This decision concerns the termination of a public sector employee and the interplay between two pieces of legislation: the Federal Public Sector Labour Relations Act and the Public Service Employment Act. The legal principles discussed herein may not be relevant outside the context of a public sector employee. However, the legal principles and tests may be similar to those applied by labour arbitrators in the private sectors.

Facts

In June of 2015, Ms. Victoria Alexis was terminated from her position with the Royal Canadian Mounted Police after approximately six months of work. Her problem, however, was that she was subject to a twelve-month probationary period. This did not stop Ms. Alexis from grieving her termination all the way to the Public Service Labour Relations and Employment Board (the “Board”). The question for the Board was whether the employer established a valid employment-related reason for rejecting an employee on probation, and also whether the employee is able to demonstrate that the termination was actually effected not for an employment-related reason but rather for “some other contrived reason or that it was disguised discipline, a sham, a camouflage, or in bad faith”.

Ultimately, the Board sided with Ms. Alexis. They found her termination was made in bad faith, and that her termination was for reasons that were illegitimate and not employment-related. She was consequently reinstated to her position and awarded compensation for lost wages and benefits.

At the Federal Court of Appeal

The Attorney General of Canada appealed the Board’s decision to the Federal Court of Appeal. In their view, the Board applied the wrong legal test. The Federal Court of Appeal held otherwise:

“Contrary to what the Attorney General submits, a review of the adjudicator’s decision in its entirety demonstrates that the adjudicator in fact followed and applied the accepted test for reviewing an employer’s decision to release an employee during the probationary period.

The Attorney General argued that the Board did not have jurisdiction to hear termination grievances from probationary employees. It seems this is generally true, but not where the termination of an employee on probation is a “camouflage, shame or made in bad faith.” Case law suggests that the Board can intervene in those circumstances. Furthermore, it is well known that the burden rests on the employee to establish that the termination was a camouflage, sham or conducted in bad faith.

The Federal Court of Appeal ultimately decided that the Board did not stray away from the accepted legal test. The Board properly considered the evidence in drawing their conclusion that the employer acted in bad faith. The particular evidence included:

  • the employer had not provided the respondent mentoring and that its assertion to have done so was disingenuous (at para. 238);
  • the employer had not provided the respondent with training (at paras. 232 and 243);
  • the employer had provided the respondent with only five working days to improve her performance after being warned it was unsatisfactory (at paras. 224 and 229); and
  • the individual who made the decision to terminate the respondent and signed the termination letter had no knowledge of the respondent’s alleged failure to improve after the date she signed the termination letter, despite her intention that the respondent should have been given an opportunity to improve before being terminated (at paras. 226-230).

In the Federal Court of Appeal’s opinion, the above factors were sufficient to enable the Board to make their finding of bad faith. Where a release of an employee on probation is a sham, camouflage or made in bad faith, it is not a valid release on probation (which would be outside the Board’s jurisdiction) but instead is a termination which the Board may remedy pursuant to the Federal Public Sector Labour Relations Act.

The Attorney General’s action was consequently dismissed.