A-856-88
Attorney General of Canada (Applicant)
v.
Judith L. Penner (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. PENNER
(C.A.)
Court of Appeal, Pratte, Marceau and MacGuigan
JJ.A.— Ottawa, April 25 and May 30, 1989.
Public service — Termination of employment — Probation
— Misconduct during probation — Employee rejected,
employer stating dissatisfaction as to suitability — Whether
case of disciplinary discharge arbitrable by adjudicator under
P.S.S.R.A. or rejection on probation under P.S.E.A. — Rela
tionship between two Acts uncertain in view of different inter
pretations of Jacmain — Adjudicator without jurisdiction as
to rejection on probation where employer shown to have acted
in good faith in finding employee unsuitable, even where
dissatisfaction with suitability arising from misconduct.
After seven months on probation as a secretary with the
Department of Transport, the respondent's employment was
terminated. The employer notified the respondent that she had
failed to perform her duties to the standard required. The
decision was taken after a discussion of her performance
appraisal with her supervisor during which the respondent
became abusive and disrespectful and demonstrated a negative
attitude towards her fellow workers. The respondent's griev
ance, that her release was unjustified, came before an adjudica
tor. After confirming his jurisdiction, the adjudicator came to
the conclusion that what had been presented as a rejection on
probation had in fact been a disciplinary discharge. He also
decided that her misconduct at most warranted a fifteen-day
suspension. This was a section 28 application to review and set
aside that decision. The issue was whether this was a case of
disciplinary discharge arbitrable under section 92 of the Public
Service Staff Relations Act (the Act applying to employees,
even those on probation, having worked for more than six
months), or one of rejection on probation pursuant to section 28
of the Public Service Employment Act.
Held, the application should be allowed.
Per Marceau J.A.: The Supreme Court of Canada decision in
Jacmain, which deals with this issue, has been interpreted by
some adjudicators as meaning that if the reason for rejection on
probation could be regarded as disciplinary, they might inquire
into the termination and, where appropriate, provide a remedy.
Other adjudicators have interpreted it as meaning that as soon
as they could satisfy themselves that the decision was founded
on a bona fide dissatisfaction as to suitability, they had no
jurisdiction to inquire into the adequacy and the merit of the
decision to reject. The latter is the correct view as to what the
Jacmain decision stands for.
The intent of section 28 of the Public Service Employment
Act is to give the employer an opportunity to assess an
employee's suitability for a position. During that period, the
employer can reject the employee for unsuitability without the
employee having the adjudication avenue of redress. Neither
the function of a probationary period nor the structure of the
legislation can be reconciled with the proposition that discipli
nary discharge and rejection are not mutually exclusive con
cepts. One is the ultimate sanction imposed by management for
serious misbehaviour, the other is a termination of employment
based on a bona fide dissatisfaction with suitability. It may be
that this dissatisfaction with suitability arose from misconduct
or misbehaviour by the employee, but that does not render the
dissatisfaction any less real and legitimate nor does it allow the
rejection to be confused with a disciplinary sanction.
In this case, there was no doubt that the decision was made
in good faith and on the basis that the employee appeared
unsuitable, partly because of shortcomings in her technical
skills but mainly because of some perceived character defects.
In these circumstances the adjudicator had no jurisdiction to
deal with the matter.
Per Pratte J.A.: The phrase "disciplinary action resulting in
discharge" in subsection 92(1) of the P.S.S.R.A. refers to
disciplinary action taken by the employer in the exercise of
powers conferred pursuant to paragraph 11(2)(J) of the Finan
cial Administration Act; these words do not refer to any
termination of employment that may be attributable to the
violation by the employee of disciplinary rules. The grievance of
an employee against the termination of his employment other
wise than by discharge cannot be referred to adjudication even
if the employee's employment was terminated for disciplinary
reasons. In certain cases, the employer may have the power
either to reject or discharge a probationary employee. Miscon
duct justifies both rejection and discharge. In such cases, the
employer has the choice of either discharging or rejecting the
employee.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Financial Administration Act, R.S.C., 1985, c. F-11, s.
11(2)(f).
Public Service Employment Act, R.S.C., 1985, c. P-33,
ss. 28, 29, 31.
Public Service Staff Relations Act, R.S.C. 1970, c. P-35,
s.91(1).
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
ss. 2, 91(1), 92(1).
CASES JUDICIALLY CONSIDERED
EXPLAINED AND APPLIED:
Jacmain v. Attorney General (Can.) et al., [1978] 2
S.C.R. 15; affg. [1977] 1 F.C. 91 (C.A.), sub. nom.
Attorney General of Canada v. Public Service Staff
Relations Board.
REFERRED TO:
Gloin v. Attorney General of Canada, [1978] 2 F.C. 307
(C.A.); Attorney General of Canada v. Brent, [1980] 1
F.C. 833 (C.A.); Vachon v. R., [1982] 2 F.C. 455 (C.A.);
Wright v. Public Service Staff Relations Board, [1973]
F.C. 765 (C.A.); R. v. Ouimet, [1979] 1 F.C. 55 (C.A.).
COUNSEL:
Harvey A. Newman for applicant.
Andrew J. Raven for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.A.: I have had the privilege of reading
the reasons for judgment prepared by my brother
Marceau. I agree with him and wish to add only a
few observations to show that the solution he
proposes is the only one that can be reconciled
with the applicable statutory provisions.
In Wright v. Public Service Staff Relations
Board' and R. v. Ouimet, 2 Chief Justice Jackett
quoted the various statutory provisions pursuant to
which an employment with the Civil Service may
be terminated. It is interesting to note that those
provisions do not only provide that the employ
ment of a civil servant may come to an end in
various ways, for diverse reasons and, often, with
different results but they also give to each one of
' [1973] F.C. 765 (C.A.).
2 [1979] 1 F.C. 55 (C.A.).
these forms of termination a special name. Thus,
for example,
— under section 28 of the Public Service Employ
ment Act, R.S.C., 1985, c. P-33, a probationary
employee may be "rejected";
— under section 29 of the same Act, the deputy
head may "lay off" an employee;
—under section 31, an incompetent or incapable
employee may be "released";
—finally, pursuant to paragraph 11(2)(f) of the
Financial Administration Act, R.S.C., 1985, c.
F-11, an employee may be "discharged" for
breaches of discipline or misconduct.
When subsection 92(1) of the Public Service
Staff Relations Act, R.S.C., 1985, c. P-35, is read
in that statutory context, it is clear, in my view,
that the phrase "disciplinary action resulting in
discharge" refers to disciplinary action taken by
the employer in the exercise of powers conferred
pursuant to paragraph 11(2)(f) of the Financial
Administration Act; these words do not refer to
any termination of employment that may be
attributable to the violation by the employee of
disciplinary rules. It follows that the grievance of
an employee against the termination of his
employment otherwise than by discharge cannot
be referred to adjudication even if the employee's
employment was terminated for disciplinary
reasons.
Does that interpretation give the employer the
means of depriving the employee of his right to
adjudication? Certainly not. In order for the
employer to validly terminate an employment for
breach of discipline otherwise than by discharge,
the statutory requirements relating to the form of
termination that he chooses to use must be met.
For instance, an employer cannot reject an
employee after the expiry of the probationary
period; if he does, the rejection is a nullity (see
Wright v. Public Service Staff Relations Board,
supra).
In certain cases, the employer may have the
power either to reject or discharge a probationary
employee. This is so because, as noted by my
brother Marceau, a lack of discipline or mis
behaviour on the part of the employee is a reason
for the employer to reject him; it may also be a
reason warranting a discharge. In these cases, the
employer has the choice of either discharging or
rejecting the employee. Both the power to reject
and the power to discharge are conferred on the
deputy head; in each case he may, therefore,
choose which one of those two powers he wants to
use.
In agreement with my brother Marceau, I would
set aside the decision under attack.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.A.: The special interest of this
application under section 28 of the Federal Court
Act [R.S.C., 1985, c. F-7] comes from the fact
that it puts into sharp focus the relationship be
tween the two Acts which, together with the
Financial Administration Act, R.S.C., 1985, c.
F-11, fulfill the design of Parliament for the estab
lishment, organization and management of the
federal public service namely the Public Service
Staff Relations Act, R.S.C., 1985, c. P-35
(P.S.S.R. Act) and the Public Service Employ
ment Act, R.S.C., 1985, c. P-33 (P.S.E. Act).
Indeed it involves a reference to adjudication pur
suant to the P.S.S.R. Act, of a rejection on proba
tion made under the P.S.E. Act. The problem such
a reference poses is far from being new. There is
even a well known decision of the Supreme Court
dealing with it. But this decision has given rise to
difficulties of interpretation and, to my knowledge,
it is the first time that this Court is called upon to
consider the controversy that has developed since
its pronouncement. 3 What it is all about will
become clear when the facts are set forth, the
applicable legislation recalled and the impugned
decision of the Public Service Staff Relations
Board adjudicator briefly reviewed.
The respondent was first employed, as a secre
tary, with the Air Traffic Services Division of the
Department of Transport, in Winnipeg, on August
1, 1986. It was a term employment, with the
employee on probation, the term being initially
established until January 6, 1987 but then extend
ed to July 3, 1987. On March 11, 1987, the
employer decided to put an end to the employ
ment. The respondent was advised by letter that
she was rejected on probation for "failure to per
form the duties of Secretary to the standard
required".
The respondent immediately reacted by present
ing a grievance under subsection 91(1) of the
P.S.S.R. Act claiming that her release from her
position was unjustified. At each level of the griev
ance procedure, the authorized employer's repre
sentative reiterated, in effect, that it was a case of
rejection on probation for failure to perform the
duties of secretary to the standard of performance
required and that the decision was justified. The
respondent then asked that her grievance be
referred to adjudication pursuant to subsection
92(1) (formerly subsection 91(1) [R.S.C. 1970, c.
P-35]) of the P.S.S.R. Act, the text of which
should at this point be recalled:
92. (1) Where an employee has presented a grievance, up to
and including the final level in the grievance process, with
respect to
3 This Supreme Court decision is that of Jacmain v. Attorney
General (Can.) et al., [1978] 2 S.C.R. 15, rendered in 1977. I
am aware of three decisions of this Court where reference to it
has been made, but none of them dealt with the controversy we
have to contend with here, see: Gloin v. Attorney General of
Canada, [1978] 2 F.C. 307 (C.A.); Attorney General of
Canada v. Brent, [1980] I F.C. 833 (C.A.); and Vachon v. R.,
[1982] 2 F.C. 455 (C.A.).
(a) the interpretation or application in respect of the
employee of a provision of a collective agreement or an
arbitral award, or
(b) disciplinary action resulting in discharge, suspension or a
financial penalty,
and the grievance has not been dealt with to the satisfaction of
the employee, the employee may, subject to subsection (2),
refer the grievance to adjudication.
At the outset of the hearing before the adjudica
tor, counsel for the employer objected to the pro
ceeding on the basis that the case was not one of
disciplinary discharge arbitrable under the
P.S.S.R. Act and its subsection 92(1), but rather
one of rejection on probation pursuant to section
28 of the P.S.E. Act which reads thus:
28. (1) An employee shall be considered to be on probation
from the date of his appointment until the end of such period as
the Commission may establish for any employee or class of
employees.
(2) Where an appointment is made from within the Public
Service, the deputy head may, if the deputy head considers it
appropriate in any case, reduce or waive the probationary
period.
(3) The deputy head may, at any time during the probation
ary period of an employee, give notice to the employee and to
the Commission that he intends to reject the employee for
cause at the end of such notice period as the Commission may
establish for any employee or class of employees and, unless the
Commission appoints the employee to another position in the
Public Service before the end of the notice period applicable to
the employee, the employee ceases to be an employee at the end
of that period.
(4) Where a deputy head gives notice that he intends to
reject an employee for cause pursuant to subsection (3), he
shall furnish the Commission with his reasons therefor.
(5) Notwithstanding anything in this Act, a person who
ceases to be an employee pursuant to subsection (3) shall, if the
appointment held by the person was made from within the
Public Service, and may, in any other case, be placed by the
Commission on such eligibility list and in such place thereon as
in the opinion of the Commission is commensurate with the
qualifications of the person.
As it was alleged in reply to the employer's conten
tion that it would become clear on the evidence
that a disciplinary discharge had in reality taken
place via a rejection on probation, the adjudicator
decided to take the objection to his jurisdiction
under reserve and to hear the grievance on its
merits.
On the evidence submitted to him, the adjudica
tor came to the conclusion that even if the grie-
vor's superiors had some reasons to be unsatisfied
with her work, there decision to put an end to the
employment was in fact due to incidents of a
disciplinary nature which ensued in the course of
discussing a performance appraisal prepared by
her supervisor. The adjudicator recounts the inci
dents as follows (at page 12):
The evidence adduced before me showed that what Mr.
Cottrell really wanted from Ms. Penner up to the incident in his
office on March 5, was that she improve her weak areas. He
never told her that if she did not do it to his full satisfaction by
a certain date, she would be rejected on probation.
Why then was Ms. Penner rejected on probation on March
11, 1987? It was solely for incidents which occurred in Mr.
Cottrell's office on March 4 and 5, 1987. These incidents, of a
disciplinary matter, were not cause for rejection on probation.
Ms. Penner first met with Mr. Cottrell on March 4. A heated
discussion, with respect to the griever's work performance, went
on between Ms. Penner and her supervisor. At one point, the
griever decided to leave Mr. Cottrell's office. As she did, she
slammed the door. The next day, March 5, Ms. Penner met
again with her supervisor twice. The first time, the previous
day's heated discussion resumed. Ms. Penner decided, at one
time, she could no longer continue to discuss things with her
supervisor. As she left his office, she again slammed the door.
Ms. Penner came back later to Mr. Cottrell's office. She was
told she would be rejected on probation. Ms. Penner became
upset. She used profanity towards her supervisor. She threw
appraisal papers in a waste basket. When Ms. Penner was
cross-examined, she said that she told her supervisor on March
5, 1987 that he was a "fucking bastard". This was the foremen-
tioned profanity used by the griever towards her supervisor.
Following the above incidents, Mr. Cottrell wrote the follow
ing, as dated March 5, 1987, in Ms. Penner's appraisal:
Not available for signature: employee became argumentative
and refused to accept objective criticism of weak areas in
performance or identified need for correction. She com
menced accusing all support staff of having a personal
grudge against her. She then flew into a rage slamming
doors, tearing up appraisal documents and throwing current
material to be filed in the waste basket (she subsequently
retrieved these).
Nowhere did I see in Ms. Penner's appraisal that she should
be rejected on probation.
On that view of the facts, the adjudicator saw no
difficulty in confirming his jurisdiction and defin
ing the issue before him as being whether "the way
Ms. Penner acted on March 4 and 5 warranted
disciplinary mesure against her and, if so, did
these disciplinary measures warrant a discharge or
a lesser penalty?". His final decision was that,
although a disciplinary measure was no doubt
warranted, discharge was too much, and a fifteen-
day suspension was sufficient.
That the interdependence between the two Acts.
dealing with the management of the Public Service
is directly put in question, as I mentioned at the
outset, will now be clear. It is in the P.S.E. Act
that probation is dealt with and the rejection for
cause of a probationary employee is governed by
that Act where it is left, in appearance at least, to
the entire discretion of the employer, no supervi
sion by an outside authority being provided for. On
the other hand, a person employed in the Public
Service for a period of six months or more is an
employee covered by the P.S.S.R. Act even when
he is on probation (see paragraph (g) of the defini
tion of "employee" in section 2), and an employee
subject to disciplinary measure may always resort
to the protection afforded by that Act including
the right to adjudication. How is this dichotomy to
be managed? Here the adjudicator, without in any
way suggesting bad faith on the part of the
employer, saw as being disciplinary in nature the
motives for which the employment was terminated,
thus transforming a bona fide rejection on proba
tion, in principle not arbitrable, into a disciplinary
discharge fully subject to his review. Is that possi
bility part of the scheme intended by Parliament?
In Jacmain v. Attorney General (Can.) et al.,
[1978] 2 S.C.R. 15, the Supreme court addressed
the issue, but none of the three sets of reasons was
endorsed by a majority of judges, with the result
that difficulties of interpretation have arisen in the
wake of its pronouncement. As I have been able to
follow the jurisprudence of the Public Service
Staff Relations Board, two schools of thought exist
today, both looking for support to the Jacmain
decision. Some adjudicators have taken the view
that as soon as the reason that led to the rejection
on probation could be regarded as disciplinary,
that is to say could be linked to sanctionable
misbehaviour or misconduct, they could inquire
into the termination and, where appropriate, pro
vide a remedy to the employee. The position of this
group of adjudicators, among whom is, of course,
the author of the decision here under review, has
been championed especially by Mr. Bendel in
many of his decisions, particularly in Tighe (Board
File 166-2-15122) where we find the following
passage:
Disciplinary action and rejection for cause of an employee on
probation are not mutually exclusive concepts. Section 91 of
the Act permits any employee who feels he has been the object
of disciplinary action resulting in discharge, suspension or a
financial penalty to refer his grievance to adjudication. Parlia
ment intended, in my view, that whatever form the disciplinary
action might take and whatever label might be attached to it, a
grievance relating thereto is referable to adjudication if it
results in termination of employment. I do not regard it as
improper for a probationary employee to be rejected for a cause
that is related to his misconduct. The employer has an option, I
would suggest, of processing such a termination as a discharge
or as a rejection on probation. To describe a rejection on
probation as "disguised disciplinary action", as if the employer
had resorted to a subterfuge by rejecting the wayward
employee rather than discharging him, reveals, in my view, a
misapprehension of the relationship between section 91 of the
Act and section 28 of the Public Service Employment Act. If
the reason that led to the rejection on probation can be
regarded as disciplinary, an adjudicator can inquire into the
termination and, where appropriate, provide a remedy to the
employee.
Other adjudicators have adopted quite a different
attitude and accepted that they had no jurisdiction
to inquire into the adequacy and the merit of the
decision to reject, as soon as they could satisfy
themselves that indeed the decision was founded
on a real cause for rejection, that is to say a bona
fide dissatisfaction as to suitability. In Smith
(Board file 166-2-3017), adjudicator Norman is
straightforward:
In effect, once credible evidence is tendered by the Employer to
the adjudicator pointing to some cause for rejection, valid on its
face, the discharge hearing on the merits comes shuddering to a
halt. The adjudicator, at that moment, loses any authority to
order the grievor reinstated on the footing that just cause for
discharge has not been established by the Employer.
In my opinion, the latter view is the only one
that the Jacmain judgment authorizes and the
only one that the legislation really supports.
Let us look again at the Jacmain judgment first.
What does it stand for in that respect? In so far as
Mr. Justice de Grandpré and the three judges who
concurred with him are concerned, there can be no
doubt as shown by these basic statements in his
reasons (at pages 36-37):
The Court of Appeal held, when the case came before it, that
the adjudicator did not have jurisdiction to weigh the cause of
rejection, once it was established that this cause was not
frivolous and that the rejection was not for reasons based on
anything other than good faith ....
I concur with these views of the Court of Appeal:
The employer's right to reject an employee during a proba
tionary period is very broad. To use the words of s. 28 of the
Public Service Employment Act, mentioned above, it is neces
sary only that there be a reason.
The reasons of the two other judges forming the
majority, written by Mr. Justice Pigeon, are not so
straightforward, but, as I read them, they do not
set out conflicting principles. Pigeon J. shows no
reticence to answer in the affirmative the question
left open by de Grandpré J., namely "whether the
adjudicator has jurisdiction when the rejection is
clearly a disciplinary action". But this to him is
not the real issue, and on the real issue his basic
thought does not differ from that of de Grandpré
J. He writes (at page 42):
Although I agree that, in the case of a probationary employee
rejected by the deputy head under s. 28, an adjudicator has
jurisdiction to inquire whether what is in form a rejection is in
substance a disciplinary dismissal, I cannot agree that this does
invest the Adjudicator with jurisdiction to review the deputy
head's decision as to the suitability of the employee:
In the present case, the Adjudicator found that there were
grounds for deciding that the employee was unsuitable. How
ever, differing in that respect from the deputy head's judgment,
he was of the opinion that those grounds as established before
him, were not sufficient to justify the rejection. In my view this
is what he was not authorized to do because he only had
jurisdiction to review a disciplinary dismissal not a rejection.
On the basis on which the Adjudicator proceeded in the instant
case, he would review every rejection because he would hold it
to be disciplinary whenever in his opinion there was insufficient
cause. Just as I cannot agree that the employer can deprive an
employee of the benefit of the grievance procedure by labelling
a disciplinary discharge a rejection, I cannot agree that an
adjudicator may proceed to revise a rejection on the basis that
if he does not consider it adequately motivated, it must be
found a disciplinary discharge.
Even the reasons of the three dissenting judges do
not appear to me to go counter to what is basic in
the position of the majority. Mr. Justice Dickson's
[as he then was] appproach is different as it
focuses on the power of the Court of Appeal to
substitute its appreciation for that of the Board as
to the presence of a cause for rejection. I quote
here the final and most telling part of his reasons
(at pages 32-33):
As 1 read the judgment of Mr. Justice Heald, his reasoning
appears to proceed on this basis:
I . The appellant's attitude was wrong.
2. This would justify rejection for cause.
3. There could only be discharge for disciplinary reasons
when there was no valid cause for rejection.
4. Therefore, the termination of employment was a rejection
for cause, and the adjudicator was without jurisdiction.
The reasoning, with respect, contains fundamental fallacies.
First, it approaches the matter from the wrong end. Two
questions must be distinguished: (i) was the termination of
employment disciplinary discharge, or rejection for cause? (ii)
was termination justified? The first is a jurisdictional question;
the second goes to the merits. Mr. Justice Heald answered the
second question and used the answer to resolve the first ques
tion. The proper approach is to answer the first question and
then, depending upon the answer, to proceed to the second
question. Second, it does not inexorably follow that, simply
because there lurked in the background some cause which
might justify rejection, the termination must, of necessity, be
rejection and not disciplinary discharge.
It is clear that five of the nine judges who
rendered this Jacmain judgment expressed the
opinion that an adjudicator seized of a grievance
by an employee rejected on probation is entitled to
look into the matter to ascertain whether the case
is really what it appears to be. That would be an
application of the principle that form should not
take precedence over substance. A camouflage to
deprive a person of a protection given by statute is
hardly tolerable. In fact, we there approach the
most fundamental legal requirement for any form
of activity to be defended at law, which is good
faith. But I simply do not see how this Jacmain
judgment can be interpreted as lending support to
the proposition that an adjudicator acting under
section 92 of the P.S.S.R. Act would have jurisdic-
tion to intervene against a rejection on probation
pursuant to section 28 of the P.S.E. Act, on the
sole basis that the motives behind the employer's
decision were somehow linked to the misconduct or
misbehaviour of the employee and could therefore
have given rise to disciplinary measures. Even Mr.
Justice Dickson, as I read his dissenting judgment,
clearly disagrees with such a view, since, to the
adjudicator called upon to verify the real meaning
of the employer's decision, his sole admonition is,
as we have seen: "it does not inexorably follow
that, simply because there lurked in the back
ground some cause which might justify rejection,
the termination must, of necessity, be rejection and
not disciplinary discharge".
The basic conclusion of the Jacmain judgment,
as I read it, is that an adjudicator appointed under
the P.S.S.R. Act is not concerned with a rejection
on probation, as soon as there is evidence satisfac
tory to him that the employer's representatives
have acted, in good faith, on the ground that they
were dissatisfied with the suitability of the
employee for the position. And, to me, this conclu
sion follows inexorably from the legislation as it is.
Indeed the legislation as a whole could hardly be
interpreted as supporting any other view. As was
said by Heald J. [[1977] 1 F.C. 91 (C.A.), sub.
nom. Attorney General of Canada v. Public Ser
vice Staff Relations Board, at page 100], and
approved by de Grandpré J. in his reasons in
Jacmain (at page 37) "the whole intent of
section 28 is to give the employer an opportunity
to assess an employee's suitability for a position.
If, at any time during that period, the employer
concludes that the employee is not suitable, then
the employer can reject him without the employee
having the adjudication avenue of redress. To hold
that a probationary employee acquires vested
rights to adjudication during his period of proba
tion is to completely ignore the plain meaning of
the words used in section 28 of the Public Service
Employment Act and section 91 of the Public
Service Staff Relations Act.". Neither the func-
tion of a probationary period nor the structure of
the legislation can be reconciled with the proposi
tion that disciplinary discharge and rejection for
cause are not mutually exclusive concepts. One is
the ultimate sanction imposed by management for
serious misbehaviour, the other is a termination of
employment based on a bona fide dissatisfaction
with suitability. It may be that this dissatisfaction
with suitability arose from misconduct or mis
behaviour by the employee, but that does not
render the dissatisfaction any less real and legiti
mate nor does it permit us to confuse the rejection
with a disciplinary sanction.
It was said that "to describe management's deci
sion as not being disciplinary because it was based
on perceived character defects would be to under
mine much of the scheme of grievance adjudica
tion in the Public Service.". With respect, such a
reaction appears to me to reflect a somewhat
truncated view of the whole of the legislation
governing the organization and management of the
Public Service. It seems to me that while Parlia
ment has seen fit to set up a scheme of grievance
adjudication so as to submit the disciplinary
powers of management to the control and supervi
sion of an independent authority, it has not wanted
such a scheme to interfere with the discretion and
authority of management in selecting employees
who will appear fully suitable for the positions to
be occupied in its permanent staff, a discretion and
authority which would be seriously and unrealisti
cally impaired if cause for rejection were limited to
strict technical qualification.
My disagreement with the decision of the
adjudicator in the circumstances of the case before
the Court will now be clear. While it is true that
the incidents of March 4 and 5 have triggered
management's decision to terminate the employ
ment, there was no doubt that the decision was
made in good faith and on the basis that the
employee appeared unsuitable, partly because of
shortcomings in her technical skills and mainly
because of some perceived character defects. In
those conditions the adjudicator had no jurisdic
tion to deal with the matter.
I would set aside the impugned decision.
MAcGuIGAN J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.