FPSLREB Decisions

File: 161-2-802 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN T. PATRICK BOYLE Complainant and PUBLIC SERVICE ALLIANCE OF CANADA AND EMPLOYMENT AND IMMIGRATION CANADA (Human Resources Development Canada)

Respondents RE: Complaint under section 23 of the Public Service Staff Relations Act

Before: Yvon Tarte For the Complainant: himself For the Respondents: Michael Tynes, Public Service Alliance Canada Harvey Newman, Counsel, Employment and Immigration Canada:

Heard at Halifax, Nova Scotia, May 1, 1997

Decision Page 1 DECISION Mr. Boyle has filed a complaint pursuant to section 23 of the Public Service Staff Relations Act in which he alleges that the respondents have failed to: “fairly represent me contrary to section 10(2) of the Act in that they failed to properly advise me of my entitlements under the PSAC collective agreement and the PSAC Disability Insurance Plan. This resulted in the premature termination of my employment relationship with C.E.I.C.” (complaint document dated 31 May 1996 and filed with the Board on 4 June 1996)

By letter dated 3 April 1997, Mr. Boyle amended his complaint as follows: I respectfully request also to offer a correction to my originally submitted complaint to the Board dated 31 May 1996.

In my submission to the Board I accurately indicated that I wished my complaint considered under Section 23, Subsection 10 of the Public Service Staff Relations Act. I inaccurately, however, quoted the pertinent section.

In my 31 May 1996 submission, in part two, I said, "Fairly represent me contrary to 10(2) of the Act in that they failed to properly advise me of my entitlement under the PSAC collective agreement and PSAC Disability Insurance Plan. This resulted in the premature termination of my employment relationship with C.E.I.C."

In properly referring to 10(2) my complaint statement should have read as follows:

"No employee organization, or officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit."

I respectfully request that my complaint under Section 23 of the Act be considered dully amended in line with the correction offered today.

The events leading to the termination of Mr. Boyle’s employment form the Public Service go back to 1988 and 1989. The parties filed on consent extensive documentation.

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Decision Page 2 Objections to jurisdiction Both respondents raised objections to the hearing of this matter. The Public Service Alliance Canada objected to Mr. Boyle’s complaint on 28 June 1996 as follows: This is further to your letter of June 5, 1996, enclosing the above-noted complaint in which the Public Service Alliance of Canada has been named as respondent.

The complainant alleges that the Public Service Alliance of Canada (the PSAC) violated Section 10(2) of the PSSRA in that it failed to “properly advise [him] of [his] entitlements under the PSAC collective agreement and the PSAC Disability Insurance Plan. This resulted in the premature termination of [his] employment relationship with C.E.I.C.”

First, the PSAC fails to understand how a violation of Section 10(2) could have occurred in 1988, as this section did not exist at that time.

Second, contrary to the complainant’s allegation that his employment was terminated, he in fact submitted his resignation in April, 1988. If the complainant’s rights were violated at that time, and we do not agree that they were, the PSAC respectfully submits that this is not the forum to address the violation of these rights, and furthermore, addressing any alleged violations at this time is extremely untimely.

We refer you to the decision of adjudicator J. Barry Turner in the Horstead (161-2-739) decision, wherein he states that “Ms. Horstead never submitted a grievance that could allow me to judge whether or not she was fairly or unfairly treated by her union.. Unless the actions of the bargaining agent affect the employment relationship of the complainant, the board has no role to play.” The complainant has provided no evidence of having submitted a grievance or complaint for which the PSAC could represent him. In April, 1988, the complainant negotiated a package which was satisfactory to him and submitted his resignation. He has provided no evidence that he requested assistance from the PSAC at the time of his resignation.

Further, should the Board’s jurisdiction could be established by the complainant, his own documentation (letters dated December 2, 1993, November 26, 1993 and

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Decision Page 3 April 26, 1993, attached to the complaint) would in fact contradict his allegation that the PSAC has breached Section 10(2) of the Act. These letters clearly indicate that the PSAC did what it was able, when requested by the complainant, to attempt to resolve the situation in which he found himself. If the complainant was unhappy with his situation as it existed in 1988, he should have taken the actions at that time.

We would also refer you to the attached correspondence. These include two letters addressed to Mr. Cres Pascucci, National President, Canada Employment and Immigration Union, dated March 21, 1994, and June 14, 1994, wherein the facts of the complainant’s case were thoroughly reviewed by the PSAC, at the request of the complainant. As noted, any actions that the PSAC may have taken on behalf of the complainant at that time would have been extremely untimely.

Finally, even if the complainant is able to establish that the PSAC had made an error in judgement or had made a mistake, it has been held that, with reference to the decision of adjudication Yvon Tarte in the Begley (161-2-759) decision, “In cases of unfair representation, unions have the right to be wrong. They cannot however act in a capricious manner or in a way that would improperly discriminate.” Making a mistake, or an error in judgement, however, does not equate to arbitrariness, capriciousness or bad faith.

With respect to the timeliness of the complainant’s submission, we would submit that, if the complainant was able to make inquiries as early as 1993 regarding the circumstances surrounding his retirement, he should have been able to file the present complaint as early as 1993, not three years later.

We submit that the PSAC did not act in an arbitrary or capricious manner, nor in bad faith in the present matter, and respectfully submit that, in the absence of any evidence that the respondent Public Service Alliance of Canada violated the provisions of Section 10(2) of the PSSRA, this complaint be dismissed without a hearing.

At the hearing, Mr. Tynes raised questions about the retroactive application of subsection 10(2) to matters which occurred prior to the enactment of the subsection. He questioned the timeliness of Mr. Boyle’s complaint which deals with events that go back several years. Finally, Mr. Tynes argued that the Board was without jurisdiction

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Decision Page 4 to deal with resignations which come under section 26 of the Public Service Employment Act.

The employer presented written objections to this complaint on June 19, 1996: In his complaint, the complainant alleges that he was not fairly represented contrary to Section 10(2) of the Act in that the respondents failed to properly advise him of his entitlements under the PSAC collective agreement and PSAC Disability Insurance Plan. According to the complainant, this resulted in the premature termination of his employment relationship with the department which is now known as Human Resources Development Canada (HRDC), but at the relevant time was known as Employment and Immigration Canada (EIC).

Summary of the events leading to the complainant’s resignation

The circumstances giving rise to the complaint began over eight years ago, in early 1988, when the complainant offered to resign in order to receive a cash-out. He tendered his resignation in April of 1988 and the department accepted it with an effective date of September 29, 1988. The complainant subsequently requested, while retaining the right to receive the cash-out benefits, that the department approve that his resignation not take effect until January 31, 1989. This request was granted in June of 1988 by the department. In November of 1988, the complainant requested a further extension until April 30, 1989, again requesting that he also retain the right to receive cash-out benefits. Given the organizational difficulties that this would have created, the complainant’s request for a further extension was not approved by the department and his resignation took effect as scheduled on January 31, 1989. In February of 1989, upon receipt of confirmation from Health and Welfare Canada, the complainant’s method of termination was amended to reflect a medical retirement; which opened the door for the complainant to receive pension benefits without penalties.

Every few years, the complainant has raised his concerns about the termination of his employment through different channels. Attached are copies of correspondence sent through the years by the complainant to his own union, other unions unrelated to the case at hand, various departmental officials of HRDC, and his Member of Parliament.

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Decision Section 10(2) of the Act The complainant specifically Section 10(2) of the Act, which reads as follows:

(2) No employee organization, or officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.

Clearly this Section of the Act imposes an obligation of fair representation on the “employee organization, or officer or representative of an employee organization”. However, this section of the Act has no application to the department or any other representative of the Employer. It is therefore improper for the Employer, or any of its representatives, to be identified as a respondent to this complaint. For these reasons, the Employer respectfully requests that the department, which is now known as HRDC, be removed as a respondent to this complaint.

Additional concerns Nevertheless, even if the Board grants our request that the Employer, or any of its representatives, be removed as respondents to this complaint, the Employer has additional concerns that it wishes the Board to consider in deciding the outcome of this complaint.

The Employer is concerned that the complainant seeks to have the Board review a matter that may more appropriately form the basis of a grievance, not a Section 23 complaint. In our view, this concern is evident by the formulation of the order sought by the complainant who, in his own words, requests:

That the Board issue an order granting me full redress for all lost rights, earnings and benefits resulting from this violation and reinstate me to my position with the Canada Employment and Immigration Commission.

In our view, style should not be confused with substance. By alleging a violation of Section 10(2), the complainant has formulated his complaint in such a way as to make it appear to meet the requirements of Section 23. However, granting the order sought by the complainant would oblige the Board to inquire into the merits and circumstances surrounding his

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Page 5 alleges a violation of

Decision Page 6 termination of employment, which is a matter that cannot be brought before the Board under Section 23.

It is our submission that the complainant is attempting to have the Board take jurisdiction of a matter for which the Act has provided another redress procedure, namely the grievance procedure provided under Section 91. It is respectfully submitted that the complainant cannot, under the guise of a Section 23 complaint, request that the Employer be ordered to reinstate him to his former position.

Section 91 of the Act - The Grievance Procedure The Employer contends that if the complainant had intended to contest the circumstances surrounding his termination of employment, then he should have filed a grievance under Section 91 of the Act. Moreover, the Employer submits that the complainant is avoiding this route probably because of the procedural difficulties he would encounter, such as the untimeliness of presenting his grievance at such a late date, and the matter of whether or not the Board would accept to rule on a termination of employment provided under the Public Service Employment Act.

With respect to the question of timeliness, the Employer recognizes that the complainant could have presented a grievance contesting the department’s decision not to revoke his resignation, however like any other grievance, it must be presented in a timely fashion. The PSSRB Regulations and Rules of Procedure (1993) set out the mandatory time limits with respect to the presentation of a grievance. Section 71(3) states as follows:

(3) An employee shall present a grievance no later than on the twenty-fifth day after the day on which the employee first had knowledge of any act, omission or other matter giving rise to the grievance or the employee was notified of the act, omission or other matter, whichever is the earlier.

As previously stated, the circumstances giving rise to this complaint occurred in late 1988, over seven and a half years ago, when the complainant tendered his resignation and obtained, with the Employer’s assistance, both a cash-out and a medical retirement.

The attached correspondence shows that the complainant “first had knowledge” of the circumstances giving rise to his grievance in December of 1988, when the employer refused to allow him to withdraw his resignation. Since then, the complainant voices his concerns about his resignation every

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Decision Page 7 few years through different channels. In 1993, he wrote to a different union in an attempt to elicit their support. In 1994 and 1995, he resurrected the issue by writing to various departmental officials and to his Member of Parliament. All of these events clearly demonstrate that the complainant was fully aware of the departmental decision with which he disagreed.

It is unconscionable that the complainant now attempts to have this matter reviewed by the PSSRB at such a late date.

With respect to the issue of jurisdiction, Section 92(1) of the Act defines those subjects that can be referred to the PSSRB for adjudication. It reads as follows:

92(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, (b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4), (i) disciplinary action resulting in suspension or a financial penalty, or (ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the financial Administration Act, or (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or 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.

Firstly, the complainant has not filed a grievance. Secondly, this case does not involve any disciplinary action. Thirdly, any allegation of misinterpretation or misapplication of the collective agreement would require the bargaining agent’s support, which the complainant lacks. Finally, Section 92(3) specifies that terminations of employment under the Public Service Employment Act are not referrable to adjudication. It reads as follows:

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Decision Page 8 (3) Nothing in subsection (1) shall be contrued (sic) or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.

In our view, the complainant would be precluded from presenting a grievance on the basis of his failure to respect the time limits provided by the grievance procedure. Moreover, the subject matter of such a grievance would preclude it from being referred to the Board for adjudication. It was open to the complainant, or his Bargaining Agent, to seek an extension of time in accordance with PSSRB Regulations and Rules of Procedure (1993), however neither has chosen to seek that remedy.

Conclusion It is our submission that it is improper for the Employer, or any of its representatives, to be identified as a respondent to this complaint and on this basis, we respectfully request that the department, which is now known as HRDC, be removed as a respondent to this complaint.

It is also our submission that the complainant is attempting to have the Board take jurisdiction of a matter for which the Act has provided another redress procedure, namely the grievance procedure provided under Section 91. It is respectfully submitted that the complainant cannot, under the guise of a Section 23 complaint alleging a violation of section 10(2) of the Act, request that the Employer be ordered to reinstate him to his former position.

For all of these reasons, it is submitted that there is no merit to this complaint and it ought to be dismissed summarily without a hearing as against the Employer or any of its representatives.

At the hearing Mr. Newman again objected to the timeliness of this complaint and raised the doctrine of latches. He also indicated that the CEIC was not a person and could not therefore be targeted as a respondent in this matter although he would not object to the naming of an individual respondent as the employer’s agent. On consent it was agreed to have the name of Harry Vaughan replace C.E.I.C. as a respondent on Mr. Boyle’s complaint. Mr. Vaughan was Associate Director General, Nova Scotia Region, Human Resources Development Canada. In that capacity, Mr. Vaughan has had dealings with the complainant.

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Decision Page 9 On the question of jurisdiction, Mr. Boyle tendered the following document which was filed as Exhibit C-1 on consent of all parties: The following information is respectfully submitted to the Public Service Staff Relations Board in support of my view that the Board has the authority to adjudicate my complaint.

My complaint is entered under 10(2) of the Act which reads as follows:

No employee organization, or officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.

In November 1988, in response to my request for sick-leave, I believe members of management at HRDC committed a serious violation against my rights which may have resulted in my involuntary resignation from my employment according to “the principles of disguised discipline”.

On 17 November 1988 I provided my then supervisor, Ms. Freda Gallagher a memo in which I requested sick-leave until 30 April 1989. (Exhibit 1)

I knew neither Mrs. Gallagher nor her supervisor, my manager, Mr. Laurie Ryan, had the authority to either grant or deny my request. The period of requested leave extended beyond the date of my planned retirement, which was scheduled for 31 January 1989.

When I requested sick-leave I had the required sick-leave credits accumulated.

Mr. Ryan received my memo from Mrs. Gallagher on 18 Nov. 1988. My expectation was that my request would be expeditiously referred to Mr. P. Oldfield, metro-manager Halifax.

Unfortunately Mr. Ryan improperly withheld my memo from Mr. Oldfield.

Attached is a copy of an “action request” memo (Exhibit 2) dated 18 November 1988.

The memo is addressed to “Louise” and signed by “Laurie”. Attached also is a typedwritten transcription of the memo. (Exhibit 3).

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Decision Page 10 According to probability, in view of the text of the memo, its date and the names involved, the “action request” relates to a telephone call made by Mr. Ryan to Ms. Louise Stoneman. Ms. Stoneman was in 1988 a Staffing Officer. She is now, I believe, the Staff Relations Officer, HRDC.

Mr. Ryan’s memo makes clear that he discussed my request for sick-leave with Ms. Stoneman during a telephone call. His memo also makes clear that he deliberately withheld my request for sick-leave from Mr. Oldfield for one week.

During the delay of my memo, I believe plans were made by Mr. Ryan, Ms. Stoneman and probably Ms. Stoneman’s then supervisor, Mr. B. Hale who was Chief of Personnel.

Mr. Ryan’s actions may have constituted a serious abuse of his authority. My understanding is that abuse of authority, on discovery, may carry very high disciplinary penalties. I believe, also, that if abuse of authority by Mr. Ryan did occur, others in the HRDC hierarchy, particularly Mr. Oldfield, should have been aware of it.

If Mr. Oldfield were aware of serious misconduct by Mr. Ryan, which may have had a negative effect on me, I believe Mr. Oldfield had a responsibility to intervene on my behalf.

On the basis of probability, I would say that Mr. Oldfield was fully aware that Mr. Ryan had delayed my memo. Obviously, a memo given to Mr. Ryan on 18 November 1988 should not arrive at Mr. Oldfield’s desk on approximately 28 November 1988, which is the earliest date it could have arrived.

Mr. Oldfield responded to my request for sick-leave in a memo dated 2 December 1988 (Exhibit 4). Mr. Oldfield refused my request, citing the provisions of the Public Service Employment Act as cause. Untimately, I learned that Mr. Oldfield’s rejection was based on Section 26 of the Act.

Most importantly, Mr. Oldfield made no reference to a delay in the transmittal of my memo.

Following Mr. Oldfield’s rejection of my request, for sick-leave, correspondence ensued between Mr. Oldfield and me. I requested specific information on why Mr. Oldfield made his decisions and who he had consulted in arriving at his rejections.

Mr. Oldfield’s responses to my inquiries were, in my view, characteristically uninformative and hostile. He routinely referred to his consultants as “regional office officials”.

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Decision Page 11 My request for sick-leave was supported by medical certification from two doctors who each diagnosed that I suffered from Chronic Fatigue Syndrome (CFS).

Despite the clarity of the medical evidence Mr. Oldfield frequently challenged the validy of my illness by referring to it as “alleged”, “apparent”, etc.

On 23 December 1988 I requested that Mr. Oldfield allow me to withdraw my notice of resignation (Exhibit 5). In my request I indicated the extreme dangers which my becoming unemployed during an illness would expose me.