Green v. Deputy Head (Department of Indian Affairs and Northern Development)

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Summary


Public Service Labour Relations
and Employment Board Act and
Public Service Labour Relations Act
and Canada Labour Code

Coat of Arms - Armoiries
  • Date:  20170208
  • File:  566-02-9426 and 9427 and 560-02-0098
  • Citation:  2017 PSLREB 17

Before a panel of the Public Service Labour Relations and Employment Board


BETWEEN

KATHERINE GREEN

Grievor and Complainant

and

DEPUTY HEAD
(Department of Indian Affairs and Northern Development)

Respondent

and

TREASURY BOARD
(Department of Indian Affairs and Northern Development)

Employer

Indexed as
Green v. Deputy Head (Department of Indian Affairs and Northern Development)


In the matter of individual grievances referred to adjudication and in the matter of a complaint made under section 133 of the Canada Labour Code


Before:
John G. Jaworski, a panel of the Public Service Labour Relations and Employment Board
For the Grievor and Complainant:
Russell MacCrimmon, counsel
For the Respondent:
Sean Kelly, counsel
Heard at Ottawa, Ontario,
February 23 to 27 and May 1, 2015.

REASONS FOR DECISION

I. Individual grievances referred to adjudication and complaint before the Board

1        Katherine Green (“the grievor”) was, at all relevant times, employed at the executive group and level (classified EX-01) in the Specific Claims Branch (SCB) within the Department of Indian Affairs and Northern Development (DIAND).

2        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the PSLRB”) and the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

A. The first grievance

3        On August 2, 2013, the grievor filed a grievance (PSLREB File No. 566-02-9426; “the first grievance”) with the PSLRB against her performance rating that was delivered on July 13, 2013. She stated that the rating constituted disguised discipline and that it was not a fair and accurate assessment of her performance. She alleged that the negative assessment would result in a financial penalty, including reduced performance pay, and that it would negatively impact her pension. She stated that the poor performance rating was given in part due to a harassment complaint she had filed and in part due to her discontinuing coaching that was imposed upon her following meetings in February 2013, which she alleged was also disciplinary and linked. As relief, she requested as follows:

B. The second grievance

4        On November 12, 2013, the grievor filed her second grievance (PSLREB File No. 566-02-9427) with the PSLRB, alleging that unfairly and in bad faith, her employer imposed upon her full-time language training and an unspecified mandatory assignment to the Resolution and Individual Affairs (RIA) sector of the DIAND and that she was effectively relieved of her position without cause or consent on October 15, 2013, all of which amount to disguised discipline. She stated that these actions resulted in financial penalties, mental distress, and emotional harm.

5        The grievor further alleged that during a disciplinary meeting on November 1, 2013, the DIAND’s director of security and occupational health and safety was there when disciplinary measures were being imposed, which violated her entitlement to confidentiality. She stated that she should have been given advance notice that disciplinary measures would be imposed and that she was disciplined because she made her harassment complaint and filed the first grievance. As relief, the grievor requested that she

6        The respondent took the position that all the actions grieved were administrative in nature and did not constitute discipline; as such, the Board has no jurisdiction.

C. The complaint

7        Also on November 12, 2013, the grievor filed a complaint (PSLREB File No. 560-02-0098) with the PSLRB against the DIAND under s. 133 of the Canada Labour Code (R.S.C., 1985, c. L-2; “the Code”)alleging that the employer acted against her because she submitted a work refusal on October 4, 2013, and that it breached s. 147 of the Code by removing her from her position, sending her to full-time language training, and placing her on assignment.

8        The employer’s position was that the grievor was not in the workplace when she filed her work refusal, that there was no danger, and that there was no discipline or reprisal; as such, the Board has no jurisdiction.

II. Summary of the evidence

9        The respondent and employer were represented by the Department of Justice legal counsel. For simplicity’s sake, the employer and respondent shall be referred to as the employer throughout the decision.

10        At the time of the hearing, the grievor had 33 years of service and had been on assignment at the RIA since November 2014. Her substantive position was as the director of the SCB’s Research and Policy Directorate (RPD).

11        Until November 2013, the grievor reported to Anik Dupont, the director general (DG) of the SCB. Ms. Dupont then reported to the senior (“Sr.”) assistant deputy minister (ADM) for Treaties and Aboriginal Government, Jean-François Tremblay. In the spring of 2013, Mr. Tremblay was replaced by Gina Wilson, who occupied that position from roughly June 2013 until February 2014.

12        In November 2013, when the grievor went on assignment to the RIA, she began reporting to Line Paré, who reported to ADM Andrew Seranchuck.

13        All of Messrs. Tremblay and Seranchuck and Ms. Wilson reported to the DIAND’s deputy minister (DM), who at the material times was Michael Wernick.

14        The grievor stated that her position required her to provide policy support to three functions in the SCB, those being research, negotiations, and the Specific Claims Tribunal. She said that when fully staffed, the team had 27 members, she had 5 direct reports, and she managed a budget of between $350 000 and $2 million. Ms. Dupont testified that approximately 20 employees reported to the grievor either directly or indirectly.

A. The performance assessment process

15        The grievor stated that EXs are evaluated based on commitments agreed upon in the “Executive Performance Agreement”, which is agreed to at the start of each fiscal year (on April 1 of any given year). She stated that at the start of each of 2009 through to and including 2012, she met with Ms. Dupont and set her commitments for the upcoming year. She further stated that in each of 2009, 2010, and 2011, sometime between August and December, a mid-year review took place, and that at the end of each fiscal year, a year-end review took place, at which the commitments were reviewed with Ms. Dupont before a performance rating was assigned to the grievor.

16        According to the grievor, at the end of the fiscal year, after their discussions, Ms. Dupont met and spoke with the Sr. ADM, who then gave a presentation to the Executive Review Committee (ERC), which holds the meetings at which ratings are assigned. The information was then passed down to her supervisor, who then communicated to her the rating she had been given.

17        The following six potential ratings can be assessed for “Individual Commitment and Leadership Competencies”:

  1. Surpassed;
  2. Succeeded “+”;
  3. Succeeded;
  4. Succeeded “-”;
  5. Did Not Meet; and
  6. Unable to Assess.

18        The following five potential ratings can be assessed for “Corporate Commitment”:

  1. Fully Achieved;
  2. Achieved;
  3. Partially Achieved;
  4. Did Not Meet; and
  5. Unable to Assess.

19        A performance rating of Succeeded “-” and above results in an in-range movement within the salary range if such movement is possible. When an in-range movement is not possible as the maximum salary level has been reached, a lump-sum performance award is paid out in addition to the base salary.

20        Ms. Dupont and Mr. Tremblay testified, with respect to the performance evaluation process, about what happens at levels at which the grievor is not involved.

21        Ms. Dupont testified that as a DG, she is required to provide Mr. Tremblay with ratings for her direct reports. She stated that she meets with him and that they discuss the assessments and ratings she submitted. After that, all DIAND ADMs meet with the DM and the associate DM, at which point ratings are determined. She stated that she does not take part in meetings involving the ADMs, associate DM, and DM.

22        Mr. Tremblay testified that the DIAND’s human resources (HR) branch provides notice with respect to deadlines for the EX performance evaluation process. He stated that as part of the process, he asks his DGs to develop draft evaluations for their direct reports. He meets with them, and they discuss the performance of their EXs. Mr. Tremblay stated that his meetings with his DGs usually take place in early April (“the DG-ADM meeting”).

23        Mr. Tremblay said that at the DG-ADM meeting, each DG puts forward his or her proposed rating for each EX and a justification for it. He said that they discuss not just ratings but also each EX’s progress and whether each EX should be considered for promotion. At the end of the DG-ADM meeting, ratings are finalized, and from there, they are brought to the ERC.

24        The ERC comprises the DM, associate DM, and ADMs. Each EX is dealt with, and a rating is discussed and then assigned. The ratings are then transmitted back to the DGs.

B. The grievor’s performance before fiscal year 2012-2013

25        The grievor described her performance over the years as being very good and stated that up to and including the end of fiscal year 2010-2011, her relationship with Ms. Dupont had been good. During that fiscal year, she received a performance rating of Succeeded “+”, which translated to performance pay of $14 280.

26        In fiscal 2011-2012, the grievor stated that she met with Ms. Dupont on December 13, 2011, for a mid-year review and that they went through the commitments; no issues were raised. She stated that her next meeting with Ms. Dupont about her performance was on June 1, 2012, at which Ms. Dupont was appreciative and complementary. The grievor stated that she received a Succeeded “+” rating, which translated into a lump-sum performance award of $11 626. She also stated that in 2011-2012, she received the DM’s “Award for Performance” for leading her team with respect to a claims backlog.

27        The grievor stated that in or about 2011 and 2012, the DIAND, like the rest of the federal public service, was affected by the Deficit Reduction Action Plan (DRAP), which resulted in the loss of 11 positions that reported either directly or indirectly to her, which strained her directorate’s operations and made things more challenging. She stated that while the workload increased, the number of employees to handle it decreased.

C. Problems in the RPD

1. Mr. A

28        On or about June 21, 2012, the grievor said that she learned that one of her subordinates, Mr. A (some names are anonymized in this decision to protect identities), had filed a grievance about her. However, she was not privy to its particulars. She testified that she made enquiries of Ms. Dupont, HR, Labour Relations (LR), and Executive Services but that she was never provided with a copy of the grievance, informed of the allegations, or provided with an opportunity to respond. She stated that she learned some of the details through access to information and privacy requests.

29        The grievor stated that on August 5, 2012, Ms. Dupont advised her that Mr. A’s grievance was not upheld and that he would be leaving the grievor’s team. In fact, Mr. A had already left. The grievor stated that she was not consulted on his departure and that she was not permitted to staff his vacant position due to a salary deficit. So, this left her team short-staffed.

30        According to the grievor, she later learned that Mr. A had requested a change of reporting relationship so as to not report to her. She believed that moving him out from under her chain of responsibility showed that Ms. Dupont felt that the grievance was valid, which made it difficult for the grievor to manage the disruptive behaviour occurring in the RPD. The grievor stated that Ms. Dupont told her that she transferred Mr. A out of the RPD for the grievor’s benefit as the grievor did not want an investigation.

31        Mr. A’s grievance states as follows:

I grieve that I have not been provided with a harassment-free work environment as is required by both my collective agreement and the employer’s policies. My allegations in support of this grievance will be provided after I have had an opportunity to consult with my PSAC representative. Consultation is requested on this grievance with my PSAC Representative.

I request that appropriate action be taken and that I be immediately provided with a harassment-free work environment, and that I be made whole.

I request that I report immediately to a different director until the investigation has been completed.

I request that after the investigation that I continue to report to a different Director.

I request a written apology from Kathy Green.

I request that Kathy Green retracts [sic] all her comments that she has made to other employees in reference to me.

32        The grievor testified that once she had an opportunity to review Mr. A’s grievance file, she learned that the grievance had been partially upheld.

33        On July 26, 2012, Ms. Dupont sent Mr. A a second-level grievance reply that stated in part as follows:

I have carefully considered your presentation provided by your union representative, Leonard Irani, of the Public Service Alliance of Canada (PSAC) at the second level grievance hearing held on June 27, 2012, wherein you raised issues surrounding the work environment in the Policy and Research Directorate, Specific Claims Branch, Treaties and Aboriginal Government.

We further met on July 24, 2012 with you, Leonard Irani, PSAC Union Representative and Mathieu Menard, Labour Relations Advisor, to discuss some interventions that have already taken place within the Directorate. Specifically, Matt Thorpe and Associates, specialists in conflict resolution were engaged to conduct a series of interviews and team dialogue with the employees of the Directorate. In lieu of a formal investigation, I plan to continue with these sessions in order to improve the workplace and ensure that employees work in a harassment free environment.

As part of the corrective action requested, an assignment agreement at the PM-06 group and level will be arranged for you. I anticipate the assignment will take place between August 6, 2012 and March 31, 2013.

As I am unable to grant you all of the corrective action requested, and [sic] therefore your grievance is partially upheld.

34        As of the time of the hearing, Mr. A had not returned to the RPD.

35        Mr. A never testified.

36        When cross-examined, Ms. Dupont stated that she received Mr. A’s grievance on June 19, 2012. She stated that she read it on that date and understood that its harassment and toxic work environment allegations were directed at the grievor. She confirmed that Mr. A reported to the grievor and that he wanted to transfer from her.

37        Ms. Dupont admitted that the grievor had asked for a copy of Mr. A’s grievance and for an opportunity to respond to its allegations and that at no point did she allow the grievor to respond. When asked in cross-examination why, Ms. Dupont stated that she did not believe it was part of the process. She admitted that she thought not allowing the grievor an opportunity to respond was unfair.

38        Entered into evidence were a series of documents representing communications between Ms. Dupont, other employer representatives, and Mr. A’s bargaining agent representative, Leonard Irani. They disclose that Mr. Irani and Ms. Dupont discussed an assignment for Mr. A outside the RPD. In cross-examination, it was put to Ms. Dupont that she granted Mr. A’s grievance, which she denied. Yet, when it was put to her that she gave Mr. A what he had asked for, she agreed. And when it was put to her that she negotiated the assignment agreement, she denied it. Yet, when it was put to her that she offered the assignment and that Mr. A accepted it, she agreed.

39        Ms. Dupont was brought to an email chain that ran from August 3 to 5, 2012, which she exchanged with the grievor. It was about Mr. A being given the assignment and moved out of the RPD. She confirmed that via the emails, the grievor was first made aware that Mr. A was being moved. It reads as follows:

[The grievor to Ms. Dupont, August 3, 2013 at 9:55 a.m.:]

[Mr. A] has sent me an email referring to a “transition process”. Is there something I should know about?

[Ms. Dupont to the grievor, August 3, 2013, at 11:53 a.m.:]

No I still have not received written confirmation or response to the grievance.

[Ms. Dupont to the grievor, August 5, 2013, at 7:01 p.m.:]

I did nmot have a chance to respond back to you Friday. I was able to confirm late Friday that my proposal for an assignmebt for the employee has been accepted and the grievance is not uphelpM. My decision will not be appealed.

There was confusion as to the reporting date for the assignment. I had put August 6th as I made the offer two weeks ago as I wanted the assignment to commence as soon as possible. This is the information that was transmitted to [Mr. A] by his representative.

While it will leave you short changed on such short notice I believe it is in everyone’s overall interest for him to leave immediately and I approved his departure on Friday. As I indicated to you we can request a temporary replacement while he is on assignment via the job market. His assignment is until March 31, 2013.

[Sic throughout]

40        In cross-examination, when it was put to Ms. Dupont that she never met with and discussed it with the grievor before August 5, 2012, her response was that the grievor had been on vacation. Yet, when it was pointed out to her that the grievor had been on vacation for only the last week of June, not when the emails were exchanged, she agreed that that point was accurate.

41        Ms. Dupont was shown the second-level grievance reply for Mr. A’s grievance, which she had signed, and it was pointed out to her that she had told the grievor that the grievance had been dismissed and that she had told Mr. A that it had been partially upheld. She was then asked how she reconciled the difference. She stated that she could not have put Mr. A on assignment without partially granting the grievance but that she did not uphold it. She admitted that she could have told the grievor as much but that she did not.

42        It was suggested to Ms. Dupont that she had found the grievor at fault, to which she replied that she had not, that Mr. A and the grievor had had ongoing issues, and that an “informal process” had been followed. She added that since it was a harassment complaint, she had to separate the parties.

43        Still in cross-examination, Ms. Dupont was brought to an email Mr. Irani sent her that was dated August 22, 2012. It stated as follows:

This is in relation to Griveance [sic] #[deleted]. It has come to our attention that Kathy Green has communicated verbally to others that the reason for [Mr. A’s] departure from the Specific Claims Branch is because his “grievance as [sic] not upheld”. This type of unprofessional conduct must cease immediately.

44        Ms. Dupont confirmed that upon receiving the email, she did not advise the grievor of it or its contents; nor did she instruct the grievor not to make such comments. She admitted that she: “had created the situation with the grievor of the grievance not being upheld.

2. Mr. B

45        According to the grievor, the RPD had an inappropriate behaviour problem, which she identified as gossip. She stated that a team dialogue was to be facilitated by an outside consultant to address the issue. According to her, as part of the process, the consultant was to interview every RPD member before holding the team dialogue. RPD members were advised of the dialogue by an email she sent on June 19, 2012, which stated in part as follows:

Recently, I have become aware of concerns about the way we are communicating with one another. As such, I would like to proceed with a facilitated Team Dialogue to focus on resolving work-related issues and enhancing working relationships. This dialogue is an opportunity for all of us to build our interpersonal relationship skills and to take away tools to express our diversity in a constructive manner. I am committed to moving this along as quickly as possible for your benefit, that of the team and of the organization.

I have asked Matt Thorpe of M. Thorpe & Associates Inc. to assist us in getting to the heart of the issues respectfully, compassionately and practically and to help us communicate more effectively with one another. In preparation for the Team Dialogue, Matt will be conducting individual interviews. The interviews will last about 45 minutes and will take place on July 5, 6 and 9, 2012. The Team Dialogue will then take place on July 10, and 11, 2012 from 8:30 a.m. to 4:30 p.m. at a venue to be determined.

46        Ms. Dupont confirmed in cross-examination that she received a three-and-a-half-page letter from Mr. B dated June 24, 2012, which outlined difficulties with respect to harassment within the RPD. She stated that she could not recall if she gave the grievor a copy. However, Ms. Dupont stated that the grievor had told her of difficulties she was having with Mr. B.

47        The grievor testified as follows:

48        In an email sent on July 11, 2012, to both the grievor and Ms. Dupont, Mr. B stated that he felt that the consultant’s approach was inappropriate and stated in part as follows:

The consultant knew that I had written a letter. He was going to question me on it. This is outrageous. I will not be subject to an interrogation on a personal and confidential matter. This is why I shut the interview down immediately. I would like to know how the consultant knew this and why he wanted to question me on it.

He also previously interrogated my colleague on matters connected with his own active grievance. This is what I am told and have no reason to think otherwise.

Immediately after my supposedly anonymous interview the consultant phoned Kathy and told his version of it. This is another outrage. I attended yesterday only because Kathy asked me to do so.

Unfortunately, whereas I have things to say in a calm manner, I do not have the stomach to return to the museum and put myself in the hands of consultants about whom I have no respect and considerable fear. I also do not feel it ethical to participate in a process which impacts on an active grievance, breaches confidentiality, and sets employees against one another.

I am at my workstation carrying on despite being under great stress from exposure to nastiness around me.

I beg that something be done to make this nastiness stop.

49        A copy of the July 11, 2012 email was forwarded to HR, who replied to Ms. Dupont’s email on July 15, 2012, and stated as follows:

Spoke briefly with [name omitted] on Friday. She is somewhat aware of the problem and is expecting a call from you. All assignments need to go to the Workforce Management Board. The Board meets Wednesday July 18. Your rationale is – duty to accommodate.

50        When Ms. Dupont was asked about that response, she said that she did not know where the reference to “assignments” came from. When it was put to her that it was possible that she had been thinking about removing Mr. B, she stated that she did not recall.

51        Ms. Dupont stated that she spoke to the grievor about Mr. B’s email. She said that because the grievor was leading the team dialogue, they talked about the email and what to do about it. Ms. Dupont was not asked any more specifics about this discussion; nor did she volunteer any.

52        The grievor testified that on November 22, 2012, she had a meeting (“the November 22 meeting”) with Mr. B and two others to discuss certain issues. At the end, when the grievor was alone with Mr. B, she said that he said the following to her:

53        The grievor stated that after the meeting, she was upset and concerned. She expressed as much to Ms. Dupont, who told her not to worry about it as Mr. B was just “f---ing with her head”. The grievor stated that Ms. Dupont did nothing. However, the grievor said that she was frightened after this encounter and that she spoke with the DIAND’s security personnel about it.

54        Ms. Dupont stated in her evidence as follows:

55        The grievor met with Mario Roy, from the employer’s Security Branch, and made notes during their meeting. She stated that he categorized the issue as violence in the workplace and that he referred her to LR. She said that she met with Allison Shatford of LR, who advised her to provide a written account of what had happened, which she did. According to the grievor, Ms. Shatford advised her that fact-finding should take place. The grievor stated that none did because Ms. Shatford went on training and then on vacation, and then the Christmas break arrived.

56        The grievor stated that in or about late November or early December of 2012, she received from Mr. Tremblay “PIN” (personal identification number) messages on a Blackberry. She stated that the PINs encouraged her to take an assignment in the Education Branch. According to her, Mr. Tremblay advised her that the DM had instructed the ADMs to come up with names for a major initiative there. She stated that she felt like she was being forced to leave the SCB, and while she did not want to leave, she took the assignment.

57        The grievor related her version of a meeting that took place on December 7, 2012, with Mr. Tremblay. She stated that she was called into his office and that he was very annoyed. She stated that before the meeting, she had met with someone in the DIAND’s Education Branch about an assignment that was not at the EX level but was a senior policy officer assignment. She felt that Mr. Tremblay was trying to oust her from her position. She said that he made the Education Branch opportunity appear glorious and stated that he told her that she should consider going there. He stated that there was no exit strategy for her but continued to talk about moving her. He asked her about Mr. B’s grievance, to which she replied that she was not being supported but blamed and that she had been told that his grievance had not been upheld.

58        As mentioned earlier, Mr. Tremblay was the ADM responsible for the SCB, and the grievor reported indirectly to him. Ms. Dupont was the grievor’s direct supervisor, who reported directly to Mr. Tremblay. He stated that at the relevant time, he was responsible directly or indirectly for between 300 and 400 employees. He stated that he had been the SCB’s ADM for only one year.

59        Mr. Tremblay testified that he knew of the grievor when he arrived as ADM for the branch and that he might have known her before then as he had worked at the DIAND before becoming the ADM. He confirmed that he had known of her before December of 2012 at a cursory level as she had not reported directly to him. He stated that he was familiar with the RPD’s work, which he described as being quite good.

60        In cross-examination, it was put to Mr. Tremblay that he sent a PIN to the grievor to attend a meeting. He stated that he did not recall doing so as he sends a hundred PINs a day. When asked if he recalled the December 7, 2012, meeting with the grievor, he stated that he recalled the meeting but that he did not recall if he had initiated it or had said that he was prepared to meet with her. He was asked if he recalled meeting with Ms. Dupont in the late fall or early December with respect to the grievor, to which he stated that he recalled Ms. Dupont speaking with him about a deployment for Mr. A that the grievor was concerned about. He stated that he recalled telling Ms. Dupont that if the grievor had concerns, he would be happy to meet with her. He stated that he met with Ms. Dupont often as she was a DG and she reported to him, and he had regular meetings with his DGs.

61        It was put to Mr. Tremblay in cross-examination that he instructed the grievor not to take notes during their meetings, to which he responded that he did not as they were informal discussions, and he did not mind people taking notes.

62        It was put to Mr. Tremblay in cross-examination that he spoke to the grievor about opportunities, to which he stated that he recalled discussions with her about what she wanted to do and about her objectives. He was asked if he recalled speaking of an exit strategy, to which he stated that he recalled telling her that there was none because the employer needed her. He stated that it could have been a comment made in response to a question put to him because he had had no need to discuss this with the grievor.

63        In cross-examination, Mr. Tremblay was asked about a suggestion of the “burning of his name” with respect to the grievor, to which he stated that there was a demand at the employer’s Education Branch and that they needed someone; he thought she was a good person for that work. He stated that he would not have put her name forward had he not thought she could to the work. He would have burned his name had he put someone forward who had not been qualified.

64        The grievor testified that while she agreed to the assignment, which was from December 2012 to February 2013 and was never formal, she also continued to carry out her substantive job functions. She stated that she was afraid, so she did both jobs.

65        The grievor testified that by early 2013, the following was taking place:

66        The grievor testified that during that period, her relationship with Ms. Dupont began to deteriorate. She stated that she did not believe that Ms. Dupont had taken seriously the concerns that she had raised with Ms. Dupont about the behaviour of Messrs. A and B.

67        The grievor stated that on February 5, 2013, two RPD employees reported to her that Mr. B had counselled them to request a new reporting relationship and to file grievances. She said that she raised this with Mr. B at their regular bilateral meeting that day (“the February 5 meeting”). She stated that the meeting lasted about half an hour and that this issue took up about the last 10 minutes. She described Mr. B as being angry with her and as denying that it happened. She stated that he reacted in a manner that was over the top, that he rambled, and that in the end, he stormed out. The grievor stated that she reported it to Ms. Dupont who, she said, merely shrugged her shoulders. The grievor said she again sought advice from LR and Ms. Shatford. She stated that after the February 5 meeting, she locked herself in her office, called her husband, and did not leave until he was downstairs to meet her.

68        The grievor made handwritten notes of the February 5 meeting, the relevant portions of which state as follows:

Kathy you have lots of enemies

2 people have said you told them to file grievances to change reporting relationships

“That’s horse----

“I’ll have their guts for garters”.

“You creeped the guy out so much”-

- [Name omitted]

“You …”

“you slammed your fist down’

“You can’t stifle free speech”

I creeped [Name omitted] out

69         The grievor made typewritten notes of the February 5 meeting, the relevant portions of which state as follows:

  • After discussing other matters relating to [Mr. B]’s work assignments, I advised him that I had been informed that he had been telling others that if they were dissatisfied with their supervisors they could have their reporting relationship changed by filing a grievance against their supervisor.
  • [Mr. B]’s response was: “That’s horse----”.
  • I responded by saying that I hoped that it was, meaning that I hoped I had been misinformed.
  • [Mr. B] then started to explain his understanding of what the purpose of a grievance is.
  • My response was that I was not concerned about his understanding of what the grievance process [sic], only that he should not be providing advice to others about the filing of grievances against their supervisors.
  • His response: “if I ever find out who they are, I will have their guts for garters.”
  • He went on to say that “I [Kathy] had to stop.” He continued by telling me that I was inappropriately preoccupied by what people are saying about me.
  • My response was that I was not speaking about me, or what people may or may not be saying about me, but rather about him, apparently, providing advice about filing grievances.
  • His response: “You [Kathy] have lots of enemies.” He told me that “You [Kathy] creeped that guy out so much that … [and then he said something about someone’s daughter that I did not understand.]
  • I asked who he meant by “that guy” and [Mr. B] said [Name omitted].
  • Then [Mr. B] went on to describe a conversation in which he, apparently, counselled me that “I can’t stifle free speech”, and I responded by “slamming your fist on the table” and saying I could.

70        Entered into evidence at the hearing were the grievor’s email exchanges with Ms. Shatford, dated February 5, 2013, addressing the situation with Mr. B and exchanging draft invitations for him to attend a fact-finding investigation meeting, for which the date and time were left blank. Ms. Shatford sent the draft invitation to the grievor on February 5, 2013, at 1:48 p.m. Its relevant portions state as follows:

I would like to invite you to a fact-finding meeting to discuss our conversations on November 22, 2012 regarding my trip to Vancouver and on February 4, 2013 during our bilateral meeting.

Several of the statements you made during these conversations were inappropriate, unprofessional and defamatory in nature.

Please confirm your attendance by accepting the electronic scheduler that will be sent to you shortly.

Kathy Green

Director, Research and Policy

cc. Allison Shatford, HR Manager - Labour Relations

71        The grievor replied by email that day at 2:04 p.m., sending accounts of two conversations. Ms. Shatford then replied, enquiring about a meeting time, and the grievor replied, asking if 1:00 p.m. on the Thursday would be convenient. The grievor went on, stating that she would complete the invitation and book a room first thing the following morning. She then asked if the invitation should be sent in writing. She added that she could scan and email it.

72        According to the grievor, the fact-finding investigation never took place, and she did not know why. However, according to the documentary evidence, it appears that the grievor was to conduct the fact finding investigation.

73        On February 5, 2013, at 6:45 p.m., Mr. B emailed Mr. Tremblay. The grievor described his email as accusing her of being an “unscrupulous tyrant”. The salient portions of it read as follows:

I also request immediate transfer to a safe work environment elsewhere in TAG. I am making this request for protection against reprisal.

Personally – I have been repeatedly threatened and intimidated, including today. These threats and intimidation include recently being told not to get involved in a disciplinary matter involving others that occurred at my door.

I have on at least two occasions been directly threatened for not revealing the sources of unspecific and specific rumours about my Director. Upon being questioned I have said that there are so many rumours that I do not know which ones are the current subject. Upon my refusal on one such occasion in December I was told “You have no morals or integrity as a senior official” for refusing to identify who is spreading rumours.

My Director repeatedly reminds staff that they can leave if they do not like it. This was the main message of the ‘team building’ consultants last summer: Get out, go. It was quite upsetting. No one should be forced to leave a workplace and colleagues which in normal times would be excellent and useful, and in any case, tensions have escalated since the DRAP eliminated mobility.

For me the recent encounter, this afternoon, is the last straw. I replied that this is nonsense and I cannot take this any more [sic]. I said “I am not your enemy. You have to stop. I can’t take this weirdness any more”. Then I left. After this I vomited in my office, pulled myself together, and sought the counsel of various managers. I realised I had been rendered unfit, following today’s incident to research certain questions which are urgently required by the Central Agencies. This is troubling as I have a sense of responsibility and am normally very reliable. I have typed this with difficulty since I am in no shape to perform my duties. I am booking off sick and will see my doctor, wh o [sic] previously urged me to take stress leave.

74        Also produced into evidence was a second email, which Mr. B sent to Ms. Dupont on February 6, 2013, at 8:16 a.m. He advised that he was sick and that he had to take the rest of the week off. The grievor submitted this email also alleged that she was a “tyrant”. The email stated as follows:

Anik,

Yesterday an incident occurred in which I was threatened. This and an escalating series of threats, intimidation, and workplace improprieties has rendered me unfit for work. I am genuinely afraid to return.

I am sick and must take the rest of the week off, although I have had medical counselling to take at least a month of stress leave and to leave the Directorate if possible. I do not want to be off work and I should not have to leave.

I am requesting immediate separation to a safe environment so that I can return soon. I am seeking protection from reprisal.

I would much appreciate knowing that an arrangement has been made for my safety, and a phone call by someone to this effect would be quite satisfactory.

75        The grievor stated that she was made aware of Ms. Dupont’s emails as Mr. Tremblay had sent PINs to both her and Ms. Dupont asking for a meeting. One was held in Mr. Tremblay’s office the morning of February 7, 2013, involving him, the grievor, and Ms. Dupont. The grievor’s notes of the meeting state as follows:

Feb 7/13

J-F

Anik

JF       - what am I supposed to do

-need an investigation of Br

Anik   -so, now its my fault?

JF       -no, but what else am I supposed to do

Anik got very upset – crying

Anik   -went thru [Mr. A’s] eratic behaviour during the summer

JF       “noise” at the DM level

[Sic throughout]

76        According to the grievor, Mr. Tremblay said that the DM wanted the matter dealt with. He looked directly at her and suggested that the problems in the branch were due to her. She said that in a raised voice, he ordered her to put her pen down, and as such, her notes were made after the meeting ended. The grievor said that it was clear to her that she was being blamed and that she would be punished for the “noise” making its way to the DM level. She said that Mr. Tremblay made it clear that there was fault and blame and that there would be punishment. She said that she and Ms. Dupont were told that they had to meet with someone from the Values and Ethics branch and although she said she did, it was not clear why she had to. She stated that Ms. Dupont was upset and crying because she thought that Mr. Tremblay was blaming her.

77        Ms. Dupont was asked about that meeting. In cross-examination it was put to her that Mr. Tremblay had been angry, to which she agreed, and that he had been angry about the emails, to which she also agreed. It was also put to her that he appeared to blame her, again to which she agreed. However, when she was asked in cross-examination if he had attributed blame to the grievor, Ms. Dupont could not recall. When she was then asked if she believed that he had blamed the grievor for the situation with Mr. B, Ms. Dupont answered in the negative, stating that Mr. Tremblay was unhappy because she felt that from his perspective, she and the grievor had not managed Mr. B properly. Ms. Dupont stated that she believed that Mr. Tremblay was upset because the situation was stressful for everyone.

78        Ms. Dupont was asked in cross-examination if she recalled Mr. Tremblay telling the grievor that she could not take notes during the meeting. Ms. Dupont stated she did not recall that happening.

79        Mr. Tremblay testified that he recalled the February 7, 2013, meeting. He recalled that from his perspective, he wanted to know what the management team would do. He stated that he did not know who Mr. B was, had no connection with him, and did not know what he did. As such, he stated he wanted to learn, from both the grievor and Ms. Dupont, what they knew about him and about the situation.

80        In cross-examination, Mr. Tremblay was asked where the meeting took place, to which he replied that he believed it would have been in his office. He was also asked how he would have given the grievor notice of it, to which he said he did not know. When it was put to him that it could have been by way of a PIN, he stated that that was possible.

81        When asked in cross-examination what the meeting was about, Mr. Tremblay stated that he had received the February 5, 2013, email and that he wanted the grievor to be aware of it. He also wanted to know what was going on. He stated that if an email like the one from February 5 were sent about him, he would certainly want to know about it, so he treated the grievor the way he would have wanted to have been treated.

82        When Mr. Tremblay was asked if he took notes of the meeting, he stated that he might have but that he tended not to; if he had taken notes, he no longer had them. He was asked a second time if he instructed the grievor not to take notes, and again he stated that he did not recall doing so. He was then asked if at any meeting he had instructed her not to take notes, to which he replied that he did not recall ever saying that in his career.

83        Mr. Tremblay recalled discussing harassment at the meeting and enquiring of the grievor as to whether she wanted to pursue a complaint. He recalled Ms. Dupont advising him that Mr. B was not an outstanding employee.

84        It was put to Mr. Tremblay in cross-examination that that he had been looking to assess blame. He replied that he had not been; nor had he been angry. He stated that he had not been happy to receive Mr. B’s February 5, 2013, email and that even though the grievor and Ms. Dupont had not been happy, the email had to be addressed. He recalled that Ms. Dupont had been quite upset at the meeting and that she had cried a lot.

85        In cross-examination, when Mr. Tremblay was asked if he believed that Ms. Dupont had been crying because he had assigned blame, he stated that he did not believe so because she had been upset about the situation.

86        In cross-examination, Mr. Tremblay was asked about noise at the DM level, to which he stated that he had been referring to anonymous emails to the DM. Two emails were produced for him, one dated November 21, 2012, and the other dated November 22, 2012. The sender’s name was redacted. However, both were sent to the DM, Mr. Wernick, and the DIAND’s ADM. The first email read as follows:

Subject: bureaucrats flying to meet with bureaucrats at a retirement party

Why is Specific Claims Branch sending out Kathy Green and 2 or 3 minions to Vancouver to attend a DRAP’ed employee’s retirement party? How does this make sense when we’re supposed to be cutting spending? What happened to “bureaucrats not flying to meet bureaucrats”? I can’t believe this is happening.

87        The second email forwarded the first one and added the following at the top: “so no response? maybe the citizen or the Golbe would be interested in atiping this [sic throughout]”. I was not advised who wrote them.

88        When Mr. Tremblay was asked about them, he stated that his understanding was that the grievor was to meet with staff and that someone had then made “noise” — the emails to the DM.

89        Mr. Tremblay emailed an invitation to a meeting dated February 6, 2013, to Kenza El Bied, Line Lamothe, and Ms. Shatford. On cross-examination, he was asked about it. He stated that he sent it to them (Ms. Lamothe and Ms. Shatford were in HR, and Ms. El Bied was his executive assistant) because he was looking for advice from HR. He was asked if he took steps between February 5 and 7, 2013, to remove Mr. B from the workplace, to which he stated that he recalled calling Mr. B and speaking to him and that Mr. B had told him that he was stressed or over-stressed and was not well. Mr. Tremblay recalled telling Mr. B to see a doctor. He stated that he would not have called him until after he had received the advice from HR.

90        In cross-examination, Mr. Tremblay was asked if the discussion with HR was about the grievor, to which he replied that it was not and that it was about Mr. B’s February 5, 2013, email.

91        A document entitled “K Green Options” and dated February 6, 2013, was put to Mr. Tremblay. It sets out a number of EX positions available for assignment and deployment. He stated that he did not request that that document be created; nor was he prepared to discuss it at the February 7, 2013, meeting with the grievor and Ms. Dupont. He stated that at that point, the federal government was engaged in the DRAP and so was well aware of these positions.

92        The grievor testified that Mr. B returned to work from sick leave but that he was assigned to another branch; she was never given notice of that or asked for her input. She stated that it was unusual and untenable and that it put her in a difficult position.

93        The grievor stated that on February 15, 2013, she had a further meeting with Mr. Tremblay but without Ms. Dupont. She said that again, he did not allow her to take notes, so she made notes afterward. She stated that he told her that she was responsible for all the problems throughout the SCB and not just in her directorate. She stated that he made accusations and that when she defended herself, he accused her of being defensive.

94        In her evidence, the grievor stated that Mr. Tremblay accused her of trying to blame HR. She stated that he reiterated that it was her fault and that because it was her responsibility and fault, she would be punished. She said that he told her, “I don’t want to punish you but I am going to.” She stated that he told her that her staff hated her and that when she asked to who had said that, he refused to identify anyone. She said that she made notes immediately after the meeting ended, which were entered into evidence.

95        Mr. Tremblay was asked in cross-examination about that meeting. He could not state that it took place on that date but did recall meeting with the grievor after the February 7 meeting and that Ms. Dupont was not present. He stated that the meeting would have been in his office and that he did not keep notes. Counsel for the grievor suggested to Mr. Tremblay that he started that meeting by telling the grievor that her staff hated her. He stated that his English might not be good but that he did not use those words. He stated that he remembered telling her that there were issues and that people were saying that her staff hated her. He also stated that he recalled her telling him about the “eat your liver” comment and that in his view, such a phrase is used only out of dislike.

96        Counsel for the grievor asked Mr. Tremblay if he had told the grievor she was at fault, to which he stated that he had not and that he had spoken about responsibility. He stated that she is a manager and so has to be responsible. As the ADM, he cannot simply send an employee back or just punish that employee. When counsel for the grievor asked Mr. Tremblay about the grievor’s response, he stated the following:

97        Counsel for the grievor asked Mr. Tremblay why he transferred Mr. B. He answered that he did it for safety reasons. When he was asked if there was a danger, he responded that Mr. B did not want to see the grievor and that she was upset. He determined that the best course of action was to transfer him. Mr. Tremblay stated that he discussed it with Ms. Dupont and that she was comfortable with that course of action.

98        Counsel for the grievor questioned Mr. Tremblay about the grievor not accepting responsibility, to which he replied that she looked at it as being “her fault”. He stated that she saw things in “black and white”. She saw blame being assigned. He stated that Ms. Dupont behaved the same way. He stated that he did not say, “You are the manager; it is your fault.” They did not understand what he was saying.

99        On February 27, 2013, Ms. Dupont, Mr. Tremblay, and the grievor met again (“the February 27 meeting”). The grievor stated that she made notes afterward, which were adduced in evidence. She testified that only Mr. Tremblay spoke. She stated that the dynamic had shifted. At the February 5 meeting, he had blamed both Ms. Dupont and her for the problems. However, at the February 27 meeting, Mr. Tremblay and Ms. Dupont clearly blamed her.

100        The grievor stated that Mr. Tremblay said that there was a pervasive negative impression about her and that she would be coached. She said that she agreed to it because she believed that her only other option was being unemployed. She stated that she asked Mr. Tremblay when they would deal with the reality since they were dealing with the perception. She said that she asked if she could file a grievance. She stated that Mr. Tremblay said she did not have any grounds for one. Her meeting notes are as follows:

  • [Mr. B] has been transferred to the Implementation Branch
  • Michael Nadon (who works in the Centre for Integrity, Values and Conflict Resolution) will contact [Mr. B]. [Mr. B] is under no obligation to speak to him.
  • Now, it is time to speak to you (Kathy).
  • There is a “perception” that you are tough on human resources”; that you “lack empathy”.
  • There is “lots of negative perception about your leadership and the way you manage.”
  • This shop (meaning my Directorate) was not producing when you (Kathy) arrived. You are a high performer. You produce quality work.
  • Because there has been no complaint, there will be no investigation. I (Jean- Francois) checked, “no one wants to make a formal complaint against you.”
  • I (Jean-Francois) do not want to punish you.
  • I (Jean-Francois) have seen this before. There is a special program, special coaching available. The coaching is confidential. I (Jean- Francois) will not receive any progress report. I (Jean Francois) cannot force you to take the coaching, but strongly recommend it.
  • “I prefer you taking the coaching than you leaving.”
  • Anik and I (Jean-Francois) have already met with the coach.

I asked when we would start dealing with the reality rather than the perception. Jean-Francois said “once we get the perception under control.”

I asked what would happen if I wanted to file a grievance. Jean-Francois responded that: I could if I wanted to, but “perceptions would be used against me”. He suggested I speak to Human Resources to see if they thought I had any sort of case.

My comments/thoughts:

  • The purpose of Michael Nadon speaking to [Mr. B] is not clear.
  • It is not clear who Jean-Francois checked with in respect to complaints against me, nor what the substance of the complaints might be. He may have meant [Mr. B].
  • It is not clear to me what Jean-Francois does not want to punish me for, especially since there has been no complaint, I took a non-producing unit and made it produce, and I am a “high performer” myself.
  • It seems perceptions are more important than the truth.
  • [Mr. B] and [Mr. A] get away without any consequence but Jean-Francois is doing me some kind of favour by not punishing me.
  • [Mr. B] and [Mr. A] get away without any consequence but I need coaching.
  • Although I am free to decline coaching, the alternative seems to be “leaving”. I am not sure what that means: is he threatening to terminate my employment?

[Emphasis in the original]

101        The grievor stated that Ms. Dupont and Mr. Tremblay gave her the coach’s name and that she had had no say in choosing the coach. She said that she understood that they had met with the coach before the February 27 meeting and that they would not tell her what they told the coach. The grievor testified that she then contacted the coach and began the coaching process.

102        The grievor stated that she stopped the coaching because it came to her attention that another employee (Ms. C) had stated that she had heard that the grievor was required to take the coaching. She stated that Ms. C and the coach were friends; as such, the grievor wanted the coach to clear this up with Ms. C. The grievor stated that two email chains that were introduced into evidence address this issue. She exchanged them with the coach. They consist of four emails dated April 12 to 15, 2013, and two from June 10, 2013. The last two state as follows:

[The coach to the grievor, sent at 3:41 p.m.:]

I hope this message finds you will [sic]. I’m back in the office and wanted to confirm with you whether or not you wanted to continue the coaching process at this time. Please let me know.

[The grievor to the coach, sent at 6:08 p.m.:]

I am well, thank you. I hope you had a wonderful trip.

While I remain keen to work with you, the underlying issues and concerns remain unresolved. Perhaps we should “touch base” in September.

103        Ms. Dupont was asked about the reference to coaching. She stated that she did not believe it was recommended as a punishment or discipline. She stated that a number of issues had arisen in the grievor’s organization and that Mr. Tremblay thought that coaching would help her. Ms. Dupont described the coaching as something outside day-to-day work. She stated that the coach was to be a tool or a sounding board, an outside party helping the grievor deal with issues. A coach is not there to report to management.

104        Ms. Dupont stated that she was aware that the grievor had started coaching but that she had discontinued it in April or May of 2013. When asked if she knew why, she stated that the grievor told her that the coach was a former colleague of one of her employees and that she did not feel comfortable. Ms. Dupont stated that she would have liked the grievor to have found another coach. Ms. Dupont did not try to find another coach as her impression was that the grievor did not value coaching as a tool.

105        Ms. Dupont was asked in cross-examination about the February 27 meeting. She was asked if she recalled Mr. Tremblay telling the grievor that she could not take notes, to which Ms. Dupont stated that she did not recall that. When she was asked if she took notes, she stated that she did not. Counsel for the grievor then asked Ms. Dupont if the “no note taking” was a habit of Mr. Tremblay, to which she replied that she did not know. She was asked if she recalled coaching for the grievor being discussed at the meeting, to which she stated that she did not. When she was asked what she did recall of the meeting, she stated that she recalled values and ethics being discussed but nothing else.

106        The employer’s counsel asked Mr. Tremblay about the coaching and whether he had meant to use it as a means of discipline or punishment. He replied that he had not. He stated that his intention had been to help the grievor. He said that he had read Mr. B’s email and that he had spoken to him on the telephone. He said that he felt that the grievor did not have the training to deal with someone like Mr. B and that he felt coaching would help her.

107        Mr. Tremblay stated that he has used coaching and that he has found it helpful, especially during stressful times.

108        The grievor’s counsel asked Mr. Tremblay about the February 27 meeting, at which he advised the grievor that Mr. B was being moved off her floor. He said that he proposed coaching for her as a means of support. He stated he was concerned about getting her through it all as a manager.

109        Mr. Tremblay was asked about the process involved in lining up the coach. He stated that he recalled speaking with HR about it, advising it that he had a director going through a very difficult time with an employee, and stating that he was concerned. He said he told HR that he did not know how to deal with it and that he was concerned about other employees and their perceptions. He stated that Ms. Dupont had told him that she had suggested to the grievor in the past to participate in coaching and that the grievor had declined. Mr. Tremblay stated that he suggested to the grievor that she meet with the coach before declining coaching.

110        The grievor’s counsel brought Mr. Tremblay to the grievor’s notes of the February 27 meeting. With respect to the fourth bullet point in the grievor’s notes, which refers to “… a ‘perception’ that you are tough on human resources; that you ‘lack empathy’”, Mr. Tremblay responded that he recalled saying that there was such a “perception” and saying that the grievor did not express empathy.

111        With respect to the fifth bullet point, which refers to “… ‘lots of negative perception about your leadership and the way you manage’”, Mr. Tremblay responded that he recalled saying that there was such a “perception” and that he was concerned.

112        With respect to the seventh bullet point, which refers to: “Because there has been no complaint, there will be no investigation”, Mr. Tremblay stated when there is no complaint, he is not sure if he can launch an investigation.

113        With respect to the ninth bullet point, which refers to the following:

I (Jean François) have seen this before. There is a special program, special coaching available. The coaching is confidential. I (Jean François) will not receive any progress report. I (Jean François) cannot force you to take the coaching, but strongly recommend it.

114        With respect to the 10th bullet point, which states, “I prefer you taking the coaching than you leaving”, Mr. Tremblay stated that he did not recall saying that in that manner. He said that he recalled telling the grievor that he did not want her to leave. He stated that he recalled in their discussions her saying, “So you want me to leave?” He stated that when she said that, he stated that he did not want her to leave.

115        Counsel for the grievor asked Mr. Tremblay whether Mr. A was a factor in suggesting coaching for the grievor. He replied that Mr. A was not. He stated that the impetus for the coaching related to Mr. B and the discussions he had had with the grievor and her reaction with respect to Mr. B. When it was suggested to Mr. Tremblay by counsel for the grievor that he thought that the grievor was being harassed, he stated that he was not reassured by the email. He stated that he was concerned by seeing such an email (referring to Mr. B’s February 5, 2013, email). Mr. Tremblay stated that that was why he moved Mr. B out. He further stated that perhaps he should have launched an investigation, but neither Ms. Dupont nor the grievor was on side with this as an option. When he was asked if he had disciplined Mr. B, he replied that he had not. When he was asked if he had considered disciplining him, he stated that he had spoken to HR but that Mr. B’s email was not a basis for discipline.

116        Counsel for the grievor asked Mr. Tremblay if he thought he made a mistake by removing Mr. B from the grievor’s supervision. Mr. Tremblay stated that he has asked himself that question but that in the end, he feels like it was the right thing to do. He did not trust Mr. B, and based on discussions he had with the grievor, their relationship was conflictual. When counsel for the grievor suggested that moving Mr. B gave him what he wanted, Mr. Tremblay disagreed, stating that he believed that Mr. B was out to get the grievor and that he never asked to move. He added that it was only a secondment and not a deployment.

3. Ms. C

117        Ms. C worked in the RPD and was under the grievor’s umbrella of responsibility between December 2009 and April 2010; again from November 15, 2010, until May 15, 2011; and finally from July 2012 to July 2013. In the summer and fall of 2013, Ms. C was on sick leave.

D. The harassment complaints

118        The Treasury Board of Canada Secretariat (TBS) implemented its “Policy on Harassment Prevention and Resolution” (“the harassment policy”), which took effect on October 1, 2012, and replaced an earlier similar policy dating to 2001. It defines “harassment” as follows:

… improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought to have reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction).

Harassment is normally a series of incidents but can be one severe incident which has a lasting impact on the individual.

119        The TBS implemented a “Directive on the Harassment Complaint Process” (“the harassment complaint process directive”), which became effective on October 1, 2012. Its article 6 sets out certain steps to follow when dealing with harassment complaints and specifies that designated officials are responsible for ensuring that the harassment complaint process is carried out promptly while respecting the principles of procedural fairness to the complainant, the respondents, and all other involved parties. It sets out the following five steps:

  1. Acknowledging receipt of the complaint.
  2. Reviewing the complaint to determine whether the allegation or allegations it contains meet the definition of harassment as described in the harassment complaint process directive. The respondent is notified of the complaint whether or not it is admissible.
  3. Exploring options for resolving the complaint while ensuring that consideration is given to informal resolution processes. Should there be an investigation, the person conducting the investigation must be appropriately qualified and must apply the principles of procedural fairness.
  4. Rendering a decision and notifying the parties involved in writing as to whether or not the allegations were founded.
  5. Restoring the well-being of the workplace.

120        Clause 6.1.2 states that steps 1 through 4 of the process should be completed in a timely manner, normally within 12 months.

121        Neither the harassment policy nor the harassment complaint process directive sets out the specific designated officials within departments to oversee and apply them.

122        On March 28, 2013, the grievor, through legal counsel, filed a formal harassment complaint with André Picard, the national co-ordinator of allegations and complaints at the DIAND’s Centre for Integrity, Values and Ethics. On April 5, 2013, the grievor responded via email to a request from him about the specifics of her complaint, stating as follows:

  1. I am the victim of harassment as a result of Mr. B’s threatening, inappropriate and insubordinate behaviour towards me.
  2. I am the victim of harassment as a result of management’s, including Labour Relation’s, complicit acceptance and support of employees’ unfair and unfounded complaints / allegations and harassing behaviour towards me. Members of management and Labour Relations include, but may not be limited to, Jean-Francois Tremblay, Anik Dupont and Allison Shatford.

123        On April 19, 2013, the grievor, again through legal counsel, forwarded to the DM a copy of the March 28, 2013, letter, together with the April 4 and 5, 2013, email exchange with Mr. Picard.

124        Mr. Tremblay was asked when he became aware of the grievor’s harassment complaint. He answered that it was April or May of 2013 and that he thought it was at the end of April.

125        On May 24, 2013, Susan MacGowan, the DIAND’s official designated under the harassment policy and the harassment complaint process directive, sent a letter to the grievor, acknowledging the receipt of her harassment complaint. The grievor testified that she did not know why she received that letter. It states in part as follows:

This letter is to acknowledge receipt of your harassment complaints, filed March 28, 2013, against four employees of Aboriginal Affairs and Northern Development Canada.

As the designated official, I have reviewed the details of the four complaints. Based on the Treasury Board’s Policy on Harassment Prevention and Resolution, I have made decisions on how to proceed with each.

The department has determined that the incidents described in your complaint against Mr. B warrants [sic] additional consideration as per the definition of harassment found in the policy.

The preference for resolution of a complaint, as outlined in the policy, is through informal conflict resolution. Informal conflict resolution is a voluntary process that engages both parties of a complaint in open dialogue for the purpose of resolving the issues which has [sic] been raised. These processes are facilitated by an impartial third party whose role is to assist the parties to reach a mutually agreed upon resolution. I encourage you to seriously consider this option in the complaint against Mr. B.

The complaints against Ms. Anik Dupont and Mr. Jean-Francois Tremblay will be reviewed further internally before it is decided whether they meet the threshold for harassment outlined in the Treasury Board policy.

In regards to the complaint against Ms. Allison Shatford, it has been determined that it does not meet the threshold of harassment intended by the policy. Therefore, there will be no further investigation of that complaint.

126        Also on May 24, 2013, Ms. McGowan wrote to both Ms. Dupont and Mr. Tremblay, advising them that the grievor had filed a formal harassment complaint naming them as respondents. Each letter has a handwritten note on it, as follows:

127        By May 24, 2013, Mr. Tremblay was no longer an ADM at the DIAND. He had moved on and had become the deputy secretary to the cabinet, operations, at the Privy Council Office.

128        When she was questioned about the grievor’s harassment complaint, Ms. Dupont stated that she became aware of it in either May or June of 2013. When she was shown Ms. McGowan’s letter, she advised that through it, she first became aware of the grievor’s harassment complaint.

129        On June 13, 2013, the grievor’s legal counsel wrote to the DIAND’s legal counsel about the complaint. The grievor testified that she instructed her counsel to write it to enquire about the status of her complaint because she felt that she was being treated differently. Whenever someone had complained about her, she had not been permitted to respond, and management had dealt with the matter immediately; yet, her concerns were being completely ignored.

130        On June 14, 2013, Ms. Dupont wrote to Mr. Picard, responding to the grievor’s allegations against her.

131        In an undated letter, date stamped as received on June 25, 2013, Mr. Tremblay wrote to Ms. McGowan, responding to the grievor’s allegations against him.

132        The grievor testified that as of the date of the hearing, the harassment complaint against Mr. B was still outstanding.

133        On July 8, 2013, Mr. B filed a harassment complaint against the grievor. She testified that it was investigated, a report was issued, and the process completed. It was found that she had not harassed him.

134        On July 19, 2013, Ms. C filed a harassment complaint against the grievor.

135        On August 28, 2013, the grievor, Ms. Dupont, and Mr. Tremblay were advised by three separate letters addressed to them individually that the grievor’s harassment complaint against Ms. Dupont and Mr. Tremblay did not meet the definition of “harassment” found in the TBS’s harassment policy, and as such, no further investigation into the complaint would be carried out.

E. The grievor’s 2012-2013 performance appraisal

136        The grievor testified that on July 15, 2013, she met with Ms. Dupont to discuss work-related matters, including the grievor’s management contract and objectives for fiscal year 2013-2014. Entered into evidence was a copy of the grievor’s 2012-2013 performance agreement as rated and notes she made at the meeting. Her performance was rated as Succeeded “-” The notes relevant to the issues in this hearing were as follows:

12-13

-difficult yr [sic]

-succeeded – in all 3 categories

-coaching

-issues during the year

-started, then stopped

-a difficult message

-outstanding work

-you take on too much work

** delegating work

** reorg

-you have staff- stuff backs up

-don’t want to reach into your off [sic] & fix it

137        The grievor stated that in the past she and Ms. Dupont would do the following:

138        The grievor testified that that did not happen for fiscal year 2012-2013. It was already done when they met, and no comments were inserted. She stated that this had never happened to her in the past as comments had always been made.

139        The grievor stated that she refused to sign her 2012-2013 performance agreement since being rated Succeeded “-” was like being struck. While that rating is considered successful, receiving one is like barely passing an exam with a mark of 50 percent for a career overachiever like her. Due to that rating, she received performance pay in the amount of $5166, which she stated was less than she was accustomed to. In addition, she stated that she did not receive that amount until June 2014 and that she had to file a grievance to get it, which was different from past years, in which her performance pay had always been paid sometime in August or September of the same year.

140        On August 2, 2013, the grievor filed a grievance against that appraisal.

141        Entered into evidence was a memo from the DM dated March 11, 2013, and entitled, “Performance Management Program (PMP) for executives and certain senior excluded or unrepresented managers and specialists – 2012-2013”. The document advised that the ERC meeting to assess all executives’ performances would be held in May 2013. It identified the ERC members as including the DM, the associate DM, Sr. ADMs, ADMs, and the chief financial officer. The memo stated that regional DGs would be invited to attend the ERC meeting in the afternoon of May 2, 2013, and that certain other DGs would be invited to provide their briefings in the afternoon of May 3, 2013. The memo provided that all “Summary of Evaluation and Planning” forms for each executive eligible for performance pay would be provided by Executive Services within a few days and would have to be returned no later than April 10, 2013.

142        Mr. Tremblay stated that he had to meet that April 10, 2013, deadline for providing his draft performance proposals (Summary of Evaluation and Planning forms) for his EXs. He stated that he met it.

143        Ms. Dupont testified that before the 2012-2013 performance assessment, the grievor had had issues with leadership, specifically with working with other people and managing people. She stated that the grievor was required to secure the cooperation of people both inside and outside the SCB. She stated that it was discussed with the grievor.

144        Ms. Dupont stated that she did not participate in the grievor’s 2008-2009 performance assessment. However, she did with respect to the one for 2009-2010. On the “Learning and Development” page of the 2009-2010 assessment, a reference appears to “Coaching” for both the current and upcoming fiscal years. Ms. Dupont was questioned about this and stated that because the grievor had had challenges with respect to managing people, she suggested coaching to her, as it might have helped her communication skills when she tried to get her ideas across to others. Ms. Dupont described the coaching process as a sounding board outside the work environment that would enhance the grievor’s skills in that area.

145        With respect to the grievor’s performance assessment for 2012-2013, Ms. Dupont stated that she prepared a preliminary assessment, as did all the DGs for their EX direct reports. She stated that at the DG-ADM meeting, each DG presents his or her proposed ratings, and the others carry out a challenge function.

146        Ms. Dupont stated that her proposed rating for the grievor was Succeeded for both Corporate and Individual Commitment and Succeeded “-” for Leadership Competencies. She determined that those ratings were appropriate because in her view, the grievor had met her objectives and key commitments with respect to Corporate Commitment and Individual Commitment; however, there was room for improvement with respect to her leadership skills, which needed to be brought up to par.

147        Ms. Dupont stated that when she carried out her portion of the grievor’s performance assessment, she was not aware of the grievor’s harassment complaint against her.

148        Ms. Dupont stated that at the meeting involving the DGs and the ADM, she and Mr. Tremblay disagreed on the grievor’s assessment. She stated that his view was that leadership skills transfer over all competencies.

149        Ms. Dupont stated that after that, she had no further input into the grievor’s assessment.

150        Mr. Tremblay stated that the grievor was singled out as a high performer in getting things done but that her leadership competencies were a concern. He stated that he had heard concerns from colleagues that collaborating with her was a problem and that she had difficulties reaching compromises, specifically with the litigation branch of the Department of Justice. He stated that when he spoke to the grievor in meetings, he thought that her view was based on winning and losing in conflicts. He stated that he once asked her if she thought the DGs work with him only because he can punish them. He stated that she agreed.

151        Mr. Tremblay stated that the grievor seemed autocratic in her management style, that she had no doubt that she was always right, that everything was black and white, and that she had no introspection skills. When she spoke of different situations, she could not challenge her actions but would quickly question others’ actions. He stated that when he told her that she was a manager, she would respond by identifying problems and issues as “her fault”. Mr. Tremblay said that being a manager is like being a teacher in a classroom. He said that perhaps Mr. B was not so much a troublemaker as a troubled individual; hence, he could not simply be punished.

152        With respect to empathy, Mr. Tremblay tried to explain to the grievor that Mr. B perhaps had some problems. She responded, “That isn’t my business.” Mr. Tremblay stated that empathy is required from a leadership perspective because employees come with baggage, and managers must be able to manage them.

153        The Summary of Evaluation and Planning form that Mr. Tremblay completed for the grievor proposed ratings of Achieved for Corporate Commitment, Succeeded “-” for Individual Commitment, and Did Not Meet for “Key Leadership Competencies”. The overall rating was a Succeeded “-”. He stated that such forms set out what has been decided at meetings with his DGs. He would have put those results forward for the grievor at the ERC.

154        Entered into evidence was a copy of the agenda for the 2012-2013 PMP ERC discussions, which took place on Monday, May 13, 2013. Mr. Tremblay’s reports were scheduled to be dealt with between 9:00 a.m. and 11:00 a.m. He stated that that time slot was his because he had already left the DIAND; it was to accommodate to him.

155         Mr. Tremblay stated that the grievor’s performance was presented to the ERC. He stated that most managers do not know the people in their chains of command. However, another ADM at the meeting confirmed the concerns that Mr. Tremblay had identified. This ADM identified work that the grievor had completed for her and stated that it was of good quality but identified concerns about the grievor’s relationship with her staff.

156        Entered into evidence were parts of copies of the Summary of Evaluation and Planning forms for all the EXs; the only one identified was the one for the grievor. Her final evaluation was changed a little from the preliminary Summary of Evaluation and Planning form. She received a rating of Partially Achieved for Corporate Commitment, Succeeded “-” for Individual Commitment, and Succeeded “-” for Key Leadership Competencies. The overall rating remained Succeeded “-”.

157        With respect to the rating of Partially Achieved for Corporate Commitment, Mr. Tremblay stated that this was largely due to the DRAP initiative. He stated that to fully achieve in this category, a high degree of involvement in the DRAP was necessary. To receive a rating of Achieved, an EX would have had to collaborate strongly, while the Partially Achieved rating was given if the job was done with no extra effort.

158        With respect to the rating of Succeeded “-” for Individual Commitment, Mr. Tremblay stated that the grievor was smart, knowledgeable, and fast but that she had difficulty bringing added value with others. It was largely related to working with others and failing to integrate their views. At the SCB, the grievor’s role was to work with Legal Services and to work with the Department of Justice, which expressed frustration with working with her; she was rigid in her relationships.

159        With respect to the rating of Succeeded “-” for Leadership Competencies, Mr. Tremblay stated that he changed the rating from Did Not Meet after a comparison was done with others under his leadership umbrella. He stated that the discussion at the ERC was to raise that lower rating to Succeeded “-” as it still would have sent a strong signal to the grievor and would have been more appropriate. He said he agreed with this reasoning despite it differing from the discussion at the DG-ADM meeting.

160        Mr. Tremblay stated that once finalized by the DM, the ratings are communicated to the DGs. He stated he would have had the discussion with his DGs although he was no longer at the DIAND.

161        He was asked if the grievor’s harassment complaint had any bearing upon the performance assessment. He stated that it had not. He stated that the harassment complaint was not discussed at either the DG-ADM or the ERC meeting.

162        Ms. Dupont testified that after the grievor’s performance rating was established after the ERC meeting in May, she delivered it to the grievor in a meeting with her on July 15, 2013. When the grievor’s counsel asked Ms. Dupont about the discussion that took place, she was specifically asked if she imposed coaching upon the grievor, to which she replied in the negative. Ms. Dupont was brought to the first-level grievance reply, dated October 2, 2013, to where it states: “The reasons why coaching was imposed were explained to you by Mr. Tremblay and myself,” and was asked again if coaching was imposed, to which she stated it was. However, she stated that it was justified because the grievor was experiencing challenges in the organization. Ms. Dupont stated that she did not feel that she was able to help the grievor in this area and that a different tool was needed.

F. The grievor’s sick leave from July to October 2013, her work refusal, and her assignment

163        On July 22, 2013, after receiving her 2012-2013 performance agreement rating, the grievor went on sick leave and remained on it until September 16, 2013.

164        Entered into evidence was a note from the grievor’s family physician, dated Wednesday, August 21, 2013, which states as follows:

To Whom it May Concern:

This patient was totally disabled on Monday, August 26, 2013 and I estimate through to Sunday September 22, 2013.

Additional Notes:

Katherine must be off work for medical reasons.

165        Entered into evidence was a note from the grievor’s family physician, dated Wednesday, September 11, 2013, which states as follows:

To Whom it May Concern:

This patient was seen on Wednesday, September 11, 2013.

Return to regular work on Monday September 16, 2013.

Additional Notes:

Katherine Green is able to return from medical leave on Monday September 16th.

166        The grievor testified that upon her return to work on Monday, September 16, 2013, she became aware of the complaint Mr. B had filed against her, which stated that a lot of people wanted to kill her and eat her liver. The complaint was accepted by the DIAND, yet she was not provided with information about the threat against her life, and no action was taken about the death threat. She feared for her safety and refused to go to work.

167        In cross-examination, when she was asked when she received Mr. B’s complaint, she first stated that she did not know. However, she later stated that she received it in August 2013 while away from the office on sick leave. Later in her cross-examination, she volunteered that she received it in August 2013. The covering letter accompanying the delivery of Mr. B’s complaint to the grievor was not produced in evidence.

168        The grievor testified in her evidence-in-chief that after she returned to work on September 16, 2013, she told Ms. Dupont that she was sick.

169        Entered into evidence were emails the grievor sent to Ms. Dupont dated Thursday, September 26, 2013, and Friday, September 27, 2013. The Thursday email said: “Hi Anik I am not feeling well. I will not be in to work today. Thanks Kathy”. The Friday email said: “Hi Anik I am still not feeling well and will not be in to work today. Thanks Kathy”.

170        On Monday, September 30, 2013, the grievor and Ms. Dupont exchanged the following emails:

[From the grievor to Ms. Dupont, sent at 8:16 a.m.:]

Hi Anik:

I am still not able to return to work.

[From Ms. Dupont to the grievor, sent at 9:00 a.m.:]

Thank you and I hope you feel better.

[From the grievor to Ms. Dupont, sent at 3:19 p.m.:]

Hi Anik

I will be unable to return to work for the rest of this week.

171        Ms. Dupont stated that she did not ask the grievor for medical certificates with respect to those absences.

172        I was not provided with evidence that the grievor saw her family doctor after September 16, 2013.

173        On October 4, 2013, the grievor wrote to Mr. Wernick, stating in part as follows:

I recently reviewed [Mr. B]’s complaint. I was horrified to discover that [Mr. B] has alleged that threats against my life have been made by “lots of people”, and even more troubling is that after the Department became aware of these threats to my life, took [sic] no steps to investigate, advise me of these threats or provide me with a safe work environment.

I am extremely upset that the complaint by [Mr. B] was made on July 8, 2013 and I was not even provided a copy of it until August 28, 2013, which is hardly a prompt response as required by the Policy. I recently returned to work from sick leave and was not given any information about these threats to my life. Since reading [Mr. B]’s allegations, I have been very distraught and am afraid to return to work.

More specifically, at page 17, of his complaint (attached) you can see that [Mr.B] alleges that during a meeting on or about November 22, 2012, he told me that:

- “You have managed to make enemies.”

- “There are lots of people who would like to kill you and eat your liver.”

I wish to point out that during the meeting in November I do recall [Mr. B] telling me that I have “serious enemies” who wanted to “eat my liver” (which I reported), but I do not specifically recall [Mr. B]’s comments concerning “lots of people” wanting to kill me and I only learned this fact, to my horror, upon reading the harassment complaint submitted by [Mr. B].

I consider Mr. [B]’s comments to be a threat against me (or he has knowledge of a specific threat against me) and have been advised that I should report this matter to the police for further investigation. If Mr. [B] is telling the truth, then my life is potentially at risk and this threat should have been dealt with more seriously by the Department after it receive the complaint on July 8, 2013. If he is not telling the truth, these allegations should result in Mr. [B]’s removal from the workplace.

 I cannot reconcile how Mr.[B]’s allegations and threats have been tolerated, accepted and, apparently, condoned by the Department. His actions are directly opposed to these values and principles of human dignity.

Under the Violence Prevention Work Place regulations made pursuant to the Canada Labour Code, “Work place violence” is defined as “any action, conduct, threat, or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.” Surely, Mr. [B]’s allegation that lots of people would like to kill me and/or eat my liver, combined with his reference to his military background, meets this definition, and ought to have triggered a more serious response from the Department. I consider the Department’s response, or lack thereof, to be a violation of both the Harassment Policy and the Canada Labour Code. As you must understand, it is extremely distressful to believe that Mr. [B], or someone he knows, has threatened my life. This has greatly upset me and my family who are now also equally concerned for my safety and well-being.

I have the legal right under the Canada Labour Code to refuse unsafe work if I believe that there is danger to my life. I hereby exercise that right and cannot return to work until this matter is properly investigated and reasonable measures are implemented to ensure my safety. [Mr. B] works inthe same building as me, and without further information about the alleged “people” who want to “kill” me and/or “eat my liver”, I cannot reasonably be expected to return to the workplace.

September 23, 2013: I reviewed the complaint by [Mr. B], and was horrified to see that [Mr. B] had alleged that “there are lots of people who would like to kill you and eat your liver”. I immediately advised Ms. Dupont that I was unable to return to work, which I consider to be unsafe.

[Emphasis in the original]

174        The salient portions of Mr. B’s complaint that are the subject of the grievor’s October 4, 2013, letter to Mr. Wernick are found on page 17 of the complaint and are as follows:

At this point I found the courage to tell her:

  • You have managed to make many enemies
  • There are lots of people who would like to kill you and eat your liver. They have diverse reasons, most of which I do not understand, and mostly I do not care to understand.
  • However I am not one of your enemies because you have not beasted [sic] upon me. You and I are still square. I am not one of your enemies Kathy.

175        When cross examined about her work refusal, counsel for the employer suggested to the grievor that her concern was that Mr. B was going to harm her; to which she replied that she had reported to her manager, security and labour relations that he (Mr. B) was intimidating her. Counsel for the employer suggested that the grievor’s concerns were solely about Mr. B; that she was afraid that Mr. B would harm her; to which the grievor replied in the affirmative and that she was afraid of him; that he tells people he was an army officer and liked to pick up body parts.  Later counsel for the employer suggested to the grievor that her work refusal is solely based on Mr. B’s comment in the harassment complaint to which the grievor stated that the employer was not taking his behaviour seriously.  When counsel for the employer suggested that Mr. B was not making threats against the grievor she stated that Mr. B was tracking her.

176        When asked when she learned of the grievor’s health and safety complaint (the October 4, 2013, letter to the DM), Ms. Dupont stated that on September 30, 2013, she contacted HR because she wanted to learn what to do about the absences and that about a week after that, she learned that the grievor had written to the DM.

177        Ms. Wilson, who had by then replaced Mr. Tremblay as the ADM responsible for the SCB, stated that she was provided with a copy of the grievor’s October 4, 2013, letter, and that upon seeing it, she met with the DG of HR and Jean François Legault (the departmental security officer) as she was concerned about its contents. She stated that she asked for an investigation.

178        On October 15, 2013, Ms. Dupont emailed the grievor, informing her that in her absence, another employee would act in her position. The email stated as follows: “This is to inform you that I have asked Alan Braidek to be acting Director of Research and Policy while you are away. Anik.

179        Ms. Wilson was brought to that email in cross-examination and was asked if she authorized the acting appointment. She confirmed that she did. She also confirmed that she had the power to end Mr. Braidek’s acting appointment and to return the grievor to her substantive position.

180        Also put to Ms. Wilson was a document entitled, “Justification of a Non-Advertised Process” for the grievor’s substantive position. The document is not dated; however, the DM signed it on March 19, 2014, and so did Mr. Michel Viau of Executive Services, on March 10, 2014. It identified Mr. Braidek as the proposed candidate and noted that the appointment had a start date of October 15, 2013. The extension of the set out was for February 14, 2014, until March 20, 2014. On the first page of the document is a box that in bold print asks, “By consulting the annex, please explain how this appointment meets this value.” The box is filled in with the following :

In early October 2013, the DG, Specific Claims informed the employees of her Branch at an all-staff operational meeting that an acting assignment opportunity for four(4) months less a day was available to fill the vacant Director, Research Policy position. Only one employee expressed an interest in this opportunity and was therefore chosen for the acting assignment from October 15, 2013 to February 14, 2014. Considering that the incumbent of the position is expected to return to her substantive position on March 20, 2014, there is a need to continue the acting from February 14, 2014 to March 20, 2014. Consequently, Management has opted to continue the acting assignment which resulted in a non-advertised acting appointment (acting period now over four (4) months). This non-advertised acting appointment will ensure continuity of the functions and bring stability to the Branch.

The decision to use a non-advertised process is made objectively and is free from political influence or personal favouritism and the appointment is based on merit.

181        Ms. Wilson was asked in cross-examination if it was her understanding that the grievor could return to work in her position. Ms. Wilson answered in the affirmative. She also confirmed that at some point, she decided to assign the grievor to the RIA.

182        When it was put to Ms. Wilson that she had imposed French language training on the grievor, she responded that she had offered it. She stated that the grievor could have refused, which Ms. Wilson understood that the grievor had done. Ms. Wilson learned that from someone in HR.

183        On October 21, 2013, the DM wrote back to the grievor, stating in part as follows:

Recognizing that the information brought forward by [Mr. B] may be inappropriate and upsetting, based on the findings and the information conveyed to date, there is no indication that any threats have been made toward you. Having said that, please be aware that all parties involved have been pulled together in order to bring prompt resolution to this issue.

Although there is no evidence that your safety is in danger, I would like to inform you that your management team is exploring options that would allow you to work outside of your current work location for the time being and until further notice. In return, I trust that you will contact your Manager, Anik Dupont, in order to report to work immediately and discuss the different options.

Should you wish to discuss personal precautions that can be taken prior to your return to work, Mr. Jean François Legault, Director, Security and Occupational Health and Safety is available to speak with you.

184        That letter, while addressed to the grievor, did not identify how it was sent to her. However, it appears that a copy of it was emailed and faxed to her legal counsel, and a copy was directed to Ms. Wilson, who by then was the ADM responsible for Treaties and Aboriginal Government. The letter does not indicate that a copy was sent to Ms. Dupont.

185        Ms. Wilson confirmed that she also saw that letter. When she was asked about her role in it, she could not recall if she had any input. She did confirm that Mr. Legault’s safety investigation did not yield any safety concerns from his perspective.

186        The grievor stated that she was confused because she only received a communication from Ms. Dupont that someone would be replacing her and that she expected to receive an email from Ms. Dupont about safety. She stated that she could not understand why she received an email about being replaced when she wanted to be back at work.

187        On October 23, 2013, at 10:08 a.m., the grievor emailed Ms. Dupont, stating in part as follows:

Russell MacCrimmon, my legal counsel, has provided me a copy of a letter dated October 21, 2013 signed by Michael Wernick concerning my request of October 4, 2013 to be provided a safe work environment. I understand that the original of the letter, which is addressed to me, was to have been sent to me by courier. I have not, however, received it.

I believe that it is important to note that I have at no time not been available for work. Indeed, I have repeatedly expressed my desire to return to a safe working environment as quickly as possible. I have declined, as is my legal right, to attend an unsafe work environment.

188        The grievor stated that when she did not receive a reply from Ms. Dupont, she emailed her again, at 3:51 p.m., forwarding her earlier email and adding the following:

… I again confirm that I am now and always have been available for work. I continue to await your advice on what arrangements have been made for a safe work environment, including where I am expected to report for work.

189        The grievor testified that she did not receive a reply to that email.

190        On October 4, 2013, the grievor received a reply to her grievance with respect to her 2013-2014 performance agreement rating. As part of the grievance process, comments were added to the 2012-2013 performance agreement appraisal (“the amended 2012-2013 performance agreement appraisal”), and some ratings were changed. However, the overall rating of Succeeded “-” remained.

191        The grievor stated that in the amended 2012-2013 performance agreement appraisal, on page 6, under the section entitled, “Engagement-People, Organizations, Partners”, the following comment was added:

Mrs. Green needs to improve the manner in which she seeks collaboration from both her staff and her colleagues. Mrs. Green needs to enhance her communication and negotiation skills to assist her in garnering concensus [sic] and influencing decisions which respect everyone’s interest.

192        The grievor stated that Ms. Dupont never explained the comment.

193        The grievor said that after the DRAP was announced, Ms. Dupont asked her how she would meet this challenge and that what was set out in her objectives was the only thing she could think of and as such it was written in as what she could do; She stated that Ms. Dupont never told her what she did not do. She considered it punishment in the form of a Succeeded “-” rating because allegations were made against her, yet nothing was found.

194        The grievor stated that on page 8 of the amended 2012-2013 performance agreement appraisal, under the section entitled, “Comments from the Manager”, it noted as follows: “In summary, your overall rating for individual commitments is Succeeded minus. This rating is based on results achieved (the What) as well as how they were achieved (the How).”

195        According to the grievor, Ms. Dupont never explained this comment.

196        The grievor added that she continued to disagree with the Succeeded “-” rating. There was nothing in her 2012-2013 performance agreement that she did not succeed at or that she missed. She further stated that nothing in it sets out what she accomplished. It takes into account only that three people had difficulties with her. It disregards that 24 others were performing well.

197        The grievor testified that on October 28, 2013, together with her legal counsel, she met with ADM Wilson for the second-level grievance hearing with respect to her performance rating (“the October 28 meeting”). Mr. Viau was also there. Once it ended, the grievor’s return to work was discussed. Entered into evidence were copies of her meeting notes.

198        The grievor stated that in the course of discussing her return to work, she asked if she was being relieved of her position. Ms. Wilson said that she was not. The grievor testified that assignments were an option, and the notes indicate a reference to going on French language training.

199        Ms. Wilson was asked about the French language training option and stated that she proposed it at the meeting. She brought it up because it was important that the grievor have such training, since second language skills were a requirement for all EXs, and because it would have allowed her time away from the office and would have given the SCB some breathing room.

200        The grievor’s notes from the meeting about her return-to-work options are as follows:

Gina – No answer needed today re: safety issue

- trying to look at return to work options

- French:  Emily

- don’t know how long the investigation will take

          McC- investigation was completed

          Gina - Re safety threat

- 2 parts to safety

- we say no threat, but Kathy needs to be safe

- other options than French

- will clarify in short order

          Viau – not finalized

          Kathy – relieved of my position?

          Gina – no

- let situation difused

- an assignment/ an option

          McC – alternatives to her staying in her position?

          Viau – we will discuss in more detail

          Gina – 30 days written response to grievance from Wilson.

- sit down and talk about issues

- I’ve instructed Anik to come up w different options

          McC – what if we can’t come to resol’n

          Gina – mtg this week – depending on people’s schedule

- don’t speculate

[Sic throughout]

201        A follow-up meeting with respect to the grievor’s return to work was scheduled for and did occur on November 1, 2013 (“the November 1 meeting”). An email dated October 30, 2013, was sent to the grievor’s legal counsel setting out, among other things, the following:

With regards to Ms. Green’s return to work, the following actions are being proposed and will be discussed on Friday as well:

a) Ms. Green will be rescheduled for second language evaluation (testing) with three (3) different schools early next week, in order to determine the number of hours of training required to obtain the level C in Oral.

b) An assignment for Ms. Green has been approved with the Resolution and Individual Affairs (RIA). The details of the assignment will be confirmed between the Assistant Deputy Minister (ADM), Mr. Andrew Saranchuck and Ms. Green. Ms. Green will also report directly to the ADM and it is also to be noted that Ms. Green’s work office will be located at 90 Sparks for the duration of the assignment. Mr. Saranchuk is looking forward to this assignment as Ms. Green’s experience and expertise will be greatly benefit [sic] to the advancement of priority files within the sector.

202        At the November 1 meeting, in addition to the grievor and her legal counsel, also attending were Ms. Dupont, Mr. Viau, Mr. Legault, and Stephen Harapiak (DIAND legal counsel). Entered into evidence were the grievor’s notes of the meeting. According to those notes and her testimony, a number of issues were discussed, including the following:

203        The grievor’s notes of the November 1 meeting indicate that she took the position that the assignment was disciplinary.

204        The grievor’s notes of the November 1 meeting reveal that Mr. Legault conducted a fact-finding investigation into Mr. B’s statements and that he found no credible threat to the grievor’s safety. Her notes state that Mr. Legault conveyed the following information at the November 1 meeting:

205        The grievor’s notes of the November 1 meeting also disclose that both the language training and the RIA assignment were discussed. Her notes reflect this part of the discussion as follows:

Anik   - language requirements C, expired

- done reading & writing on own time

- oral has to be done; its a condition of employment

- option 1:

- full-time language training

- easier for employee

McC – after language training back to her position^

Anik – no.go to RIA

McC – no dispute; will do evaluation Mon.

- What if she says on own or part time

Anik – start on ass

Anik – assignment is mandatory

- until dust settles/ other investigations ongoing

- real need

- RIA has asked for EX

- priority need

- report to ADM

- w qualifications of Ms. Green

Har – temp assignment

Anik – no details

- 6 m

- DM & ADM Saranchuk are discussing

Mac – if not an option therefore no need for detail

- Why will she not be allowed to return^

Har – not linked to security but to har

- This is a right of employer

Mac - but [Mr. B] isn’t there anymore

Anik – but may involve others

[Sic throughout]

206        The grievor testified that on November 6, 2013, she emailed Ms. Dupont a letter stating the following:

I have now had an opportunity to consider the information provided by Jean-Francois Legault, director, Security and Occupational Health and Safety, on Friday , November 1, 2013, in respect to my concerns for my safety at the work place. I am satisfied that Mr. Legault’s “fact finding” exercise revealed that [Mr. B]’s actions were inappropriate, upsetting and troubling. I am satisfied with the measures that have been taken to ensure my safety: [Mr. B]’s access to my work place (the 16th floor of 10 Wellington Street) is restricted; his access to branch staff is restricted, and all Branch staff have been informed of these restrictions. I remain ready, willing and desirous of returning to my position immediately.

207        While a signed copy of that letter was included in the documents entered as evidence, the email it was attached to was not.

208        On November 6, 2013, the grievor received an email from Emilie Baubriau at Executive Services that gave her three choices with respect to language training and that asked her to choose one as Ms. Dupont had already approved all three. On November 7, 2013, the grievor replied with her choice. On November 8, 2013, Ms. Baubriau replied, advising that the tentative start and end dates for her training were November 18, 2013, and January 31, 2014. In addition, Ms. Baubriau asked the grievor to complete and return certain forms, which the grievor did on Tuesday, November 12, 2013.

209        The grievor stated that she did not receive a response from Ms. Dupont to her November 6, 2013, letter. So she instructed her legal counsel, who wrote to Ms. Dupont on November 7, 2013, and stated in part as follows:

Ms. Green is satisfied with the measures that have been taken to ensure her safety and is ready, willing and desirous of returning to her position immediately.

Further, I would like to confirm our understanding of the back-to-work “options” that were directed to Ms. Green on November 1, 2013. Before the end of the day tomorrow, please confirm, in writing:

  • that Ms. Green is not permitted to return to her position as Director, Research and Policy and if so, the specific reasons and legal basis for the decision to remove Ms. Green from her position;
  • Ms. Green is required to undertake full-time French language training; and
  • the details of Ms. Green’s assignment to the Resolution and Individual Affairs Sector, which was characterized as “mandatory”, including duration, duties, salary, reporting arrangement(s), and performance evaluation framework.

With respect to the reasons for the decision to remove Ms. Green from her position, we note that [Mr. B] was removed from the Research and Policy Directorate in February 2013; [Ms. C] is absent from work on long-term sick leave; the complaint of [Mr. B] was rejected; and complaints against Mr. Tremblay, Ms. Dupont and Ms. Shatford were arbitrarily rejected.

Ms. Green attended the French Language assessments as scheduled and will attend French language training. It is notable that Ms. Green has never been compelled to attend full time language training before. To the contrary, she has completed her language requirements on her own time and previously undertook training on a part-time basis to confirm oral communication competency.

Having said this, she will attend the training on a without prejudice basis to our position that the imposition of the language training on a full time basis and the imposition of any assignment thereafter is a disguised disciplinary action arising from her harassment complaint, grievance and safety complaint.

[Emphasis in the original]

210        On November 12, 2013, the grievor emailed Ms. Baubriau, asking her whether the training would start on November 18, 2013. On Friday, November 15, 2013, she emailed Ms. Baubriau again, with the same question. The grievor testified that she received no reply to either email.

211        On November 15, 2013, Mr. Harapiak sent a letter via email to the grievor’s counsel, copying the grievor, which stated in part as follows:

Based on the relevant information currently available, DIAND has determined that it is in the best interests of all parties involved that Ms. Green be temporarily re-assigned while the harassment investigations currently underway are completed. The decision to temporarily re-assign Ms. Green is not in any way disciplinary in nature and the Department is fully aware that any allegations which have been made against Ms. Green are unproven allegations. As per the Treasury Board Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process, it is imperative for a manager to take measures when a complaint is filed to avoid exacerbating a situation.

Therefore, we are confirming that Ms. Green is scheduled to start her temporary assignment in Resolution and Individual Affairs (RIA) on Wednesday, November 20, 2014 for a period of four (4) months and ending on March 21, 2014. We have been advised by the National Allegations and Complaints Coordinator, Mr. André Pickard, that the investigations should indeed by finalized by the end of March 2014, provided there are no unforeseen delays.

It is anticipated that Ms. Green will return to her substantive position upon resolution of the investigations currently underway, provided there are no findings which would warrant or discipline or demotion on the part of Ms. Green. As there are not even preliminary findings currently available, it is impossible to predict at this time what the results of the investigations will be. As Ms. Green is aware, the Director currently acting in Ms. Green’s substantive position, is acting for four months and this acting is scheduled at approximately the same time Ms. Green is anticipated to return to her substantive position.

Ms. Green will report directly to Line Pare, the Director General, Settlement Agreement Operations. Ms. Green will continue working at the director level and will manage a team of 8 employees responsible for the Common Experience Program and Personal Credits. This program is high profile and will be a priority for the Department and well suited to Ms. Green’s expertise. Ms. Pare is pleased to welcome Ms. Green within her team as she knows her from reputation and for her expertise in policy development and her strength in written communication and experience in writing Memoranda to Cabinet.

Ms. Green’s salary and terms and conditions of employment will remain unchanged while on assignment in the Resolution and Individual Affairs Branch and her work office will be located at 90 Sparks Street for the duration of the assignment.

Considering that Ms. Pare is ready to welcome Ms. Green as of next Wednesday, November 20, 2013, and the Department would like to proceed with this initiative immediately, it is understood that the language training previously discussed will be postponed to a later date. These language requirements remain a condition of Ms. Green’s employment and will have to be renewed as soon as possible.

Further to my voice-mail of this morning, as much of this information in this letter is information that could validly be communicated directly by my client to yours as part of their employee/employer relationship, I have taken the liberty of copying Ms. Green with this letter by e-mail to provide her with as much notice as possible of the anticipated start date next week, in case you were tied up with trials or hearings today. Please advise if you would prefer that any future communications be sent directly to you to forward to your client.

[Emphasis in the original]

[Sic throughout]

212        The grievor testified that when she was referred to that letter, she was told the language training was pulled suddenly, with no explanation. She stated she was provided with no further explanation, other than to speak with Ms. Paré.

213        Ms. Wilson testified that she decided to assign the grievor to the RIA for the following three reasons:

214        Ms. Wilson further testified that when the grievor was assigned to the RIA, Ms. Wilson was aware of the following about Mr. B:

215        On November 20, 2013, the grievor began her assignment at the RIA. She testified that on December 6, 2013, she was presented with a copy of the assignment agreement signed by Mr. Viau of Executive Services, on November 19, 2013; by Ms. Wilson, on November 20, 2013; by Mr. Saranchuk, the ADM responsible for the RIA, on November 22, 2013; and by the DM, on December 5, 2013. The assignment agreement entered into evidence did not have the grievor’s signature on it.

216        The assignment agreement list the duration of the assignment as being from November 20, 2013, to March 20, 2014. The following terms and conditions were listed as part of it:

Interpretation: Assignments may be terminated at any time with mutual consent of host and home organizations. Any amendment or change to this agreement can only be made with the mutual consent among all parties concerned.

Costs: The participant shall remain at his/her present group and level for the duration of the assignment and shall continue to receive the corresponding salary, the bilingual bonus (if applicable) and any general salary adjustment and statutory increases he/she is entitled to receive.

Reintegration: At the end of the assignment, the participant will return to their substantive position.

Performance Review and Appraisal: AT [sic] the end of the assignment, the host organization will provide the home organization with a written performance review and appraisal report on the participant.

Approval: It is agreed that all the parties signing this assignment agreement and any attachments thereto are satisfied with and will adhere to its terms and conditions.

[Emphasis in the original]

217        The grievor testified that the tasks assigned to her at the RIA were not at her level. She received no policy work or memos to Cabinet, and the work was very operational. She said that she was asked to complete tasks that had previously been assigned to an employee classified at the PM-06 group and level, which is a level below her. She stated that her area of expertise is policy, as opposed to operations. She stated that in her substantive position, she was responsible for a budget and had an administrative assistant. At the RIA, she did not have an administrative assistant; nor was she responsible for a budget. She stated that in her substantive position, she had four senior officers, two junior officers, and an administrative assistant classified     AS-01 reporting directly to her. At the RIA, she had one PM-06 officer reporting to her. She further stated that she did not have the profile or the responsibility in the assignment that she had in her substantive position.

218        The grievor stated that she believed her reputation was impacted. She believes so because she now has difficulty staffing positions. She has been told that people do not want to work for her.

219        Ms. Wilson for her part, denied that by sending the grievor on French language training or on assignment she had intended to punish or discipline her.

220        The grievor completed the assignment and returned to her substantive position on March 19, 2014. She stated that upon her return, the atmosphere was tense, and her relationship with Ms. Dupont was tolerable but deteriorating.

221        The grievor testified that shortly before May 1, 2014, after she had returned to her substantive position, she was advised that Mr. B’s restrictions had been removed. She said that she sent Ms. Dupont some emails about it and that they met and discussed it on that day.

222        Ms. Paré was the grievor’s supervisor at the RIA. She testified that she was happy that the grievor was assigned to her branch as they were finishing one program and transitioning to another, and they needed someone at the EX-01 level to lead the transition and new program.

223        Ms. Paré stated that the grievor did handle some financial aspects of the program but could not state if she managed a budget. She stated that eight people reported directly to her, although she admitted that they could have reported indirectly through another individual.

224        Ms. Paré was asked if the grievor had been involved in writing memos to Cabinet, but she could not specifically recall if the grievor had or had not. Ms. Paré stated that that task began in the RIA at the relevant time. She was asked about an email dated March 20, 2014, which she sent to Mr. Saranchuk, about the grievor’s departure from the RIA and why the grievor returned to the RIA. Ms. Paré stated that she wanted the grievor to stay at the RIA as did the ADM of that branch.

225        Ms. Paré reported that when the grievor left the RIA, a person classified EX-01 replaced her.

226        In cross-examination, Ms. Paré was asked about the duties and functions the grievor was assigned, which included duties set out in an email dated November 13, 2013. According to Ms. Paré, those duties were expanded to include policy and partnership and settlement agreements in the Operations branch. Three of the five duties listed in that email under the heading “Leadership” were duties that Ms. Paré carried out before the grievor arrived at the RIA. The grievor took them over when she arrived. Upon the grievor’s departure, the EX-01 that replaced her took them over.

227        I was provided with no evidence that the grievor’s salary or benefits changed in any way while she was on assignment at the RIA.

G. The harassment investigations

228        On May 5, 2014, via email, the grievor’s legal counsel wrote to Susan Palmai of Quintet Consulting Corporation, who was the investigator the DIAND assigned to investigate the grievor’s harassment complaint against Mr. B. Counsel asked her if she had instructions to proceed with the investigation. Ms. Palmai responded that same day, advising that she had been instructed to proceed with the investigation whether or not Mr. B participated and that due to other commitments, she would start after May 16, 2014.

229        Also introduced into evidence was a copy of an email dated May 22, 2014, from Ms. Palmai to the grievor, indicating that Ms. Palmai had received from the grievor a signed and amended copy of Ms. Palmai’s notes. In the email, Ms. Palmai indicates that she assumes that the facts as set out in her notes remain the same; she also advises that grievor that she is preparing to meet with Mr. B.

230        The DIAND retained the services of J. Simkins & Associates to investigate both Mr. B’s and Ms. C’s complaints. It delivered two separate reports to the DIAND. The report on Mr. B’s complaint was dated December 29, 2014 (“the Simkins B report”), and the report on Ms. C’s complaint was dated December 30, 2014 (“the Simkins C report”).

231        According to the Simkins B report, Mr. B’s complaint contained 15 allegations against the grievor. Its conclusion was that based on the evidence gathered, the grievor did not harass Mr. B or abuse her authority within the meaning of those terms as set out in the harassment policy and the harassment complaint process directive. However, the Simkins B report does make the following comments about the work environment in the RPD:

Since at least 2011, there has been a deeply troubled, if not toxic, work environment in the Research and Policy Directorate. Based on the evidence we have been able to gather, there have been two common denominators in this disputatious and disruptive environment: Ms. Green and Mr. [B].

We became aware early in this investigation that a number of present and former employees of the Directorate belonged to a pro-Green or pro-[Mr. B] camps [sic]. It became apparent that very few persons, regardless of their position in the departmental hierarchy, could be considered neutral and impartial. Indeed, several present and former employees declined to be interviewed, a situation that we have very rarely encountered in our casework over the past 25 years. The reasons expressed included fear of the consequences, a reluctance to become involved in the seemingly endless saga of complaints, counter-complaints, grievances and threats of legal action, and apprehensions that, if they did speak up, they would not be defended by Human Resources and senior departmental management.

That said, the evidence does support a finding that Ms. Green’s style of management is overly directive in nature and that she lacks some of the “people- management” skills so important in today’s workplace. Those skills include dealing with challenging and sometimes “difficult” employees in such a way as to help resolve issues in a non-confrontational manner.

232        According to the Simkins C report, Ms. C’s complaint contained 13 allegations against the grievor. Its conclusion was that based on the evidence gathered, the grievor did not harass Ms. C or abuse her authority within the meaning of those terms as set out in the harassment policy and the harassment complaint process directive. However, the Simkins C report made the same comments about the RPD work environment as the Simkins B report did.

233        As of the date of the hearing, the evidence disclosed that Ms. Palmai had been having difficulty finding opportunities to interview Mr. B and that the investigation into the grievor’s harassment complaint against Mr. B had not been completed.

III. Summary of the arguments

A. For the grievor

234        The grievor’s position is that the employer engaged in a series of measures that amounted to disguised discipline.

235        The grievor submitted that I must answer the following two questions:

  1. Was discipline imposed?
  2. Did the grievor face a reprisal because she made a complaint under the Code?

236        The grievor had a long and stellar career in the public service until June 2012; her performance appraisals were always positive. The relationship with the employer changed in the summer of 2012. The question to ask is how did such a high performer become such a bad manager and bad leader of people?

237        The grievor was blamed and was made a scapegoat for other employees’ complaints and grievances. Her position is that the imposition of coaching, the negative performance review for fiscal year 2012-2013, being suspended after her work refusal under the Code, and being removed from her position in October 2013 were all types of discipline.

238        The grievor was blamed for Mr. B’s misconduct in a disguised way because she did not deal properly with his behaviour. The November 11 meeting disclosed that serious comments were being made about her and that she had enemies. So, she went to see her manager, LR, and the respondent’s security branch. Ms. Dupont’s response was that Mr. B was just “f---ing with [the grievor’s] head”, which was inappropriate and unfair. LR’s response was to suggest that fact finding be done, but none took place.

239        The grievor was pleading for assistance from the appropriate avenues; instead, the response was to ignore her, provide her with coaching, and assign her a negative performance appraisal for failing to deal with Messrs. A and B.

240        The grievor submitted that Mr. Tremblay’s involvement was revealing. She had never interacted with him before February 2013. His evidence was convenient, while her notes were very persuasive, and her evidence was clear, cogent, and consistent with her notes.

241        Mr. Tremblay said his meetings with the grievor were cursory, yet he sent her PINs to attend them and to take an assignment in another branch. The meetings were unusual.

242        The grievor suggested that Mr. Tremblay’s evidence was well rehearsed. Why did he not instruct Ms. Dupont to manage her? Why did he not put something in writing?

243        Mr. Tremblay stated that he did not believe that the grievor was performing at the EX-01 level. She suggested that the true meaning behind that is revealed through the evidence. Mr. B emailed Mr. Tremblay some very serious allegations about the grievor. Rather than follow a process, the DIAND gave Mr. B what he wanted, and the grievor was blamed for his conduct. The emails surrounding Mr. B’s email to Mr. Tremblay, dated February 5, 2013, led to three meetings involving the grievor and Mr. Tremblay. At the first meeting, both the grievor and Ms. Dupont were blamed for the situation involving Mr. B.

244        The grievor’s notes of the February meetings disclose that Mr. Tremblay was angry and that he blamed the grievor and then imposed coaching on her. She discontinued the coaching and received a negative performance appraisal. There is a link between the two.

245        The second disciplinary action the employer took against the grievor was the negative performance appraisal.

246        The grievor’s performance appraisal for fiscal year 2012-2013 was not done properly. The appropriate procedures were not followed, and transparency was not assured. As such, I must look behind it, since what is behind it could have been the basis of discipline.

247        There were roughly six stages in the performance assessment process. In previous years, Ms. Dupont followed the process. However, in fiscal year 2012-2013 that process was not followed; she made recommendations with respect to the grievor’s proposed rating, which Mr. Tremblay disagreed with. He took the position that the grievor did not possess certain leadership competencies.

248        The grievor did not receive any advance notice with respect to her performance review meeting of July 15, 2013. The rating of Succeeded “-” was a shock that she did not see coming. The original review document contained no comments or explanations by Ms. Dupont. It is clear that the negative performance appraisal was a signal that Mr. Tremblay stated that he wanted to send to the grievor, who submitted that it was a disciplinary signal.

249        While Mr. Tremblay suggested a number of difficulties behind the grievor’s performance, such as with employees, clients, and relationships, none was conveyed to her. From her perspective, all of a sudden she was a bad manager, which was nothing more than camouflage to disguise discipline in an attempt to avoid scrutiny from the Board.

250        Mr. Tremblay was the subject of the grievor’s harassment complaint in April or May of 2013. He did not inform his colleagues at the ADM and DM levels; he should have. The complaint gave rise to a conflict of interest.

251        The third measure the grievor submits that was disciplinary was the suspension imposed after her work refusal in October of 2013. She made it known that she felt her work environment was unsafe. She was suspended after her work refusal and as a result of it. When she did not return to work, she was removed from her position, and someone else was appointed to it. She was so notified by email.

252        Twice on October 23, 2013, after Mr. Wernick advised the grievor that the fact-finding had revealed no evidence that the grievor’s safety was in danger, she emailed Ms. Dupont, asking to return to work. She was ignored.

253        At the second-level grievance hearing into the grievor’s performance appraisal, Ms. Wilson advised her that she could not return to her position. At the November 1 meeting, the grievor was told that there was no danger, that Mr. B’s access to the workplace was restricted, and that she could not return to her job. First, the employer said that she would go on French language training. Later, she was sent on assignment. According to the employer, the dust needed to settle, and the grievor needed to move. Removing the grievor from her position was a disproportionate response and was unnecessary. She had to go either on language training or on assignment because she had no position; it had been filled. She alleged that between the day on which she made her complaint and November 21, 2013, she was effectively suspended.

254        The grievor acknowledged that she was paid, but that does not change the disciplinary nature of the employer’s actions.

255        The grievor had acceded to the employer’s request to go on language training. At the last minute, the employer pulled the plug, with no explanation. The grievor’s legal representative and the employer’s exchanged correspondence about the reversal.

256        Ms. Wilson conceded in her evidence that part of the reason the grievor was sent on assignment was her “not excellent performance evaluation”. The explanation by the DIAND’s legal counsel in his letter to the grievor of November 15, 2013, is that it “… is in the best interests of everyone that the grievor be reassigned while the harassment complaint is being investigated.” The harassment complaint against Mr. Tremblay and Ms. Dupont was dismissed, and as of November 2013, the grievor’s complaint against Mr. B still had not been investigated.

257        The grievor was being blamed for Mr. B’s complaint or for her work refusal or for both. A full year after she filed her complaint against Mr. B, he raised personal issues to avoid meeting with the harassment complaint investigator. While the harassment policy does contain a provision for extenuating circumstances, both complaints should have been dealt with by April 2014.

258        The grievor’s assignment was a reprisal for her work refusal and was a demotion. She had to carry out tasks normally done at a significantly lower level and had no delegated financial authority. After she left the RIA, someone at a lower level carried out the work she had been doing. The assignment has to be contrasted with her substantive position, in which she was responsible for 27 employees and a $2 million budget.

259        Finally, the grievor’s position is that the delay processing the harassment complaint was disciplinary. It should have been resolved within a year, and it is shocking and appalling that it is still outstanding.

260        McMullen v. Canada Revenue Agency, 2013 PSLRB 64 at para. 120, states that under s. 209(1)(b) of the Act, a grievor must demonstrate on a balance of probabilities that the employer’s actions were not only disciplinary but also that they amounted to a demotion, suspension, or financial penalty. The essential characteristic of disciplinary action is an intention to correct an employee’s bad behaviour by punishing him or her in some manner. An employer’s assurance that it did not intend an action to be disciplinary can settle the question, but does not always settle it.

261        To determine if the employer’s action was disciplinary, I must determine the purpose and effect of that action. Considerations for that determination include the following:

262        When considering a disguised discipline allegation, the grievor submitted that it is necessary to look behind the employer’s stated reason to identify the true intent and decide whether the impact of its actions was significantly disproportionate to the administrative rationale purported to be served.

263        In McMullen, the employer’s actions were found disciplinary because it did not follow its policies and procedures for addressing performance failure. Namely, it did the following:

264        Canada (Attorney General) v. Robitaille, 2011 FC 1218 at para. 33, establishes that a grievance against a demotion may be founded even if an employee’s classification is not changed if the punitive nature of the reassignment is evident. In that case, the Court held that a demotion had taken place once the employee at issue no longer supervised employees, performed none of the duties of his substantive position, was isolated from his workplace, was assigned duties of little value, had little to do, and was assigned to a junior office.

265        Gaw v. Treasury Board (National Parole Service), PSSRB File No. 166-02-3292 (19780220), provides that a disciplinary sanction must at least have the potential of prejudicially affecting an employee’s situation. Suspensions with pay, which have the essential objective of correcting unacceptable behaviour, may be considered disciplinary, even though they do not sanction an employee financially.

266        McMullen, at para. 124, found that withholding the employee at issue’s performance pay was inextricably linked to and motivated by her alleged misconduct, and therefore, it constituted a financial penalty.

267        The grievor also referred me to Canada (Attorney General) v. Frazee, 2007 FC 1176.

1. Complaint under s. 133 of the Code

268        An employee may make a complaint of a reprisal under s. 133 of the Code alleging a breach of s. 147, which prohibits reprisals against an employee who has asserted rights under the Code. Section 240 of the Act sets out that the Board has jurisdiction to hear complaints under s. 133 alleging a breach of s. 147.

269        White v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 63, provides that the burden of proof is with the complainant to establish that a complaint has been made pursuant to s. 133 of the Code and that once established, the burden falls upon the employer to establish that no reprisal took place. In assessing whether a reprisal occurred, the Board is not required to determine whether a danger did or did not exist; nor is it necessary to determine whether the employee was at work when he or she made a complaint (see LeClair v. Treasury Board (Correctional Service of Canada), 2010 PSLRB 49).

270        A complainant is justified refusing work in accordance with s. 128 of the Code if he or she has reasonable cause to believe that a danger existed when he or she refused to work. “Reasonable cause to believe” means that there was a “… reasonable degree of certainty that an injury … [was] likely to occur … upon exposure to the hazard [or] condition …”, as quoted in White, at para. 152.

271        “Reasonable cause to believe” does not require that the complainant be correct when he or she believes that danger exists or even that he or she is in fact in danger. Therefore, the employer may contravene s. 147 of the Code if it imposes a penalty on a complainant who had reasonable cause to believe that danger existed, even if he or she was not in fact in danger.

272        LeClair, at paras. 118 to 120, stands for the proposition that the legislation with respect to danger is set out in the Code to prevent workplace accidents. As such, an employee should not have a heavy onus to justify a work refusal. The employee can be wrong in believing that a danger existed, provided that the belief itself was reasonable and was motivated by genuine safety concerns.

273        Chaney v. Auto Haulaway Inc., 2000 CIRB 47, provides that a work refusal need only be a “proximate cause for discipline” for the employer to have contravened s. 147 of the Code. In this case, it was a direct cause; the grievor was removed from her position after she made her complaint.

274        To establish that no reprisal occurred, an employer must show that:

275        The grievor returned to work on September 16, 2013. She reviewed Mr. B’s complaint and saw that it stated “… lots of people want to kill you …”. The employer submitted that this statement was made a year earlier, but the grievor stated that until she read it, she was not aware that “lots of people … would like to kill” her. The previous discussion was about “enemies” and “eating her liver”. There is a distinction. The grievor had just returned to the workplace. She testified that she was afraid. Mr. B had access to the floor she worked on. From her perspective, she feared for her life.

276         On September 26, 2013, after she reviewed the complaint, the grievor stated that she was unwell and that she could not come to work (see the emails dated September 26 and 27, 2013). She was afraid. She is not a lawyer; it was reasonable for her to be afraid.

277        On September 30, 2013, she wrote again, stating that she could not go to work; and on October 4, 2013, she submitted her work refusal based on health and safety issues.

278        The grievor acted reasonably in all the circumstances. If there is a threat to her at the workplace, she need not even enter the workplace. The legislation is meant to protect employees. Mr. B made a threat, and she acted reasonably, within the spirit of the Code.

279        The employer accepted her refusal, which is important as it shows that it took her seriously. It stated that it was investigating the danger and eventually stated that it completed its investigation and that it found no danger. The response was not as simple as stating, “There is no danger; get back to work”; the employer stated that it was implementing steps to keep Mr. B away. Since it stated that it accepted her work refusal, investigated it, and implemented corrective measures, it could not come to the Board and state that the grievor could not have complained. The only issue is whether a reprisal occurred.

280        The test is not if there was a danger; the grievor’s evidence was that she had reasonable cause to believe that Mr. B had made a threat against her.

281        LeClair provides that the employee does not have a heavy onus and that he or she can be wrong. All that is required is a genuine belief. The employer implementing measures to protect her went to the legitimacy of the grievor’s belief.

282        The grievor seeks a declaration that the employer violated the Code by its reprisal against her for filing her work refusal.

B. For the respondent and employer

283        The employer submitted that in relation to the grievances, all the actions taken were administrative in nature, and none was disciplinary in the form of a suspension, demotion, or financial penalty. As such, the grievances should be dismissed.

284        With respect to the grievor’s complaint, she was not at work and had no reasonable cause to believe that there was a danger. In addition, no discipline was imposed related to her work refusal. The temporary assignment had nothing to do with her work refusal. As such, the complaint should be dismissed.

1. The grievances

285        Lindsay v. Canada (Attorney General), 2010 FC 389, held that a grievor bears the onus of establishing that the actions being grieved meet the jurisdictional thresholds prescribed under s. 209(1) of the Act. At paragraph 46, the Court held that it is the grievor’s burden to establish “disguised discipline”.

286        On July 21, 2014, the employer objected to the Board’s jurisdiction to deal with the grievances on the basis that they did not fall within s. 209(1) of the Act. On August 5, 2014, the grievor responded to the objection, stating that the employer was estopped from making it because after the final level of the grievance process, it specifically advised her that she had the right to send the grievance to the Board for adjudication; as such, the employer accepted the Board’s jurisdiction.

287        The parties cannot give the Board jurisdiction; nor can estoppel be used for that purpose (see Boutilier v. Canada (Attorney General),[1999] 1 F.C. 459 (T.D.), Wray v. Treasury Board (Department of Transport), 2012 PSLRB 64, and Elliott v. Canadian Merchant Service Guild, 2008 PSLRB 3).

288        The grievor attempted to prove that the administrative actions that different persons took were disciplinary. Not all disciplinary actions can be adjudicated under the Act. There are two criteria. First, there must be a disciplinary action; and second, the disciplinary action must result in a termination, demotion, suspension, or financial penalty. If both criteria are not met, then the Board does not have jurisdiction (see Sharaf v. Deputy Head (Public Health Agency of Canada), 2010 PSLRB 34). A financial penalty not tied to disciplinary action is not adjudicable under s. 209(1)(b) of the Act (see Hanna v. Deputy Head (Department of Indian Affairs and Northern Development), 2009 PSLRB 94).

289        Rogers v. Canada Revenue Agency, 2010 FCA 116, stands for the proposition that each alleged action must be assessed in and of itself to determine whether it meets both of these criteria and that the termination, demotion, suspension, or financial penalty must be an integral part (as opposed to a reasonably foreseeable consequence) of the disciplinary action. An action cannot be cobbled with separate or unrelated outcomes in an attempt to meet those criteria.

2. The coaching offer was not a disciplinary action resulting in a demotion, suspension, or financial penalty

290        The term “disciplinary action” is not meant to be sufficiently wide to include any or every action taken by an employer that may be harmful or prejudicial to an employee’s interests. While an employee may feel aggrieved by decisions that negatively impact the terms of his or her employment, the vast majority of them are administrative. When assessing whether an action is disciplinary, the primary factor is the employer’s intention. Its action will not be deemed disciplinary if it is a reasonable response to honestly held operational considerations. The employer referred me to Frazee and to Theaker v. Deputy Head (Department of Justice), 2013 PSLRB 163.

291        An employee’s feelings about being treated unfairly do not convert an administrative action into discipline. An employer action does not become disciplinary on the basis that the motives behind its decision could have given rise to discipline (see Frazee and Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.)).

292        London (City) v. Canadian Union of Public Employees, Local 107,[2004] O.L.A.A. No. 556 (QL), stands for the proposition that directing an employee to take a course or follow coaching is not disciplinary action.

293        There is no evidence that that the coaching offer from Mr. Tremblay was intended to be disciplinary or punitive. He was forthright and candid and stated that coaching was a tool to help improve the grievor’s performance during challenging circumstances. He denied intending to discipline or punish her. He stated that he had personally benefitted from coaching.

294        The employer submitted that the suggestion of coaching to the grievor in the circumstances of this case was a reasonable response to the employer’s honest concerns about her performance and was consistent with its previous coaching offers.

295        There is no evidence that demonstrates that the offer of coaching constituted a demotion, suspension, or financial penalty.

3. The performance rating was not a disciplinary action resulting in a financial penalty

296        A negative performance appraisal is not a disciplinary action (see Tudor Price v. Deputy Head (Department of Agriculture and Agri-food), 2013 PSLRB 57, Porter v. Treasury Board (Department of Energy, Mines and Resources), PSSRB File No. 166-02-752 (19731128), Bratrud v. Office of the Superintendent of Financial Institutions Canada, 2004 PSSRB 10, Hill v. The Atomic Energy Control Board, PSSRB File No. 166-03-14566 (19840503),[1984] C.P.S.S.R.B. No. 61 (QL), and Veilleux v. Treasury Board (Public Service Commission), PSSRB File No. 166-02-11370 (19820729), [1982] C.P.S.S.R.B. No. 126 (QL)).

297        There is no evidence of culpable conduct. The grievor’s shortcomings or lapses referred to in the performance appraisal consisted of nothing more than standard non-culpable performance issues, which do not typically attract disciplinary responses from employers. The evidence disclosed that she was not targeted, but to the contrary, her DG received an identical performance rating due to similar performance concerns.

298        Mr. Tremblay’s evidence was that several members of senior management were concerned about the grievor’s leadership competencies as well as her ability to collaborate with others. Her performance rating was a collective effort of a committee specifically mandated to review and approve the EXs’ performance assessments and to ultimately assign performance ratings.

299        A financial loss is not the same as a financial penalty. A financial loss does not become a financial penalty just because it might be a reasonably foreseeable consequence of a disciplinary action. For something to be a financial penalty, it must be implicit in the disciplinary action.

300        Tudor Price, Bratrud, and McMullen all hold that while financial consequences might flow from performance appraisals, they do not constitute financial penalties within the meaning of s. 209(1)(b) of the Act.

301        It is difficult to fathom how a bonus of $5166 can be construed as a financial penalty.

302        Rogers, at para. 21, holds that it is well established that using sick leave is not a financial penalty.

4. The grievor’s decision to leave the workplace was neither disciplinary action nor a suspension

303        The employer submitted that I am without jurisdiction to consider the second grievance given that the grievor has failed to demonstrate that her decision to leave the office in September 2013 constituted either a disciplinary action or a suspension within the meaning of s. 209(1)(b) of the Act.

304        No employer action can be examined; the grievor’s absence was due to her choice to leave the workplace in September 2013 and her subsequent refusal to work due to safety concerns from October 4, 2013, to November 6, 2013, despite being instructed to return to work by a letter dated October 21, 2013 (see Purtell v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 15).

305        Once the grievor notified the employer that she had no safety concerns, the employer diligently finalized plans for a temporary assignment that began on November 19, 2013. She was fully compensated through the period of her absence. The employer cannot be said to have intended to discipline or punish her given that she chose to leave the workplace. Also, there is no evidence to suggest that any employer action that might have delayed finalizing the assignment was motivated by a desire to discipline or punish the grievor. Indeed, there is no evidence to suggest that she would not have been permitted to work had she attended the workplace, and in fact, the evidence is to the contrary, as Ms. Wilson specifically testified that the grievor was free to return to work at any time.

5. The temporary assignment was not a disciplinary action resulting in demotion

306        The employer submitted that I do not have jurisdiction as the grievor failed to demonstrate that the temporary assignment constituted a disciplinary action or a demotion within the meaning of s. 209(1)(b) of the Act.

307        Merrill v. Treasury Board (Revenue Canada - Customs & Excise), PSSRB File No. 166-02-15133 (19860225), [1986] C.P.S.S.R.B. No. 54 (QL), and Stead v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 87, stand for the proposition that temporarily reassigning an employee due to harassment or a health and safety issue is not a disciplinary action. Similarly, a threat of discipline is not discipline.

308        The suggested language training was not a “disciplinary action” since the employer never pursued that option due to the grievor’s resistance.

309        The employer submitted that it was required to address an escalating feud between the grievor and other employees in her group and that it chose to address it by way of temporarily assigning her to the RIA. There is no evidence that the decision was motivated by an intention to discipline or punish her; in fact, the evidence is to the contrary. The parties to the different complaints were separated to avoid exacerbating the situations pending the outcomes of the harassment investigations. And a departmental priority arose in another unit that clearly fit the grievor’s skill set.

310        Separating the grievor from the subordinates with whom she was feuding was a reasonable response to the employer’s honest concerns about the health and safety of its entire workforce.

311        There is no demotion for the purposes of the Act when an employee’s classification and pay are unchanged (see Browne v. Treasury Board (Revenue Canada - Customs, Excise and Taxation), PSSRB File Nos. 166-02-27650 to 27661 (19971201), [1997] C.P.S.S.R.B. No. 133 (QL), and Peters v. Treasury Board (Department of Indian Affairs and Northern Development), 2007 PSRLB 7). For a demotion for disciplinary reasons under s. 12(1)(c) of the Financial Administration Act (R.S.C., 1985, c. F-11; FAA) to occur, the employer must place the affected employee into a position at a lower maximum rate of pay. When she was temporarily assigned to the RIA, the grievor’s pay and classification remained unchanged.

312        While at the RIA, the grievor continued to perform valuable work at her substantive group and level. While there might have been some overlap between the duties at the EX-01 level and those that were performed by the predecessor in the RIA position, who was classified at the PM-06 group and level, the grievor still performed unique leadership duties that are generally attributed to executives classified at the EX level.

6. No jurisdiction over the administration of the grievor’s harassment complaint

313        While an employee can grieve procedural defects under s. 208 of the Act, they cannot be adjudicated. The procedural defects in a harassment investigation are not adjudicable. The grievor failed to demonstrate that the delay investigating her complaint was either a disciplinary action or a demotion, suspension, or financial penalty within the meaning of s. 209(1)(b).

314        While an employee can grieve procedural defects, they are cured by a new hearing (“hearing de novo”) before an adjudicator (see Maas v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 123, and Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.)(QL)).

315        The employer submitted that Canada (Attorney General) v. Lâm, 2008 FC 874, stands for the proposition that interpreting a process described in a harassment policy is outside the jurisdictional confines of ss. 209(1)(a) and (c)(i) of the Act.

316        The time it takes to complete an investigation is not always within the employer’s control. Its position was that the delay with respect to the grievor’s complaint against Mr. B was due solely to the delay occasioned by his personal circumstances and conduct. According to the evidence, he was suffering from health issues, as were his spouse and child. Despite that, Mr. B led the employer to believe that he had every intention of participating in the investigation of the grievor’s complaint.

317        The employer delayed the investigation to allow Mr. B an opportunity to participate, which was a reasonable response given that he was entitled to procedural fairness and given his personal circumstances and the employer’s belief that he was not attempting to delay the process. The employer wrestled to balance the grievor’s right to a timely response to the complaint and Mr. B’s right to participate in the process, which could have potentially led to discipline for him. Her evidence was that Mr. B did not deliberately attempt to delay the investigation.

318        There is no evidence to suggest that having an independent directorate administer the investigation was motivated by a desire to discipline or punish the grievor. Nor is there any to suggest that the administration of her harassment complaint constituted a demotion, suspension, or financial penalty.

7. No breach of the Code

319        The Board is without jurisdiction to consider a complaint under s. 133 of the Code if the complainant was not at work at the time of the work refusal (see Saumier v. Canada (Attorney General), 2009 FCA 51, and Taticek v. Treasury Board (Canada Border Services Agency), 2015 PSLREB 12).

320        Section 128(1) of the Code provides that an employee may refuse to use or operate a machine or thing, to work in a place, or to perform an activity if the employee, while at work, has reasonable cause to believe that using or operating the machine or thing constitutes a danger, a condition exists in the place that constitutes a danger to the employee, or the performance of an activity constitutes a danger to the employee or to another employee.

321        The grievor was not at work when she filed her work refusal. She had been away from work for 11 weeks before she filed it; specifically, she had been on certified sick leave from July 22, 2013, to September 16, 2013. She then returned to the office for a week-and-a-half and then was absent from September 26, 2013. She filed her work refusal via email on October 4, 2013, while absent from work.

322        The employer’s position is as follows:

323        The employer submitted that White and Leary v. Treasury Board (Department of National Defence), 2005 PSLRB 35hold that the Board’s role in assessing the grievor’s complaint under the Code is limited to determining if the employer’s action was tainted with retaliation against her for a work refusal. Thus, to allow the complaint, the Board must find that all three of the following existed:

  1. the grievor had reasonable cause to believe that a danger existed when she refused to work;
  2. there was discipline or a penalty as described in s. 147 of the Code; and
  3. the discipline or penalty was imposed in retaliation for the work refusal.

324        With respect to assessing if a reasonable cause to believe a danger existed, according to Leary and Simon v. Canada Post Corporation (1993), 91 di 1 (CLRB no. 988), the Board should objectively assess all the circumstances surrounding the grievor’s actions.

325        Simon, Alexander v. Treasury Board (Department of Health), 2007 PSLRB 110, Kucher v. Canadian National Railway Company [1996], C.L.R.B.D. No. 30 (QL), and Holloway v. Canada Post Corporation (1990), 83 di 50 (CLRB no. 835), stand for the proposition that a tribunal should scrutinize the reasons for and the circumstances of a refusal to work when they exist at the same time as other labour relations problems and personality conflicts. A work refusal must not be used as a roundabout way of addressing or as a pretext to address such other workplace issues.

326        The employer submitted that there was no reasonable cause for the grievor to believe that a danger existed when she refused to work, given the following:

327        Multiple processes were taking place simultaneously. The evidence suggests that the grievor was temporarily transferred because the employer wanted to separate the parties to avoid exacerbating the situation, coupled with the fact that a departmental priority arose in another unit that was clearly a fit for the grievor.

C. The grievor’s reply

328        Sharaf is distinguishable, as the employer in that case acted with more transparency.

329        Hanna is also distinguishable as the policy at issue in that case had to do with legal fees.

330        With respect to the estoppel argument about jurisdiction, the grievor did not suggest that because the employer looked at something, it gives the Board jurisdiction. A party’s action cannot provide the Board jurisdiction, but it can explain what actually happened. The employer ought to be precluded from taking the position that the grievor did not properly filed a complaint under the Code. White states that the Board has jurisdiction to consider the complaint since it has been filed; it is not about my inherent jurisdiction to consider the reprisal.

331        The grievor submitted that all the events can be viewed as a whole and that on that basis, a determination can be made to see if discipline and a financial penalty were imposed. Gauthier v. Deputy Head (Department of National Defence), 2013 PSLRB 94 at para. 71, provides that the Board can look at any number of actions taken by an employer to determine if discipline was intended.

332        Section 209(1)(b) of the Act does not require the Board to consider the FAA.If Parliament had wanted “demotion” to mean what is stated in the FAA, it would have included it; it did not.

333        Saumier is distinguishable as in that case, the employee had not returned to work. The grievor in this case had returned to work, which is fundamentally different.

334        The grievor did not seek to discipline Mr. B; she merely wanted an investigation into his behavior.

IV. Reasons

A. Request to seal documents

335        The parties submitted as evidence copies of harassment complaints and investigations that contain allegations and statements that were not meant to be made public and have not necessarily been investigated. In some instances, the information in them has not been shared with individuals named in them. Both parties were in agreement that certain documents should be sealed.

336        The grievor filed a harassment complaint against Mr. B, and Mr. B filed a harassment complaint against the grievor, as did Ms. C. Neither Mr. B nor Ms. C was called to testify. The harassment complaints were not the central issue at the hearing; while they were not insignificant, they played a minor role.

337        In Basic v. Canadian Association of Professional Employees, 2012 PSLRB 120 at paras. 9 to 11, the former Board stated as follows:

9 The sealing of documents and records filed in judicial and quasi-judicial hearings is inconsistent with the fundamental principle enshrined in our system of justice that hearings are public an accessible. The Supreme Court of Canada has ruled that public access to exhibits and other documents filed in legal proceedings is a constitutionally protected right under the “freedom of expression” provisions of the Canadian Charter of Rights and Freedoms; for example, see Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41(CanLII).

10 However, occasions arise where freedom of expression and the principle of open and public access to judicial and quasi-judicial hearings must be balanced against other important rights, including the right to a fair hearing. While courts and administrative tribunals have the discretion to grant requests for confidentiality orders, publication bans and the sealing of exhibits, it is circumscribed by the requirement to balance these competing rights and interests. The Supreme Court of Canada articulated the sum of the considerations that should come into play when considering request to limit accessibility to judicial proceedings or to the documents filed in such proceedings, in decisions such as Dagenais and Mentuck. These decisions gave rise to what is now known as the Dagenais/Mentuck test.

11 The Dagenais/Mentuck test was developed in the context of requests for publication bans in criminal proceedings. In Sierra Club of Canada, the Supreme Court of Canada refined the test in response to a request for a confidentiality order in the context of a civil proceeding. As adapted, the test is as follows:

a. such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

b. the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

338        The allegations in the harassment complaints are not necessarily founded and at times are unsubstantiated. Given that the matter before me was not whether harassment as alleged in those complaints against several other people was or was not founded and that the people named in the complaints all remain employees and may have to continue to work with each other and with others within the DIAND, I find that the salutary effects of keeping confidential the allegations by and against those persons who are not a party to these proceedings outweigh the deleterious effects, including the right to free expression, which in this context includes the public interest in open and accessible court proceedings, of not making these contentious and potentially damaging allegations public. As such, I have ordered the following documents sealed:

  1. The four-page letter dated March 28, 2013, from the grievor’s counsel to Mr. Picard.
  2. The one-page letter dated April 19, 2013, from the grievor’s counsel to Mr. Wernick with a copy of the four-page letter noted in point 1 and the email chain between the grievor and Mr. Picard of April 3 to 5, 2013.
  3. Mr. B’s 28-page harassment complaint against the grievor with a copy of the grievor’s 2-page harassment complaint against him.
  4. The 35-page Simkins B report.
  5. The 39-page Simkins C report.
  6. A five-page email chain, the last email dated June 3, 2014, at 8:55 a.m., from Mr. B to Mr. Picard that includes an earlier email dated May 12, 2014, at 4:29 p.m., from Mr. B.
  7. A three-page email chain, the last email dated July 14, 2014, at 1:36 p.m., from Ms. Palmai that includes an email dated that same day from Mr. B to Ms. Palmai and sent at 10:51 a.m.
  8. A two-page email chain, the last email dated October 17, 2014, at 9:24 a.m., from Mr. B to Ms. Gaétan that includes an earlier email from her to him dated October 15, 2014, at 5:01 p.m.

B. The grievances

339        The employer objected to the Board’s jurisdiction to deal with the grievances on the basis that they do not fall within s. 209(1) of the Act. The grievor took the position that the employer was estopped from making that objection and stated that by its action of advising her that she had the right to send the grievance to the Board, it in fact attorned to the Board’s jurisdiction. I do not agree.

340        The Board is a creature of statute and not a court with inherent jurisdiction. The parties cannot give it jurisdiction where it has none. For the actions the grievor complained about to come within the Board’s jurisdiction, they must fall within the matters set out in s. 209 of the Act. Section 209(1)(a) states that grievances that are not dealt with to the grievor’s satisfaction and that are, with respect to the grievor, about a provision of a collective agreement or arbitral award, can be heard by the Board, with the proviso that, as set out in s. 209(2), the bargaining agent that represents the grievor with respect to a collective agreement or arbitral award must have agreed to represent the grievor at adjudication. As the grievor is not governed by a collective agreement and is not represented by a bargaining agent, she could not advance her grievances before the Board under s. 209(1)(a).

341        Section 209(1)(b) of the Act does not give the Board jurisdiction over all discipline rendered by an employer against an employee; only certain disciplinary actions, i.e., those that result in a termination, demotion, suspension, or financial penalty, can be reviewed by the Board at adjudication.

342        The employer did not admit to disciplining the grievor. She alleged that its actions amounted to disguised discipline. Therefore, as set out in Lindsay, she bore the onus of establishing that its actions met the jurisdictional thresholds under s. 209(1)(b) of the Act.

343        For the reasons that follow, I find that the grievances do not meet the jurisdictional thresholds as set out in the Act, and as such, they are dismissed.

1. The first grievance

344        The grievor alleged that the performance rating delivered to her on July 13, 2013, was disguised discipline, was not a fair and accurate assessment of her performance, and that it resulted in a financial penalty, including reduced performance pay and a negative impact on her pension. She also alleged that the coaching imposed upon her was disciplinary.

345        As a precondition for the Board to have jurisdiction, the grievor had to establish that the employer not only disciplined her but also that the discipline resulted in a termination of her employment, a suspension from her employment, a demotion in her position, or a financial penalty. She did not allege that the disguised disciplinary actions amounted to a termination, suspension, or demotion. This leaves a financial penalty.

346        Not every action that has a financial consequence equates to a financial penalty. As set out by the Federal Court of Appeal in Rogers, a financial loss does not become a financial penalty simply because it is a reasonably foreseeable consequence of a disciplinary action.

347        Actions can be taken in an employment relationship that are both foreseeable and that have a financial impact on an employee but that do not equate to a financial penalty. For example, due to a lack of work, an employer may cut back an employee’s hours, which results in the employee earning less money. While that could be construed as a financial loss, it would not be a financial penalty. However, that same employer may decide that an employee has committed an infraction of some form at work and cut back his or her hours, which would have a financial consequence in the form of a financial loss. Under those circumstances, it would equate to a financial penalty.

348        As set out in the jurisprudence, particularly in Bratrud and Tudor Price, the Board’s predecessors have treated performance appraisals quite consistently. While financial consequences may be associated with a performance appraisal, they generally are not considered a financial penalty. However, that does not mean that performance pay issues can never be considered financial penalties; merely, it means that in cases of disguised discipline, the grievor must establish on a balance of probabilities that the action involving the loss of or reduction to performance pay was related to a disciplinary action and that it was meant to penalize the grievor.

349        McMullen did not change the law. The adjudicator in that case determined that the facts put forward when addressing the preliminary objection suggested that the employer’s actions were disciplinary and that they amounted to a financial penalty. As it dealt only with the employer’s preliminary objection to the adjudicator’s jurisdiction to hear the matter, not all the facts of that case were set out as it was not heard on its merits. In addition, the grievor was stripped of her position, subjected to a disciplinary meeting, and experienced a loss of salary and benefits that included her performance pay.

a. The grievor’s harassment complaint

350        The grievor alleged that she was punished and disciplined because of her harassment complaint. For the Board to have jurisdiction, there has to be some link between the appraisal process and filing the complaint. The link, according to the grievor, is the Succeeded “-” rating attached to her performance assessment. According to her, this rating amounted to a financial penalty because in the two previous years (2010-2011 and 2011-2012), she had received ratings of Succeeded “+” and performance pay in amounts of $14 280 and $11 626. However, the Succeeded “-” rating in 2012-2013 meant performance pay of only $5166, which was less than what she would have received had she received a performance rating of Succeeded or Succeeded “+”.

351        However, the facts do not support the grievor’s allegation.

352        The evidence disclosed that the grievor delivered her harassment complaint on or after March 28, 2013, to Mr. Picard. It also disclosed that sometime between that date and April 3, 2013, he got in touch with her, and they exchanged emails. On April 5, 2013, she emailed him, indicating that she believed she was the victim of harassment by all four people, Mr. B, Ms. Shatford, Ms. Dupont, and Mr. Tremblay. In addition, she requested that Mr. Picard direct all future correspondence to her legal counsel.

353        On April 19, 2013, the grievor’s legal counsel wrote to the DM about the grievor’s harassment complaint and attached a copy of it to his letter. The letter was entered into evidence and indicates that it was sent via email. However, the exact date it was sent to or received by the DM is unknown. Also unknown is on what date he reviewed it.

354        On May 10, 2013, Mr. Harapiak wrote to the grievor’s legal counsel and advised him that the April 19, 2013, letter had been forwarded to him to provide a response.

355        When questioned about when she knew of the grievor’s harassment complaint, Ms. Dupont stated that she thought it was in May or June of 2013. When asked the same question, Mr. Tremblay stated that he thought it was April or May of 2013.

356        However, there is evidence of when the grievor’s harassment complaint was brought to Mr. Tremblay’s and Ms. Dupont’s attention. Two letters, both dated May 24, 2013, and addressed to each of them from Ms. MacGowan, the designated official under the harassment policy, advising them of the grievor’s complaint. Both letters further indicate that they were sent on May 27, 2013, the one to Mr. Tremblay by messenger, and the one to Ms. Dupont by hand. However, there is no indication that they became aware of the complaint on that day.

357        Entered into evidence was a letter dated June 14, 2013, from Ms. Dupont to Ms. MacGowan, in which Ms. Dupont responds to the harassment allegations against her in the grievor’s harassment complaint. Therefore, the best evidence discloses that Ms. Dupont would have seen the grievor’s harassment complaint sometime after May 27, 2013, and before June 14, 2013.

358        Entered into evidence was an undated letter from Mr. Tremblay to Ms. MacGowan in which he responds to the harassment allegations against him in the grievor’s harassment complaint. This letter has a date received stamped on it of June 25, 2013. Therefore, the best evidence discloses that Mr. Tremblay would have seen the grievor’s harassment complaint sometime after May 27, 2013, and before June 25, 2013.

359        The meeting that Mr. Tremblay, Ms. Dupont, and other DGs participated in to discuss performance appraisals took place sometime in April 2013, which was specified in the evidence of Mr. Tremblay and Ms. Dupont as well as in the DM’s memo of March 11, 2013, which required that all draft appraisals be submitted by April 10, 2013. It is also a fact that this meeting took place before the ERC meeting.

360        The ERC meeting, at which the final performance assessment ratings were determined, took place on May 13, 2013. There is no evidence that either Mr. Tremblay or Ms. Dupont knew about the grievor’s harassment complaint when they participated in the meeting and eventually determined the grievor’s performance assessment for 2012-2013. There is only speculation and conjecture. With respect to the DM, while there is some evidence that he might have known of the grievor’s harassment complaint, there is no evidence that he read it or considered it or that it played any role in evaluating and assessing her performance.

361        While there is an abundance of speculation and conjecture, this does not satisfy the burden of establishing that, on a balance of probabilities, discipline was imposed on the grievor.

b. Coaching

362        The grievor alleged that imposing coaching on her was disciplinary. If so, it would not be enough in and of itself to give the Board jurisdiction. The Board would have jurisdiction only if a financial penalty were attached to the coaching imposition.

363        In a somewhat roundabout way, the grievor alleged that it was her discontinuing the coaching process that contributed to her Succeeded “-” rating, again leading to the financial penalty link, which was the Succeeded “-” rating and performance pay in the amount of $5166, which was less than the amounts she had received in previous years, when she had been rated Succeeded “+”.

364        However, again the facts do not support this.

365        The grievor stated that she discontinued the coaching. However, the emails she produced as evidence disclose that while she had stopped the coaching in April of 2013, the coaching process had not been fully and finally put to an end. The coach and the grievor exchanged the following emails on June 10, 2013:

[The coach to the grievor, sent at 3:41 p.m.:]

I hope this message finds you well. I’m back in the office and wanted to confirm with you whether or not you wanted to continue the coaching process at this time. Please let me know.

[The grievor to the coach, sent at 6:08 p.m.:]

I am well, thank you. I hope you had a wonderful trip.

While I remain keen to work with you, the underlying issues and concerns remain unresolved. Perhaps we should “touch base” in September.

366        Ms. Dupont stated in her evidence that she believed that the grievor had discontinued the coaching in April of 2013. However, there is absolutely no evidence of when Ms. Dupont became aware of this fact.

367        There is no evidence that Mr. Tremblay was made aware of the grievor’s decision to stop the coaching process in April of 2013. In fact, while the grievor had stopped receiving coaching, it had not been completely done away with, as she and the coach were still talking as late as June 2013, and she told the coach that they should touch base in September (of 2013).

368        Surely, if ending the coaching process was a factor in disciplining the grievor (that discipline allegedly being the Succeeded “-” performance rating), then either Ms. Dupont and Mr. Tremblay had to have known of that fact either before or during the assessment process, at least before May 13, 2013, when the final ratings were discussed at the ERC meeting. There is no such evidence.

369        The grievor’s evidence discloses that she had not fully stopped the coaching process and that as of June 2013, she had suggested to the coach that they touch base in September 2013. There is absolutely no evidence that during the assessment process, the status of the coaching was known to Mr. Tremblay and Ms. Dupont. Again, there is speculation and conjecture; however, there is no evidence sufficient to meet the test on a balance of probabilities.

370        As the evidence does not disclose that the grievor either filing her harassment complaint or ending the coaching led to the performance rating of Succeeded “-”, she has not established that disguised discipline occurred, as alleged in her grievance, and that it led to a financial penalty.

c. Was other action taken by the employer disciplinary?

371        The grievor made a number of allegations in her evidence that largely pointed to actions taken by the employer with respect to her that she equated to being disciplinary. While they were not specifically alleged as part of her grievance, a significant amount of time was spent canvassing these issues such that I would be remiss if I did not address them, at least in general.

372        The grievor’s evidence largely pointed to a couple of personnel disputes during the course of fiscal year 2012-2013 that she interpreted as being viewed by Mr. Tremblay as misconduct for which she was going to be punished, including Mr. A’s grievance and Mr. B’s emails and his comments to her.

373        The evidence disclosed that the grievor’s organization (the RPD) appeared to be, at the very least, somewhat troubled and dysfunctional. Between the summer of 2012 and the summer of 2013, the grievor had filed a harassment complaint against Mr. B, while Mr. B and Ms. C had filed harassment complaints against her. In addition, Mr. A had filed a grievance against her, which on its face essentially amounted to a harassment complaint. The Simkins B and C reports, albeit delivered in late December 2014, which both determined that the grievor did not harass either Mr. B or Ms. C, contained a statement that I found to ring true with respect to the evidence that came before me, which was that the RPD was a troubled work environment and that the grievor was one of the common denominators.

374        It is clear that the grievor saw her role in the troubled work environment differently than did Mr. Tremblay. She saw him as punishing her for the situation, while he saw his actions as attempting to get her to see the gap in her leadership. The grievor used terms such as “punish” and “fault”, while Mr. Tremblay used terms like “leadership” and “responsibility”.

375        The grievor interpreted Mr. Tremblay’s words and actions in a particular fashion, while he stated they were meant in a different way than she understood. She suggested that he had been angry; when it was put to him in cross-examination, he stated that he had not been angry but that he had not been happy. However, whether he was angry, upset, or both does not ascribe to him that he necessarily intended to punish the grievor or that he considered her culpable in her actions with respect to Mr. A or Mr. B. In fact, his evidence with respect to the performance assessment supported what appeared to be a weakness in the grievor’s leadership competencies.

376        It is clear that what was going on in the RPD was not positive or productive. As the head of the organization, the grievor bore the responsibility. The employer has the responsibility to manage its work environment and can do so in different ways. Culpable behaviour may result in discipline. Performance issues are dealt with differently. The grievor bore the burden of establishing that the employer did not manage her performance and that instead, it punished her for misconduct. I did not see any evidence that would establish that this was in fact the case.

d. Sick leave

377        The grievor alleged that the poor performance rating (Succeeded “-”), the filing of the harassment complaint and how it was addressed, and the imposition of coaching led her to be demoralized and stressed and forced her to take stress leave. She stated that she was unfairly forced to use sick leave credits for her absence from work. On that point, she requested that she be reimbursed the sick leave credits that she was forced to use and will be forced to use.

378        The evidence disclosed that the grievor went on sick leave on July 22, 2013. She remained on sick leave until September 16, 2013. Entered into evidence were two notes from her physician that do not say anything about her health other than that she was disabled and unable to go to work and that specify when she could return to work. The grievor’s physician was not called as a witness. That falls far short of proving on a balance of probabilities that she was sick and on stress-related leave caused by the employer, which led to a loss of sick-leave credits.

379        The grievor’s return to work on September 16, 2013, was short-lived as she left the workplace effective September 26, 2013 (after eight days), stating (via email on that date) that she was not feeling well, and she sent emails on September 27 and 30, 2013, stating that she was ill.

380        No medical evidence whatsoever was produced with respect to the grievor’s absence after September 26, 2013. In fact, she testified that her absence as of that date was related to her fear of returning to work due to threats made in Mr. B’s complaint. Her evidence was that her absence from that date on was not due to the performance assessment.

381        As the grievor has not proven on a balance of probabilities that she was subject to discipline that amounted to a financial penalty, I have no jurisdiction, and the first grievance is dismissed.

2. The second grievance

382        The second grievance alleged the following:

a. Language training

383        The evidence disclosed that while it appeared that the grievor was going to be sent on language training, she was not. For the Board to have jurisdiction, the employer’s action must have had the effect of terminating the grievor’s employment, suspending or demoting her, or causing her a financial penalty. Since this action did not actually take place, it did not result in a termination suspension, demotion, or financial penalty that would bring it under s. 209(1)(b) of the Act. Therefore, this part of the second grievance is not within the Board’s jurisdiction.

b. The presence of the security and occupational health director at the November 1 meeting

384        The evidence disclosed that the November 1 meeting was scheduled and that it took place. In addition to the grievor and her legal counsel, also present were Ms. Dupont; Mr. Viau, from Executive Services; and Mr. Harapiak, DIAND legal counsel.

385        Security issues arising from the grievor’s allegations with respect to Mr. B were discussed at the November 1 meeting. It would appear that the DIAND’s director of security and occupational health did not leave after the security issues were discussed, to which the grievor took issue. She has not established how in any way that amounts to a termination of employment, suspension or demotion, or financial penalty, which would bring it under s. 209(1)(b) of the Act. Therefore, that part of the grievance is not within the Board’s jurisdiction.

c. The grievor should have had advance notice of the discipline at the November 1 meeting

386        The grievor did not establish in any way how not having that advance notice amounted to a termination of employment, suspension or demotion, or financial penalty, which would bring it under s. 209(1)(b) of the Act. Therefore, that part of the grievance is not within the Board’s jurisdiction.

d. The grievor was removed from her position because she filed her harassment complaint and the first grievance

387        The grievor alleged that discipline was imposed because she made her harassment complaint and filed the first grievance.

388        The evidence clearly depicted an unhealthy work environment within the RPD. One of its common denominators appears to be the grievor. This is not meant to suggest that she was guilty of misconduct or harassment or that others within the RPD, the SCB, and the management hierarchy did not also play a role. However, the evidence disclosed that the following occurred between the summer of 2012 and the early fall of 2013:

389        In support of her allegation that the assignment to the RIA was disciplinary in nature, the grievor submitted that she was not permitted to return to her RPD position and that another employee had been appointed to it.

390        As set out earlier in these reasons, the grievor returned to work on Monday, September 16, 2013, after close to a two-month absence, and she voluntarily left again on Thursday, September 26, claiming to be sick. She again claimed to be sick on the following day, Friday, September 27, and for the following week, starting on the Monday, which was September 30. Only on Friday, October 4, 2013, at 2:18 p.m., did she write to the DM and advise him that she believed her workplace was unsafe.

391        The employer did not take any steps to remove the grievor from the workplace; she removed herself on September 26, 2013.

392        On October 21, 2013, the DM wrote to the grievor and advised her that an investigation had taken place, that it had been determined that there was no indication that threats had been made against her, and that there was no evidence that her safety was in any danger. He went on to state that her management team was exploring options for her to work outside her then-current work location and that she was to contact Ms. Dupont, to return to work immediately.

393        The grievor did email Ms. Dupont on Wednesday, October 23, 2013, at 10:08 a.m., and again at 3:51 p.m. In her morning email, the grievor stated that while she had received a copy of the DM’s letter (through her legal counsel), she wished for a meeting to be convened at someplace other than her workplace that would include her legal counsel. She further stated that she remained fearful and unclear as to what specific steps had been taken to ensure her safety and that until she received more information, she felt that it was unfair to ask her to return to work at her usual office. However, in that same vein, she stated the following: “I believe that it is important to note that I have at no time not been available for work. Indeed, I have repeatedly expressed my desire to return to a safe working environment as quickly as possible.”

394        The grievor’s second email merely forwarded the morning email and added the following:

I have now received by Priority Post, the letter from Mr. Wernick dated October 21, 2013. I again confirm that I am now and always have been available for work. I continue to await your advice on what arrangements have been made for a safe work environment, including where I am expected to report for work.

395        The grievor’s October 23, 2013, emails are both self-serving and misleading. As set out earlier in these reasons, she removed herself from the workplace on September 26, 2013, and was away from the office and stating that she was sick from September 26 through the week of September 30 to October 4, 2013. At no time during this period did she ever indicate that she was ready willing and able to work, that her work environment was not safe, or that she was ready willing and able to work if it were safe, let alone “repeatedly”, as she suggested she did.

396        Her emails do not state that she was unequivocally prepared to return to work; in fact, they state the opposite, in that she was still fearful and declined to enter an unsafe work environment.

397        The first day on which the grievor could possibly have returned to work would have been Thursday, October 24, 2013. Given her stance with respect to returning to work and her position within the organization, and given that she had been effectively away from her job for three months, it is surprising that she expected her employer to immediately return her to some form of meaningful work, at her level, outside her normal work environment. In fact, the grievor was scheduled to attend the October 28 meeting with respect to the grievance that was to become PSLREB File No. 566-02-9426, which did in fact take place.

398        At that hearing, Ms. Wilson, the ADM responsible for the SCB, in addition to hearing the second-level grievance, addressed the grievor and her legal counsel with respect to the alleged safety issue. She stated that the employer was looking at return-to-work options and that it did not know how long the investigations were going to take. According to the grievor’s notes of the meeting, when she asked specifically about being relieved of her position, she was told that she was not being relieved. However, she was also told that the employer wanted to let the situation diffuse.

399        In fact, the November 1 meeting took place, attended by Ms. Dupont, Mr. Viau  from Executive Services, Mr. Harapiak from Legal Services, and Mr. Legault from Security Services.

400        While the grievor certainly viewed the actions of the assignment as discipline, there is little actual evidence that it was.

401        The evidence disclosed that as of early November 2013, the RPD work environment could not have been described as pleasant and enjoyable. While the grievor’s harassment complaints against Mr. Tremblay, Ms. Dupont, and Ms. Shatford were dismissed, her complaint against Mr. B, his against her, and Ms. C’s against her were all outstanding. Both harassment complaints made against the grievor were long and contained many allegations.

402        The grievor described her relationship with Ms. Dupont as deteriorating, which was an overwhelming understatement, considering that by then, the grievor had not only filed a harassment complaint against her but also had filed a grievance alleging that her performance rating (in which Ms. Dupont had played a direct role) had been disciplinary.

403        While Mr. B was on assignment outside the RPD and Ms. C was on sick leave, their allegations and the ones the grievor was making against Mr. B surrounded their mutual work environment. The evidence disclosed that the investigations into Mr. B’s and Ms. C’s complaints were ongoing and that the grievor’s complaint against Mr. B was to be investigated.

404        That backdrop of a difficult and dysfunctional work environment is what Ms. Wilson was referring to when she talked about “letting the situation diffuse” by assigning the grievor temporarily outside the RPD.

405        The assignment to the RIA was temporary, incurred with no loss of pay or benefits for the grievor, and was to a position at her same group and level. While she saw it as punishment, there is no evidence that it in any way amounted to a financial penalty. The evidence was heard in 2015. By then, the grievor would have had a performance assessment carried out with respect to her work at the RIA. I heard no evidence that her performance rating was unacceptable to her or that it amounted to a financial penalty. The evidence I heard was the opposite, which was that she was appreciated by Ms. Paré, her supervisor at the RIA, so much so that the evidence disclosed that Ms. Paré wrote to Mr. Saranchuk and stated that she was disappointed when the grievor returned to the RPD at the end of the temporary assignment.

3. The complaint

406        The right to refuse work under s. 128 of the Code is meant to address the presence of danger at work; it is not intended to be a carte blanche for employees to address other workplace issues and problems. Other, more appropriate means are in place to deal with workplace difficulties, including the grievance process as outlined in the Act and the harassment policy.

407        Section 147 of the Code prohibits an employer from making reprisals against an employee for exercising rights under, or engaged in activity contemplated in, Part II of the Code and states the following:

General prohibition re employer

147 No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

(a) has testified or is about to testify in a proceeding taken or an inquiry held under this part;

(b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or

(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

408        As set out in White, the Board’s jurisdiction to hear complaints under the Code flows from s. 240 of the Act, which states that Part II of the Code applies to and in respect of the public service. All of ss. 128, 133, and 147 of the Code fall within Part II, and as a complaint has been filed under s. 133 alleging a reprisal under s. 147, I have jurisdiction to hear and determine the matter. However, my authority to consider a reprisal under the Act and Code is limited.

409        Section 128 is the section of the Code that permits an employee to refuse to work in certain situations of danger. The subsections relevant for this case are as follows:

128 (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that

(a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;

(b) a condition exists in the place that constitutes a danger to the employee; or

(c) the performance of the activity constitutes a danger to the employee or to another employee.

(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if

(a) the refusal puts the life, health or safety of another person directly in danger; or

(b) the danger referred to in subsection (1) is a normal condition of employment.

(6) An employee who refuses to use or operate a machine or thing, work in a place or perform an activity under subsection (1), or who is prevented from acting in accordance with that subsection by subsection (4), shall report the circumstances of the matter to the employer without delay.

(8) If the employer agrees that a danger exists, the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it.

(9) If the matter is not resolved under subsection (8), the employee may, if otherwise entitled to under this section, continue the refusal and the employee shall without delay report the circumstances of the matter to the employer and to the work place committee or the health and safety representative.

(10) An employer shall, immediately after being informed of the continued refusal under subsection (9), investigate the matter in the presence of the employee who reported it and of

(a) at least one member of the work place committee who does not exercise managerial functions;

(b) the health and safety representative; or

(c) if no person is available under paragraph (a) or (b), at least one person from the work place who is selected by the employee.

(13) If an employer disputes a matter reported under subsection (9) or takes steps to protect employees from the danger, and the employee has reasonable cause to believe that the danger continues to exist, the employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity. On being informed of the continued refusal, the employer shall notify a health and safety officer.

410        Section 133 of the Code sets out the process for filing complaints. The subsections relevant to this case are as follows:

Complaint to Board

133 (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.

(2) The complaint shall be made to the Board not later than ninety days after the date on which the complainant knew, or in the Board’s opinion out to have known, of the action or circumstances giving rise to the complaint.

(3) A complaint in respect of the exercise of a right under section 128 or 129 may not be made under this section unless the employee has complied with subsection 128(6) or a health and safety officer has been notified under subsection 128(13), as the case may be, in relation to the matter that is the subject-matter of the complaint.

(6) A complaint made under this section in respect of the exercise of a right under section 128 or 129 is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party.

a. Failure to comply with s. 133(6) of the Code

411        As set out in White, s. 133(6) of the Code establishes that once a complaint is made under the Code, the initial burden of proof lies with the party who alleges the complaint; however, that burden is merely to prove that he or she has filed a complaint under s. 133(1) that arose in respect of a right being exercised under either ss. 128 or 129.

412        Section 133(3) of the Code sets as a condition precedent that a complaint in respect of the exercise of a right under ss. 128 or 129 may not be made unless the employee has complied with s. 128(6) or a health and safety officer has been notified under s. 128(13).

413        As there is no evidence that after the grievor wrote her letter to the DM, a health and safety officer was notified under s. 128(13) of the Code, this leaves as a condition precedent that the grievor had to establish that she complied with s. 128(6), which states as follows: “An employee who refuses to … work in a place or perform an activity … shall report the circumstances … to the employer without delay.” 

414        In her letter to the DM, dated October 4, 2013, the basis for the grievor’s work refusal under the Code were comments attributed to Mr. B’s complaint, which she stated she had recently reviewed, and the alleged threats made against her life by many people that the respondent took no steps to investigate or advise her of. It also did not provide her with a safe work environment.

415        While Mr. B filed his complaint on July 8, 2013, the grievor made the following inconsistent statements in her evidence about receiving and reviewing it:

  • she received it while she was at home on sick leave in the summer of 2013 (the sick leave that started on July 22, 2013);
  • she received it in August 2013 and reviewed it then; and
  • she received it upon her return to work on September 16, 2013, and reviewed it then.

416        When Ms. Dupont and Mr. Tremblay were sent copies of the grievor’s harassment complaint against them, copies of the letters sent to them advising them of the complaint and attaching it were entered into evidence at this hearing.  When Mr. B’s complaint was sent to the grievor, I suspect the grievor was also sent a letter with the complaint, but if it exists, it was not produced. If it had been produced, it would have been possible to determine with greater certainty when the grievor learned about Mr. B’s complaint. Since it was not produced, all I have is the grievor’s evidence.

417        The employer submitted that the contents of Mr. B’s complaint, which the grievor alleged formed the basis for her work refusal, are the same facts and comments that were well known to her as far back as November of 2012. I agree, as the evidence bears this out.

418        At the November 22, 2012 meeting, Mr. B told the grievor that

419        Mr. B’s complaint is 28 pages long. At pages 15 through 18 is his account of the November 22 meeting. Specifically with respect to the alleged threat and danger, his account states as follows:

At this point I found the courage to tell her:

  • You have managed to make many enemies
  • There are lots of people who would like to kill you and eat your liver. They have diverse reasons, most of which I do not understand, and mostly I do not care to understand.

420        It is clear that in November 2012, the grievor was well aware of comments that Mr. B made to her about having enemies and about those enemies wanting to “eat your liver”. She stated that after the November 22 meeting with Mr. B, she spoke with Ms. Dupont, who told her that she thought Mr. B was only “f---ing” with [her] head”. Despite Ms. Dupont’s dismissal of her concerns, the grievor spoke with Mr. Roy of Security Services. The grievor stated that Mr. Roy categorized it as violence in the workplace and that he referred her to LR. She categorized Mr. B’s behaviour as aggressive and stated that she was afraid of him; however, she did not refuse to work or exercise a work refusal under the Code. Indeed, the evidence was the opposite; she continued to go to work, as apparently did Mr. B, and she took steps to undertake fact-finding.

421        It is patently obvious that in his complaint, Mr. B merely recounts his version of his discussion with the grievor at the November 22 meeting. While his wording is not exactly the same as what she wrote in her notes, the context and subject matter are the same as in her notes and in her testimony before me. However, her notes and testimony contained much less detail and did not make the specific reference that “… lots of people … would like to kill …” her. The conversation recounted in essence is the same, namely, that the grievor was not well liked and had enemies and that people in her unit wanted to do her harm, specifically by “eating [her] liver”.

422        The comment about eating the grievor’s liver, accepted on its own as a threat of violence, would presuppose someone committing extreme violence against a person, and would suggest a death. It is not comprehensible to me that the grievor would have heard the phrase “eat your liver” and would have interpreted it as meaning anything less than doing her grievous bodily harm, including death.

423        By then, late November 2012, it is clear that the grievor and Mr. B were having an interpersonal conflict; each was making accusations about the other’s behaviour.

424        According to both the grievor and Mr. B’s complaint, she and Mr. B had a second event, at the February 5, 2013 meeting. She presented both handwritten and typewritten notes about that meeting. She said she raised with Mr. B an issue involving him allegedly counselling other employees to file grievances about her in an effort to get them to effect a change of reporting relationship. In her testimony and notes, among other things, she described Mr. B as having been angry. She stated that his reaction to her was “over the top” and that he stated that she “had lots of enemies.” After this meeting, the grievor stated that she reported this to Ms. Dupont, locked herself in her office, called her husband, and did not depart until her husband came to her up.

425        After the February 5 meeting, the grievor did not refuse to work and did not exercise a work refusal under the Code. Oddly enough, on that same day, Mr. B wrote to Mr. Tremblay, stated that he had been threatened, asked for a transfer to a safe environment, and stated that he was seeking protection from reprisal. At 8:16 a.m. on February 6, 2013, Mr. B emailed Ms. Dupont, stating that on the previous day, an incident had occurred in the workplace in which he was threatened, which he identified as part of an escalating series of threats, intimidation, and workplace improprieties that “rendered [him] unfit for work” and “genuinely afraid to return”. He further stated that he was requesting immediate separation to a safe environment and that he was seeking protection from reprisal.

426        The grievor testified that as of February 6, 2013, she was aware of Mr. B’s emails, to both Mr. Tremblay and Ms. Dupont.

427        Mr. B returned to work at the end of February 2013, although he was moved out of the SCB. The grievor admitted that she had had no contact with him after February 5, 2013, up to and including when she filed her work refusal on October 4, 2013.

428        The grievor remained in the workplace and continued to work for some eight months after the November 22 meeting and six months after the February 5 meeting. She left on sick leave on July 22, 2013.

429        The grievor’s evidence with respect to the danger, her knowledge of the danger, and her work refusal was unconvincing. In fact, it was vague and elusive. She stated in her evidence that she had reviewed Mr. B’s complaint in the summer while on sick leave. Then she stated she did so in August 2013 and then stated that it was “upon [her] return to work on September 16, 2013”. In her letter to the DM, she stated that the date she became aware of it was September 23, 2013. From her evidence, I can conclude only that she obviously reviewed Mr. B’s complaint on multiple occasions over the course of what appears to be several months.

430        At no point from November 22, 2012, until October 4, 2013, did the grievor ever exercise a right under s. 128 of the Code. While she did report the comments that Mr. B made to her immediately after the November 22 meeting (to Ms. Dupont), she alleged that the reprisal came after the October 4, 2013, letter to the DM, not with respect to the November 22 meeting or the February 5 meeting.

431        I heard no evidence that the grievor ever reported these “threats” against her to the police. In fact, despite the comment in her letter to the DM about the DIAND doing nothing and about how frightened she was, there was no evidence before me that she contacted any police department.

432        The grievor was at work for a week-and-a-half (September 16 to 25, 2013) and then stayed at home on Thursday, September 26, and emailed Ms. Dupont on that day that she was sick. She made no mention of a danger. She emailed Ms. Dupont again on Friday, September 27, and again on Monday, September 30, again stating that she was not well. In fact, instead of reporting the danger that she said she believed was due to Mr. B, she advised Ms. Dupont that she was sick. She remained off work, and only on Friday, October 4, after 2:18 p.m., while still off work, did she email the DM about her concerns for her safety.

433        When she wrote to the DM, the grievor was not at work; nor had she been for the previous seven working days. She had been at work for the eight working days before then (September 16 to 25, 2013) and had been well aware of the content of Mr. B’s complaint and the alleged danger. During those eight working days, she did not exercise a work refusal under s. 128(1) of the Code.

434        There is no doubt that the grievor was aware of Mr. B’s complaint and its contents well before October 4, 2013. She could have reported the danger but failed to, at the following times:

435        If I accept the grievor’s theory that she became aware of the threat and danger to her in Mr. B’s complaint, it is clear from her evidence that she did not comply with s. 128(6) of the Code and report the danger she believed existed without delay. If I accept her evidence that she reviewed Mr. B’s complaint in August 2013, reporting this fact without delay would have meant reporting it in August or in very early September. She did not; in fact, she not only did not report it when she knew of it, but she also returned to work and did not report it. A one-month delay reporting a danger is clearly not reporting it “without delay”, as contemplated by s. 128(6).

436        Therefore, as the grievor did not comply with s. 128(6) of the Code, the reprisal complaint must fail.

b. Failure to comply with s. 128(1) of the Code

437        While I find that the grievor’s complaint under s. 133 of the Code must fail because she did not comply with s. 128(6), it would also fail because she did not comply with s. 128(1).

438        Section 128(1) of the Code provides for the conditions in which, in certain situations of danger, an employee can refuse to work. It states that “… an employee may refuse … to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that … (b) a condition exists in the place that constitutes a danger to the employee …”.

439        In White, the complainant ostensibly refused to work under s. 128 of the Code and alleged that a danger existed because he was being required to wear his stab-proof vest while at work, which he stated was constrictive, and when coupled with the heat in the workplace, made breathing difficult. While hewas at work when he refused to work under s. 128, the thing causing the alleged danger, the vest, was not. I found that he could not have been in danger due to wearing his vest because he did not have it with him. Hence, he did not properly exercise a refusal to work under s. 128. Therefore, I found that the condition precedent set out by s. 128(1) did not exist.

440        The grievor stated in her evidence before me that she filed her work refusal because she was afraid of Mr. B. However, the comments that she stated caused her to refuse to work were not threats made by Mr. B but comments he made about other people and their feelings towards the grievor, which were that she had many enemies and that many people wanted to kill her and eat her liver.

441        Even if I accept that the grievor believed that based on the comments in his complaint, Mr. B was a danger to her, he had moved out of her work unit in February 2013, and she had not been in the workplace from late July 2013 until September 16, 2013.

442        In her October 4, 2013, letter to Mr. Wernick, the grievor stated as follows:

September 23, 2013: I reviewed the complaint by [Mr. B], and was horrified to see that [Mr. B] had alleged that “there are lots of people who would like to kill you and eat your liver”. I immediately advised Ms. Dupont that I was unable to return to work, which I consider to be unsafe.

[Emphasis in the original]

443        That is not true, as on September 23, 2013, the grievor did not inform Ms. Dupont that she was unable to return to her work, which she considered unsafe. She was at work on September 23, 24, and 25, 2013. When she did not come to work on September 26, 2013, she emailed Ms. Dupont and stated that she was sick. She made no mention of danger, her fear of Mr. B, her belief that Mr. B was a danger to her or a threat to her safety, or any concern about her safety from Mr. B or from any other employees. In her testimony, while she stated that she feared for her safety and that she refused to go back to work, she did not testify that she told as much to Ms. Dupont; she stated that she told Ms. Dupont she was sick.

444        Ms. Dupont stated in her evidence in cross-examination by the grievor’s counsel that after she received the September 30, 2013, email stating that the grievor was “not able to return to work”, she got in touch with HR. She did not askthe grievor for a medical certificate. She also stated that she learned of the health and safety complaint (the October 4, 2013, letter to the DM), “About a week later.”

445        As set out in s. 128(1) of the Code, an employee may refuse “… to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that …”. According to the grievor, Mr. B was the danger. However, he had been out of the workplace since February 2013, and she had not seen him since then. Indeed, she had been out of the workplace from July 22, 2013, until September 16, 2013, and again starting on September 26, 2013. There is no evidence that she was aware that Mr. B was at work or that he was at work in her workplace at any time after she received and read his complaint, up to and including when she wrote to the DM on the afternoon of October 4, 2013.

446        The grievor was clearly not at work when she refused to work, which is unquestionably a requirement set out in s. 128(1) of the Code as a precondition for a work refusal.

447        I find as a fact that the grievor did not comply with ss. 128(1) and (6) of the Code, and as such, s. 147 was not contravened. Therefore, the complaint is dismissed.

448        For all of the above reasons, the Board makes the following order:

V. Order

449        I have no jurisdiction with respect to either the first or the second grievance.

450        The grievances are dismissed.

451        I have jurisdiction with respect to the complaint.

452        The complaint is dismissed.

February 8, 2017.

John G. Jaworski,
a panel of the Public Service Labour Relations and Employment Board