Vancouver, British Columbia, April 13, 2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
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:
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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:
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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:
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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 …
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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 …
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(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
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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.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-374-06
STYLE OF CAUSE: MOHAMMAD ASLAM CHAUDHRY v. AGC
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 26, 2007
REASONS FOR JUDGMENT AND JUDGMENT: SIMPSON J.
APPEARANCES:
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Mohammed Aslam Chaudhry
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(Self-represented)
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Karl Chemsi
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SOLICITORS OF RECORD:
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n/a
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John H.Sims Q.C. Deputy Attorney General of Canada Ottawa, Ontario |
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