Claimant's Grievances Partially Allowed by Federal Public Sector Labour Relations and Employment Board

Date: 202 60424 Files: 566 -02- 50305 and 50306 Citation: 2026 FPSLREB 50 Federal [NAME] and Employment Board Act and Federal [NAME] Act Before a panel of the Federal [NAME] and Employment Board [NAME] and [NAME] ( Department of Transport) Respondent Indexed as [NAME] v. [NAME] (Department of Transport) In the matter of individual grievances referred to adjudication Before: [NAME], a panel of the Federal [NAME] and Employment Board For [NAME]: [NAME], counsel For the Respondent: [redacted] ADVANCE \y 657 Heard at Montréal, Quebec, August 19, to 22, 2025, and following written submissions, September 16, and October 14 and 24, 2025 . (FPSLREB Translation)

REASONS FOR

DECISION (FPSLREB TRANSLATION)

I. Overview [ 1 ] [NAME] (“[NAME]”) referred two grievances to adjudication: the first against a suspension without pay during the administrative investigation, and the second against his rejection on probation. Before the Federal [NAME] and Employment Board (“the Board”), he essentially argued as follows: the suspension during the investigation was excessive discipline, not an administrative action; and he was not on probation when he was terminated. [ 2 ] When he was terminated, he was an operational and administrative assistant with the Department of Transport (“the respondent”) in Montréal, Quebec. His position was classified at the CR-05 group and level. [ 3 ] The respondent submits that the Board does not have jurisdiction to hear his grievances because, on the one hand, his suspension without pay was an administrative action, and, on the other hand, he was terminated for a legitimate employment-related reason while he was on probation. [ 4 ] For the reasons that follow, I dismiss the respondent’s objection that the Board does not have jurisdiction to hear the grievance against the suspension without pay during the investigation. However, I allow the objection that the Board does not have jurisdiction to address the grievance against [NAME]’s rejection on probation.

II. Summary of the relevant evidence [ 5 ] The respondent called six witnesses: [NAME], who was the director general of [NAME] for the Quebec region when the relevant matters occurred; [NAME], assistant director of compensation for the respondent; [NAME], a manager at the [COMPANY] when the relevant matters occurred; [NAME], administrative assistant, facility management, when the relevant matters occurred; [NAME], operational and administrative assistant; and [NAME], operational and administrative assistant. [NAME] testified for himself. He did not call any other witnesses. A. Hiring process [ 6 ] The respondent launched a non-advertised internal appointment process to staff an operational and administrative assistant position. In that context, [NAME] and [NAME] had an informal discussion on March 16, 2023, during which [NAME] informed [NAME] that he worked for the Canada Revenue Agency (CRA). However, although he knew that his contract would end on May 26, 2023, he did not inform [NAME]. [ 7 ] On May 15, 2023, at [NAME]’s request, [NAME] emailed him a letter from the CRA stating that he held a position at the CR-05 group and level. It stated that he had been working for the CRA on a term basis since January 11, 2021. But it did not indicate the contract end date. In the email, he did not say that his contract with the CRA was ending in less than two weeks. [ 8 ] On May 23, 2023, [NAME] informed him that his salary would be determined pursuant to the Directive on Terms and Conditions of Employment (“the directive”) because the appointment was internal to the [NAME]. Two days later, on May 25, the respondent notified on the [NAME] website that [NAME]’s application for the position in question had been successful. [ 9 ] On May 30, 2023, on the same website, the respondent posted a notification of appointment or proposed appointment of [NAME] to the position. That day, it sent him an offer letter for the operational and administrative assistant position. The appointment was indeterminate beginning on June 12, 2023. [ 10 ] It believed that he had transferred from the CRA, meaning that the appointment was internal to the [NAME], so the letter did not state that he would serve a probationary period. The letter said that his salary would range from $55 543 to $60 130 per year and would be determined pursuant to the directive. He began his new job on June 12, 2023, as the offer letter stated. Two other employees started the same day: [NAME] and a [NAME]. [ 11 ] On June 13, 2023, an employee in compensation asked him to fill out several forms to set up his pay and benefits. He responded by filling out the new employee questionnaire form, which he signed on June 13, 2023. In it, he indicated that his last day of work at the CRA was May 26, 2023. Based on that information, the respondent determined that there had been a break in service between May 26 and June 12, 2023. Therefore, it was not a transfer. He had to be considered as coming from outside the [NAME]. [NAME] was informed on June 15, 2023. Given that new information, the respondent had to change the May 30, 2023, offer letter. [ 12 ] On August 11, 2023, a human resources advisor informed [NAME] that his initial offer letter had been amended. She asked him to review it. That was the first time that he learned of the change. [ 13 ] In the exchanges that followed, she explained to him that his appointment had to be considered external, rather than internal, to the [NAME] because there had been a break in service between his job at the CRA and the one with the respondent. To support her contention, she referred him to the definition of continuous service in the directive. It says that continuous service is broken “when employment ceases between two periods of [NAME] employment for at least one compensation day”. [ 14 ] Therefore, pursuant to s. 61(1) of the [NAME] Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA ), [NAME] was on probation for 12 months beginning June 12, 2023, his appointment date. The August 10, 2023, amended offer letter explicitly set out that requirement. Moreover, he was under a new salary range, from $61 154 to $66 206 per year, and his salary was at the top of that range. [ 15 ] Because of the break in service, the respondent had to reactivate his health care and dental insurance. [NAME]’s training and supervision [ 16 ] The day after he was hired, [NAME], as well as the two new employees, received an email about training to be completed. He and [NAME] were paired with [NAME]. She had the most seniority, was very liked by her peers, and was a model employee, according to the respondent. During her summer holidays, from July 25 to August 31, 2023, [NAME], operational and administrative assistant, was responsible for [NAME]’s training. [ 17 ] [NAME] testified that on June 26, 2023, she had begun to assign tasks to the new employees to enable them to begin working independently on files. She was always available to answer their questions and help them. She said that [NAME] often asked the same questions over and over again. She observed that he did not take notes during training and that sometimes, when she explained how to do the work, he began speaking with coworkers, forcing her to stop explaining. He confirmed that he took only notes that he considered useful for the work. [ 18 ] She said that she clearly explained all applicable procedures to him. She also referred him to OneNote, an application that manages information, to familiarize himself with certain procedures. She had spent several days explaining how to manage candidates’ applications and administer exams. She reportedly said to him that operational and administrative assistants could not determine a [NAME]’s eligibility because the inspector had to do that. She had also informed him that he could not decide to give candidates more time to complete their exams. That decision was up to the manager or examiner. [ 19 ] Before the Board, she said that contrary to what [NAME] claimed, he received the same training as [NAME]. Often, they were trained at the same time. If they were not available at the same time, she met with them separately. She also said that [NAME] received more supervision than [NAME] because he had more difficulty. She did not favour [NAME], as he suggested. [ 20 ] [NAME] testified that he received regular feedback on new employees’ progress. He had also spoken with [NAME] to find out if everything was going well. At one point, he began to meet weekly with [NAME] to discuss training and his learning, and to give him feedback on how to improve. They also had team meetings every two weeks. According to him, [NAME] received more supervision than [NAME]. [ 21 ] With respect to assigning administrative tasks, [NAME] explained that initially, on July 26, 2023, he had suggested that the tasks be rotated monthly. However, after discussion, on August 9, he informed the team that the rotation would be weekly. The reason was to give new employees an opportunity to practise carrying out different tasks and make sure that they did not forget what they had learned. Therefore, the tasks assigned to [NAME] one week had to be completed by [NAME] the week after, and vice versa. [NAME] confirmed that aspect of his testimony. However, [NAME] testified that the rotations never materialized. According to him, scanning documents accounted for 80% of his weekly tasks. The rest of the time, he looked after the discharge book and answered emails. He did not perform the same tasks as [NAME]. [ 22 ] He added that there was no follow-up to make sure that he had received the information. In his opinion, contrary to what the respondent claimed, [NAME] was an authority figure. She did not know how to convey the message or the information. He felt that she was not cut out to be a trainer. C. Employee complaints about [NAME] [ 23 ] The Montréal office where [NAME] was hired has approximately nine marine safety inspectors. They certify and inspect vessels, and certify seafarers. They are supported by operational and administrative assistants. When the relevant matters occurred, there were four assistants, including [NAME]. [ 24 ] In early July 2023, employees began informing management of different incidents involving [NAME]. On July 9, 2023, [NAME] prepared a report describing her interactions with him in June. Essentially, she criticized what she described as his bossy and aggressive tone, as well as his lack of courtesy in his interactions with her. She also described what she considered unprofessional behaviour. She said that some of his comments upset and shocked her. Following those incidents, she decided to avoid him for the rest of June by limiting the time that she spent at the Montréal office. [ 25 ] Later, she also noted that on one occasion, he had given a [NAME] wrong information, instead of referring them to an inspector to have their file assessed. According to her, after three months on the job—she had reported the incident on September 11—he should have known that that type of application had to be forwarded to an inspector. [ 26 ] On July 10, 2023, [NAME] also prepared a report about [NAME]’s behaviour. In it, she described incidents in which he had disrespected her, humiliated her in front of other employees, and failed to follow procedures. She also referred to two incidents in which he gave wrong information to a [NAME] and did not adhere to the prescribed exam time. Specifically, he reportedly informed a [NAME] that the discharge book was a form of identification just like a passport, health card, or driver’s licence. But that was wrong. He also gave a [NAME] more time to complete an exam, without the examiner’s or manager’s approval. When she reminded him that he could not give a [NAME] more time to complete the exam, he replied that he was using his own judgment rather than following procedure. [ 27 ] [NAME] found out about the reported incidents, she went to the Montréal office. It should be noted that between July 6 and 25, 2023, [NAME]’s immediate manager, [NAME], was on leave; [NAME] replaced him. [ 28 ] She met with [NAME] on July 18, 2023, with [NAME]. At the meeting, she informed him that she had heard that there were problems with him at the Montréal office, and asked him to share his version of events. He informed her that he felt excluded from the team and had not received the same training as the others. He also informed her that there was tension, particularly with [NAME]. [ 29 ] Because of the problems that had been reported to her, she asked him to work remotely beginning Wednesday, July 19, 2023, until further notice. He had to scan documents. According to the respondent’s witnesses, he was not motivated by that work. He was permitted to return to the office, with supervision, when [NAME] returned from holidays. [ 30 ] She testified that she asked the team to be more welcoming toward him, to try to understand him, and to show him different ways of learning. [NAME] was supposed to follow up. [ 31 ] A few days after the meeting, on July 20, 2023, [NAME] wrote to [NAME] and [NAME] that [NAME] was still unable to fulfill his duties independently and was not following procedure. According to her, he expected her to send him detailed emails with the steps to do his job, and kept saying that he had not received the same training as others. She testified that instead of processing files, he kept coming to her with questions, although the steps had been clearly explained to him. [ 32 ] According to her, he did not always follow the procedure stating that all communications about seafarers’ service had to be conducted by email, not Teams, for transparency and so that they could be included in the seafarer records. Teams chats were automatically deleted after a certain period. On July 20, 2023, [NAME] emailed [NAME] to remind him of that fact. [NAME] also testified that the home station sent many reminders that those communications had to be conducted by email. However, [NAME] testified that he first learned that those communications had to be by email on July 20, 2023, when [NAME] informed him by email. [ 33 ] [NAME] requested that another employee be designated to assign [NAME] files and answer his questions because she was emotionally drained. [ 34 ] When [NAME] returned from leave, [NAME] informed him that five employees had made harassment allegations against [NAME] because of his behaviour. He also informed him that because of [NAME]’s problematic behaviour, [NAME] had asked him to work remotely beginning July 19 until his return. Given that information, [NAME] asked to meet with [NAME]. They met on August 9, 2023. [ 35 ] At that meeting, they discussed [NAME]’s performance during his first two months on the job. [NAME] reminded him that it was important to adhere to work procedures and communication standards. Specifically, he informed him that he was not allowed to give a [NAME] 30 extra minutes to complete an exam, it was not his responsibility to decide whether a [NAME]’s sea time was correct, he was not to delete emails, and he was to promptly complete tasks. He also asked him to be attentive in future communications with other employees, as he had been informed that some of his exchanges with team members had been inappropriate. He asked him to read the Values and Ethics Code for the [NAME] again. He also informed him that to supervise his training, they would now meet weekly for approximately 15 minutes. [NAME] replied that the situation in the office was tense. [NAME] sent him a meeting summary on August 10, 2023. [ 36 ] Later that day, [NAME] replied to [NAME]’s email to thank him for the meeting. In short, he admitted that he had work to do to learn the job and adjust to the work environment. He said that he always tried to do better and that he had good intentions. He admitted that he gave a [NAME] 10 extra minutes to complete an exam, not 30, because it was the first time that he was supervising exams and he was busy doing other work at the same time. He agreed to adhere to the exam length in the future. He denied having decided whether a [NAME]’s sea time was correct and having deleted an email without it being processed. He also denied that there were delays in processing files. He described himself as a very respectful person, attentive, and open to constructive criticism. He asked to be treated the same as others and wanted to work in an environment that was free from retaliation. He also asked [NAME] to email [NAME], marine safety inspector, and [NAME] in an effort to improve the situation between them. He wanted [NAME] to inform them that the exchanges between them had to be respectful, as he felt that they were retaliating against him. [ 37 ] Two weeks later, on August 24, 2023, Ms. [NAME] complained to [NAME] about [NAME]’s attitude and behaviour toward her. Specifically, she said in her message that he addressed her using the phrases “[translation] my dear” and “[translation] you are a sweetheart”. She also heard him criticizing [NAME]. She added that he blamed others for his mistakes, or said that he had not been properly trained. According to her, he did not seem to understand that the way that he communicated could sometimes be offensive. She described his tone as unpleasant, aggressive, and bossy. He denied having addressed her as “[translation] my dear”. Instead, he said “[translation] my princess”. According to him, it was not inappropriate; he was trying to lighten the mood. [ 38 ] On September 11, 2023, at [NAME]’s suggestion, [NAME] sent him a report detailing incidents involving [NAME] that occurred between August 30 and September 9, 2023. Once again, she described his remarks toward her that she felt were insulting, gave examples to illustrate his lack of teamwork, and said that he had not followed the procedure for sending an exam and was unable to administer exams independently. She also said that he disagreed that his tone could be abrupt and unprofessional, and did not follow her advice. He criticized [NAME] and claimed that he had not received the same training that she had. He also accused her of lying to him. D. The September 13, 2023, incident [ 39 ] [NAME] invited [NAME] to a meeting on September 13 to follow up on his probation. Before the meeting, he prepared a document titled “[translation] Probationary review”. It described [NAME]’s shortcomings, detailed the support that he would be given to help him learn, and set a date for the next meeting. [ 40 ] When the meeting began, [NAME] reminded [NAME] that he was on probation. He started the meeting by going over [NAME]’s observed deficiencies, with supporting examples. Then, they discussed his inappropriate behaviour toward other team members. [NAME] testified that the meeting was intended to correct [NAME]’s issues and integrate him into the team. He also said that [NAME] denied that he had deficiencies in his work or that his behaviour was sometimes problematic. He refused to take responsibility for his actions. Again, he argued that he had not been as well trained as [NAME] and that none of it was his fault. He informed [NAME] that the other employees were lying about him because they knew that he was more skilled than they were. [ 41 ] According to [NAME], when the meeting was almost over, he informed [NAME] that he would send him his probationary review and asked him to acknowledge receipt. He also informed him that the next probationary review meeting would take place in about a month and that weekly meetings would follow. He testified that [NAME] then stood up, approached him, and said aggressively, “[translation] Do you know who I am, huh, do you know who you are talking to? I am an electrical engineer, I have a bachelor’s degree, I have an education. Who are you?” He hit [NAME]’s desk with his hand and said, “[translation] I came to Canada five-and-a-half years ago, I am completely alone here, I have no family here, do you have family here? Take care of your family, take good care of your family, look out for your family”. When [NAME] asked him to clarify his comments, he did not reply. According to [NAME], he was yelling and his body language was aggressive. He said that he yelled: “[translation] I came to a shit country that does not recognize my value, I do not give a damn if I am fired.” [ 42 ] [NAME] felt that [NAME] was threatening him and his family, so he asked him to leave his office. He testified that [NAME] had blocked him from opening the door, which had made him push the panic button. Then, [NAME] left the office saying under his breath, “[translation] You are a fucking idiot”. After he left, [NAME] went to see [NAME], executive assistant in the marine safety operations directorate, and [NAME] to inform them of the potentially dangerous situation. He suggested that they leave the office together at the end of the day. [ 43 ] He also contacted [NAME]. She advised him to speak to a commissionaire and explain what had happened. As she suggested, he went to see [NAME] with a commissionaire and asked him to leave the office. That was around 2:30 p.m. He documented it in an email that he sent to [NAME] later in the evening. He testified that employees were afraid to be alone with [NAME]. [ 44 ] After the meeting, [NAME] emailed [NAME] to say that things were not going well with [NAME], Ms. [NAME], and [NAME]. In the same email, he wrote that he knew that things were happening behind his back, but that [NAME] had downplayed the situation. He also forwarded an email from August 10, 2023, to her that he had initially sent to [NAME] after the meeting on August 9, 2023. I summarized the content of that email earlier in the decision. [ 45 ] [NAME] testified that [NAME] had not accepted his explanations at the September 13 meeting. He made no recommendations; he merely provided “destructive” criticism. According to him, [NAME] never showed him the “[translation] Probationary review” document and did not give him a date for the next meeting, and they did not discuss upcoming training. He denied that they had discussed that he was on probation. [ 46 ] However, he admitted that he had stood up during the meeting because he was uncomfortable with [NAME]’s comments. After asking [NAME] why he continued to be discriminated against and harassed, he had hit the desk with a notebook that he had in his hand. He did not threaten [NAME] or his family. He admitted that he had been emotional during the meeting, but had not intended to assault him. He denied having gotten close to him. [ 47 ] About that incident, [NAME] testified that she heard, in her own words, “[translation] raised voices” in [NAME]’s office. She heard him ask [NAME] to leave his office. She also heard [NAME] make comments when leaving [NAME]’s office. According to her version of events, [NAME] went back into [NAME]’s office, and he asked him to leave. [ 48 ] She testified that [NAME] had returned from the meeting with [NAME] very upset and was speaking loudly in Arabic. He had sat down and called a [NAME]. When she realized that he was talking about a file that had been resolved and closed, she approached him to let him know. He said to her: “[translation] Who are you to tell me how to do my job? I will do what I want.” He hit his desk. She thought that he was going to hit her too because he had become very aggressive. She was scared. He continued to yell at her and said that she should leave. [ 49 ] [NAME] testified that when [NAME] went to see him, while he was on the telephone with a [NAME], he “[translation] had already had enough from [NAME]”, in his own words. He did say that she should leave his office and that she had no right to tell him what to do. But he denied having hit the desk. [ 50 ] [NAME] saw [NAME], with a commissionaire, ask [NAME] to go home until further notice. The incident scared her. [ 51 ] The respondent did not call [NAME], who was also in the office during the incident, as a witness. [ 52 ] Later in the evening, as requested, [NAME] emailed [NAME] with details on the training that she had given [NAME] about preparing and administering exams. She said that she had explained to him all the steps involved in administering exams and that he had also been able to observe how things were done. She also gave him resources that would help with exam-related tasks and answered his questions. She attached to her email some examples of resources that she had given him. E. Suspension without pay during the investigation [ 53 ] On September 14, 2023, the day after the incident, [NAME] contacted [NAME]. She also met with [NAME], along with his union representative and a [NAME] officer, to allow him to share his version of events. She testified that according to him, he remained calm during the September 13 meeting, and it was [NAME] who had become aggressive. He added that he was discriminated against and harassed in the workplace by [NAME] and his coworkers. [ 54 ] In a letter dated September 18, 2023, [NAME] informed [NAME] that he was administratively suspended without pay as of that date, pending the outcome of the investigation into what happened on September 13, 2023. According to her, the suspension was justified because, according to management, [NAME]’s presence in the office posed a serious and immediate enough risk to the department’s legitimate concerns. According to her, some employees feared [NAME] because of his actions. [ 55 ] She conceded that allowing [NAME] to work remotely during the administrative investigation had not been considered because he had been reluctant to work remotely in July 2023. But he testified that although he had been open to working remotely during the administrative investigation, management had never given him the option. [ 56 ] In the same letter, she also said that she would periodically review the suspension and plan for his return to the workplace if the investigation turned up information justifying that decision . [ 57 ] In an email on October 6, 2023, she informed [NAME] that she had completed the administrative investigation into the September 13, 2023, incident. She concluded that he had disrespected authority by using inappropriate language toward [NAME]. She also determined that he had behaved aggressively and in a threatening way toward authority and his coworkers. She invited him to a meeting to give him the opportunity to present extenuating circumstances before deciding on the appropriate discipline or administrative actions. She also concluded that there was no evidence supporting his harassment and discrimination allegations. They met on October 11, 2023. F. Rejection on probation [ 58 ] In a letter dated October 18, 2023, which [NAME] signed, [NAME] was notified that he had been rejected on probation. The reasons given for the rejection were his inability to do his job and his incompatibility with team members (in other words, he did not behave as expected). According to her, he was asked several times to fix his behaviour, and multiple efforts were made to help him train. His manager followed up. He had a designated person to show him the work from the day that he began working, June 12, 2023. According to her, rejection on probation was the only option given the circumstances. [ 59 ] She testified that he had not shown that he could do the work of an operational and administrative assistant and that he did not work well with other team members. Specifically, he was unable to adequately process candidates’ applications, administer exams, and, generally, follow the procedures in place. [ 60 ] The respondent paid him one month’s severance corresponding to the notice period pursuant to s. 62(2) of the PSEA .

III. Analysis and reasons [ 61 ] The respondent objects to the Board’s jurisdiction to hear these grievances for the reasons that follow. First, for the grievance challenging the suspension without pay during the administrative investigation, the respondent submits that it cannot be referred to adjudication because the suspension is an administrative action. Only disciplinary suspensions can be referred to adjudication under s. 209(1)(b) of the Federal [NAME] Act (S.C. 2003, c. 22, s. 2; “the Act ”), the provision under which [NAME] referred these grievances to adjudication. It reads as follows: 209 (1) An employee who is not a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to 209 (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, le [NAME] qui n’est pas un membre, au sens du paragraphe 2(1) de la Loi sur la Gendarmerie royale du Canada , peut renvoyer à l’arbitrage tout grief individuel portant sur   : b) a disciplinary action resulting in termination, demotion, suspension or financial penalty; (b) soit une mesure disciplinaire entraînant le licenciement, la rétrogradation, la suspension ou une sanction pécuniaire; [ 62 ] [NAME] does not dispute the scope of that provision. However, he maintains that the suspension that the respondent is calling administrative was actually disguised discipline. Therefore, the Board has jurisdiction to hear the grievance. [ 63 ] As for the grievance contesting the rejection on probation, filed under s. 62 of the PSEA , the respondent submits that the Board does not have jurisdiction to address it because of s. 211 of the Act . It states that an individual grievance about a termination of employment under the PSEA cannot be referred to adjudication. [ 64 ] In response, [NAME] submits that he was not on probation when he was terminated. Therefore, it is a disciplinary termination, and the Board has the jurisdiction to consider it. A. The suspension that was initially administrative was converted into discipline [ 65 ] The factors guiding the analysis to determine whether an imposed action was administrative or, as [NAME] claims, disguised discipline were established in [NAME] v. Canada (Attorney General) , 2017 FAC 30; and Canada (Attorney General) v. [NAME] , 2007 FC 1176. [ 66 ] The essential characteristic of a disciplinary action is the intention to correct an employee’s wrongdoing or punish them. The employer’s intention is one of the main factors of the analysis. However, how the employer chooses to characterize its decision cannot be by itself a determinative factor. The employer’s actual intention must be determined in light of the factors underlying the reason given when the contested action was imposed. [ 67 ] The analysis requires examining the purpose of the contested action and its effect on [NAME]. The action is generally considered non-disciplinary when the employee’s behaviour is not culpable or the employer’s purpose is not to punish. [ 68 ] The fact that the contested action adversely affected the employee does not necessarily make that action disciplinary. Similarly, an employee’s feelings about being unfairly treated do not convert administrative action into discipline. However, when the employer’s decision is significantly disproportionate to the administrative rationale being served, the decision may be viewed as disciplinary. But that threshold will not be reached if the imposed action is seen to be a reasonable response to honestly held operational considerations. [ 69 ] Lastly, the analysis does not address whether the employer’s action is ill-conceived or badly executed but, rather, whether it amounts to a form of discipline, applying the factors set out earlier. It is up to the employee to establish on a balance of probabilities that the action did amount to discipline (see [NAME] v. [NAME] (Department of Employment and Social Development) , 2024 FPSLREB 47 at para. 237). [ 70 ] [NAME] testified that it was decided to suspend [NAME] during the investigation to ensure a safe work environment. According to her, management determined that because of his reported behaviour, his presence in the office posed a serious and immediate enough risk to the department’s concerns. This was also indicated in the September 18, 2023, suspension letter, which stated that it was an administrative suspension during the administrative investigation. [NAME] also testified that the Montréal office was small and that some employees were afraid of [NAME] because of his actions. [ 71 ] In the written submissions, the [NAME] admitted that “[translation] … the allegation against [[NAME]] was certainly serious …” and that he did not “[translation] … dispute that the respondent acted responsibly by separating [NAME] from the rest of the team during the investigation.” [ 72 ] However, according to him, given that in July 2023, the respondent had asked [NAME] to work remotely for a few days until his manager returned, the refusal to allow him to work remotely and continue to be paid during the investigation could only be interpreted as discipline. I am not satisfied that this element by itself can establish that the suspension was disciplinary. [ 73 ] The fact that the respondent had asked [NAME] to work remotely for a few days in July to remove him from the workplace did not mean that it had to offer the same option during the investigation. The existence of financial harm resulting from an action taken by the respondent does not necessarily mean that the action is disciplinary. It is only one factor among others that may determine the respondent’s actual intent (see [NAME] , at para. 20; and [NAME] , at para. 296). Similarly, [NAME]’s feeling that it was unfair that the respondent did not allow him to work remotely during the investigation does not convert administrative action into discipline (see [NAME] , at para. 21). [ 74 ] I note that the analysis is not intended to determine whether the decision to suspend [NAME] without pay during the investigation was ill-conceived or badly executed but, rather, whether it amounted to a form of discipline. The imposed action need not be perfect or the best one (see [NAME] , at para. 21; and [NAME] , at para. 285). Again, [NAME] admitted that the respondent had acted responsibly by separating him from the rest of the team during the investigation. [ 75 ] I agree with the respondent that there was a legitimate business reason to suspend [NAME], and that was to maintain a safe work environment. [ 76 ] [NAME] did not convince me that the suspension was to punish him or correct his behaviour when it was imposed. The suspension letter confirmed that when it suspended him, the respondent had not determined whether the allegations against him were founded and therefore, whether there was misconduct. In the letter, it said that if the investigation found that the allegations were unfounded, he could return to the workplace and would be reimbursed for any loss corresponding to the suspension period. In short, at that time, it had not reached any conclusion as to the merits of the allegations against him. I also note that he did not present any evidence to challenge the preceding, as was his burden. [ 77 ] For all those reasons, I conclude that when [NAME] was suspended without pay to investigate the allegations against him, the respondent did not intend to punish him for wrongdoing. He did not convince me otherwise. However, an analysis of the facts that emerged after the investigation’s findings leads me to conclude that the suspension, which was initially administrative, was converted into discipline. Let me explain. [ 78 ] The administrative suspension was supposed to be only as long as the investigation. In the suspension letter, [NAME] informed [NAME] that he was suspended without pay indefinitely pending the investigation outcome. Furthermore, the suspension was to be reviewed in light of the investigation findings to determine whether another action should have been substituted. In the letter, she also said that if the allegations against him were unfounded, he could return to the workplace and would be reimbursed for any loss corresponding to the suspension period. I note that the suspension was temporary and should have been reviewed once management had determined whether the misconduct allegations against [NAME] were founded. [ 79 ] In an email on October 6, 2023, [NAME] informed [NAME] that she had completed her administrative investigation. She determined that the allegations against him were founded. Specifically, she concluded that he had used inappropriate language toward [NAME] and that he had behaved aggressively and in a threatening way toward his manager, and behaved aggressively toward his coworkers. In the letter, she stated that before she determined disciplinary or administrative actions, he could present any extenuating or mitigating circumstances for review. For that purpose, a meeting took place on October 11, 2023. [ 80 ] However, despite what the investigation found, the respondent never reviewed the decision to suspend [NAME] during the investigation—that is, the period beginning on September 18 and ending on October 18, 2023, when [NAME] was rejected on probation. Its decision to terminate [NAME] on October 18 did not relieve it of the obligation to determine, first, whether in light of the investigation findings, any action should be substituted for the suspension imposed on September 18, and, second, whether he should be compensated for losses incurred as a result of the suspension. [ 81 ] Considering that the administrative suspension without pay was to be reviewed in light of the investigation’s findings to determine whether an alternative action should be substituted, the respondent’s decision to maintain the one-month suspension without pay after concluding that [NAME] had engaged in misconduct leads me to conclude that it was maintained to punish him, by denying him his income, for the misconduct identified in [NAME]’s October 6, 2023, email. There can be no other explanation. [ 82 ] For that reason, I determine that the suspension, which was initially administrative, was converted into a disciplinary suspension following the investigation’s findings. Therefore, the Board has the jurisdiction to decide the grievance challenging the suspension without pay during the investigation. [ 83 ] An administrative suspension without pay that is imposed during an investigation cannot be maintained indefinitely. The employer is required to review it in light of the investigation’s findings and decide the next steps. It would be unacceptable for an employee to be indefinitely denied the pay withheld during the suspension while the administrative investigation was ongoing, without there being a final decision about the situation. [ 84 ] Having determined that the one-month suspension without pay, which was initially administrative, was converted into a disciplinary suspension, I have to consider whether the Board should intervene in this matter in accordance with the criteria set out in [NAME]. v. [NAME]., Local P-162 , 1976 CarswellBC 518. They are as follows:

1) Has the employer established, on a balance of probabilities, the alleged misconduct? 2) If the answer is yes, does the imposed disciplinary suspension amount to an excessive action considering the relevant facts of the file? 3) If the answer is yes, what alternative actions should be substituted as just and equitable? [ 85 ] [NAME] concluded that [NAME] had engaged in misconduct, as stated in her October 6, 2023, email. Specifically, she determined that on the one hand, he had used inappropriate language toward his manager, disrespecting authority, and that on the other hand, he had behaved aggressively and in a threatening way toward his manager and coworkers. [ 86 ] Before moving on, it is important to note that the Board is not bound by the employer’s conclusions and proceeds as if it were a new case (see [NAME] v. Canada (Attorney General) , 2024 FCA 80 at paras. 3 and 4). [ 87 ] Before the Board, [NAME] confirmed the content of the email that he sent to [NAME] on September 13, 2023, in which he summarized the incident that occurred during the meeting. In his testimony, he repeated that [NAME] had said to him aggressively that he had come to a “[translation] shit” country, he did not give a “[translation] damn” if he was fired, and while leaving the office, he said: “[translation] You’re a fucking idiot”. [ 88 ] In his testimony, [NAME] did not deny that he had said those things to [NAME]. He also admitted that he had been emotional during the meeting. [ 89 ] In light of that evidence, I conclude that the respondent established that [NAME] had used inappropriate language toward his immediate manager during the September 13 meeting, which showed disrespect. [ 90 ] As for the misconduct involving [NAME]’s alleged aggressive and threatening behaviour toward his immediate manager, [NAME] testified that during the meeting in question, [NAME] aggressively shouted at him, got close to him, and hit his desk with his hand. He also said to him to look out for his family and suggested that he take care of them. In reaction to his aggressive behaviour, [NAME] pushed the panic button. [NAME] was ultimately escorted out of the office by a commissionaire. [ 91 ] [NAME] testified that he had felt uncomfortable during the September 13, 2023, meeting. He admitted that he had stood up during the meeting and hit [NAME]’s desk with a notebook, not his hand, after asking why he continued to be discriminated against and harassed. He denied that he had threatened [NAME] or his family and said that he had not intended to assault him. He admitted that he had been emotional during the meeting. [ 92 ] Based on the evidence presented, I determine that [NAME] behaved aggressively and in a threatening way toward his manager when they met on September 13, 2023. Let me explain. First, [NAME] admitted that he had stood up during the meeting, had been emotional, and had hit the desk. In my opinion, it is unnecessary to determine whether [NAME] hit the desk with his hand or a notebook. Hitting someone’s desk with a notebook could be just as aggressive and threatening as hitting it with one’s hand. [ 93 ] The uncontested circumstantial evidence that [NAME] felt compelled, in response to [NAME]’s conduct, to press a panic button, warn the employees present in the office that the situation was potentially dangerous, urge them to leave the office together at the end of the day for safety reasons, and call a commissionaire to escort [NAME], corroborates his testimony that [NAME] had behaved aggressively and in a threatening way toward him during the meeting in question . [NAME] also testified that [NAME] had returned from the meeting very upset and was speaking loudly. [ 94 ] In light of all the evidence, I conclude on a balance of probabilities that [NAME] behaved aggressively and in a threatening way toward his manager during the meeting in question. [ 95 ] For the allegation that [NAME] behaved aggressively toward [NAME], still in connection with what occurred on the afternoon of September 13, 2023, the evidence is limited to her and [NAME]’s versions of events. [ 96 ] He did not deny that he was unsettled when he returned from the meeting with [NAME]. In his own words, he “[translation] had already had enough” from [NAME]. He also did not dispute that he had said to her, when she approached him while he was on the telephone with a [NAME]—raising his tone—to leave his office and that she did not need to tell him what to do. Those facts are not in dispute. However, he denied hitting his desk, contrary to what she alleged. [ 97 ] To determine which version is the most likely, I must assess the evidence presented. The reliability and credibility of testimonies must be assessed in light of all the evidence, including internal coherence, compatibility with established facts, and plausibility (see Faryna v. Chorny , [1952] 2 D.L.R. 354 (BC CA)). [ 98 ] [NAME] documented the incident in question in a report that she prepared two days after it occurred. Later, she reiterated the same version of the incident during the administrative investigation, around two weeks after the incident, and before the Board. Her testimony remained essentially the same over time. The fact that the events were documented two days after they occurred as well as the consistency of the version are relevant—though not determinative—factors in assessing the credibility and reliability of her testimony. [ 99 ] Furthermore, her version that [NAME] hit his desk is consistent with his earlier behaviour in [NAME]’s office. He admitted that he had hit his manager’s desk with a notebook. He also admitted that he had been emotional and, in his own words, “[translation] had already had enough” from [NAME] when [NAME] approached him. Although not conclusive on their own, these facts provide context that lends credence to her version. [ 100 ] I also accept that [NAME] was dishonest with [NAME] about the incident in [NAME]’s office on September 13, when he met with her on September 14, 2023. Specifically, he said to her that he had remained calm and that it was [NAME] who had become aggressive toward him. As I previously explained, his version is incompatible with all the evidence. Although not determinative on its own, this element is relevant in assessing the reliability of [NAME]’s testimony. [ 101 ] I add that [NAME] also had a personal interest in downplaying the significance of his actions, given the impact that they could have on his job. Although not determinative on its own, this is an additional factor to be considered in assessing the reliability of his testimony. [ 102 ] This analysis of the evidence leads me to conclude that [NAME]’s version is more compatible with all the evidence and more plausible than [NAME]’s version. Therefore, I conclude on a balance of probabilities that he hit his desk while speaking with her. [ 103 ] As a result, I determine that the respondent demonstrated on a balance of probabilities that [NAME] used inappropriate language toward his immediate supervisor, disrespecting authority, and behaved aggressively and in a threatening way toward him and his coworker, [NAME]. [ 104 ] However, I am of the opinion that a one-month suspension without pay is excessive given [NAME]’s misconduct on the afternoon of September 13, 2023. Considering that he had a clean disciplinary record, a one-day suspension without pay would have been more just and equitable in the circumstances (see [NAME] v. [NAME] (Statistics Canada) , 2019 FPSLREB 105; and [NAME] v. [NAME] (Department of Natural Resources) , 2016 PSLREB 43). B. [NAME] was on probation when he was terminated [ 105 ] Pursuant to s. 61(1) of the PSEA , a person appointed from outside the [NAME] is on probation for a period established by regulations of the [NAME]. Specifically, this means the Regulations Establishing Periods of Probation and Periods of Notice of Termination of Employment During Probation (SOR/2005-375; “the Regulations ”). [ 106 ] Pursuant to s. 62(1)(a) of the PSEA , while an employee is on probation, the [NAME] head may notify the employee that their employment will be terminated at the end of the notice period established by the Regulations . Section 62(2) of the PSEA states that instead of notifying an employee, the [NAME] head may pay the employee an amount equal to the salary that they would have been paid during the notice period. [ 107 ] According to s. 211(a) of the Act , the Board does not have jurisdiction to hear a grievance contesting a rejection on probation, except in the circumstances that I discuss in the paragraphs that follow. The relevant excerpt from that provision reads as follows: Exception Exclusion 211 Nothing in section 209 or 209.1 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to 211 Les articles 209 et 209.1 n’ont pas pour effet de permettre le renvoi à l’arbitrage d’un grief individuel portant sur : a) any termination of employment under the [NAME] Employment Act ; or (a) soit tout licenciement prévu sous le régime de la Loi sur l’emploi dans la fonction publique ; … […] [ 108 ] Despite the exception in s. 211(a) of the Act , the case law recognizes that the Board has jurisdiction to hear the grievance contesting a rejection on probation if the rejection was not done for a legitimate employment-related reason. An arbitrary, discriminatory, or bad faith termination (including a sham or a camouflage) does not constitute a valid termination under s. 62 of the PSEA and may be adjudicated by the Board under s. 209 of the Act (see [NAME] v. [NAME] (Correctional Service of Canada) , 2022 FPSLREB 44 at paras. 9 and 10). [ 109 ] A termination under s. 62 of the PSEA is characterized by the following elements: 1) the employee was placed on probation; 2) the employee’s probationary period was still in effect as of the termination; 3) notice or pay in lieu was provided; and 4) employment-related concerns about the employee’s suitability were the reason for the termination. [ 110 ] The reasons for termination are generally stated in the termination letter (see [NAME] v. [NAME] (Correctional Service of Canada) , 2010 PSLRB 134 at para. 111). The presence of these elements creates a presumption that [NAME] was rejected on probation under s. 62 of the PSEA . To reverse it, [NAME] must establish on a balance of probabilities that the termination was arbitrary, discriminatory, or in bad faith (including a sham or a camouflage). If [NAME] fails, the Board will not have jurisdiction to address the grievance (see [NAME] , at paras. 11 to 13; and [NAME] , at para. 111). [ 111 ] It is also important to remember that employers are afforded considerable discretion to assess the suitability of probationary employees and that there is minimal scope for review of their decisions, as confirmed by the Federal Court of Appeal in Canada (Attorney General) v. [NAME] , 2021 FCA 216 at para. 10. [ 112 ] In the written submissions, the [NAME] argues that contrary to what the respondent claims, [NAME] was not on probation because he was hired through an internal appointment process. That is the bulk of his argument. [ 113 ] For the reasons that follow, I determine that [NAME] was on probation. For my analysis, I adopt in particular the Board’s reasoning in [NAME] v. [NAME] (Shared Services Canada) , 2025 FPSLREB 149; and [NAME] v. [NAME] (Royal Canadian Mounted Police) , 2020 FPSLREB 29. [ 114 ] [NAME] does not dispute that he was appointed to the CRA on a term basis beginning January 11, 2021, and that his contract ended on May 26, 2023. He also does not dispute that his job with the respondent began on June 12, 2023. The May 30, 2023, job offer that [NAME] sent him specified that his appointment to the position would begin on June 12, 2023. [ 115 ] Section 58(1) of the PSEA could not be clearer. An employee appointed for a specified term is no longer an employee when that term expires. It reads as follows: 58 (1) Subject to section 59, an employee whose appointment or deployment is for a specified term ceases to be an employee at the expiration of that term, or of any extension made under subsection (2). 58 (1) Sous réserve de l’article 59, le [NAME] nommé ou muté pour une durée déterminée perd sa qualité de [NAME] à l’expiration de la période fixée ou de toute période de prolongation fixée en vertu du paragraphe (2). [ 116 ] As a result, I must conclude that [NAME] ceased to be an employee on May 26, 2023, the date that his CRA contract ended (see [NAME] , at para. 28; and [NAME] v. [NAME] (Service Canada) , 2021 FPSLREB 101 at para. 18). [ 117 ] Between May 26 and June 12, 2023, [NAME] was not an employee; there was a break in service. The directive’s definition of continuous service specifies that continuous service is broken “when employment ceases between two periods of [NAME] employment for at least one compensation day”. [ 118 ] When the internal hiring process began, [NAME] was working for the CRA. However, before he was appointed to the job, he ceased to be an employee. It is unfortunate that when they spoke, he did not inform [NAME] that his contract with the CRA would expire on May 26, 2023. The respondent may have been able to move up the hiring date to avoid the break in service. It is also unfortunate that although he knew [NAME] was a term employee of the CRA, [NAME] did not ask him when his contract would expire. The misunderstanding could have been prevented. [ 119 ] Unaware that [NAME]’s employment contract with the CRA would end on May 26, 2023, the respondent was under the impression—wrongly, I must point out—that it was a transfer. That explains why it informed him that the appointment was internal to the [NAME] and why the initial offer letter did not indicate a probationary period. Unfortunately, it was not until June 13, 2023—the day after he was hired—that he informed the compensation unit through a questionnaire that his contract with the CRA had ended on May 26, 2023. [ 120 ] As a result, and although the respondent believed that the appointment was internal, in reality he was no longer an employee on the date that he was appointed, June 12, 2023. [ 121 ] A person who is not part of the [NAME] can be appointed only through an external appointment, pursuant to the PSEA . The relevant excerpt from the PSEA defining internal and external appointments reads as follows: … nomination externe  Nomination d’une personne ne faisant pas partie de la fonction publique (French version only) nomination interne  Nomination d’une personne faisant déjà partie de la fonction publique. (French version only) … [ 122 ] It follows that pursuant to s. 61(1) of the PSEA , [NAME] was required to serve a probationary period. It is mandatory. Section 61 reads as follows: 61 (1) A person appointed from outside the [NAME] is on probation for a period 61 (1) La personne nommée par nomination externe est considérée comme stagiaire pendant la période : a) established by regulations of the [NAME] in respect of the class of employees of which that person is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act ; or (a) fixée, pour la catégorie de fonctionnaires dont [NAME] fait partie, par règlement du Conseil du Trésor dans le cas d’une administration figurant aux annexes I ou IV de la Loi sur la gestion des finances publiques ; b) determined by a separate agency in respect of the class of employees of which that person is a member, in the case of an organization that is a separate agency to which the Commission has exclusive authority to make appointments. (b) fixée, pour la catégorie de fonctionnaires dont [NAME] fait partie, par l’organisme distinct en cause dans le cas d’un organisme distinct dans lequel les nominations relèvent exclusivement de la Commission. [ 123 ] I agree with the respondent that the question of whether an employee has to serve a probationary period depends on their status on their appointment date, not their status during the hiring process. An employee may be an employee during the hiring process and even when signing their offer letter. However, if they were not an employee on their start date, they will be considered an external hire. [ 124 ] As a result and pursuant to the Regulations , [NAME] had to serve a 12-month probationary period beginning on the date that he was appointed, June 12, 2023. On August 10, 2023, the respondent issued an amended letter to reflect that employment condition. [ 125 ] I agree with the respondent that the failure to specify in the initial letter that [NAME] would be subject to a probationary period pursuant to s. 61(1) of the PSEA did not relieve him of that obligation (see [NAME] , at para. 204; [NAME] v. [NAME] (Correctional Service of Canada) , 2018 FPSLREB 55 at para. 114; and [NAME] v. [NAME] ([NAME]) , 2004 PSSRB 168 at para. 24). In his written submissions, the [NAME] concedes that the respondent could amend the initial offer letter to include the requirement set out in s. 61(1) of the PSEA , but only if [NAME] was actually required to serve a probationary period. [ 126 ] The respondent’s evidence shows that [NAME] failed to integrate into the team. This by itself is sufficient grounds for rejection on probation (see [NAME] v. [NAME] (Correctional Service of Canada) , 2009 PSLRB 33 at para. 156; and [NAME] v. [NAME] (Department of Public Safety and Emergency Preparedness) , 2023 FPSLREB 72 at paras. 9 and 247). The respondent also showed that he had difficulty carrying out his duties, despite the training and supervision that he had received. Once again, this is sufficient grounds to reject an employee on probation (see [NAME] v. [NAME] (Department of Foreign Affairs and International Trade) , 2012 PSLRB 11 at para. 73). [ 127 ] As I previously stated, the bulk of [NAME]’s argument rests on the premise that he was not on probation when he was terminated and that as a result, the Board should decide his grievance. For the reasons set out earlier, I dismiss that argument. I also note that in the written submissions, the [NAME] does not address the question of whether [NAME]’s rejection on probation was arbitrary, discriminatory, or in bad faith, elements that might enable the Board to address the rejection (see [NAME] , at paras. 9 and 10). [ 128 ] [NAME] failed to convince me that his termination was not for a legitimate employment-related reason, as was his burden, I dismiss this grievance for lack of jurisdiction. Specifically, he failed to demonstrate on a balance of probabilities that the respondent’s concerns, both about his ability to perform his duties and about his behaviour toward other team members, including his manager, were unfounded. Furthermore, he did not convince me that the training that he received was inferior to what [NAME] received. [ 129 ] Lastly, he does not dispute that he received pay in lieu of notice. [ 130 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

IV. Order [ 131 ] The grievance numbered 566-02-50305 against the suspension without pay is allowed in part . The suspension has been reduced to a one-day suspension without pay. [ 132 ] I order the respondent to pay [NAME], within 60 days of this decision, any pay and benefits to which he is entitled as a result of the reduced suspension. [ 133 ] The grievance numbered 566-02-50306 against the rejection on probation is dismissed for lack of jurisdiction. [ 134 ] I will remain seized of this case for a period of 120 days from the date of this decision to address any issues arising from the implementation of this order. April 24, 2026. [NAME], a panel of the Federal [NAME] and Employment Board