FPSLREB Decisions

[1]    The grievor, Barbara Jenkins, has referred two grievances to adjudication with respect to her termination of employment. This decision deals with the issue of whether the Board should exercise its powers pursuant to section 84 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993 (Regulations) to dismiss, for want of jurisdiction, the two grievances filed by Ms. Jenkins.

[2]    Ms. Jenkins' first grievance, received by the employer on July 5, 2002, states:

I hereby grieve the fact that my indeterminate employment with CSC has been terminated on June 28/02 because of my disability.

[3]    As corrective action, the grievor states that she seeks:

1) grievance to proceed directly to final level as per section 20.19 of collective agreement

2) Immediately rescind all plans to terminate my employment as detailed in letter from Warden I received on June 26/02

3) Cease all discriminatory practices due to my disability

4) fulfill duty to accommodate as per Canadian Human Rights Act and provide full consultation with me and my rep to reach a reasonable accommodation agreement.

[4]    The second grievance states:

I hereby grieve the fact that my indeterminate employment with CSC has been terminated on October 15, 2002 because of my disability.

[5]    The corrective action requested in the second grievance is identical to the first grievance, except that bullet number two (2) was omitted.

[6]    A copy of the letter terminating the grievor's employment is on file. The termination letter was sent on September 3, 2002, effective October 15, 2002. On this basis, it may be inferred that the first grievance was premature in nature. However, as will be seen below, it is not necessary to make a determination on that point.

[7]    The employer denied both grievances at the final level and both grievances were referred to adjudication. Each grievance was accompanied by an application for an extension of time.

[8]    The employer raised an objection with respect to an adjudicator's jurisdiction to hear the grievances. The employer informed the Board that the grievor had filed a complaint on September 10, 2003 with the Canadian Human Rights Commission (CHRC) regarding her termination. Accordingly, the employer requested that the matter before the Board be dismissed without a hearing. The parties were directed by the Board to submit written representations on the jurisdictional issue, in light of the decision of the Federal Court of Appeal in Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27.

Submissions of the Parties

For the grievor

[9]    On behalf of the grievor, Mr. Mancini submitted that in making a determination as to whether the employer's objection is valid, Adjudicator Guindon's decision in Cherrier v. Treasury Board (Solicitor General - Correctional Services), 2003 PSSRB 37, should apply. He quotes paragraph 47 of the decision, which states:

[para47]    I cannot accept the argument of counsel for the employer by which the adjudicator assigned by the PSSRB is automatically ousted from jurisdiction to hear a grievance when the CHRC seizes itself of a complaint for the purposes of investigation pursuant to subsection 41(1) of the CHRA. The decisions and judgments cited in the instant case clearly show that an adjudicator must evaluate the nature and the scope of the redress used by the grievor to determine whether a human rights element is at the heart of the grievance and whether there is a conflict or overlap between the grievance and another administrative procedure of redress provided for in some other federal Act. The fact that the CHRC proceeded with an evaluation of the complaint filed with it and that it decided to deal with that complaint, pursuant to its incorporating legislation (CHRA), cannot oust the adjudicator assigned to the grievance from his responsibilities to determine his jurisdiction pursuant to his own incorporating legislation (PSSRA).

[10]    Mr. Mancini argued that Cherrier (supra) stood for the proposition that the Board "ought to convene a formal hearing where Madame Jenkins can put forward evidence and submit arguments in support of her reference to adjudication".

For the employer

[11]    The employer requested that these grievances be dismissed for lack of jurisdiction. In support of this position, the employer stated:

The grievor claims discrimination in her termination of employment and requests corrective actions under the Canadian Human Rights Act. In light of the nature of this complaint, the Employer is of the opinion that this grievance/complaint must initially be referred to the Canadian Human Rights Commission as it clearly has jurisdiction in this matter.

Reasons for Decision

[12]    Applications to dismiss grievances without a hearing are heard pursuant to section 84 of the Regulations, which provides:

84. (1) Subject to subsection (2), but notwithstanding any other provision of these Regulations, the Board may dismiss a grievance on the ground that it is not a grievance that may be referred to adjudication pursuant to section 92 of the Act.

(2) The Board, in considering whether a grievance should be dismissed pursuant to subsection (1), shall

(a) request that the parties submit written arguments within the time and in the manner specified by the Board; or

(b) hold a hearing.

[13]    As set out in Gascon v. Treasury Board (Solicitor General - Correctional Service), 2000 PSSRB 68, and in Lowther v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 89, if there is an "arguable case" that the grievance is one that may be referred to adjudication, it would be inappropriate to dismiss a grievance under section 84.

[14]    Does the grievor have an arguable case that the grievance is one that may be referred to adjudication? When alleged discrimination is the fundamental issue at play, the Board's decisions are clear: there is no jurisdiction as the matter is not one that may be referred to adjudication - see Kehoe v. Treasury Board (Human Resources Development Canada), 2001 PSSRB 9, Sincère v. National Research Council of Canada, 2004 PSSRB 2, and Lowther (supra).

[15]    As set out in Cherrier (supra), I have considered "the nature and the scope of the redress used by the grievor to determine whether a human rights element is at the heart of the grievance". It is clear on the face of the record that an allegation of discrimination is at the heart of the grievances: the basis of each grievance is that the employer terminated the grievor's employment on account of her disability; this is also evident from the corrective action which requests that the employer accommodate her in accordance with the Canadian Human Rights Act (CHRA).

[16]    These matters clearly fall within the ambit of the CHRA and can be pursued (and in fact, are being pursued) through the complaint process set out in the CHRA. In Boutilier (supra), the Federal Court of Appeal determined that the CHRA's complaint process constitutes an administrative procedure for redress for the purposes of subsection 91(1) of the PSSRA. Accordingly, as Ms. Jenkins' grievances are not ones which may be presented pursuant to subsection 91(1) of the PSSRA, there is no arguable case that they can be referred to adjudication pursuant to subsection 92(1).

[17]    For the reasons set out above, the employer's application under s.84 is allowed and the grievances are hereby dismissed for want of jurisdiction. Accordingly, the grievor's applications requesting an extension of time are moot and are also dismissed.

Yvon Tarte,
Chairperson

OTTAWA, August 4, 2004.