Kagimbi v. Deputy Head (Correctional Service of Canada)

• Date: 20130227
• File: 566-02-1560
• Citation: 2013 PSLRB 19

Public Service  Labour Relations Act

Before an adjudicator

In the matter of an individual grievance referred to adjudication

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1 The Correctional Service of Canada (“the deputy head” or “the employer”) hired the grievor, Oda Kagimbi, as a correctional officer (CX-01) at Cowansville Institution on December 19, 2006. The employer informed her when she was hired that she would be subject to 12 months of probation. On September 17, 2007, Ms. Kagimbi was rejected on probation.

2 On September 18, 2007, Ms. Kagimbi filed a grievance against her rejection on probation. She alleged that her employment was terminated without just and sufficient cause. She asked for reinstatement in her position and for the salary and benefits owed her. She also sought compensation for the damages incurred, all with interest.

3 Ms. Kagimbi’s grievance was heard at adjudication for the first time in March 2010. On May 19, 2010, the adjudicator, Michele A. Pineau, rendered a decision, Kagimbi v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 67. In it, Adjudicator Pineau dismissed Ms. Kagimbi’s grievance. Ms. Kagimbi submitted an application for judicial review to the Federal Court. The Court allowed the application and referred the grievance to another adjudicator for redetermination. The following excerpt from that decision summarizes the Court’s reasons:

…

[42] Finally, the applicant claims that the adjudicator erred in finding that she “did not deny the incidents for which she was criticized” although she denied that some of these incidents even occurred. In her decision, the adjudicator found, at paragraph 74:

In addition, the grievor did not deny the incidents for which she was criticized but rather challenged their interpretation. The employer has considerable leeway when interpreting facts because it will need to abide with the consequences of its decision. The employer does not have to interpret the facts exactly, insofar as the facts are indeed related to the grievor’s employment, performance or conduct…

[43] The Court notes that the adjudicator erred in writing that the applicant did not deny the incidents when she states the contrary. In fact, the adjudicator clearly wrote in her decision that the employee simply disagreed with the incidents alleged against her:

First, Mr. Leduc asked for reports but did not make any effort to verify the facts, so his assessment of the incidents was arbitrary… The reports were full of unfounded statements, and the incidents were exaggerated. The purpose of the second training session and the subsequent reports was merely to support the employer’s decision to reject her… The reports used as the basis for her rejection were prepared without her knowledge, and she did not have an opportunity to contest them or to re-establish the facts… The grievor argued that the incidents reported by certain employees were merely hearsay and that she was never informed of them… She further argued that the employer’s statement that she “appeared to lack confidence” is a value judgment unsupported by fact. The grievor disagreed that she required constant supervision because she often worked alone when on patrol, in the tower, in the control centre or at the main entrance (adjudicator’s decision at paras. 41, 43 and 44).

[44] Although the adjudicator presented the applicant’s position in this manner, she stated that she did not dispute, strictly speaking, the facts alleged against her. The Court finds that, in these circumstances, this is a fatal error because the adjudicator based her decision on the erroneous premise that the applicant was not disputing the reported incidents.

[45] From reading the decision, it is clear that the adjudicator did not find it necessary to assess the credibility of some of the testimony, or to weigh the probative value of some pieces of evidence, such as the observation reports and the performance assessment reports, which included the grounds and incidents that led to the applicant’s dismissal. In fact, this documentary evidence describes the applicant as having an “[inability to] meet the expected objectives with respect to mastering security equipment and mastering security posts as well as the ability to learn and the ability to react to a critical incident”. The adjudicator took no position on the context in which these reports were written or on when they were written on [sic] the circumstances in which they were requested from the employees.

[46] The Court’s role is not to determine what the adjudicator’s decision should have been as to the value of the evidence alleged against the applicant. Nevertheless, the adjudicator should have taken into consideration the applicant’s objections to the content of this evidence and have established its probative value rather than merely made assumptions on their merit and content. Failure 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.

[47] Therefore, the adjudicator’s finding that the applicant had not made the required demonstration for her application to be allowed relies on a fundamental error, that of considering that the applicant admitted that all of the incidents alleged against her had occurred, when that was not the case. This is a palpable error, which calls into question because [sic] the reasonableness of the decision under judicial review and warrants the Court’s intervention.

…

[49] The Court cannot presume what the adjudicator’s decision would have been if it had not been for this error. For these reasons, the decision of May 19, 2010, by Adjudicator, Michèle A. Pineau should be set aside and the matter referred to another adjudicator for redetermination.

…

4 After I was appointed as the adjudicator in this case, and in light of the Court’s findings, it was agreed with the parties that the case would be heard from the beginning.

II. Summary of the evidence

5 Ms. Kagimbi testified. The parties also called France Poisson, Mario Martel, Nicolas Matte, Alex Brunelle, Pascal Falardeau, Frank Perrotti, Benoît Leduc and Gaétan Blanchard as witnesses. In 2007, all the witnesses worked at Cowansville Institution. Ms. Poisson was its warden, and Mr. Falardeau was a mechanic and electrician. Mr. Martel, Mr. Blanchard, Mr. Matte and Mr. Brunelle were correctional officers, while Mr. Perrotti and Mr. Leduc were correctional supervisors. Mr. Leduc was the correctional supervisor assigned to Ms. Kagimbi. The employer also called Mathieu Ladouceur as a witness. He is a labour relations advisor for the employer. The parties submitted 39 documents into evidence. Finally, Ms. Kagimbi called Johanne Bergeron as a witness. Ms. Bergeron is a certified writing and document expert. During the hearing, I determined that Ms. Bergeron is an expert in those fields.

6 In her letter dated September 17, 2007, Ms. Poisson describes the employer’s reasons for rejecting Ms. Kagimbi on probation. The following excerpt from the letter contains those reasons:

[Translation]

…

From your arrival at the institution, several reported facts have indicated that you have had difficulty performing your duties. For those reasons, we had you take a second complete two-week training session in March 2007. Despite those additional two weeks of training, no improvement was noted in your performance. You do not meet the expected objectives with respect to mastering security equipment and mastering security posts as well as the ability to learn and the ability to react to a critical incident, among others.

You were called to meetings a few times since the beginning of your probation. You were informed of your deficiencies and of what was expected of you. In addition, we offered you assistance, which you never used, despite your performance never improving.

After an analysis in good faith of your suitability for your duties, it is clear that you are not suited to hold the position for which you were hired. Therefore, I have concluded that you are unable to meet the employment requirements of a correctional officer.

Consequently, pursuant to subsection 61(1) of the Public Service Employment Act, I have decided to reject you on probation. The rejection is effective September 17, 2007 at 12:00 p.m.

You have the right to file a grievance if you believe that you have been treated unfairly or if you feel aggrieved by this decision.

…

7 The letter does not mention a notice of termination being given to Ms. Kagimbi or of compensation in lieu of such a notice.

8 The evidence submitted to me deals with a series of incidents or events involving Ms. Kagimbi that are related to the employer’s decision to reject her on probation. Evidence was also filed about the notice given to Ms. Kagimbi. Therefore, I will summarize the evidence submitted to me based on those incidents and the issue of the notice.

A. Ms. Kagimbi’s second orientation

9 Before being hired, future correctional officers take 13 weeks of full-time college training. Ms. Kagimbi successfully completed that training and received a mark of 101/140; the pass mark is 84/140. Then, when she arrived in the institution, Ms. Kagimbi began 10 days of orientation, a requirement for all new correctional officers. During the orientation stage, she and other new officers were supposed to observe officers on duty in different work posts to see first-hand how the knowledge acquired during the 13-week training was to be applied. At the end of that stage, the correctional supervisor, Marc-André Boutin, informed Ms. Kagimbi that she successfully completed her orientation and that she was ready to perform the duties for which she was hired.

10 Between December 23, 2006, and January 16, 2007, Ms. Kagimbi received no negative feedback on her work from the employer. When she reported to work on January 18, 2007, the supervisor, Benoît Leduc, called her into the post coordination room. Mr. Boutin was also there. Mr. Leduc offered Ms. Kagimbi the opportunity to have a union representative present, but she saw no need for one. They all stood during the discussion, which lasted five minutes. Mr. Leduc asked Ms. Kagimbi whether she felt comfortable with all the posts. She replied that she was not yet comfortable with them all. Mr. Leduc did not blame her for anything in particular during the meeting. He suggested that she should communicate properly via radio and that she should respond every time a situation required her involvement. He also suggested that she should have more confidence in herself and that she should interact more with the other officers. Then, a few days later, he called Ms. Kagimbi to inform her that she would have to retake her “training period,” meaning the 10-day orientation. Ms. Kagimbi was reluctant to retake the orientation because she did not see the need for it. Nonetheless, she agreed to do it, even though she felt humiliated.

11 Ms. Kagimbi’s second orientation took place from February 9 to 20, 2007. She was joined by two new officers, and the orientation was coordinated and supervised by Mr. Matte, a correctional officer since early 2005. Earlier, Mr. Matte had worked as a correctional officer in the Quebec prison system and had supervised new officer orientation activities a few times.

12 On March 2, 2007, Mr. Matte completed an observation report that he submitted to Mr. Leduc to share his concerns about Ms. Kagimbi. Mr. Matte said that he felt uncomfortable preparing such a report about a colleague. The report reads in part as follows:

[Translation]

…

Mr. Boutin, in this report I would like to share with you my concerns about CX-1 Officer Oda Kagimbi. In my view, Ms. Kagimbi has benefitted from the second training session that we provided and the improvement in her general knowledge of CX work is evident, but I remain concerned about several issues related to her lack of security knowledge. It is my opinion that the problems experienced by Ms. Kagimbi were due to a significant lack of self-confidence, a lack of general knowledge of the environment and a lack of understanding of the language, and several situations that occurred during the training showed me that she does not, in my opinion, have the skills required for CX work and even that her presence in several posts compromises the institution’s security. After 12 weeks of initial training at the personnel college, 10 weeks of work as a CX-1 and a second recruit training session of 10 days, I sincerely believe that Ms. Kagimbi is not ready to assume security posts on her own, and I do not understand how the people at the college could have believed that Ms. Kagimbi had the qualifications and skills for CX work.

I am available should you require further information. Nicolas Matte, Recruit Training.

…

13 Ms. Kagimbi did not receive a copy of the report at that time and learned of it only in 2010. After reading the report, Mr. Matte thought that Mr. Boutin asked him to write another report, in which he was to be more specific with his comments. Mr. Leduc testified that he asked Mr. Matte to write the second report, which Mr. Matte wrote on March 23, 2007. Ms. Kagimbi found out about the second report only in 2010. The contents of the two reports were not discussed with the grievor. Mr. Matte’s account in the second report reads as follows:

[Translation]

…

Examples of conduct or situations that led me to write the 2007-03-02 report on Officer Kagimbi.

1. Throughout the training, Officer Kagimbi asked me very few questions (fewer than five) about the jobs that we were reviewing. I had to ask her on several occasions if she understood what was said. She seldom spoke to me during the 10 days.

2. Ms. Kagimbi did not appear to want to take part in the demonstrations that I proposed, always leaving it to trainee Nicolas Leblond to do the simulations/demonstrations. To make sure she had the correct techniques, I asked her to do a few demonstrations; she appeared very nervous and often floundered. During explanations or simulations, she always held back and seemed to not want to be involved.

3. Several times during the simulations that I forced her to do, Ms. Kagimbi demonstrated that she had no mastery of the security equipment, for example, checking the .38 revolver, using the Garett metal detector at the main entrance or handling shackles.

4. At several of the training posts, I realized that Ms. Kagimbi did not understand the general safety context of the CX work or that she was too uncomfortable to be able to act safely.

During training on the metal detector at the visitors’ entrance, Ms. Kagimbi did not want to use the Garett on employees entering the institution, preferring to let trainee Leblond search them. After about 45 minutes, trainee Leblond gave the Garett to Ms. Kagimbi giving her no choice but to scan the people entering. When Ms. Kagimbi tried to search the people, she never spoke to them, preferring to keep her distance. When the detector went off, she let the people go through as though nothing had happened. If the people did not stop, she let them go through. Even after two training sessions and several months of experience, any one would have been able to enter with anything.

…

14 Ms. Kagimbi did not agree with the contents of the two reports. She testified that it was her second orientation and that she asked very few questions because she clearly understood everything that was presented and that she observed. She testified that no one made negative comments about her behaviour during that orientation stage or about her performance at work in the weeks and months that followed.

15 Mr. Matte testified that he wished that he could have begun his first report on a positive note, but he had nothing positive to write about Ms. Kagimbi. According to Mr. Matte, Ms. Kagimbi was very distant during the orientation stage. He also said that he was no psychologist but that it appeared that she lacked self-confidence. He based that opinion on the fact that she did not want to take part in the simulated inmate searches and that she was uncomfortable. Mr. Matte also had the impression that she would have let anyone into the penitentiary and that, had she needed to use force to control an inmate, she would not have been ready or would not have known how to react.

16 Mr. Matte testified that Ms. Kagimbi did not always understand what the officers said on the internal radios. According to Mr. Matte, officers express themselves professionally, but they have an accent. He thought that Ms. Kagimbi did not really understand “joual,” a Quebec dialect. During the hearing, Ms. Kagimbi seemed to understand all the questions she was asked, did not ask the speakers to repeat themselves and answered questions without hesitation in French that seemed flawless to me. I did not find any errors in the French in the documents that she drafted and that were submitted into evidence.

17 Mr. Matte testified that Ms. Kagimbi did not have the qualifications to be a correctional officer. He did not know how she could have passed her college exams during the 13-week training. He testified that Ms. Kagimbi was unable to perform the seven-point firearm check. However, Mr. Matte no longer remembered whether Ms. Kagimbi searched inmates during her second orientation. Ms. Kagimbi testified that she knows well the procedures for firearm checks and searches. She did not agree with the contents of Mr. Matte’s reports.

B. Incident involving inmate RC

18 On May 18, 2007, inmate RC visited the doctor at the institution’s health care unit. At one point during the medical examination, the inmate became agitated, rose abruptly, started walking towards the door of the exam room, then changed his mind, went to sit in a different chair in the room, and finally returned and sat down in the chair beside the doctor on the doctor’s invitation. According to Ms. Kagimbi, who was the officer on duty at that time right by the door to the health care unit, the incident lasted less than a minute.

19 Nurses CL and AR wrote reports on the incident. During the incident, Nurse CL was in a room adjacent to the exam room and could see everything. Nurse AR was sitting next to the inmate and the doctor during the incident. In her report, Nurse CL wrote that the inmate was agitated, spoke loudly and stood up and that Ms. Kagimbi did not enter the exam room to try to calm him and did not call for reinforcements. Nurse CL then called for reinforcements. Officer Plante was one of those called. He wrote in his observation report that, when he arrived on the scene with two of his colleagues, inmate RC was sitting and speaking with the doctor. Inmate RC did not react well to the reinforcements. The three officers then withdrew from the door to the exam room and left shortly after that. Nurse AR’s report corroborates the details of the incident but does not mention that Ms. Kagimbi did not call for reinforcements or try to calm the inmate.

20 Ms. Kagimbi testified that inmate RC did not leave the exam room during the incident. When he reached Ms. Kagimbi’s location, he returned and sat down. She believed that she did what she was supposed to do during the incident. Neither Officer Plante nor nurses CL and AR testified at the hearing.

C. Incident involving inmate CO

21 On May 22, 2007, Ms. Kagimbi and Officer Brunelle were collecting dishes after dinner in the detention cells. Ms. Kagimbi opened the cell slots, and Mr. Brunelle removed the trays. Ms. Kagimbi then closed the slots. Inmate CO was in cell 22. An observation report dated May 23, 2007, which the employer stated that Ms. Kagimbi signed, notes that, on seeing the inmate through the cell window and noticing that his face was contorted, Mr. Brunelle asked him what was wrong. He then went to call for help. The report also states that Mr. Brunelle told Ms. Kagimbi that the inmate had swallowed razor blades.

22 Ms. Kagimbi denied writing the report. She also had an expert testify that the report was not hers. I will return to this issue. The report also contains two handwritten additions that she did not initial, which is unlike her. Additionally, it has a handwritten checkmark instead of a typed “X,” which she always used. Mr. Perrotti testified that it is possible he made the additions but that he could not be certain. Ms. Kagimbi added that she could not see inside the cell from where she stood during the incident. She also testified that, after the incident, the inmate was escorted to the health care unit and that Mr. Brunelle told her that the inmate wanted to commit suicide.

23 That same day, Mr. Brunelle also prepared an observation report on the incident involving inmate CO. The report was not adduced into evidence. Supervisor Leduc told Mr. Brunelle that his report was not complete enough and that he should write another one. One week after the incident, Mr. Brunelle wrote his second observation report on the incident involving inmate CO. At the beginning of the report, he wrote that he wanted to go over the events because he felt that “[translation] everything happened very quickly, and the support available onsite did not arrive.” He also wrote that the inmate was leaning against the window, that his face was contorted and that he had a black cord near his ear. He then told Ms. Kagimbi that the inmate was trying to “hang himself.” He wrote that Ms. Kagimbi looked at him without saying anything and that he ran to call for reinforcements. He wrote that, when he returned to the cell, the inmate had “hanged” himself and that Ms. Kagimbi continued collecting the trays. He also recounted his conversation with Ms. Kagimbi about the fact that the inmate had apparently swallowed razor blades.

24 Mr. Brunelle added in his testimony that the inmate had a shoelace placed deeply around his throat to suffocate himself and to stop his circulation. Mr. Brunelle did not really know what the shoelace was attached to, but the inmate’s face was purple. He testified that, when he told Ms. Kagimbi that the inmate was trying to “hang himself,” she did not react. Mr. Brunelle said that he could see Ms. Kagimbi from where he made the call and that he could tell that she did not react to the incident. Mr. Brunelle believed that Ms. Kagimbi should have watched the inmate. Instead, she did not ask for clarification about what was happening and did not offer her help or try to see the inmate.

25 Ms. Kagimbi said that she did not see Mr. Brunelle’s report until 2010 and that she did not agree with its contents. She testified that Mr. Brunelle did not tell her until about 20 minutes after the incident that inmate CO had tried to commit suicide. She testified that she had a good relationship with Mr. Brunelle as a colleague.

26 Mr. Perrotti was the supervisor on duty during the incident. He prepared an observation report and testified at the hearing. In his written report of May 23, 2007, Mr. Perrotti confirmed that Mr. Brunelle called to tell him that inmate CO was trying to hang himself in the detention cell. Mr. Perrotti then sent two officers as reinforcements. Shortly after that, Mr. Brunelle called him back to tell him that there was no longer an emergency because the inmate had untied himself. In his report, Mr. Perrotti provided other details on the incident but mentioned nothing about Ms. Kagimbi.

27 According to Mr. Perrotti, cell 22 can be seen from the post where Mr. Brunelle used the phone to call him. According to Mr. Blanchard, who has worked at the institution for 35 years, it is impossible to see cell 22 from where Mr. Brunelle made the call. Mr. Blanchard also testified that it was impossible for an inmate to “hang himself” in cell 22 or in any detention cell for that matter because there is absolutely nothing to hang from, since the window finish and trim are flush.

28 Mr. Leduc does not recall discussing the observation reports about the incident with Ms. Kagimbi or speaking to her about the incident.

D. Lost handcuff key

29 At around 17:00 on August 6, 2007, Ms. Kagimbi noticed that she no longer had the handcuff key that was usually attached to her belt. She notified her supervisor of the incident and returned to where she had been walking with another officer to try to find the key. At 17:25, Ms. Kagimbi found the key, which was on the ground near a guard post. At Mr. Leduc’s request, Ms. Kagimbi prepared an observation report to report the incident.

30 In 2007, the handcuff keys were very small. According to Ms. Kagimbi, they were about two or three centimetres long. She also produced a photo as evidence. All the witnesses questioned on that point confirmed that the keys used in 2007 were very small and that they have since been replaced with larger keys. The witnesses confirmed that officers sometimes misplaced handcuff keys but that it did not happen frequently. For rather obvious reasons, it is a fairly serious incident in a prison environment.

E. Gate incident

31 Mr. Falardeau testified that he remembered the observation report he prepared on May 23, 2007 about an incident involving problems closing a gate on May 15, 2007. That day, Mr. Falardeau was working on a gate about 30 metres from an observation tower where a correctional officer was posted. He did not see the officer in the tower, but remembered that he noticed that, when he communicated with the officer, it was a woman. He wrote in his report that the officer in the tower seemed confused with the commands to open and close the gate, so much so that the officer closed the gate on his back. Mr. Falardeau had to drop down to avoid being crushed. Later, when he was straightening Gate No. 1 with a power ram, the officer closed Gate No. 2 on the power ram by mistake. In his report, Mr. Falardeau wrote that he had to contact the officer in the guard post so that he could communicate with the officer in the tower to open Gate No. 2. Mr. Perrotti testified that the gate doors open and close very slowly.

32 Mr. Falardeau did not remember why he waited eight days before writing his report. Mr. Leduc testified that he asked Mr. Falardeau to prepare the report. Mr. Falardeau testified that he did not write the following note at the end of the report: “[translation] (female officer on duty in tower # 2 - Oda Kagimbi).” Mr. Leduc testified that he added that note at the bottom of Mr. Falardeau’s report without initialling it. He testified that, if he added the note, it was because he was fairly certain that Ms. Kagimbi was in the tower.

33 The observation report form that Mr. Falardeau used was different from all the other observation reports submitted into evidence. Mr. Falardeau explained that the clerk at the institution’s technical services gave him the form in question. He rarely fills out such reports and could not say whether the form he used was different from the others. Mr. Leduc testified that some observation reports look like that one.

F. PPAS

34 On May 23, 2007, Marc Côté, a correctional supervisor, wrote an observation report that reads as follows:

[Translation]

…

When I was an SIO, I asked two inmates from the committee to come to my office so that I could speak with them. When they arrived in my office at 13:30, the inmates were in a state, and one of them told me, “Your officer in the control post is pretty mixed up …When I told her I wanted to see the SIO, she turned around and handed me a PPAS … So I told her ‘NO NO, I want to see Côté, the SIO!!!’” After looking into it, the officer on duty was Ms. Oda Kagimbi.

…

35 “SIO” means “Security Intelligence Officer,” and a PPAS is a personal portable alarm. In the section of the report in which to note the date and time of the incident, Mr. Côté wrote that the incident occurred in February 2007. Instead of indicating the day, he wrote “xx.” Mr. Leduc countersigned the report. He indicated that he received it on May 23, 2007.

36 Mr. Côté did not testify at the hearing. Ms. Kagimbi testified that she did not recognize herself in his report. She also noted that the report was written three months after the events in question, when Mr. Côté was no longer an SIO. Mr. Leduc testified that the SIOs know the inmates well and know whom to trust. In addition, they never indicate the dates of events in their observation reports.

G. Radio communications

37 In 2007, institution staff used two systems for voice communications. One was for general use; the other was reserved for patrols and supervisors. Occasionally, someone using the system requests that a message be repeated when the messages or transmissions are not clear.

38 On June 16, 2007, Mr. Nadeau, a correctional supervisor, wrote the following in his observation report:

[Translation]

…

Report on situation involving Officer Oda Kagimbi.

Oda {Charlie #08} was on patrol during the evening shift of June 16, and I asked her:

- C/S --Charlie #12 to Charlie #08: call me at 2930.

- Oda --Could you repeat?

- C/S --Call me at 2930.

- Oda --I didn’t understand, could you repeat?

- C/S --Telephone at 2-9-3-0.

- Oda --You want me to call you on 2-9-3-0?

- C/S --That’s right, call me.

I checked with the other officers to find out if the radio was cutting out when I spoke. They said that everything was very clear.

What if it had been an emergency call?

I spoke clearly and slowly, but she did not understand.

…

39 Mr. Nadeau did not testify at the hearing. Ms. Kagimbi testified that the report did not accurately recount her radio conversation with Mr. Nadeau on June 16, 2007. She did not specify in what sense Mr. Nadeau’s report was inaccurate. Mr. Leduc testified that officers generally understand radio messages clearly but that Ms. Kagimbi needed messages repeated more often than others. Mr. Leduc and Mr. Blanchard testified that officers use everyday language to communicate over the radios.

H. Ms. Kagimbi’s performance appraisal and termination

40 Ms. Kagimbi testified that Mr. Leduc called her on September 16, 2007 to see if she would be back from vacation on the following day. He told her that she would receive her performance appraisal that day. At 11:00, Mr. Leduc asked Ms. Kagimbi to come to a meeting, to which she could bring a union representative. At the beginning of the meeting, Ms. Poisson handed Ms. Kagimbi the performance appraisal report dated September 17, 2007. Ms. Kagimbi said that she did not agree with the report. Then, Ms. Poisson gave her the letter of dismissal, also dated September 17, 2007. Ms. Kagimbi testified that Mr. Leduc then told her that he had nothing against women or “Blacks.” Ms. Kagimbi also testified that she was asked to hand over her equipment, after which she left the institution. She was in shock and did not really understand what had just happened. The employer never told her that it was unhappy with her. The following day, she sought assistance from the union and filed a grievance.

41 Mr. Leduc testified that he relied primarily on the observation reports to write Ms. Kagimbi’s performance appraisal on September 17, 2007. Mr. Leduc testified that the managers could not trust Ms. Kagimbi because she was not comfortable in her correctional officer position. According to Mr. Leduc, Ms. Kagimbi had trouble integrating into the team and kept her distance. Mr. Leduc testified that he was just starting out as a correctional supervisor in 2007 and that, by the hearing, he believed that he could have met with Ms. Kagimbi and that he could have spoken with her much more than he did in 2007.

42 In the appraisal report dated September 17, 2007, Mr. Leduc wrote that Ms. Kagimbi had difficulty performing her duties, that she seemed to lack confidence and that she required constant supervision. He indicated that she did not meet the objectives of the position. He wrote the following to support his appraisal:

[Translation]

…

1. Little communication with other staff members. She often appears to isolate herself from other employees.
2. The employee did not demonstrate that she was in control of the security equipment (e.g., lost her handcuff key and gave the PPAS to an inmate while she was at central control).
3. The employee did not show that she was in full control while in different security posts (e.g., problems controlling the service entrance gates and difficulty with radio communications).
4. Despite two additional weeks of training and nearly nine months of experience, the employee still has considerable difficulty performing her duties.
5. It was clearly shown on a few occasions that the employee is unable to effectively react during an incident (e.g., no reaction when an inmate hanged himself and during another inmate’s disruption at the institutional hospital.)

…

43 Ms. Poisson testified that it was brought to her attention that Ms. Kagimbi was having problems at work and that a decision had been made to have her take a second orientation. Roughly seven months after Ms. Kagimbi was hired, Suzanne Legault, Assistant Warden, Operations, mentioned to Ms. Poisson that “[translation] it wasn’t working out” with Ms. Kagimbi. According to Ms. Poisson, security is the responsibility of the team within which each employee must be involved and proactive. During her testimony, Ms. Poisson commented on the performance appraisal report prepared by Mr. Leduc on September 17, 2007. She based her decision to dismiss Ms. Kagimbi on that report. Ms. Poisson confirmed that the observation reports outlining Ms. Kagimbi’s performance were not given to Ms. Kagimbi at the dismissal meeting.

I. Notice of termination

44 Ms. Poisson admitted that the letter of dismissal dated September 17, 2007 does not refer to a notice of termination. She did not know if Ms. Kagimbi was compensated in lieu of notice. That was not her responsibility.

45 In December 2007, Magali Peries from the employer’s headquarters wrote to Ms. Poisson to ask her, among other things, whether Ms. Kagimbi was given notice before being dismissed or whether she received compensation. On January 21, 2008, Ms. Peries again wrote to Ms. Poisson, indicating that Ms. Kagimbi should be paid the equivalent of two weeks’ salary because she was not given notice. On January 28, 2008, the assistant warden, Ms. Legault, drafted a memo indicating that compensation equivalent to two weeks’ salary should be paid to Ms. Kagimbi. After that memo, a cheque dated February 14, 2008 was issued and was sent to Ms. Kagimbi. The cheque was for two weeks’ salary.

46 Mr. Ladouceur testified that, after looking into the matter, he realized that the practice in the Quebec Region was to pay two weeks’ notice for rejections on probation. He admitted that that practice was erroneous and that, according to the Regulations Establishing Periods of Probation and Periods of Notice of Termination of Employment During Probation, SOR/2005-375, the employer should have given Ms. Kagimbi one months’ notice or should have paid her compensation equivalent to one months’ salary. He undertook to rectify that practice and to ensure that the employer paid Ms. Kagimbi what it owed her.

J. Further evidence

47 In her testimony, Ms. Bergeron, a writing and document expert, challenged the validity or integrity of two documents. The first was the observation report that Ms. Kagimbi allegedly signed on May 23, 2007 about the incident involving inmate CO. Ms. Kagimbi denied writing that report (see paragraphs 21 to 28). Ms. Bergeron found it highly probable that Ms. Kagimbi did not write that report. She based her finding on the fact that, according to her, the document uses different vocabulary than Ms. Kagimbi usually used to refer to other employees and based on the changes made to the document. The second document that Ms. Bergeron analyzed was Mr. Falardeau’s observation report dated May 23, 2007 (see paragraphs 31 to 33). Ms. Bergeron found a very high probability that the document was altered by the addition of a final line written by a third person. That finding confirms Mr. Falardeau’s testimony that he did not write that line and that of Mr. Leduc, who stated that he wrote it.

48 Mr. Blanchard testified about the good quality of Ms. Kagimbi’s work during a patrol he did with her that involved an incident with a very sick inmate. He also explained how the observation reports were written. Finally, he testified about the procedures for firearms surrender and inspection.

49 An observation report signed by supervisor S. Gagnon on August 15, 2007 was also submitted into evidence. Ms. Gagnon reported on Ms. Kagimbi’s reaction, who said that she had not been relieved from her work post in time. Ms. Gagnon did not testify at the hearing. The employer did not refer to that information in Ms. Kagimbi’s performance appraisal.

III. Summary of the arguments

A. For the employer

50 The employer argued that I did not have jurisdiction to hear the grievance because the case involves a rejection on probation under section 61 and subsection 62(1) of the Public Service Employment Act (PSEA). Section 211 of the Public Service Labour Relations Act (“the Act”) prevents referring a grievance to adjudication that is about a termination under the PSEA.

51 The only question before the adjudicator is to determine whether it was a rejection on probation. The adjudicator’s role is not to examine the fairness of the process or the soundness of the employer’s decision to reject the employee on probation. The adjudicator cannot judge or interpret facts about the employee’s competence; that is the employer’s responsibility. The adjudicator does not have jurisdiction to determine whether a notice of termination was given or whether the amounts paid in lieu of notice were correct. On that point, the employer admitted its error and undertook to pay Ms. Kagimbi the outstanding amounts.

52 The employer demonstrated that Ms. Kagimbi’s employment involved a probation period and that she was dismissed during that period. The employer acted in good faith when it terminated her probation. The rejection on probation was not a sham or camouflage of another reason to terminate her employment. The employer terminated the probation because it was dissatisfied with her performance. In the letter of dismissal, the employer indicated how it was dissatisfied with her performance.

53 According to the employer, Ms. Kagimbi had difficulty integrating into the group. She kept her distance and was aloof. Despite being offered a second orientation stage by the employer, she continued to experience problems at work. She lost her handcuff keys, she wanted to give a portable alarm to an inmate, she had to have messages repeated over the radio, she closed a gate when asked to open it and she was late in reacting to difficult situations with inmates.

54 The employer was entitled to dismiss Ms. Kagimbi during her probation because it believed in good faith that she did not have the qualifications to do her job.

55 The employer referred me to the following decisions: Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.); Chaudhry v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 72; Canada (Attorney General) v. Penner, [1989] F.C.J. No. 461 (C.A.) (QL); Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529; Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225 (T.D.) (QL); Maqsood v. Treasury Board (Department of Industry), 2009 PSLRB 175; Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134; Warman v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 103; Premakanthan v. Deputy Head (Treasury Board), 2012 PSLRB 67; Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109; Owens v. Treasury Board (Royal Canadian Mounted Police), 2003 PSSRB 33; Boyce v. Treasury Board (Department of National Defence), 2004 PSSRB 39; Melanson v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 33; Bilton v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 39; and Dyck v. Deputy Head (Department of Transport), 2011 PSLRB 108.

B. For Ms. Kagimbi

56 Ms. Kagimbi argued that the adjudicator had jurisdiction to hear her grievance and that he should allow it because the employer acted in bad faith, arbitrarily and unfairly toward her.

57 Considering the serious consequences of a breakdown in an employment relationship for an employee, employers, including those in the public sector, have an obligation of good faith and fair dealing when they terminate an employee’s employment. An employer’s authority has limits. An adjudicator can overturn any employer decision if it was arbitrary or discriminatory or was made in bad faith.

58 The employer failed to fulfill the obligations imposed on it by the PSEA with respect to notice of termination. That failure alone justifies overturning Ms. Kagimbi’s dismissal. The letter of dismissal signed by Ms. Poisson contains no mention of notice, and Ms. Kagimbi, during her dismissal, was not informed of her right to notice or compensation. Only in February 2008, six months after her dismissal, did Ms. Kagimbi receive compensation, and it was for only 2 weeks, not the 30 days to which she was entitled.

59 The evidence shows that the employer never informed Ms. Kagimbi clearly and transparently of the performance standards and her shortcomings and that she had to improve. She was never shown the several observation reports written about her, and their contents were never discussed with her, including the two reports Mr. Matte wrote after the second orientation stage.

60 In addition to never being shared with Ms. Kagimbi, some observation reports used to assess her performance contained falsehoods, while others were altered, were not written on the correct forms or were submitted long after the fact. Mr. Leduc admitted during his testimony that he should have spoken to Ms. Kagimbi about the shortcomings in her work but that he never did. He said that she required constant supervision but that he did not provide her with it.

61 Considered as a whole, the facts show that the employer acted in bad faith, demonstrated unfair treatment and resorted to camouflage. Consequently, the adjudicator should allow the grievance.

62 Ms. Kagimbi referred me to the following decisions: Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Dhaliwal; Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83; Tello; Bergeron v. Canadian Security Intelligence Service, 2011 PSLRB 103; and Doucet v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 145.

63 Ms. Kagimbi also referred me to several legislative provisions about rejections on probation as well as the employer’s guidelines on dismissals, including rejections on probation.

IV. Reasons

64 Ms. Kagimbi was hired from outside the public service to a correctional officer position on December 19, 2006. She was informed in writing on hiring that she would be on probation for 12 months. The employer dismissed her on September 17, 2007, before the end of her 12-month probation.

65 The following provisions of the PSEA confer on the employer the right to impose a probation period and to dismiss an employee during that period:

…

61. (1) A person appointed from outside the public service is on probation for a period

(a) established by regulations of the Treasury Board in respect of the class of employees of which that person is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act …

…

Termination of employment

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 …

…

and the employee ceases to be an employee at the end of that notice period.

…

66 The period in question in subsection 62(1) of the PSEA is one month. The parties both recognized that the period is one month and that it was not respected. The employer undertook to correct its error. According to Ms. Kagimbi, the lack of compliance with that period means that the dismissal should be overturned. I will return to that point.

67 In accordance with section 211 of the Act, a grievance against a rejection on probation under the PSEA cannot be referred to adjudication. Therefore, the adjudicator does not have jurisdiction to hear it. Section 211 of the Act reads as follows:

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 …

68 Even though an adjudicator does not have jurisdiction to hear a grievance against a rejection on probation, before making a finding, he or she must first determine whether the dismissal was in fact a rejection on probation. The adjudicator must ensure that the employer did not use the probation as a sham or camouflage to hide another reason for dismissal and that the termination was due to the employee’s ability to hold the position.

69 In 1978, in Jacmain v. Attorney General of Canada et al., [1978] 2 S.C.R. 15, the Supreme Court of Canada ruled that the employer’s right to reject an employee on probation was very broad and that that right is unobjectionable unless the employer acted in bad faith. The Court ruled as follows at page 37:

The employer’s right to reject an employee during a probationary period is very broad. To use the words of s. 28 of the Public Service Employment Act, mentioned above, it is necessary only that there be a reason. Counsel for the appellant forthrightly acknowledged at the hearing that at first glance the legislative provision allows the employer to advance almost any reason, and that the employer’s decision cannot be disputed unless his conduct was tainted by bad faith…

70 In 1989, the Federal Court ruled in Penner that an adjudicator could not examine a rejection on probation when satisfactory evidence existed that the employer acted in good faith based on its belief that the employee was not suitable for the position. In Leonarduzzi, the Federal Court reaffirmed that an adjudicator cannot examine the soundness of a rejection on probation and that, in such a case, the employer need produce only minimal evidence that the rejection on probation was related to employment and to no other reason. On those points, the Court ruled as follows:

…

[31] I agree with the Attorney General that Parliament's intent in enacting subsection 92(3) of the PSSRA was to forbid the adjudication by the Board of rejections on probation. However, Parliament did not prohibit an adjudicator from ascertaining whether a rejection on probation is in reality pursuant to the PSEA…

[32] In the face of the respondent's grievance alleging bad faith in respect of his rejection on probation, the adjudicator, here, required evidence from the employer to determine whether its termination was under the PSEA and therefore beyond its jurisdiction, or if it was for reasons foreign to the PSEA upon which it could ground jurisdiction under section 92 of the PSSRA. The adjudicator's authority to deal with the grievance depends entirely on this decision of fact…

…

[37] I agree with the respondent to a limited extent, that is to the extent stated by the Chairperson in this case as expressed in the Board's reasons. 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.

…

71 Those court decisions clearly establish that an adjudicator does not have jurisdiction under the Act to hear a grievance on the merits if it is against a rejection on probation. The adjudicator’s role is limited to determining whether the dismissal was a rejection on probation. As soon as the adjudicator finds that it was a rejection on probation, he or she loses jurisdiction. However, if the adjudicator finds that the employer acted in bad faith, that it dismissed the employee for a reason unrelated to his or her ability to perform the duties, or that the rejection on probation was a sham or camouflage for another reason for dismissal, the adjudicator could have jurisdiction to hear the grievance. An employer cannot use a rejection on probation to deprive an employee of a right to recourse that he or she would have if the real reasons for the dismissal were used.

72 The evidence shows that Ms. Kagimbi’s probation was from December 19, 2006 to December 18, 2007. When she was dismissed on September 17, 2007, she was still on probation. Based on that fact, I must determine whether the employer acted in good faith and dismissed her because it believed that she was unsuitable for the position (Penner) or that it based its decision on an employment-related reason (Leonarduzzi) or whether the dismissal was for a reason unrelated to employment.

73 The evidence submitted to me by the employer is unequivocal. It believed that Ms. Kagimbi was incapable of performing the duties of a correctional officer. That evidence consists primarily of the testimonies of Ms. Poisson and Mr. Leduc as well as the letter of dismissal signed by Ms. Poisson and the performance appraisal report signed by Mr. Leduc. After reviewing the evidence, I find that the employer did not use rejection on probation as a sham to camouflage another reason for the dismissal. Ms. Kagimbi did not submit any evidence that would lead me to believe her.

74 The evidence shows that the employer and its representatives did not confront Ms. Kagimbi about the shortcomings in her work. They did so only on September 17, 2007, the day on which she was dismissed. Therefore, she never knew what was wrong and did not have the opportunity to correct the situation. Instead, she was dismissed. However, my 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.

75 Ms. Kagimbi claimed that the employer did not act in good faith. I disagree. The employer poorly managed her probationary period and was not open with her. However, I do not find that it acted in bad faith and find especially that, based on the evidence submitted, it was not dissatisfied with the abilities that Ms. Kagimbi demonstrated when performing a correctional officer’s duties.

76 Ms. Kagimbi did not agree with the evidence submitted by the employer about the shortcomings in her work. She believed that she acted appropriately during the incidents involving inmates RC and CO. She admitted to losing the handcuff key and to asking the person on the other end of the radio to repeat what he said. However, she claimed that such incidents sometimes happen to others. She denied the gate and portable alarm incidents. Even if the incidents that she denied were left out, nonetheless, the employer discharged its burden of proof. My task is not to precisely determine whether Ms. Kagimbi acted appropriately in the different situations presented to me. The employer’s burden was to prove to me that Ms. Kagimbi was on probation and that it was dissatisfied with her abilities to hold the correctional officer position. The employer discharged that burden.

77 Ms. Kagimbi referred me to Wallace, in which the Supreme Court of Canada pointed out that job loss is always traumatizing for an employee and that employers ought “… to be held to an obligation of good faith and fair dealing in the manner of dismissal …” That statement should be put into context because the Court was examining the process or manner of dismissing an employee. Nevertheless, 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.

78 Ms. Kagimbi pointed out errors that the employer made in its management of the notice at the end of the probationary period. First, the employer made no mention of a notice in the letter of dismissal, and it dismissed Ms. Kagimbi effective immediately on September 17, 2007. Then, it paid her two weeks’ salary in lieu of notice six months after dismissing her. Finally, during the hearing, in other words, five years after the dismissal, the employer admitted that it should have paid her one months’ salary in lieu of notice. There is no doubt that Ms. Kagimbi is entitled to one months’ salary in lieu of notice and that the employer must pay her that amount. The employer also admitted its error at the hearing and undertook to pay Ms. Kagimbi the amount owed her.

79 The employer’s error does not invalidate the rejection on probation. Subsection 62(1) of the PSEA provides that an employer may terminate an employee’s employment during probation at the end of the notice period and that the employee ceases to be an employee at the end of that notice period. Subsection 62(2) of the PSEA provides that the employer may also pay the employee monetary compensation equivalent to the value of the notice. It is clear that the employer did not comply with the PSEA, but that failure does not confer substantive rights other than the right to obtain payment in lieu of notice, as should have been done from the start. Payment in lieu of notice has nothing to do with the appropriateness of the dismissal decision, and if it is incorrectly paid, it does not mean that the dismissal should be overturned. The notice provides an employee with time to help him or her adjust to the new situation, and it provides financial support. If a delay or an error occurs with a payment in lieu of notice, the employer’s obligation is limited to fully and properly correcting those errors.

80 Ms. Kagimbi referred me to the employer’s guidelines on dismissal, including rejections on probation. I will not comment on the guidelines since they are not legally binding and are meant merely to guide the employer’s managers in their work. It is of little relevance in this case to examine them in relation to the arguments presented, as the employer has no obligation to comply with them.

81 I do not have jurisdiction to hear this grievance.

82 For all of the above reasons, I make the following order:

V. Order

83 I order the file closed.

February 27, 2013.

Renaud Paquet,
adjudicator