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LABOUR RELATIONS - Employees - Discipline - Last chance agreement

Wednesday, June 09, 2021 @ 5:40 AM  

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Application by the Attorney General of Canada for judicial review of a decision by the Federal Public Sector Labour Relations and Employment Board. The respondent, Yates, worked as a case processing agent for the Department of Citizenship and Immigration. The department introduced new computerized processing methods with increased productivity targets for processing agents to alleviate a backlog in immigration cases. In 2011, the respondent was put on a performance improvement plan due to struggles with meeting the productivity targets. Although the respondent’s productivity improved, concerns persisted with processing errors. In April 2014, the department issued a written final warning advising the respondent she would be terminated for unsatisfactory performance if she continued to fail to meet productivity standards. The letter set out graduated targets on a timeline toward a final evaluation in July 2014. Prior to the final evaluation date, the respondent was terminated for unsatisfactory performance. The respondent grieved her dismissal. The board allowed the grievance on the basis that the department failed to clearly communicate performance standards in respect of processing errors, which formed part of the basis for the respondent’s dismissal. Canada sought judicial review.

HELD: Application dismissed. It was reasonable for the board to conclude that the department’s assessment of the respondent’s performance was unreasonable. The respondent’s performance assessment was premised both on a failure to meet productivity standards and a failure to meet error standards. Taken together, the department decided that the respondent failed to meet the required level of performance. The board found that the issue of productivity standards and error rate were so intrinsically connected throughout the assessment of the respondent’s performance that the department’s failure to establish clear error rates and communicate them to the respondent was sufficient to render the department’s assessment of the respondent’s performance unreasonable. That conclusion was open to the board on the evidence.

Canada (Attorney General) v. Yates, [2021] F.C.J. No. 324, Federal Court of Appeal, J.D.D. Pelletier, D.G. Near and M.J.L. Gleason JJ.A., April 16, 2021. Digest No. TLD-June72021009