FPSLREB Decisions

[1]   Simon Cloutier was employed by Citizenship and Immigration Canada (CIC). In the summer of 2000, he filed a complaint under Section 23 of the Public Service Staff Relations Act (PSSRA). One of his work colleagues, Micheline Rioux, filed a similar complaint. Essentially, the complainants alleged that they had been subjected to retaliation and discrimination because of their union activities, in violation of sections 8 to 10 of the PSSRA.

[2]    In mid-August of 2001, at a hearing into their complaints from the summer of 2000, the complainants indicated to Board Member Léo-Paul Guindon that they wished to file additional allegations and a "request for intervention".

[3]    As we will see below, these additional allegations pertained to events that occurred in 2001, after they filed their initial complaints in the summer of 2000.

[4]    Ms. Rioux forwarded a "request for intervention" to the Public Service Staff Relations Board as of September 30, 2001, whereas Mr. Cloutier filed his additional allegations on March 3, 2003.

[5]    Because of different interventions, the hearings into the complaints from the summer of 2000, which had started in 2001, were postponed several times. Finally, during a continuation of the hearing in August 2003, the complainants asked Board Member Guindon to hear their additional allegations and their request for intervention as part of the initial case. The employer objected.

[6]    Board Member Guindon rendered an interlocutory ruling on this point (2003 PSSRB 75) and decided to treat them as separate from the complaints filed in 2000, as indicated in paragraphs 15 and 16 of the decision:

[15] Accordingly, I ask the Board's employees to treat the "additional allegations" submitted on March 3, 2003, and the "request for information" submitted on September 30, 2001, as new complaints under section 23 of the Act. The Board will need to open a complaint file in the name of Ms Rioux, containing the "additional allegations" and the "request for information". A separate complaint file will need to be opened in the name of Mr. Cloutier, containing the "additional allegations". The Board will process these new complaints in accordance with the applicable administrative procedure and will notify the employer accordingly.

[16] Concerning the dates on which these documents are deemed to be filed with the Board, March 3, 2003, shall be the date for the "additional allegations", and September 30, 2001, shall be the date for Ms Rioux's "request for information."

[7]    Thus, the additional allegations submitted by Mr. Cloutier constitute a separate file, which was submitted at the October 13, 2004 hearing. Ms. Rioux's file was also submitted at that hearing. Each one is the subject of a separate decision.

[8]    The employer submitted an objection on Mr. Cloutier's file. According to the employer, Mr. Cloutier's complaint was submitted on March 3, 2003, referring to events that had occurred in 2001, which is an unreasonable timeframe, based on which the complaint should be dismissed.

[9]    Given that this is a serious reason, which could have decisive consequences on the outcome of the case, I informed the parties that I would make a decision on the objection after I had heard their arguments and reviewed the evidence they submitted.

The evidence

[10]    The employer filed as evidence a copy of a request submitted by Mr. Cloutier to the Commission de la santé et de la sécurité du travail du Québec (CSST) on June 13, 2002 (Exhibit E-1). This request pertained to incidents that had occurred in the workplace since 1997. As part of the detailed statement of his request to the CSST, Mr. Cloutier inserted, at page 26, some 15 pages of "additional allegations", and this document is dated August 13, 2001.

[11]    These 15 pages of allegations correspond in substance and dates to the allegations submitted by Mr. Cloutier in this case. In both cases, it includes, in the same words, an incident pertaining to a work colleague, Ms. Sépulvéda. This incident occurred on May 9, 2001.

[12]    Next, the employer filed several documents on a discrimination complaint filed by Mr. Cloutier on August 14, 2002, with the Canadian Human Rights Commission. In these documents, Mr. Cloutier indicated that his employer had subjected him to disciplinary measures.

[13]    In terms of the hearing into the complaints filed by Mr. Cloutier and his colleague Ms. Rioux with the PSSRB (PSSRB files 161-2-1140 and 1146), which had been scheduled to resume in August 2001, Mr. Cloutier wrote to the PSSRB on July 13, 2001 (Exhibit F-3). In the July 2001 correspondence, Mr. Cloutier noted that the harassment to which he and Ms. Rioux had been subjected was still continuing and that he would be submitting documents in this regard. The following is an extract from his letter:

[Translation]

We expect to be heard as soon as possible because you will see from reading the documents that I will be providing on our complaint to the Board. By way of example, the employer continues to deny the sick leave requested for two months, the employer has given me two performance evaluations which I have no choice but to contest. The employer denied us the presence of our union representative at a disciplinary hearing, which led to an eight-day suspension in my case. The employer only gave me one and a half hours to prepare my written submissions for a grievance objecting to this measure and a discrimination grievance following verbal threats made to me by an investigator appointed by the Department.

[14]    In this July 13, 2001 letter, Mr. Cloutier alludes to events that occurred in May 2001 (eight-day suspension and grievance stemming from an investigator's threats); however, he did not file an official complaint.

[15]    Mr. Cloutier pointed out that he had to be absent from work as of October 2001, and that he was still unable to work on July 19, 2002, as supported by a medical certificate (Exhibit F-1).

[16]    As a last point, Mr. Cloutier mentioned that he wanted to get some advice from the union on the facts that he planned to include in his complaint. He indicated that he was unable to obtain a satisfactory response.

[17]    When questioned by the employer's counsel about the relatively long timeline between the events of 2001 and the submission of his complaint on "additional allegations" in 2003, Mr. Cloutier replied that he was on sick leave.

[18]    The employer's counsel pointed out that during that time, Mr. Cloutier had submitted identical documents to the CSST and to the Canadian Human Rights Commission. These documents, as well as the additional allegations on which the current case are based, deal essentially with the incidents that occurred in 2001.

[19]    Mr. Cloutier replied that he had been subjected to certain constraints in the case of the CSST and the Canadian Human Rights Commission. Hence, he decided to prepare the documents, even though he felt that they could have been better worded.

[20]    In this case, he believed that the additional allegations he was making against the employer deserved to be better worded. This was why he had sought advice from the union.

Parties' arguments

[21]    The employer indicated that in the summer of 2001, Mr. Cloutier wanted to add new facts to the complaint he had submitted in 2000. However, according to the employer, the incidents of May and July 2001 should have been addressed in a separate complaint.

[22]    The employer maintained that the incidents Mr. Cloutier had filed in 2003 and wanted to address in this case are essentially the same ones that he had submitted in 2001 and to which he was referring in this complaint (additional arguments).

[23]    The employer's counsel referred to Rhéaume v. Public Service Alliance, 2004 PSSRB 95. He argued that a complaint must be submitted within a reasonable timeframe.

[24]    Mr. Cloutier reiterated that he had to be absent for health reasons in the fall of 2001 and that he wanted the union's advice to fine-tune the wording of his complaint.

Reasons for the decision

[25]    The employer raised a point of law regarding the timeframe for the submission of the complaint. I looked into the matter in Rhéaume (supra). At paragraph 24, I found as follows:

Three (3) Board decisions, Giroux v. Health Canada, PSSRB files 161-2-825 and 826 (1999) (QL); Harrison v. Public Service Alliance of Canada, PSSRB file 161-2-739 (1995) (QL); and Machnee v. Klaponski, 2001 PSSRB 28, indicate that the time limit for filing a complaint under section 23 of the Public Service Staff Relations Act may be extended over a number of months, but that it is up to the complainant to provide a satisfactory explanation for the delay in filing his or her complaint.

[26]    It is true that Mr. Cloutier was absent from work for several months from October 2001. However, neither the evidence nor the medical certificate support the fact that he was unable to work to the point that he was unable to read or write and pursue his complaint. During this period, he filed documents similar to the ones in this complaint before the CSST and the Canadian Human Rights Commission.

[27]    Mr. Cloutier alleged that he wanted to fine-tune the wording of his "additional allegations" and get advice from the union, but he provided no evidence on the steps he took that could prove that the lengthy delay was not his fault. In my opinion, this argument does not justify the fact that more than 22 months elapsed between the filing of the complaint in 2003 and the incidents that occurred in May 2001. As for the events of September and October 2001, we are looking at a timeframe of 18 months.

[28]    Mr. Cloutier did not provide any satisfactory explanation for the lengthy delay in filing his complaint. This timeframe is all the more unacceptable because the documents that Mr. Cloutier submitted in 2002 to the Canadian Human Rights Commission and to the CSST are identical to the ones submitted in this complaint.

[29]    Notwithstanding the dismissal of this complaint, it should be noted that Mr. Cloutier has had the opportunity to participate in the hearings into the complaint of his work colleague, Ms. Rioux, and the incidents pertaining to May 9, 2001, were reviewed by the undersigned in Ms. Rioux's case (PSSRB file 161-2-1273).

[30]    The complaint is dismissed because it was untimely.

Jean-Pierre Tessier,
Board Member

Ottawa, March 11, 2005

P.S.S.R.B. Translation