FPSLREB Decisions

Grievance referred to adjudication

[1]    Helene Spacek, an employee of what is now the Canada Revenue Agency (CRA or the "employer"), has filed a grievance on May 2, 2003, alleging that her health and well-being have been adversely affected by her current team leader's behaviour towards her, in violation of article 24 of the collective agreement between the employer and the Professional Institute of the Public Service of Canada (PIPSC) for all employees in the Audit, Financial and Scientific Group bargaining unit. She seeks corrective action including that she be transferred to another team, that her sick leave credits be reinstated and that she be made whole.

[2]    Ms. Spacek referred her grievance to adjudication on February 4, 2005. The parties attempted to mediate the grievance, unsuccessfully. 

[3]    Ms. Spacek has also filed a grievance related to her performance assessment (PSLRB File No. 166-34-33761). She requested that both her grievances be heard together. The employer was opposed to this request. The hearing of both grievances was set for the same block of hearing time and the parties were advised that the adjudicator would determine whether these matters would be joined or heard separately.

[4]    On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (the "former Act").

[5]    By a letter dated April 27, 2006, the employer gave notice that it intended to raise an issue of timeliness. The employer did not argue this point at the hearing. By a letter dated May 6, 2006, the employer gave further notice that it intended to argue a jurisdictional issue with regard to article 24 of the collective agreement.

[6]    The parties did not agree on the hearing process. The employer sought to have the article 24 grievance (PSLRB File No. 166-34-35739) heard separately from the performance assessment grievance (PSLRB File No. 166-34-33761). The employer objected to the adjudicator's jurisdiction with respect to both grievances. The employer argued that I must hear and decide the jurisdictional issues first, as recommended by the Federal Court of Appeal in Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27. Ms. Spacek wished to have one evidentiary hearing, with the adjudicator hearing all the evidence and then determining the jurisdictional issues in advance of ruling on the merits. Ms. Spacek argued that, as a practical matter, adjudicators operating under the former Act often hear the evidence and arguments on jurisdictional issues, reserving the decision and hearing the evidence on the merits of the grievance. Particularly, with the jurisdictional arguments raised late in the day, as was the case here, Ms. Spacek argued that I should simply proceed to hear all matters.

[7]    After hearing arguments from the parties, it was my view that it was appropriate to have separate hearings for each grievance, and to first deal with the article 24 grievance, hearing first the employer's jurisdictional objection, and, if necessary, reserving my decision. The hearing process is a matter for the adjudicator's discretion, and the adjudicator is not bound to hear and decide a jurisdictional issue before hearing evidence on the merits of a grievance. A practice among adjudicators operating under the former Act is to hear all the evidence and rule first on the jurisdictional objection in a written decision, and proceed only to consider the merits if the adjudicator finds jurisdiction. Here, it appeared convenient to hear the two grievances separately, particularly as the jurisdictional issue on the article 24 issue (PSLRB File No. 166-34-35739) could be dealt with by way of oral argument, and this would have the potential to narrow the issues for an oral hearing. It was apparent to me that the two days reserved for this hearing allowed insufficient time for the hearing of both grievances and jurisdictional objections on both grievances.

[8]    This is my decision on jurisdiction related to the article 24 grievance only. The jurisdictional argument proceeded by way of oral submissions.

[9]    Ms. Spacek asked, and I granted, a direction that Doug Cline, her supervisor, not communicate with her during the course of this hearing. The employer consented to this direction. It was anticipated that Mr. Cline and Ms. Spacek would be giving evidence in a hearing on the merits. I directed the following:

. . .

As a matter of consent, the parties have agreed that there shall be no communication, direct or indirect between Doug Cline and the grievor Helene Spacek during the course of the hearing by in-person communications, telephone or e-mail communications or any other means.

. . .

I made this direction in order to preserve the evidence and in order to ensure a fair hearing. I adjourned briefly to permit the employer to communicate this direction to Mr. Cline. This direction does not bar Mr. Cline from speaking to Ms. Spacek about matters other than her article 24 grievance, including any ongoing performance concerns, after the end of the hearing in this case.

Summary of the evidence

[10]    There was no evidence called on the employer's preliminary objection. Both parties agreed that the jurisdictional issue did not require the hearing of evidence. After filing the collective agreement as an exhibit, the jurisdictional objection proceeded by oral argument.

[11]    By way of background, however, it is important to understand that Ms. Spacek is employed as a Regional Research and Technology Adviser (CO-02) in the Scientific Research and Experimental Development Branch at the Vancouver Tax Services Office of the CRA. Her position is covered by the collective agreement for the Audit, Financial and Scientific Group bargaining unit between the employer and the PIPSC.

[12]    Ms. Spacek's grievance alleges a violation of article 24 of the collective agreement. The text of the grievance reads as follows:

. . .

That my health and wellbeing have been adversely affected by my current team leader's behaviour toward me in violation of Article 24 of the PIPSC collective agreement.

. . .

No particulars of the team leaders' behaviour are set out in the grievance. Ms. Spacek seeks the following:

. . .

That I be transferred to another team, that sick leave credits lost due to necessary stress leave be reinstated, and that I be made whole.

. . .

This grievance is referred to adjudication under paragraph 92(1)(a) of the former Act.

[13]    Clause 24.01 of the collective agreement reads as follows:

24.01 The Employer shall continue to make all reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the Institute and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury or occupational disease.

[14]    From the submissions of both parties, it is apparent that Ms. Spacek was transferred to another team.

Summary of the arguments

[15]    The employer argued that the grievance must involve individual rights to be a grievance referable to adjudication under paragraph 92(1)(a) of the former Act. The interpretation or application of the collective agreement must be ". . . in respect to the employee. . . ." If the bargaining agent feels aggrieved by an alleged breach of clause 24.01 of the collective agreement, the bargaining agent may apply for a remedy under section 99 of the former Act.

[16]    Clause 24.01 of the collective agreement does not give rise to any individual rights that can be grieved by an employee. It is a simple consultation section related to the occupational health and safety of employees. The section creates a duty between the employer and the bargaining agent, but does not give rise to any rights to an employee.

[17]    The employer relied on Breault v. Treasury Board (Agriculture Canada), PSSRB File No. 166-02-24186 (1994) (QL); Kolski v. Treasury Board (Agriculture Canada), PSSRB File Nos. 166-02-25899, 25900 and 26020 (1994) (QL); Professional Institute of the Public Service of Canada v. Canada (Treasury Board), PSSRB File No. 148-02-11 (1973) (QL); and Albus and Deminchuk v. Treasury Board (Solicitor General), PSSRB File Nos. 166-02-16887 and 16888 (1987) (QL) for the proposition that clause 24.01 of the collective agreement is consultative and does not give rise to any individual right to adjudicate a grievance.

[18]    Ms. Spacek relied on the opening words in clause 24.01 of the collective agreement, which read as follows:

. . . The Employer shall continue to make all reasonable provisions for the occupational safety and health of employees. . . .

The grievor has an injury unique to her. The employer has been made clearly aware of the nature of the injury. The causes of the injury are within the control of the employer and the employer has not made reasonable provisions to protect the employee from harm. Ms. Spacek argues that the opening words in the first sentence of clause 24.01 provide an individual right to the employee to grieve. Ms. Spacek said that this clause is no different from any other clause in the collective agreement. While the agreement is between the employer and the bargaining agent, individuals with affected rights, such as Ms. Spacek, can file grievances with respect to breaches of the collective agreement. Ms. Spacek is owed a hearing on the specifics of her grievance.

[19]    Further, Ms. Spacek said that this case involves an issue of interpretation of a collective agreement, and on that basis alone there is jurisdiction under subsection 92(1) of the former Act. Ms. Spacek said that I am not bound by the earlier decisions of other adjudicators, and that there are no decisions of the Federal Courts on this issue, which bind me to the interpretation of clause 24.01 of the collective agreement that is suggested by the employer. Ms. Spacek said that the previous adjudication decisions were wrongly decided and give no effect to the opening sentence of clause 24.01.

[20]    Ms. Spacek said that the collective agreement does not contain an anti-harassment clause. Ms. Spacek has not alleged discrimination on the basis of disability and, therefore, there is no remedy before the Canadian Human Rights Commission. The employer's harassment policy cannot be an alternative to a hearing on a breach of clause 24.01 of the collective agreement. The only remedy available to Ms. Spacek is an adjudication of her grievance relating to clause 24.01 of the collective agreement.

[21]    Ms. Spacek objected to the timeliness of the employer's objection, as it was not raised in the grievance process.

[22]    Ms. Spacek relied on the following authorities to suggest that an adjudicator has jurisdiction to hear and decide her grievance: Re Newfoundland (Newfoundland Farm Products Corp.) and Newfoundland Association of Public Employees (1988), 35 L.A.C. (3d) 165; Re Bear Creek Lodge and Hospital Employees Union (2002), 106 L.A.C. (4th) 254; and Re Westfair Foods Ltd. and United Food & Commercial Workers, Local 832 (1992), 29 L.A.C. (4th) 222.

[23]    In the alternative, Ms. Spacek asked that I relax any time limits to allow her bargaining agent to refer the matter to the Board under section 99 of the former Act.

[24]    In reply, the employer said that this is a question of jurisdiction and regardless of the timing of the employer's objection, the adjudicator has no jurisdiction. The authorities supplied by the employer are all consistent. The meaning of clause 24.01 of the collective agreement is clear. While arbitrators operating under different legislation may have jurisdiction over similar clauses, it is telling that Ms. Spacek was unable to find any decision rendered under the former Act to counter the employer's position.

Reasons

[25]    At the end of arguments on the jurisdictional issue relating to clause 24.01 of the collective agreement, it was apparent that the employer had raised a serious issue concerning this adjudicator's jurisdiction, and, therefore, I decided to issue a written decision on this jurisdictional point. The employer filed decisions rendered under the former Act that pronounced directly on this issue. The earliest of those cases was from 1973. Ms. Spacek did not file any decisions rendered under the former Act that contradicted the employer's authorities. It was unfortunate that this jurisdictional objection was raised by the employer so close to the hearing. However, it is my view that, nevertheless, in the circumstances of this case, I should decide this issue before embarking on an evidentiary hearing. For the reasons that follow, I have no jurisdiction to hear this grievance, and an evidentiary hearing is, therefore, unnecessary.

[26]    Ms. Spacek has referred her grievance to adjudication under paragraph 92(1)(a) of the former Act. The relevant section 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 arbitration award,

. . .

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.

[Emphasis added]

[27]    Ms. Spacek characterized her grievance as a harassment grievance, although it is clearly a grievance that does not relate to any prohibited grounds of discrimination listed in the Canadian Human Rights Act, R.S.C., 1985, c. H-6. Rather, the situation described in the grievance appears to be in the nature of 'personal harassment'. The collective agreement contains an antidiscrimination clause (43.01), but does not contain a more general anti-harassment article. Ms. Spacek appears to have conceded that, unless this matter is heard under clause 24.01 of the collective agreement, she would be without an adjudicative remedy, and she makes the strong point that an investigation pursuant to the employer's harassment policy is not adjudication under the former Act.

[28]    Ms. Spacek relies on a number of labour arbitration cases in the provincial public sector or private sector where labour arbitrators have considered and taken jurisdiction over collective agreement clauses appearing to be consultative in nature. In Newfoundland Farm Products Corp., the arbitrator took jurisdiction in a case where the collective agreement contained a sexual harassment clause involving ". . . best efforts to discourage sexual harassment in the workplace."  In Bear Creek Lodge, the arbitrator took jurisdiction where the collective agreement provided for ". . . the right of employees to work in an environment free from harassment, including sexual harassment. . . ."

[29]    In Westfair Foods Ltd., the arbitrator proposed a three-prong test to determine whether the employer violated a safe working condition clause. This was inferred from a clause that seemed to be consultative in nature and read as follows:

13.01 The Company, the Union and the employees mutually agree to co-operate in maintaining and improving safe working conditions in all the Company's stores.

[30]    Westfair Foods Ltd. does not assist Ms. Spacek. The jurisdiction of the arbitrator in that case was governed by the applicable provincial labour statute. A private sector arbitrator has a broader or fuller jurisdiction than an adjudicator operating under the former Act. Only certain grievances are adjudicable under the former Act.As a statutory tribunal, an adjudicator operating under the former Act has to find her or his jurisdiction by considering the applicable statute and collective agreement.  

[31]    The jurisdiction question before me is whether clause 24.01 of the collective agreement is intended to provide a remedy ". . . in respect of an employee. . . ." If clause 24.01 does not provide a remedy in respect of an employee, an adjudicator has no jurisdiction under the former Act to hear and decide the grievance.

[32]    The correct interpretation of clause 24.01 of the collective agreement has been settled in a number of cases rendered under the former Act. In Professional Institute of the Public Service of Canada, the Board held that the proper remedy for breach of a consultative clause similar in wording to clause 24.01 rested under what became section 99 of the former Act. The Board characterized the clause as containing an obligation to consult.

[33]    In Breault, an adjudicator interpreted a collective agreement that contained language identical to clause 24.01 of the collective agreement before me. Mr. Breault alleged a breach of clause 25.01 of his collective agreement. The adjudicator in that case found as follows:

. . .

          In asking me to find that the employer has violated Article 25 of the Master Agreement, the grievor's representative is inviting me to read the first sentence of the article in isolation. . . .  

. . .

          Article 25 is clearly intended to be a consultation provision whereby the employer and the bargaining agent agree to consult on matters affecting the occupational safety and health of employees (underlining added). No evidence was adduced to the effect that the employer had not made all reasonable provisions for the occupational safety and health of employees. There was no suggestion that the employer's job rotation program was lacking from an occupational safety and health perspective. What the grievor's representative argued is, essentially, that because of the grievor's specific health problems, he was not suited to the job rotation program and should have been left out of it. That, I suggest, is a very different proposition from the one advanced in this case, namely, that the employer has violated Article 25.

. . .

[Emphasis in the original]

[34]    In Albus and Deminchuk, the adjudicator stated as follows, again considering language identical to clause 24.01 of the collective agreement before me:

. . .

          I have to decide first the objection to my jurisdiction.

          I have considered article 25.01 of the Agreement. It reads that the employer will "continue to make reasonable provisions for the occupational safety and health of employees" and it provides for suggestions and consultations with a view of carrying out reasonable procedures and techniques. The article relates in this regard to the employer and the Institute or to the parties to the Agreement. It does not refer to the employees individually and in my mind it does not create rights to individuals personally.

          It would seem from the article that provisions were to be kept in force. Such is the statement at the beginning of the article. The article then goes on to say that suggestions will be welcome by the employer. The suggestions however are not to be made by the employees but rather by the Institute. Clearly any failure on the part of the employer can only be interpreted as a breach of duty owed to the Institute (one of the parties) and not to the grievors as individuals.

          Section 91(1)(a) of the Act [now subparagraph 92(1)(a) of the former Act] reads that to be referable to adjudication, a grievance must be in respect to ".the interpretation or application in respect of him (the grievor) of a provision of a collective agreement.".

          I cannot see how the present grievances can or could be referred to adjudication as individual grievances. The only party which can file a complaint under the above article, if there is a breach, is in my opinion the Institute. Certainly not an employee. Certainly not the grievors.

. . .

[35]    In Kolski, the alleged violation of the collective agreement related to language similar to the one used in clause 24.01 of the collective agreement before me. The adjudicator wrote as follows:

. . .

          Again, I am of the view that the allegation is without foundation. The Article is a consultation provision whereby the parties undertake to consult on measures designed to make the workplace safer. The employer's obligation is to the bargaining agent and not to an individual grievor.

. . .

[36]    The case law is clear, and, apparently, consistent since about 1973, according to the authorities filed. Clause 24.01 of the collective agreement is a consultative clause giving rights to the bargaining agent. Ms. Spacek has provided no contrary authority under the former Act that bears on this issue. I accept her statement that there are no authorities from the Federal Courts on this issue, and I am not bound by the decisions of other adjudicators. Ms. Spacek argued that it is a live issue.

[37]    As a matter of administrative law, I am not, as an adjudicator, strictly bound by other decisions rendered under the former Act. However, the decisions of other adjudicators may have persuasive value, depending on their applicability to the matter before me.

[38]     Decisions rendered under the former Act are published for the benefit of the federal public service community at large. In my view, there ought to be consistent application of the law, as consistency from the Board and adjudicators helps employers and bargaining agents in the administration of collective agreements and in their bargaining-table relationships. It also helps employees better understand the scope of their terms and conditions of employment. Consistent interpretations provide for harmonious labour relations, or at least point out flaws in the collective agreements, which could be addressed through the collective bargaining process. The interpretation of wording similar to clause 24.01 of the collective agreement before me is a well-settled point in decisions rendered under the former Act. Further, that wording is clear and, when clause 24.01 is read as a whole, it is capable of only one meaning. The clause is not capable of the meaning suggested by Ms. Spacek.

[39]    While this is an issue of interpretation of the collective agreement, I do not need to hear evidence from the grievor to assist me in making this determination, as the grievor's evidence relates to the alleged breach of the clause as opposed to the interpretation of the clause. As to Ms. Spacek's argument that she is entitled to a hearing, an adjudicator is not required to 'hear out' a grievor on an issue that is not within her or his jurisdiction. I adopt the reasoning in Price v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 47, where the adjudicator wrote the following:

. . .

[52]    As to the bargaining agent's submission that the grievor should be given an opportunity to express his views about the way management dealt with the consequences of his workplace injury and resulting disability, I find the employer's response to be persuasive. It is not the proper function of this adjudicator to provide the grievor with a forum for expressing his views. Where, as here, a finding is made that subparagraph 91(1)(a)(ii) of the former Act applies to oust my jurisdiction, I am unable to nonetheless exercise my statutory jurisdiction on an equitable basis such as that for which the bargaining agent contends here -- i.e., in the interest of justice. I either have jurisdiction to hear and determine the grievance, or I do not. I have determined that I do not, and I was referred to no provision in the legislation providing for an exception, on any equitable basis, to the operation of subparagraph 91(1)(a)(ii) of the former Act.

. . .

[40]    In my view, the language of clause 24.01 of the collective agreement is very clear. It is intended to be a consultative provision and not a vehicle for an employee to gain access to the grievance process. It is not necessary for me to pronounce further on the scope of clause 24.01. I am dismissing this grievance because it does not fall within an adjudicator's jurisdiction under paragraph 92(1)(a) of the former Act.

[41]    The former Act provided a mechanism for the enforcement of obligations between the employer and the bargaining agent. This was contained in section 99 of the former Act, which read as follows:

   99. (1) Where the employer and a bargaining agent have executed a collective agreement or are bound by an arbitration award and the employer and the bargaining agent seeks to enforce an obligation that is alleged to arise out of the agreement or award, and the obligation if any, is not one the enforcement of which may be the subject of a grievance of an employee in the bargaining unit to which the agreement or award applies, either the employer or the bargaining agent may, in the prescribed manner, refer the matter to the Board.

[42]    Whether Ms. Spacek's bargaining agent may still refer the matter to the Board under section 99 of the former Act remains to be assessed. At the hearing, she asked that I relax any time limits to do so. I note, however, that I cannot relax any such time limits, as I am appointed as an adjudicator for the purpose of deciding the grievance that Ms. Spacek has referred to adjudication under paragraph 92(1)(a) of the former Act.

[43]    By hiving off and dealing with the jurisdictional issue separately from Ms. Spacek's other grievance, I expect that I have narrowed substantially the issues that require adjudication.

[44]    For all of the above reasons, I make the following order:

Order

[45]    The grievance is denied.

September 19, 2006.

Paul Love,
adjudicator