Docket: T-544-13
Citation:
2014 FC 400
[REVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 30, 2014
PRESENT: The Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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ODA KAGIMBI
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
(DEPUTY HEAD – CORRECTIONAL Service
OF Canada)
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision issued February 27, 2013, by a Public Service Labour Relations
Board [PSLRB] adjudicator. The decision was rendered subsequent to a grievance
filed by the applicant against the respondent, the Deputy Head of the
Correctional Service of Canada [CSC], her employer at the time, in which she contested
her rejection on probation of September 17, 2007.
I.
Factual background
[2]
On December 19, 2006, the applicant was
hired as a correctional officer for the CSC at the Cowansville Institution in
Quebec for an indeterminate period. This employment was subject to 12 months of
probation.
[3]
In January 2007, Benoit Leduc, the
applicant’s principal acting correctional supervisor, met with her to ask if
she was comfortable with all the shifts, which she confirmed.
[4]
The following week, Mr. Leduc informed her
that she would have to retake the two‑week orientation period at the
institution. Mr. Leduc and Warden France Poisson testified that
management wanted the applicant to retake these two weeks of orientation to
assist her in addressing shortcomings, which she did from February 9 to
20, 2007.
[5]
Following this two‑week period, a series
of incidents occurred at the institution. Correctional officers, including the
applicant, who witnessed the events wrote observation reports. A number of
people who wrote these reports were summoned to testify and testified at the
hearing before the adjudicator.
[6]
The applicant’s performance appraisal report was
prepared by Mr. Leduc on September 17, 2007, in which he noted that
her performance was unsatisfactory given that she was having difficulty
performing her duties, seemed to lack confidence and required constant
supervision.
[7]
The same day, on the basis of that report, the
applicant was dismissed by the warden, Ms. Poisson. In her dismissal
letter, she explained the employer’s reasons for rejecting the applicant on
probation. According to Ms. Poisson, although the applicant had taken a
second training session, no improvement in her performance was noted. She did
not meet the expected objectives with respect to mastering security equipment
and security posts, the ability to learn and the ability to react to a critical
incident.
[8]
On September 18, 2007, the applicant filed
a grievance against her dismissal, asking for reinstatement in her position and
reimbursement of the salary and benefits owed to her as well as damages
incurred.
[9]
On May 19, the adjudicator dismissed the
applicant’s grievance (Kagimbi v Deputy Head (Correctional Service of
Canada), 2010 PSLRB 67). She filed an application for judicial review with
the Federal Court, which was allowed by Justice Scott (Kagimbi v Canada
(Attorney General), 2011 FC 527). He found that the “[f]ailure to take into account the applicant’s objections
renders the adjudicator’s principal finding that ‘the facts are indeed related
to the grievor’s employment, performance or conduct’ arbitrary”. The Court therefore referred the grievance before
another adjudicator for redetermination.
[10]
A new hearing took place before
Adjudicator Renaud Paquet.
[11]
On February 27, 2013, the adjudicator
issued his decision that he did not have jurisdiction to hear the grievance and
therefore ordered that the file be closed.
II.
Statutory framework
[12]
The sections of the pertinent statutes are set
out in the Appendix to this judgment..
III.
Adjudicator’s decision
[13]
After an overview of the relevant jurisprudence
(Jacmain v Attorney General (Canada) et al, 1977 CanLII 200 (SCC),
[1978] 2 S.C.R. 15 at para 37; Canada (Attorney General) v Penner, [1989] 3
FC 429 (FCA) [Penner]; and Canada (Attorney General) v Leonarduzzi,
2001 FCT 529) [Leonarduzzi], the adjudicator determined that an
adjudicator does not have jurisdiction to hear a grievance on the merits if it is
against a rejection on probation and that his or her role is limited to
determining whether the dismissal was a rejection on probation. If the adjudicator finds that the employer acted in bad
faith or dismissed the employee for a reason unrelated to the employee’s
ability to perform the duties, the adjudicator could have jurisdiction
to hear the grievance.
[14]
In light of the evidence in the record, the
adjudicator found that the applicant was still on probation when she was
dismissed and concluded that the respondent had proved unequivocally that it
believed the applicant was incapable of performing the duties of a correctional
officer.
[15]
The adjudicator accepted the applicant’s
allegation that she had not been made aware of her shortcomings. However, he rejected
the suggestion that the employer’s lack of transparency amounted to bad faith.
He determined that the employer was not required to give the applicant a
warning.
[16]
As for the employer’s error regarding the
payment in lieu of notice, that error did not invalidate the rejection on
probation because it had nothing to do with whether the dismissal was
appropriate. The applicant’s only substantive right, faced with this error, was
to obtain payment in lieu of notice as should have been done from the start.
[17]
With respect to the employer’s guidelines on
dismissal, the adjudicator found that it was not necessary for him to comment
on the guidelines since they are not legally binding and are meant merely to
guide the employer’s managers.
IV.
Issues
[18]
The issues are as follows:
1.
What is the appropriate standard of review?
2.
Was the employer’s decision unreasonable on the
basis of bad faith?
3.
Did the employer’s failure to pay one month’s
salary to the applicant as notice, when it was obliged to do so, invalidate the
decision?
4.
Are the employer’s guidelines on dismissal
legally binding such that the decision may be set aside because they were not
complied with?
V.
Standard of review
[19]
The appropriate standard of review is
reasonableness for the assessment of facts and for questions of mixed law and
fact. As Justice Boivin stated in Canada (Attorney General) v Bergeron,
2013 FC 365 at paragraph 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 233of 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 S.C.R. 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.
VI.
Arguments of the parties
[20]
The applicant submits that the adjudicator had
jurisdiction to rule on the issue of whether the employer met the basic
requirements towards the applicant at the time of her dismissal.
[21]
The applicant maintains that the employer made a
number of errors at the time of her dismissal. Specifically, the applicant was
not informed of her right to notice or compensation, she received compensation
for a two‑week period, which should have been thirty days, and her
regular salary was not paid when it should have been.
[22]
In addition, the guidelines, which require that
employees on probation be advised when they have to improve their performance
or behaviour, are legally binding and that, in any event, if the Court finds
that they are not legally binding, they are relevant for determining whether
the employer acted in good faith. In this case, the applicant was never advised
in a transparent manner of the shortcomings, contrary to the guidelines.
[23]
She also alleges a number of serious anomalies
in the observation reports that were the basis of the performance appraisal
report, which shows that the employer used the rejection on probation as a sham
to hide another reason for dismissal.
[24]
Consequently, the adjudicator made an
unreasonable error in interpreting the PSEA when he found that he did not have
jurisdiction to hear the grievance.
[25]
On the other hand, the respondent submits that the
adjudicator’s role is to ensure that the employer’s decision was indeed a
decision made in good faith for a reason related to employment, having regard
to the individual’s abilities and aptitudes.
[26]
In the applicant’s case, the employer filed in
evidence the dismissal letter, which states the reasons for the dismissal. A
number of witnesses heard by the adjudicator testified about the employer’s
dissatisfaction with her ability to work as a correctional officer. In light of
such evidence, the only reasonable conclusion the adjudicator could reach was
that he did not have jurisdiction to hear this grievance because the employer dismissed
the applicant for an employment‑related reason during probation. I agree.
VII.
Analysis
[27]
Under sections 209 and 211 of the PSLRA as
well as section 62 of the PSEA, a PSLRB adjudicator does not have
jurisdiction to hear a grievance involving a rejection on probation. A
grievance can be referred to arbitration before the PSLRB only in the cases set
out in section 209 of the PSLRA.
[28]
However, the Federal Court of Appeal determined
in Penner, above, that an adjudicator hearing a grievance filed by an
employee rejected on probation is entitled to look into the circumstances of
the case to ensure that the termination of employment arose from bona fide
dissatisfaction as to suitability for the position in question.
[29]
With respect to the burden of proof, the onus is
on the employer to present some evidence that the rejection was related to
employment issues and not for any other purpose (see Leonarduzzi, above at
para 37). If that is done, the public servant must demonstrate that the
termination was “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” (Bergeron, above at para 35).
[30]
In this case, the evidence before the
adjudicator clearly showed that the employer had reasons for the applicant’s
employment‑related dismissal. The rejection on probation letter listed shortcomings
with respect to mastering security equipment and security posts, the ability to
learn and the ability to react to a critical incident. A number of public
servants testified before the adjudicator referring to these shortcomings.
[31]
In light of this evidence, the adjudicator could
only conclude that the employer had discharged its burden of proof. The
applicant then attempted to show the employer’s bad faith based on the unfair
treatment she received because the employer and its representatives had not
confronted her or informed her of the shortcomings in her work prior to the day
of her dismissal.
[32]
In this regard, the adjudicator determined that “[his]
role is not to decide whether the employer acted
fairly toward Ms. Kagimbi in how it managed the alleged shortcomings in
her work or whether the management practices of the correctional supervisors
were appropriate”.
[33]
Certainly, the employer could have shown the
reports to the applicant so that she could improve her weaknesses, but that
is not a criterion required to reject an employee on probation. As the
adjudicator properly stated in his decision at para 77:
. . . in a
rejection on probation, the employer must demonstrate good faith in its
decision to terminate employment during probation. It cannot use a rejection on
probation to camouflage another form of dismissal. However, it does not mean
that the employer is required to be transparent with the employee during his or
her probation and to inform the employee of shortcomings in his or her work, to
give the employee a chance to correct them. Common sense and good management
practices would dictate doing so, but the law does not require it.
He therefore concluded that the decision to
dismiss the applicant was a decision made in good faith, i.e. that it was based
on dissatisfaction as to the employee’s abilities to do the work in question.
[34]
In my opinion, that conclusion was reasonable.
The jurisprudence shows that the statute is drafted such that the employer has
a great deal of flexibility during the probation period, precisely so that it
can evaluate the skills of a potential employee.
[35]
The applicant also raises the employer’s error in
not paying her a month’s salary as notice. Subsection 62(2) of the PSEA
states that, in dismissing an employee on probation, instead of giving the
notice under subsection (1) of that section, an employer may pay the
employee an amount equal to the salary they would have been paid during the
notice period.
[36]
In this case, the employer should have paid the
equivalent of one month’s salary to the applicant, not the equivalent of two
weeks’ salary, which was subsequently corrected.
[37]
This defect in the notice payment does not
change the decision made in good faith to dismiss an employee on probation.
Parliament’s intention was that an adjudicator does not have jurisdiction to
rule on a grievance involving a rejection on probation. An error in the length
of notice cannot contravene a requirement clearly expressed by Parliament.
[38]
Last, with respect to the guidelines, “generally speaking, such policies are not legally
binding unless the enabling statute requires a department to issue the policy” (Hughes
v Canada (Attorney General), 2008 FC 832 at para 16). The adjudicator properly
determined that this did not invalidate the rejection on probation.
[39]
Indeed, for such a policy to be considered as
having the force of law, its nature must be analyzed, which was done in Gingras
v Canada, 1994 CanLII 3475 (FCA), [1994] 2 FC 734 (CA), where the Federal
Court of Appeal determined that a Treasury Board policy entitled “Bilingualism
Bonus Plan” had the force of law because it was precise, conferred a benefit
and left no discretion to government departments, which is not the case here.
[40]
The guidelines in question were not filed into
evidence. No witness before the adjudicator was able to provide the necessary clarifications. The applicant has not therefore demonstrated how the
employer’s internal document could be legally binding.
[41]
Accordingly, the adjudicator took into
consideration the statutory and jurisprudential framework in which he operated;
he heard all the evidence and determined that the employer had unequivocally
shown that it dismissed the applicant in good faith for an employment‑related
reason.
[42]
I am of the view that, in its entirety, both the
process of articulating the reasons and the outcome have the qualities that
make the decision reasonable (Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 para 47).
[43]
Accordingly, the application for judicial review
is dismissed with costs.
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