dates. The Applicant is bound by the consent of his bargaining agent.
[35]
Therefore, the Court concludes that there is no
breach of procedural fairness.
C. Reasonableness
of Decision
[36]
With respect to the Adjudicator’s finding that
the Applicant received notice of termination of probation within the one-year
period, the Applicant says it was an unreasonable decision principally because
the Adjudicator preferred the employer’s evidence – that of Abernethy-Gillis
and Nadler over that of the Applicant. He also alleges that they lied, both in
respect of the matter of notice and in respect of the real reasons for
termination.
[37]
The Adjudicator applied the standard test for
resolving credibility, both on the issue of the notice and on the issue of the
basis for termination, as referred to in Faryna v Chorney, [1952] 2 DLR
354, 1951 CarswellBC 133:
… the real test of
the truth of the story of a witness in such a case must be its harmony with the
preponderance of the probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions.
[38]
Having considered the test and applied it, the
Adjudicator set out clearly the reasons for his findings and choice of evidence
he found more compelling.
[39]
This was a true credibility case where there was
direct conflict between key witnesses. The trier of fact is in a unique
position to make the assessment of credibility. This Court is not in any
position to make that kind of finding or to contradict the Adjudicator’s
decision. The Court is obligated to accord deference to the Adjudicator’s
conclusions.
[40]
What this Court can do is consider the way in
which the Adjudicator came to his conclusions. The Court can find no grounds
upon which to overturn the Adjudicator. The legal test used was proper, the
reasoning was clear and the decision falls within a range of results reasonably
open to the decision maker on both the issue of notice and of basis for
termination.
V. CONCLUSION
[41]
For these reasons, this judicial review will be
dismissed with costs.
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