FPSLREB Decisions

I. Complaint before the Board

[1]   The complainant, Micheline Rioux, filed a complaint under section 23 of the Public Service Staff Relations Act (the “former Act”), R.S.C. (1985), c. P–35, on July 6, 2000, alleging that the respondent had contravened the prohibitions set out in sections 8 and 9 of the former Act. Her complaint reads as follows by the exclusion of the factual elements listed therein (Exhibit P–1):

[Translation]

. . .

Before commencing this recourse, I analysed a number of aspects relating to the attitude and behaviour of the organization in its relations with the union local over a long period. The problem basically comes down to a relationship marked by intimidation and abuse of power towards representatives of the union local (ex.: abusive disciplinary measures, financial penalties, threats of dismissal, etc.) to encourage them to restrain themselves and even abstain from exercising their role as elected union representatives in the union local.

In light of recent events, I note an intensification in the acts of intimidation. The organization is becoming reckless, i.e., it fails to respect the basic rules and procedures for the conduct of disciplinary investigations. In addition, the organization exceeds the limitations on the exercise of its power by its unwarranted and improper use of disciplinary measures.

The employer’s failure to inform me of my rights (examples below) is contrary to the spirit of natural justice and constitutes a human rights violation in that it settled my complaints/disputes and did not consider my interests as an individual (especially when it deprived me of my means of livelihood).

[The accounts of the incidents relating to the second-level hearing of the applicable grievance process on March 7, 2000, are not reproduced.]

Obviously, discussion of the merits of the suspensions is very secondary, it is merely a symptom of the disease. The root cause of the problem can be found in the culture of confrontation in the Department, which I would describe as technocratic/legalistic, which means that a number of technical or economic considerations prevail over the human factors in a conflict situation. That is the level at which the debate should be held.

It would be to the organization’s advantage to try mediation with the union local to find possible solutions before settling on disciplinary measures that go a long way to amplifying instead of resolving the conflicts.

Having been the recipient of a disciplinary measure, the negative effects of this intimidation have already had their effect in that the measures arouse strong emotions and personal antagonisms.

(In my view, the managers are not the issue: they have no choice but to bend to the culture of the Department.)

The employer appears to use disciplinary action in the context of union activities to silence our complaints/demands and to resolve expeditiously and unilaterally any situations that present or might present problems.

In this way, the organization makes us vulnerable and wilfully places us in a situation of illegality by refusing to negotiate a management-union local agreement as is done with other locals where relations with the employer are more harmonious. A reasonable and intelligent employer-union agreement could mean the whole difference between achievement instead of correction action.

Furthermore, the employer has shown that it has discriminated against the elected members of the local executive. The organization in fact favours harmonious exchanges among equals only in the case of the regional union, which gets red carpet treatment, to the detriment of the local union (concrete facts in support).

[…]

[2]   The notes and details concerning the five disciplinary measures imposed on the complainant and the appendixes to her complaint are not reproduced here but will be considered in the “summary of the evidence” and “summary of the arguments” sections of this decision.

[3]   At the hearing, the complainant requested the following corrective action:

[Translation]

. . .

Remedy of damages

Acknowledgement of harassment and of contravention of the Public Service Staff Relations Ac t.

A letter of apology from the Department containing a commitment to ensure a harassment–free workplace.

Reimbursement for all periods of suspension and periods of sick leave related to this matter.

Reimbursement in overtime for periods of leave that should have been granted during work hours.

That I not suffer any prejudice as a result of filing this complaint.

That all documentation related to this complaint be removed from my personnel records.

That any decision rendered with respect to this complaint be made public.

[4]   This complaint was placed on the roll along with a complaint (PSSRB file No. 561–02–71) filed by Simon Cloutier on September 4, 2000, in which the latter essentially alleges having been the target of reprisals and discrimination because of his union activities. Several incidents related by the complainant and Mr. Cloutier are covered by both complaints, since the complainant and Mr. Cloutier were involved jointly, as employees or as representatives of the bargaining agent, depending on the specific circumstances.

[5]   To avoid repeating the evidence, it was agreed that the evidence adduced in one case would be included in the other, including any objection as to its admissibility and related argument. However, each complaint is considered separately and is the subject of its own decision.

[6]   Although the Board handed down a decision on July 29, 2002 (Rioux v. Treasury Board (Citizenship and Immigration Canada), 2002 PSSRB 68) regarding the grievances filed by Ms. Rioux against certain disciplinary measures imposed on her, the evidence that was filed in those cases continues to be relevant to her complaint under section 23 of the former Act  (PSSRB File 561–02–70).

[7]   Exhibits adduced by Mr. Cloutier are identified by the designator “G”. Exhibits adduced by the complainant at the hearing leading to the decision in Rioux v. Treasury Board (Citizenship and Immigration Canada) (supra), are identified by the designator “R” and those that she adduced during the hearing of her complaint in PSSRB file No. 561–02–70 are identified by the designator “P”. All exhibits adduced by the respondent are identified by the designator “E”.

[8]   The hearing began on August 13, 2001. Only evidence relating to the grievances contesting the disciplinary measures imposed on Ms. Rioux could be completed. The hearing of the complaints was postponed at the request of the complainant and Mr. Cloutier, dated December 18, 2001 and July 2, 2002. It was only after the decision in Cloutier and Rioux v. Turmel and the Public Service Alliance of Canada, 2003 PSSRB 12, that the hearing could be resumed on May 26, 2003, for three consecutive days.

[9]      On May 20, 2003, the complainant and Mr. Cloutier requested a postponement of the hearing for the following reason (Exhibit G–5):

[Translation]

. . .

We requested a ten–day hearing to ensure that everything could be completed at the same time. A second hearing would create an additional workload for which we do not have time to prepare as well as psychological stress, which would negatively impact our health.

It is also advantageous to the opposing party to postpone the hearing, particularly since it never wanted to respond to our complaints. We are concerned about an appearance of partiality in favour of the opposing party.

Before going further, we want a response to this request. Would it be possible to schedule the hearing for the length of time requested, specifically, 10 days, as soon as possible?

. . .

[10]   The request for a postponement was denied and, when the hearing resumed on May 26, 2003, I informed the parties that the resumption of the hearing had been set for three days from then in consultation with the parties’ representatives. During preparation of the roll, the Public Service Alliance of Canada (PSAC) informed the Board that it was representing the complainant and Mr. Cloutier. Moreover, the complainant had been informed that the resumption of the hearing would be placed on the roll in consultation with the PSAC, since it was the complainant’s representative in the matter at the time. The parties’ representatives did not request any additional hearing days and the resumption of the hearing was set for three days from then.

[11]   Despite this information, the complainant maintained that she was “. . . [concerned] about an appearance of impartiality in favour of the opposing party.” I pointed out to her at the hearing that questioning the Board’s impartiality normally led to a request for recusal. The complainant declined the opportunity to submit arguments on this issue, and the respondent submitted that the procedure for placing the hearing on the roll had been applied in an impartial manner. The file shows that the representative for each party was consulted in the same manner to determine the conditions for placing this matter on the roll. It was also to the parties’ benefit to use the three days set for the resumption of the hearing as effectively as possible in order to resolve the dispute as quickly as possible. As a result, given that no evidence was adduced indicating that the placing of the hearing’s resumption on the roll allegedly favoured one party, I dismissed the allegation of an appearance of impartiality raised by the complainant.

[12]   The sections of the former Act relevant to the complaint read as follows:

. . .

BASIC RIGHTS AND PROHIBITIONS

Rights

. . .

 6 . Every employee may be a member of an employee organization and may participate in the lawful activities of the employee organization of which the employee is a member.

. . .

Prohibitions

8 . (1) No person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall participate in or interfere with the formation or administration of an employee organization or the representation of employees by such an organization.

(2) Subject to subsection (3), no person shall

(a) refuse to employ, to continue to employ, or otherwise discriminate against any person in regard to employment or to any term or condition of employment, because the person is a member of an employee organization or was or is exercising any right under this Act;

(b) impose any condition on an appointment or in a contract of employment, or propose the imposition of any condition on an appointment or in a contract of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Act; or;

(c) seek by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or any other penalty or by any other means to compel an employee:

(i) to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be a member of an employee organization, or

(ii) to refrain from exercising any other right under this Act.

(3) No person shall be deemed to have contravened subsection (2) by reason of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.

9 . (1) Except in accordance with this Act or any regulation, collective agreement or arbitral award, no person who occupies a managerial or confidential position, whether or not the person acts on behalf of the employer, shall discriminate against an employee organization.

(2) Nothing in subsection (1) shall be construed to prevent a person who occupies a managerial or confidential position from receiving representations from, or holding discussions with, the representatives of any employee organization.

. . .

23 . (1) The Board shall examine and inquire into any complaint made to it that the employer or an employee organization, or any person acting on behalf of the employer or employee organization, has failed:

(a) to observe any prohibition contained in section 8, 9 or 10;

. . .

(2) Where, under subsection (1), the Board determines that the employer, an employee organization or a person has failed in any manner described in that subsection, the Board may make an order directing the employer, employee organization or person to observe the prohibition, give effect to the provision or decision or comply with the regulation, as the case may be, or take such action as may be required in that behalf within such specified period as the Board may consider appropriate.

(3) An order under subsection (2) directed to a person shall:

(a) where that person has acted or purported to act on behalf of the employer, be directed as well

(i) in the case of a separate employer, to the chief executive officer thereof, and

(ii) in any other case, to the Secretary of the Treasury Board; and

. . .

II. Objection

[13]   At the beginning of the hearing, the respondent filed a two–pronged preliminary objection to the complaint. First, the complaint was allegedly filed late. The complainant alleged incidents that date back to 1997 but did not file her complaint until July 2000. Second, the complainant alleged incidents in which the respondent contravened the prohibitions set out in subsections 8(1) and 9(1) of the former Act. Only an employee organization or a person duly mandated by it may complain of a violation of the prohibitions set out in these subsections. I took the preliminary objection under consideration and asked the parties to proceed on the merits.

III. Summary of the evidence

A. Facts relating to the union structure and responsibilities

[14]   The complainant claimed that, at the time her complaint was filed, she was performing the responsibilities of a union representative. The evidence she adduced in this regard shows that she held the position of secretary with Local 10405 (“the local”) of the Canada Employment and Immigration Union (CEIU) in May 1997. The CEIU is an element of PSAC. At that time, Mr. Cloutier held the position of Vice–President, Internal Services. Martin Tremblay was the President of the local.

[15]   The local’s elections on May 6, 1998 confirmed Mr. Tremblay as President and Mr. Cloutier as Vice–President, Internal Services. Ms. Rioux assumed the position of Vice–President, Status of Women (Exhibit G–59). Following Mr. Tremblay’s resignation, Mr. Cloutier was designated acting President on November 19, 1998 (Exhibit G–64).

[16]   An employer–union meeting was held on November 23, 1998 at the Montréal Canada Immigration Centre (Montréal CIC) to try to determine the jurisdictions of the union representatives. No agreement was reached on this issue, the local maintaining that each of its representatives could intervene throughout the Montréal CIC, while the employer wanted to restrict the interventions of representatives according to a fixed structure (Exhibit G–62).

[17]   In the election held on March 29, 1999, Mr. Cloutier was elected President of the local (Exhibit G-65). Ms. Rioux did not run in the election. She testified that she had decided to cease her union activities after a disciplinary measure was imposed on her on December 17, 1998.

[18]   The relevant clauses of the collective agreements for union representatives read as follows:

[Master agreement signed on May 17, 1989 between the Treasury Board and the PSAC)

. . .

ARTICLE M-8

EMPLOYEE REPRESENTATIVES

M-8.01 The Employer acknowledges the right of the Alliance to appoint or otherwise select employees as representatives.

M-8.02 The Alliance and the Employer shall endeavour in consultation to determine the jurisdiction of each representative, having regard to the plan of organization, the number and distribution of employees at the work place and the administrative structure implied by the grievance procedure. Where the parties are unable to agree in consultation, then any dispute shall be resolved by the grievance/ adjudication procedure.

M-8.03 The Alliance shall notify the Employer in writing of the name and jurisdiction of its representatives identified pursuant to clause M-8.02. **

**

M-8.04

(a) A representative shall obtain the permission of his or her immediate supervisor before leaving his or her work to investigate employee complaints of an urgent nature, to meet with local management for the purpose of dealing with grievances and to attend meetings called by management. Such permission shall not be unreasonably withheld. Where practicable, the representative shall report back to his or her supervisor before resuming his or her normal duties.

(b) Where practicable, when management requests the presence of an Alliance representative at a meeting, such request will be communicated to the employee's supervisor.

ARTICLE M-9

USE OF EMPLOYER FACILITIES

. . .

M-9.04 The Alliance shall provide the Employer a list of such Alliance representatives and shall advise promptly of any change made to the list.

. . .

[Collective agreement signed on May 16, 2000 between the Treasury Board and the PSAC for Program and Administrative Services Group]

. . .

**ARTICLE 9

RECOGNITION

9.01 The e mployer recognizes the Alliance as the exclusive bargaining agent for all employees described in the certificate issued by the Public Service Staff Relations Board on June 7, 1999 covering employees in the Program and Administrative Services Group.

. . .

ARTICLE 12

USE OF EMPLOYER FACILITIES

. . .

12.02 The Employer will also continue its present practice of making available to the Alliance specific locations on its premises, and where it is practical to do so on vessels, for the placement of reasonable quantities of literature of the Alliance.

. . .

12.04 The Alliance shall provide the Employer a list of such Alliance representatives and shall advise promptly of any change made to the list.

ARTICLE 13

EMPLOYEE REPRESENTATIVES

13.01 The Employer acknowledges the right of the Alliance to appoint or otherwise select employees as representatives.

13.02 The Alliance and the Employer shall endeavour in consultation to determine the jurisdiction of each representative, having regard to the plan of organization, the number and distribution of employees at the work place and the administrative structure implied by the grievance procedure. Where the parties are unable to agree in consultation, then any dispute shall be resolved by the grievance/adjudication procedure.

13.03 The Alliance shall notify the Employer in writing of the name and jurisdiction of its representatives identified pursuant to clause 13.02.

13.04

(a) A representative shall obtain the permission of his or her immediate supervisor before leaving his or her work to investigate employee complaints of an urgent nature, to meet with local management for the purpose of dealing with grievances and to attend meetings called by management. Such permission shall not be unreasonably withheld. Where practicable, the representative shall report back to his or her supervisor before resuming his or her normal duties.

(b) Where practicable, when management requests the presence of an Alliance representative at a meeting, such request will be communicated to the employee's supervisor.

(c) An employee shall not suffer any loss of pay when permitted to leave his or her work under paragraph (a).

. . .

The applicable provisions of the collective agreement signed on November 19, 2001 between the Treasury Board and the PSAC for the Program and Administrative Services Group are identical to those of the collective agreement entered into on May 16, 2000.

[19]   The employer allowed Mr. Cloutier to forward the result of the local’s elections using the employer’s electronic message system on March 25, 1999 (Exhibit G–65). The content of the authorized message is set out in the e–mail granting permission for the transmittal. Ms. Rioux’s name does not appear as a member of the local’s executive in that message.

[20]   The CEIU informed the employer on November 19, 1999 that the local was in trusteeship and that Jacques Lambert, National Vice–President of CEIU/Quebec, was now the new representative for the members (Exhibit G–133). Mr. Lambert informed the local’s members that the local had been in trusteeship since November 3, 1999, by resolution of the CEIU national executive (Exhibit G–134). Two representatives were designated in this notice, Mr. Lambert and Jean Perron.

[21]   According to testimony from the complainant and Mr. Cloutier, the employer ceased to recognize them as union representatives as of the date when the local was placed in trusteeship, that is, November 3, 1999.

B. Incidents leading to the complaint

[22]   The first three disciplinary measures imposed on Ms. Rioux, which were cited in support of her complaint, were the subject of the hearing held on August 13 to 15, 2001 on the two grievances challenging them (PSSRB Files 166-02-29510 and 29511). A decision concerning these grievances was rendered on July 29, 2002 (2002 PSSRB 68). The evidence relating to this decision is reproduced below in this decision, because it continues to be relevant to this complaint. The exhibits filed (in the disciplinary file) by the employer are identified by the designator “E”, while those filed by Ms. Rioux are identified by the designator “R”.

[23]   Diane L’Écuyer, who acted as Director at the Montréal office of the CIC at all times material to the grievances, testified for the employer with respect to the discipline cases. Ms. Rioux, who represented herself at the hearing, testified on her own behalf.

1. Policy on e-mail use

[24]   On December 12, 1996, Deputy Minister Janice Cochrane sent a memorandum to all employees reminding them of the policy guidelines on e-mail use that had been in force since November 1995 (Exhibit E-1). According to this memorandum, electronic messages were to be managed and considered as were messages on paper, and uncalled-for language and inappropriate comments would not be tolerated and could result in disciplinary action. The regional policy on e-mail use (Exhibit E-2), published in December 1997, stipulated, among other things, the following:

[Translation]

. . .

Distribution of union messages : Union messages to members may be distributed only with the prior approval of the manager concerned. Furthermore, there must be consultation with respect to message content . . .

. . .

[25]   A similar verbal policy applied to the distribution of written materials, and required the prior approval of managers and content that was respectful of persons and the organization.

[26]   Ms.  Rioux was familiar with the distribution policies and was reminded of them again by Ms.  L’Écuyer at a disciplinary meeting on November 27, 1997.

[27]   Three incidents lay behind the disciplinary measures that Ms. Rioux has challenged.

2. Distribution of the document: “Ébauche d'une réorganisation”

[28]   On December 1, 1997, Ms. L’Écuyer gave Ms.  Rioux a written reprimand (Exhibit E–3-1), that reads as follows:

[Translation]

. . .

On November 25, you distributed a document entitled “Sketch of a reorganization” ( “Ébauche d’une réorganisation”). On November 27, you took part in a meeting organized by me to discuss this document.

At that meeting, I emphasized that the distribution of such material in work areas was unacceptable. The contents of the document embarrassed the Department and its managers. The distribution of such a document was even more serious in that, further to the decision in a recent appeal, our Director General e-mailed all employees on November 18 requesting their co-operation in maintaining a work environment that is respectful of everyone in the organization. This message, moreover, was reiterated by the Director General at a Montréal CIC employer/union meeting that you attended on November 19.

I am therefore giving you this written reprimand, which will be included in your personnel file. I also would also like to emphasize that, if you persist in distributing or posting other documents of a similar nature, you will expose yourself to more severe disciplinary action.

If you consider that this measure is not warranted, you are entitled to file a grievance.

. . .

[29]   Ms.  Rioux admitted that, on November 25, 1997, she had distributed the document referred to by Ms. L’Écuyer to a number of people. Ms.  Rioux explained that “Ébauche d'une réorganisation” was a satire intended to downplay the situation created in the workplace by the reorganization then in progress. She added that the document was not intended to embarrass the Department or its managers and was really just a joke. Although the employees admitted that the satire was perceived by the managers as “disrespectful”, they requested, in a petition to Monique Leclair, Director General, Quebec Region, that the disciplinary measure included in Ms. Rioux’s file be withdrawn on the basis of their right to freedom of expression (Exhibit R-1). Ms.  Rioux did not remember whether she had received a verbal warning for a similar incident prior to this reprimand.

[30]   When cross-examined at the hearing on April 22, 2004, Ms. Rioux admitted that she had distributed the document and said that she accepted the disciplinary measure. She added that she had withdrawn the incidents relating to this disciplinary action from her complaint.

3. Distribution of documents on December 1 and 10, 1997

[31]   On December 30, 1997, Ms. Rioux was given a letter by Ms.  L’Écuyer imposing a one-day suspension without pay. It reads as follows (Exhibit E-4):

. . .

Subject: Disciplinary action

After giving you one written warning, on December 1, 1997 concerning the fact that you distributed material in the workplace without authorization, we note that your conduct has not improved.

You had handed out documents without authorization on two occasions, December 1, 1997 and around December 10, 1997. According to the collective agreement, you must request the employer’s authorization before handing out documents in the workplace, which you did not do.

Since on November 28 you had already been given a written reprimand on the same issue and informed that if you persisted in handing out or posting documents you would face more severe disciplinary measures, we have no choice but to suspend you without pay for one day, January 14, 1998.

Please understand that unless you correct this situation, you may face more severe corrective action, including dismissal.

This will be filed in your personnel file

If you consider that this measure is not warranted, you are entitled to file a grievance.

. . .

[32]   The document written and distributed by Ms.  Rioux on December 1, 1997, was an open letter addressed to Ms.  Leclair (Exhibit E-4-2) charging that an administrative investigation was in progress to identify the author of the satire, “Ébauche d’une réorganisation” (supra). Entitled “Witch Hunt”, this document was provided to ten members of the union executive and five or six managers, and its purpose was to protect the author of the satire “Ébauche d’une réorganisation” from an administrative investigation (Exhibit R-7). At the time the open letter was distributed, Ms. Rioux had not yet received the written reprimand dated December 1, 1997.

[33]   The second document referred to in the December 30, 1997 letter of suspension as having been distributed by Ms. Rioux around December 10, 1997, was entitled “THE NEXT GENERATION” ("FUTURE RELÈVE") (Exhibit E-4-3). Although it was not a union executive document, it was apparently distributed at a lunch-hour union meeting so that members could see what the union was demanding. Ms.  Rioux placed copies of this document on the desks of members who had not attended the meeting. According to Ms. Rioux, in taking this disciplinary action, the employer was attempting to restrict her right as a union representative to distribute material.

[34]   Ms. Rioux had understood from the meeting with Ms.  L’Écuyer on November 27, 1997, that the distribution policy did not apply to documents provided to members at union meetings and she therefore saw no reason to seek approval before distributing the document entitled “THE NEXT GENERATION” ("FUTURE RELÈVE").

[35]   The day of her suspension without pay, scheduled for January 14, 1998, coincided with the first day of the ice storm crisis. Ms. Rioux seeks reimbursement for that day which, in the circumstances, she could not use.

[36]   Ms.  Rioux is also critical of the fact that she received this disciplinary penalty from Ms. L’Écuyer while she was making representations as Mr. Cloutier’s representative regarding a grievance.

[37]   During her cross-examination on April 22, 2004, the complainant said that she accepted the second disciplinary action and that she was withdrawing the related incidents from her complaint. When the hearing resumed on April 23, 2004, she stated that it had been a mistake to withdraw the incidents relating to the disciplinary action imposed on December 1 and 30, 1997. She reached this conclusion after discussing her testimony with Mr. Cloutier, despite the directive to the contrary effect that I had given her on April 22, 2004.

4. Distribution of a document on December 29, 1997

[38]   A third disciplinary measure was imposed on Ms. Rioux on February 2, 1998. The three-day suspension without pay reads as follows (Exhibit E-5-1):

. . .

Subject: Disciplinary action

After giving you two written warnings, on December 1, 1997 and December 30, 1997, concerning the fact that you distributed material in the workplace without authorization, we note that your conduct has not improved.

On December 29, 1997, you did in fact distribute via e-mail a document from Mr. Martin Tremblay addressed to Ms. Monique Leclair and Ms. Lorraine Frigon, a document that directly attacks the reputation of a manager and two employees. According to the directive that was distributed via e-mail in December 1997, a paper copy of which is attached, a message from the union to its members can be distributed only with the advance approval of the manager concerned, which was not done.

Since you have already been given a written reprimand on December 1 and a one-day suspension without pay on December 30, in which it was emphasized that, if your conduct did not improve, more severe disciplinary measures, up to and including dismissal, could be taken, we have no alternative but to impose a three-day suspension without pay, on February 17, 18, and 19, 1998.

I repeat that, if your conduct does not change, more severe corrective action will have to be taken.

This letter will be placed in your personnel file, and you are still entitled to file a grievance.

. . .

[39]   Ms. Rioux admitted that she had e-mailed to “everyone” the message originally sent by Martin Tremblay to the individuals involved as parties to a complaint submitted to the Public Service Commission (PSC). In Ms. Rioux’s opinion, the contents of this message were of interest to the employees as a whole, and she acted accordingly. She testified that it was standard practice to send e-mail messages concerning union affairs without seeking advance approval, despite the policy on this matter (Exhibit E-2).

[40]   In her testimony at the hearing of her complaint, Ms. Rioux explained that she had discussed, with Mr. Tremblay and another member of the union executive, the importance of redistributing the e-mail message to all employees. She said under cross-examination that she was aware of the risk that a disciplinary measure might be imposed on her for this act and that, despite everything, she had taken the chance of doing so. She refused to withdraw this incident from her complaint and explained that, for her, this disciplinary measure showed that there were reprisals for engaging in union activity.

[41]   In an e-mail message dated December 29, 1997, (Exhibit R-5), Ms. L’Ecuyer informed Ms. Rioux that recirculating Mr. Tremblay’s e-mail in his absence demonstrated a lack of respect towards the union representative and that the use of e-mail by the bargaining agent required prior approval, which had not been requested.

5. Evaluation by PSAC

[42]   PSAC evaluated the first three disciplinary measured that had been imposed on Ms. Rioux. In its letter of January 26, 2000, PSAC informed Ms. Rioux that the grievances challenging the one-day and three-day suspensions had been referred to adjudication. The grievance based on clause M-16 of the collective agreement was not referred to adjudication. PSAC explained to Ms. Rioux that a complaint had to be filed under section 23 of the former Act and that a grievance based on clause M–16 of the Master Agreement could not be referred to adjudication. PSAC also raised the issue of the deadline for filing a complaint under section 23 of the former Act. Concerning these subjects, PSAC writes as follows (Exhibit G-119):

[Translation]

. . .

Moreover, you will note that, with respect to grievance QUE–98–IMC–002, we have referred only the disciplinary measure and have not supported the referral with respect to the interpretation and application of article M–16. The main reason is that, as the case law has developed following the decision by the Federal Court in Chopra, adjudicators are now ruling that they do not have jurisdiction to hear a grievance pursuant to article M–16 or M–17 because another “administrative procedure for redress is provided in or under an Act of Parliament” (citing section 91 of the Public Service Staff Relations Act). In most cases, a remedy may be sought with the Canadian Human Rights Commission. However, we believe that since the grounds alleged in your situation relate to discrimination based on union activities, the Chopra barrier does not apply. Unfortunately, that is not necessarily the case. In fact, the decision in Shaw (166–2–27880 to 27882), rendered on December 14, 1998, shows that the adjudicator will not assume jurisdiction to hear a grievance based on article M–16 relating to union activities because a remedy is available through a complaint under section 23 of the PSSRA. Here is a brief summary of that decision:

. . .

There is no time limit for filing a complaint under section 23 of the PSSRA; however, the general rule when there is no time limit is that complaints must still be filed within a reasonable period (e.g. six months from the event). On the one hand, I believe that it would be too late now to file a complaint. On the other hand, I do not believe that we need article M–16 or a complaint to discuss, through mediation and/or adjudication, the disciplinary measures imposed on you. This is why the Alliance has referred your grievance QUE–98–IMC–002, indicating to the Board that this grievance relates to a three–day suspension, without mentioning article M–16.

[Original emphasis.]

6. Agreement in principle

[43]   A fourth disciplinary measure was imposed on Ms. Rioux on December 17, 1998. The written reprimand reads as follows (Exhibit P-6):

[Translation]

. . .

On Wednesday, December 9, you absented yourself from your work for two hours, between 9:00 a.m. and 11:00 a.m. to perform unauthorized union activities at the union local.

At the employer-union meeting on November 23 where the agenda focused on areas of jurisdiction and the role of management, we again had to reiterate [sic] the need to obtain authorizations for all your absences relating to union activities.

I am therefore giving you this written reprimand, which will be included in your file. Your salary for the week of January 18 to 22, 1999, will be reduced by an amount equivalent to two hours of work, i.e., an amount corresponding to the hours that you did not work.

I would like to advise you that, if you do not correct this kind of situation, more severe disciplinary measures can be taken. This letter will be placed in your file.

. . .

[44]   The request by Mr. Cloutier for the complainant and himself to be given time to distribute to the members the documents prepared by PSAC concerning the agreement in principle was refused by the employer on December 8, 1998 (Exhibit P-3). The complainant and Mr. Cloutier then decided to consult their union representatives by telephone on this matter, on December 9, 1998.

[45]   The complainant and Mr. Cloutier absented themselves from their workstations for some time on December 9, 1998, so that they could telephone the PSAC from the office allocated to the local by the employer. They did not request authorization to absent themselves from their workstations; a disciplinary measure (written reprimand) and a salary reduction for the two hours that they did not work (Exhibits P-6 and G–111) were imposed on them. The disciplinary measure was the subject of grievances presented on January 15, 1999, (Exhibits G-112 and G–113). The grievances alleged that these disciplinary measures concerned union activities and constituted measures of intimidation towards union representatives.

[46]   The grievances were denied at each level of the grievance procedure (Exhibits G–114, G-115 and G-116). A chronology of events prepared by André Cardinal was filed (Exhibit G-117). The employer’s view of the two-hour duration of the absence was challenged by the complainant on the basis of Mr. Cardinal’s chronology, although the salary reduction was not grieved.  Mr. Cloutier believes that he returned to his workstation after his meeting with his supervisor following the telephone call to PSAC on December 9, 1998. Ms. Rioux and Mr. Cloutier explained that it was not necessary to ask for permission before leaving on break (Exhibit G-118). They repeated this explanation in their testimony. They alleged that the employer’s investigations into their requests for leave for PSAC business constituted interference in union business.

[47]   Ms. Rioux testified that she had discussed the incident with Andrée Pothier (National Vice President, CEIU) and that he had told her that a complaint could be filed in such circumstances under section 23 of the former Act. The complainant, Mr. Cloutier and Ms. Pothier met with Pierrette Vaillant–Pierre, a CEIU representative, to draft a complaint. Despite this fact, a complaint was not drafted, Ms. Vaillant-Pierre saying that she was not familiar with section 8 of the former Act. Under cross-examination, Ms. Rioux explained that she had understood that Ms. Pothier had done Ms.  Leclair a good turn in deciding to influence her not to draft the complaint under section 23 of the former Act.

[48]   Ms. Rioux submitted that the employer had demonstrated intimidation by imposing on her a disciplinary measure for participating in a union activity on her break.

[49]   Mr. Cloutier, in a fax to Gray Gillespie, Director of Representation and Consultation, Staff Relations Division, Treasury Board Secretariat, charged that his recommendation that PSAC be permitted to hold information meetings and a ratification vote during working hours and in the workplace had not been followed (Exhibits G-109 and G-110). Following that message, the employer granted the necessary time.

[50]   The articles of the collective agreements concerning leave for PSAC business read as follows:

[Master agreement signed on May 17, 1989 between the Treasury Board and the PSAC]

. . .

ARTICLE M-14

LEAVE WITH OR WITHOUT PAY
FOR ALLIANCE BUSINESS

Complaints made to the Public Service Staff Relations Board Pursuant to Section 20 of the Public Service Staff Relations Act

---

M-14.01 When operational requirements permit, the Employer will grant leave with pay:

(a) to an employee who makes a complaint on his or her own behalf, before the Public Service Staff Relations Board,

and

(b) to an employee who acts on behalf of an employee making a complaint, or who acts on behalf of the Alliance making a complaint.

. . .

Adjudication

M-14.06 When operational requirements permit, the Employer will grant leave with pay to an employee who is:

(a) a party to the adjudication,

(b) the representative of an employee who is a party to an adjudication,

and

(c) a witness called by an employee who is a party to an adjudication.

Meetings During the Grievance procedure

M-14.07 When operational requirements permit, the Employer will grant to an employee:

(a) when the Employer originates a meeting with the employee who has presented the grievance, leave with pay when the meeting is held in the headquarters area of the employee and on duty status when the meeting is held outside the employee's headquarters area,

and

(b) when an employee who has presented a grievance seeks to meet with the Employer, leave with pay to the employee when the meeting is held in the headquarters area of such employee and leave without pay when the meeting is held outside the headquarters area of such employee.

M-14.08 When an employee wishes to represent, at a meeting with the Employer, an employee who has presented a grievance, the Employer will arrange the meeting having regard to operational requirements, and will grant leave with pay to the representative when the meeting is held in the representative's headquarters area and leave without pay when the meeting is held outside the representative's headquarters area.

M-14.09 Where an employee has asked or is obliged to be represented by the Alliance in relation to the presentation of a grievance and an employee acting on behalf of the Alliance wishes to discuss the grievance with that employee, the employee and the representative of the employee will, where operational requirements permit, be given reasonable leave with pay for this purpose when the discussion takes place in his or her headquarters area and reasonable leave without pay when it takes place outside his or her headquarters area.

. . .

Meetings Between the Alliance and Management Not Otherwise Specified in this Article

M-14.12 When operational requirements permit, the Employer will grant leave with pay to a reasonable number of employees who are meeting with management on behalf of the Alliance.

. . .

[Collective agreement signed on May 16, 2000 between the Treasury Board and PSAC for the Program and Administrative Services Group]

ARTICLE 14

LEAVE WITH OR WITHOUT PAY
FOR ALLIANCE BUSINESS

Complaints made to the Public Service Staff Relations Board Pursuant to Section 23 of the Public Service Staff Relations Act

14.01 When operational requirements permit, the Employer will grant leave with pay:

(a) to an employee who makes a complaint on his or her own behalf, before the Public Service Staff Relations Board,

and

(b) to an employee who acts on behalf of an employee making a complaint, or who acts on behalf of the Alliance making a complaint.

. . .

Adjudication

14.06 When operational requirements permit, the Employer will grant leave with pay to an employee who is:

(a) a party to the adjudication,

(b) the representative of an employee who is a party to an adjudication,

and

(c) a witness called by an employee who is a party to an adjudication.

Meetings During the Grievance procedure

14.07 Where an employee representative wishes to discuss a grievance with an employee who has asked or is obliged to be represented by the Alliance in relation to the presentation of his or her grievance, the Employer will, where operational requirements permit, give them reasonable leave with pay for this purpose when the discussion takes place in their headquarters area and reasonable leave without pay when it takes place outside their headquarters area.

14.08 Subject to operational requirements,

(a) when the Employer originates a meeting with a grievor in his headquarters area, he or she will be granted leave with pay and "on duty" status when the meeting is held outside the grievor's headquarters area;

(b) when a grievor seeks to meet with the Employer, he or she will be granted leave with pay when the meeting is held in his or her headquarters area and leave without pay when the meeting is held outside his or her headquarters area;

(c) when an employee representative attends a meeting referred to in this clause, he or she will be granted leave with pay when the meeting is held in his or her headquarters area and leave without pay when the meeting is held outside his or her headquarters area.

. . .

Meetings Between the Alliance and Management Not Otherwise Specified in this Article

14.11 When operational requirements permit, the Employer will grant leave with pay to a reasonable number of employees who are meeting with management on behalf of the Alliance.

. . .

The applicable provisions of the collective agreement signed on November 19, 2000, between the Treasury Board and the PSAC for the Program and Administrative Services Group are identical to those in the collective agreement signed on May 16, 2000.

7. The complainant’s participation as union representative

[51]   During her testimony, Ms. Rioux explained that what had prompted her not to run again as a union representative was the imposition of the disciplinary measure on December 17, 1998. She saw the disciplinary measures imposed by the employer as intimidation aimed at discouraging her from being a union representative. Ms. Rioux did not seek a position on the union executive of the local in the election of March 29, 1999.

[52]   As a member of the section executive until the election of March 29, 1999, Ms. Rioux took an active part in the local’s union business. In this capacity, she acted as a union representative during the representations of complaints or grievances of various kinds, and witnessed the incidents raised by Mr. Cloutier in his complaint. While there is no point in revisiting all the various incidents in this complaint that personally affected Mr. Cloutier, they were, nonetheless, taken into consideration in the evaluation of the general context and work climate at the Montréal CIC during the period to which Ms. Rioux’s complaint refers. Some of these incidents, in which Ms. Rioux was involved, should be highlighted.

[53]   Ms. Rioux was involved in certain incidents in which she intervened as Mr. Cloutier’s union representative. In that capacity, she participated in an employer/union meeting held on March 9, 1998, during which the employer allegedly threatened to terminate Mr. Cloutier’s acting appointment because his union activities had a negative impact on his performance. There was talk that this incident might constitute a violation that could be the subject of a complaint under section 23 of the former Act.

[54]   Ms. Rioux participated as a union representative in the grievance filed on November 16, 1998 on behalf of Mr. Cloutier concerning the assignment of a workstation. Following the presentation of this grievance, the complainant and Mr. Cloutier discussed with PSAC representatives the possibility of filing a complaint under section 23 of the former Act.

8. Corrective measures (reclassification)

[55]   Ms. Rioux also attended some information meetings organized by Monique Leclair in October 1998, to which Ms. Pothier had invited Mr. Cloutier, to inform employees of the results of a reclassification following a complaint to the PSC. At the meeting on October 26, 1998, Ms. Leclair told Mr. Cloutier to transmit his questions through Ms. Pothier. According to Mr. Cloutier’s testimony, Ms. Leclair told him at that time that he did not have the right to speak. Mr. Cloutier was humiliated at being treated in this way before the members of the local and demanded explanations (Exhibit G-48).

9. Petition to withdraw from the CEIU

[56]   Some incidents occurred in the fall of 1999 concerning the distribution and signing of a petition by members of the local who wanted to withdraw from the CEIU. The events are explained in greater detail in Mr. Cloutier’s complaint (PSSRB File No. 561-02-71). Mr. Cloutier received a three-day suspension on November 5, 1999, (Exhibit G-126). For the purposes of this complaint, it should be explained that the employer dealt severely with Mr. Cloutier because he had distributed materials relating to this petition by fax and by e-mail after he had been refused permission to do so in September 1999.

[57]   Mr. Cloutier had refused to respond to the employer’s investigation, arguing that the employer had been guilty of interference in union business by interrogating him on the means he had used to send out the materials (by fax and e-mail) and on the persons (and the office) to which it was sent (Exhibit G-124). Mr. Cloutier was allegedly counselled by a PSAC representative before replying to the employer that the employer’s action constituted interference in PSAC business (Exhibit G-124). A complaint criticizing the interference of Christiane Beaupré, Associate Regional Director, Quebec Region, was filed in connection with this incident. A second-level hearing before Ms. Leclair on this complaint led to new incidents described below in this decision. Ms. Rioux was directly involved in the hearing held on March 7, 2000.

[58]   The members of the local’s executive, who no longer wanted to be represented by the CEIU, circulated a petition in the fall of 1999. On that occasion, Carole Lamarre, Director, External Services, asked Mr. Cloutier why he was not at his workstation. Ms. Lamarre explained that she realized after the fact that it was not yet 1:00 p.m. and that he was on his lunch break. Despite these explanations, Mr. Cloutier stressed, in his e-mail message of September 24, 1999, that the employer’s action constituted harassment towards union representatives and was a violation of the former Act, and he demanded explanations of that activity (Exhibit G-120).

[59]   Ms. Rioux represented Mr. Cloutier at the meeting on November 5, 1999, at which the employer imposed a three-day suspension on Mr. Cloutier. On that occasion, Mr. Cloutier was given a copy of the policy on e-mail use and the Department’s code of conduct. Mr. Cloutier was also given a memorandum dated December 12, 1996, concerning the use of e–mail and specifying as follows (Exhibit G-148):

[Translation]

. . .

The policy on the use of electronic mail states that the general distribution function for messages in Canada and abroad may be used only with the permission of management. Furthermore, under this policy, electronic messages must be managed and treated on the same basis as hard copy messages. Sending messages containing inappropriate language or comments, and replying to such messages could constitute a form of harassment and will not be tolerated.

Accordingly, all employees who must send electronic messages to employees outside their group or region must first obtain permission from the applicable manager. They must also ensure that the content of said message is relevant and that the message in question is sent to the correct recipients . . . .

. . .

[60]   Mr. Cloutier’s suspension was in effect from November 8 to 10, 1999. During the suspension, a message authorized by the employer from Jacques Lambert, National Vice President of CEIU, informed members of the local that a vote would be held to elect a third CEIU national Vice-President and to choose delegates for the PSAC congress in the work place, from 11:45 p.m. to 1:30 p.m. (Exhibit G-143).

10. The local in trusteeship

[61]   The employer was informed on November 18, 1999, that Robert P. Morissette, PSAC regional representative, would represent Mr. Cloutier in his grievances and complaints (Exhibit G-132). The employer was informed on November 19, 1999, that the local had been put into trusteeship by the CEIU and that the representative for the local was Mr. Lambert (Exhibit G-133). The members of the local were informed of the trusteeship in a letter from Mr. Lambert dated November 25, 1999, (Exhibit G–134).

11. Participation in a grievance hearing, March 7, 2000

[62]  A harassment grievance was filed against Ms. Beaupré following the incidents surrounding the dissemination of material on September 20, 1999 (concerning the petition for withdrawal from CEIU); this grievance was heard by Ms. Leclair at the second level of the grievance procedure. Mr. Cloutier was represented by Mr. Morissette at the hearing scheduled for March 7, 2000, at 2:00 p.m. Mr. Morissette asked that Ms. Rioux be granted a leave to act as a technical adviser at the request of Mr. Cloutier (Exhibit G-144).

[63]   Ms. Rioux’s supervisor asked her to fill out a request for leave before the meeting of March 7, 2000. The employer had explained to Ms. Rioux that the leave would be without pay. This issue was submitted to Mr. Morissette, who raised it with Ms. Leclair at the hearing. According to the complainant’s testimony, she had agreed with Messrs. Cloutier and Morissette, prior to the hearing before Ms. Leclair, that if she were denied leave with pay, they would leave the premises. At the hearing, Ms. Leclair explained that the employer would not be responsible for the costs of Ms. Rioux’s presence. Following discussion of that issue, Messrs.  Cloutier and Morissette and the complainant ended the hearing without making representations concerning the harassment grievance. As a result, the grievance was denied at the second level of the grievance procedure on March 16, 2000 (Exhibit G-152).

[64]  At the hearing, Ms. Rioux adduced a passage from the collective agreement providing for the possibility of leave with pay for reasons other than those provided for in the collective agreement (Exhibit P–15) :

[ . . .]

ARTICLE 53

LEAVE WITH OR WITHOUT PAY FOR OTHER REASONS

53.01     At its discretion, the Employer may grant:

1. leave with pay when circumstances not directly attributable to the employee prevent his or her reporting to duty; such leave shall not be unreasonably withheld;

2. leave with or without pay for purposes other than those specified in this Agreement.

[ . . .]

This text is taken from the collective agreement signed on May 16, 2000, between the Treasury Board and PSAC for the Program and Administrative Services Group.

[65]   Messrs. Cloutier and Morissette and the complainant met after ending the second-level hearing in the grievance procedure to assess the situation. The possibility of filing a complaint under section 23 of the former Act was raised. Mr. Morissette recommended that the complainant not sign the leave request and inform her supervisor that she would grieve any salary reduction. When she had returned to her workstation, Ms. Rioux informed her supervisor, Ms. Tester, of these decisions.

[66]   The way the hearing had gone upset Ms. Rioux, who took sick leave from March 8 to 17, 2003. She had an asthenic condition that was allegedly caused by the employer’s harassment (Exhibit P-16).

[67]  Ms. Rioux was approached on April 10, 2000 by Lise Gignac, Director, Investigation and Referrals, who told her that a disciplinary measure would be imposed on her for her absence from her workstation on March 7, 2000. That same day, she received an e-mail message calling her to a meeting. Ms. Rioux describes this meeting as follows (Exhibit P-I):

[Translation]

. . .

Meeting with Ms. Gignac:

-On 10-04-2000, Ms. Gignac approached me verbally and had me come to her office without giving me a reason. She then informed me that she intended to impose on me a disciplinary measure for “my unauthorized absence” of 07-03-2000. Furthermore, she added that she did not understand why I had not protected myself by signing a leave form using an annual leave or compensatory time code. She told me to think about it the next time but that this time it was too late.

 I asked to postpone the conversation to another time so that I could be accompanied by a representative. I told her that I wanted to be represented by Mr. Cloutier, and she answered that there was no problem, that he could be the person I chose. I then asked her if Mr. Cloutier would be paid. She answered me that she did not know, that she had to make a telephone call and get back to me on that. The answer that came was “no”, Mr. Cloutier would not be paid, the local being in trusteeship.

Notes: We did not know how to react to this situation, not wanting to encourage union volunteerism. A little later, seeing how events were unfolding, Mr. Cloutier had to take urgent action.

. . .

[68]   On April 10, 2000, Ms. Gignac wrote to Ms. Rioux confirming that a meeting should be scheduled so that a disciplinary measure could be imposed on her. She explains as follows (Exhibit P–19):

[Translation]

As discussed, I would like to schedule a meeting with you concerning your unauthorized absence of March 7, because I intend to impose on you a disciplinary measure for this absence. You may be accompanied by your union representative.

These are the times that I will be available in the next few days.
April 11, AM
April 13, AM
April 14, 1:00
I would like you to confirm as soon as possible what time would suit you. Thank you in advance.

[69]   In an e-mail message dated April 12, 2000, Ms. Rioux replied as follows (Exhibit P- 19):

[Translation]

. . .

Since Mr. Morissette, the Alliance representative involved in this affair, is out of town for the entire week and Mr. Cloutier is not authorized to represent me without suffering a loss of salary, it is impossible for the time being for me to confirm my availability date.

However, since, on March 20, 2000, Ms. Tester obtained my testimony about my unauthorized absence (which in my opinion could take the place of the administrative investigation), I am of the view that you have in your hands all the information you need to make a decision, i.e. to impose on me your disciplinary measure. Furthermore, at that meeting, Ms. Tester already told me that I might be the subject of a disciplinary measure, therefore, I was definitely expecting one.

You will understand that it would not be prudent for me to give testimony a second time in relation to the same case, again without full and complete union representation. I would much rather that you imposed this measure on me in an envelope by internal mail. I will avail myself of the appropriate remedies after that.

I would have preferred to reply to you earlier but I regret that I am swamped with work.

. . .

[70]   Ms. Rioux was absent from work from April 17 to 20, 2000, because she was suffering from generalized anxiety (Exhibit P-20).

[71]   Mr. Cloutier intervened by e–mail to Ms. Gignac, on April 17, 2000, criticizing this meeting in the following terms (Exhibit G–145):

[Translation]

. . .

The purpose of this message is to intervene in the above matter. You approached Ms. Rioux verbally last Friday to inform her that you would be sending her fifth union disciplinary measure by internal e–mail. Ms. Rioux told me that your conduct at this informal meeting showed that you were not aware of the seriousness of the situation.

I believe that I am personally affected by the harassment of Ms. Rioux given that the sole cause of the disciplinary measure that you plan to impose is her presence as a witness and adviser at the hearing of my harassment grievance at the second level.

. . .

The fact that our local is in trusteeship and the Alliance has committed resources to the agreement in principle mean that, at this time, Ms. Rioux cannot receive fair and equitable representation. It is unacceptable that you are taking advantage of this situation.

I therefore request that you withdraw Ms. Rioux’s disciplinary measure as quickly as possible and suspend this matter until she can receive the services to which she is entitled. I also request that you stop negotiating alone and directly with Ms. Rioux the terms and conditions surrounding her sanction.

. . .

[72]   On April 25, 2000, Ms. Rioux presented a grievance to Ms. Gignac asking that subclause 13.04(c) of the agreement in principle between the Treasury Board and the PSAC for the Program and Administrative Services Group be respected (Exhibit P–22). In the grievance, she objected to Mr. Cloutier’s being subject to a loss of pay if he represented her at the meeting scheduled to impose a disciplinary measure on her. Article 13 states:

[Agreement in principle between the Treasury Board and the PSAC for the Program and Administrative Services Group]

. . .

ARTICLE 13

EMPLOYEE REPRESENTATIVES

13.01 The Employer acknowledges the right of the Alliance to appoint or otherwise select employees as representatives.

13.02 The Alliance and the Employer shall endeavour in consultation to determine the jurisdiction of each representative, having regard to the plan of organization, the number and distribution of employees at the work place and the administrative structure implied by the grievance procedure. Where the parties are unable to agree in consultation, then any dispute shall be resolved by the grievance/adjudication procedure.

13.03 The Alliance shall notify the Employer in writing of the name and jurisdiction of its representatives identified pursuant to clause 13.02.

13.04

1. A representative shall obtain the permission of his or her immediate supervisor before leaving his or her work to investigate employee complaints of an urgent nature, to meet with local management for the purpose of dealing with grievances and to attend meetings called by management. Such permission shall not be unreasonably withheld. Where practicable, the representative shall report back to his or her supervisor before resuming his or her normal duties.

2. Where practicable, when management requests the presence of an Alliance representative at a meeting, such request will be communicated to the employee's supervisor.

3. An employee shall not suffer any loss of pay when permitted to leave his or her work under paragraph (a).

. . .

[73]   The employer imposed a disciplinary measure on Ms. Rioux on April 25, 2000. Ms. Rioux describes the meeting as follows (Exhibit P-1):

[Translation]

. . .

On 25-04-2000, p.m., I received my 5th disciplinary measure. Ms. Gignac called me verbally to her office without giving me any reason. I asked her then if I needed a union representative and the answer was “NO”. When I entered her office, she asked me to acknowledge receipt of the disciplinary measure. After that, she photocopied it and wished me a good day anyway.

You will understand that I was dumbfounded. Ms. Gignac had never heard my version of the facts. I had just been given a measure despite all the written submissions by Mr. Cloutier who urged her to hold back on the measure until I had full and complete union representation.

I immediately telephoned Johanne Hurens, of the Alliance, to inform her of the seriousness of the situation, and she exclaimed that it was an abuse of power.

. . .

[74]   The clauses of the collective agreements dealing with suspension and discipline read as follows:

[Master Agreement signed on May 17, 1989, between the Treasury Board and PSAC]

. . .

ARTICLE M-33

SUSPENSION AND DISCIPLINE

M-33.01 When an employee is suspended from duty, the Employer undertakes to notify the employee in writing of the reason for such suspension. The Employer shall endeavour to give such notification at the time of suspension.

M-33.02 The Employer shall notify the local representative of the Alliance that such suspension has occurred

M-33.03 When an employee is required to attend a meeting, the purpose of which is to render a disciplinary decision concerning him or her, the employee is entitled to have, at his or her request, a representative of the Alliance attend the meeting. Where practicable, the employee shall receive a minimum of one day’s notice of such a meeting.

. . .

[Collective Agreement signed on May 16, 2000, between the Treasury Board and PSAC for the Program and Administrative Services Group]

. . .

ARTICLE 17

DISCIPLINE

17.01 When an employee is suspended from duty or terminated in accordance with paragraph 11(2)(f) of the Financial Administration Act, the Employer undertakes to notify the employee in writing of the reason for such suspension or termination. The Employer shall endeavour to give such notification at the time of suspension or termination.

17.02 When an employee is required to attend a meeting, the purpose of which is to conduct a disciplinary hearing concerning him or her or to render a disciplinary decision concerning him or her, the employee is entitled to have, at his or her request, a representative of the Alliance attend the meeting. Where practicable, the employee shall receive a minimum of one (1) day’s notice of such a meeting.

17.03 The Employer shall notify the local representative of the Alliance as soon as possible that such suspension or termination has occurred.

. . .

The provisions applicable to the collective agreement signed on November 19, 2001, between the Treasury Board and PSAC for the Program and Administrative Services Group are identical to those in the collective agreement signed on May 16, 2000.

[75]   The reasons provided for the two-day suspension without pay imposed on Ms. Rioux on April 25, 2000, are as follows (Exhibit P-23):

[Translation]

. . .

Last Tuesday, March 7, you absented yourself from your work for a period of one hour and 45 minutes, that is, from 1:45 p.m. to 3:30 p.m., in order to participate as a technical adviser in a grievance hearing at the request of a union representative.

Your supervisor had told you on the morning of March 7 that you had to obtain authorization to be absent and to obtain either compensatory leave or vacation leave if you wanted to appear at the grievance hearing as a technical adviser. I remind you that your presence as a technical adviser was required by the union and not by the employer.

Since December 1, 1997, you have received four disciplinary measures. Each of these disciplinary measures stressed that, if your conduct did not improve, other, more severe measures could be taken against you.

Despite these informal disciplinary actions, you absented yourself from your office without obtaining advance authorization. These breaches are considered very serious, especially since on a number of occasions you have had an opportunity to correct your conduct.

In view of the circumstances, we have no alternative but to impose a two-day suspension without pay, on May 11 and 12. Moreover, your salary for the week of March 6 to 10 will be reduced by an amount equivalent to one hour and forty-five minutes, which is the amount of time corresponding to the hours not worked.

. . .

[76]   A complaint alleging a violation of the Treasury Board Policy on Harassment in the Workplace was filed by Ms. Rioux on April 28, 2000 (Exhibit P–25). In it she criticized the actions of Ms. Gignac in making her acknowledge receipt of the disciplinary measure. She said that this way of doing things was petty and violent and that Ms. Gignac had no respect for her and had deliberately and outrageously violated her rights. She explained that she had acknowledged receipt under intimidation. Furthermore, under cross-examination, Ms. Rioux made it clear that she did not want to be represented by the people assigned by PSAC as union representatives, now that it was in trusteeship, nor by Mr. Morissette, who caused her to be in violation by his recommendation not to fill out the leave request.

[77]   A grievance was filed on April 28, 2000, against the disciplinary measure imposed on Ms. Rioux on April 25, 2000, (Exhibit P-26). In it, Ms. Rioux alleged that this measure included false statements. She submitted that the misunderstanding was caused by a lack of understanding of the explanations given by Mr. Morissette to Ms. Leclair and that she should not be concerned by what she considered a ridiculous saga.

[78]   The grievances filed by Ms. Rioux on April 25, 2000 (so that Mr. Cloutier could represent her without loss of salary) and on April 28, 2000 (challenging the disciplinary measure of April 25, 2000) were denied at the first level of the grievance procedure without any submissions being made. Ms. Gignac explained, in each of her responses, that Ms. Rioux had informed her beforehand that she did not want to be present at these hearings (Exhibits P-32 and P-33; May 8 and 15, 2000).

[79]   The employer imposed a disciplinary measure on Mr. Cloutier on June 2, 2000, in respect of the sending of the e–mail to Ms. Gignac on April 17, 2000 (Exhibit G–146). Ms. Lamarre commented as follows in the notice of the disciplinary measure explaining the reasons for it:

[Translation]

. . .

It is my opinion that you contravened the Department’s policies with respect to the use of electronic mail by sending copies of your e–mail, without permission, to individuals not concerned with the content of that e–mail.

. . .

Once again, you have voluntarily decided not to comply with the instructions issued by the employer. The content of the e–mail did not concern in any way these individuals, who, moreover, are not part of your work unit. The Department’s national and regional policies on the use of electronic mail stipulate, among other provisions, that messages must be sent only to recipients in the operational groups concerned to whom the information is useful, and that e–mail must not be used for personal purposes.

. . .

[80]   Mr. Cloutier received a five–day suspension from June 5 to 9, 2000. After this disciplinary measure was delivered, Mr. Cloutier was accompanied to his workstation and escorted to the exit. Ms. Rioux explains in her complaint that the disciplinary measure imposed on Mr. Cloutier affected her as though it had been imposed on her personally. The employer had allegedly used intimidation and abused its power by escorting Mr. Cloutier out of the office.

C. The respondent’s evidence

[81]   The respondent did not adduce any evidence with respect to Ms. Rioux’s complaint. As I mentioned earlier, the evidence adduced for Ms. Rioux’s grievances, decided in Rioux v. Treasury Board (Citizenship and Immigration Canada) (supra), was placed in this file.

IV. Other considerations

[82]   The interlocutory decision in Rioux and Cloutier v. Leclair, 2003 PSSRB 75, was rendered with respect to the complainant’s request to add to her complaint the additional elements that she had submitted on March 30, 2003, and a request for intervention dated September 30, 2001. As a result of that decision, all elements relating to incidents that occurred after July 6, 2000 will not be dealt with in this case.

[83]   On March 31, the former Act was repealed (SI/2005-21). On April 1, 2005, the Public Service Labour Relations Act (“the new Act”), enacted by section 2 of the Public Service Modernization Act (PSMA), S.C. 2003, c. 22, was proclaimed in force (SI/2005–22 to 24). Section 39 of the PSMA states that the new Board is seized with any matter that was before the former Board immediately before the new Act came into force and that the new Board must dispose of the case “. . . in accordance with the new Act”.

5. Summary of the arguments

A. Application of the new Act and transitional provisions

[84]   On May 13, 2005, I invited the parties to submit written arguments to me on the following questions:

1. What is the effect of the coming into force of subsection 190(2) of the new Act on any applicable time period for the presentation of the above complaint, given the transitional provisions in sections 36 to 66 of the PSMA and, more specifically, those of section 39?

2. What is the effect of the coming into force of subsection 191(3) of the new Act with respect to the burden of proof that the parties must meet regarding the above complaint, given the transitional provisions set out in sections 36 to 66 of the PSMA and, more specifically, those of section 39?

[85]   Each party had an opportunity to submit written arguments to the Board and to the other party by May 30, 2005, and its reply to the written arguments of the other party by June 14, 2005. On June 9, 2005, the parties were also invited to submit their comments on the decision in International Association of Machinists and Aerospace Workers and District Lodge 147, National Association of Federal Correctional Workers v. Correctional Service Canada, Treasury Board and Don Graham, 2005 PSLRB 50, which deals with the transitional provisions relating to complaints. The parties had until June 27, 2005 to submit their comments.

[86]   Only the respondent submitted written arguments on May 30, 2005, concerning the transitional provisions along with her comments on the decision in International Association of Machinists and Aerospace Workers (supra), on June 27, 2005. The complainant did not submit any written arguments, although she had been duly informed of the receipt of the respondent’s written arguments and comments.

[87]   The respondent made the following arguments with respect to the legal impact of the coming into force of the new Act:

[Translation]

. . .

As for the first two complaints, they were heard earlier, so much earlier that the hearings ended in May 2004. It appears that, for reasons unknown to the employer, consideration of these two cases took an abnormally long time since, to date, the Board that was seized of them has yet to dispose of them.

Legal impact of the delay in rendering judgment

Under normal circumstances, this long delay would not have posed a problem.

However, what is unusual in this instance, is that the Public Service Staff Relations Board, which was seized of the two complaints, was abolished during the time of its deliberations on the two complaints, specifically, on April 1, 2005, under the terms of section 285 of the Public Service Modernization Ac t.

As a result, that Board, having been abolished, will be unable to rule on the two complaints.

However, the two cases have not fallen into legal limbo.

Subsection 39(1) of the Public Service Modernization Act contains transitional provisions that allow the Public Service Labour Relations Board to be seized of proceedings that were before the former Board.

That subsection reads as follows:

39. (1) Subject to this Division, any proceeding that the former Board was seized of immediately before the day on which section 12 of the new Act comes into force is transferred to the new Board to be disposed of in accordance with the new Act.

The unique aspect of this provision is that it provides for the new Board to continue the proceedings that were before the former Board and for it to decide them in accordance with the new Act.

This provision is part of a series of transitional provisions relating to the powers of the new Board and the legal status of members of the former Board.

The employer argues that this provision is a crucial provision attributing jurisdiction, its only purpose being to define the powers of the new Board and, hence, it is not intended to define or alter the legal rights and obligations of the parties appearing before the former Board and now before the new Board.

The effect of this provision is simply to allow the new Board to exercise the powers that the new Act confers on it with respect to old complaints. It is not intended to negatively affect the rights of the parties retroactively.

In this regard, it is important to note that the new Board no longer operates like the old one and it has different powers. For example, complaints of unfair labour practice will now be heard by a panel of the Board consisting of three members, unless the Chairperson decides otherwise.

In this case, our understanding is that the Chairperson of the new Board decided that the two complaints would be decided by a panel consisting of a single member.

As for the grievances, in subsection 61(1), Parliament provided transitional provisions whereby former adjudicators retained in their positions continue to exercise the powers that they had under the former Act with respect to grievances filed under the former Act, which does not pose a problem.

However, this difference must not be interpreted as an intent by Parliament to alter retroactively the rights of the parties with respect to complaints of unfair labour practice.

A well–accepted principle of statutory interpretation is that statutes never apply retroactively unless there has been a clear stipulation to that effect by the lawmakers.

Canada’s legislative regime is based on the primacy of law. Under this rule, persons before Canadian courts must conduct themselves in accordance with the rules of laws in force. The corollary is that the court must assess the conduct of defendants based on these same rules.

It is unthinkable that in Canadian society the conduct of a defendant would be assessed on the basis of new rules of law that did not exist at the time of the facts and were enacted after the fact with retroactive application.

For such a situation to be legally possible, the wording of the statute on this point would have to be clear so that it would not be possible to conclude that the result arising from the retroactivity was anything other than what the lawmaker really sought.

In this case, subsection 39(1) is a simple transitional provision that is not even included in the new Act and therefore the objective does not relate to the proper application of the new Act.

This provision applies only to the operation of the new Board and does not affect the parties.

Consequently, the employer rejects any idea that the two complaints now before the new Board can or must be decided based on the provisions of the new Act.

It is with these principles in mind that the employer now responds to the concerns of the new Board, which is pondering the question of whether subsection 190(2) and subsection 191(3) of the new Act may have legal effect in the present case.

These provisions read as follows:

190(2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board's opinion ought to have known, of the action or circumstances giving rise to the complaint.

191(3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party

Subsection 190(2) came into force on April 1, 2005.

The employer argues that this provision applies to complaints dealing with facts that occurred on or after April 1, 2005.

There is nothing in this provision that implies that it could apply to facts prior to April 1, 2005.

For this reason, no complainant could rely on section 190 of the new Act to file a complaint of unfair labour practice with respect to events that occurred prior to April 1, 2005, because the new Act does not have a retroactive effect.

Moreover, since section 23 of the former Act is repealed, a complainant could not invoke this former provision to seize the new Board with his complaint.

Accordingly, the only complaints dealing with events that occurred prior to April 1, 2005, that can come under the jurisdiction of the new Board are complaints that were already filed before the former Board.

Unlike grievances and references, Parliament decided to leave in legal limbo events that occurred prior to April 1, 2005, that might have given rise to a complaint of unfair labour practice pursuant to section 23 of the former Act.

In fact, sections 64 and 65 of the Public Service Modernization Act clearly indicate that events occurring prior to April 1, 2005, which could have given rise to a grievance pursuant to section 91 or to a reference pursuant to section 99 of the former Act, continue to be governed by the new Act and can be the subject of an individual grievance or a policy grievance pursuant to sections 208 and 220 respectively of the new Act.

These transitional provisions do not give a retroactive effect to the new Act because it is the substantive rules of the former Act that apply.

Individual grievances and policy grievances affected by sections 64 and 65 must be admissible under the terms of the former Act. The wording of these provisions is very clear in this regard. They state:

… that would have given rise to a right to grieve under section 91 of the former Act, as that section read immediately before that day.

… if the matter could have been referred to the former Board under section 99 of the former Act, as that section read immediately before that day.

Consequently, since none of the provisions of the new Act has retroactive application, it is simply not possible to interpret subsection 39(1) of the Public Service Modernization Act to apply retroactively so as to affect the rights of the parties.

In Laquerre v. Canada (Royal Canadian Mounted Police ), [1995] F.C.J. No. 1082 (QL), the Federal Court ruled that the statute of limitations in the new Act governing the RCMP was a substantive rule and not a procedural one and, consequently, it did not apply to the facts covered by the old Act (see, in particular, paragraph 65 of the decision.

In this case, the employer has already argued on the merits that the time limit applicable to the presentation of complaints of unfair labour practice under the former Act was that of a reasonable period, which should be assessed having regard to all of the circumstances of the case (doctrine of laches).

It is the employer’s view that it would be unfair to the complainants to impose on them retroactively a 90–day time limit for filing a complaint of unfair labour practice in relation to events that occurred five or six years prior to the coming into force of the new 90–day rule.

Parliament surely did not want the lengthy deliberation by the Board to have such a devastating legal impact on the complainants.

The employer presents the same arguments with respect to the question of the shift of the burden of proof onto the employer’s shoulders.

This new rule, which is similar to that set out in section 133 of the Canada Labour Code , is not a simple procedural or evidentiary rule or a simple rule for the presentation of evidence because, while rebuttable, it creates a substantive right in favour of the complainant, namely, the existence of a violation of the PSLRA; moreover, that right cannot be disassociated from the other substantive rule, namely, the 90–day period.

From the moment that Parliament imposes on the employer the obligation to prove that the measures it took with respect to an employee were taken for legitimate reasons, it is important, for procedural fairness, that the employer be able to present that proof.

The obligation placed on the complainant to file his complaint within a very short period actually allows the employer to gather the necessary proof to meet its obligations. If the time limit were not short, the employer could find itself in a situation where it no longer had the evidence, including witnesses, to justify its measures.

The short 90–day period is aimed at protecting the employer by enabling it to know quickly the allegations against it and to respond rapidly.

Moreover, the obligation that the employer now bears cannot meet the new requirements of the Act if, on the other side, the employee is not required to consider seriously and rigorously his allegations against his employer. Accordingly, it is important for a complainant to be as specific as possible when completing form 16 to file his complaint.

In this case, the complainants’ presentation of their respective complaints was not rigorous. The subjects of the complaints were not clearly identified. As in the old folk song, the complainants took aim at one group in order to have the Board condemn another. Moreover, the complainants tried to attribute intent to certain people using the conduct of others. This approach is incompatible with the principle of shifting the burden of proof onto individuals who do not even know of what they are accused.

This clearly shows the incongruity of the situation.

For these reasons, the employer maintains that Parliament could not have intended the new rule of the reversal of the burden of proof to be imposed on the Board during its deliberations when the evidence had been adduced by all parties at a time when the new rule did not exist.

The employer argues that unfounded complaints cannot become founded and vice versa simply by the effluxion of time.

The employer therefore submits that the Board may not, by interpretation, retroactively apply these two substantive rules to the present case.

The employer reserves the right to make further arguments in response to those of the complainants, if necessary.

[88]   The respondent added that the decision in International Association of Machinists and Aerospace Workers (supra) in essence supports its arguments of May 30, 2005. The complainant did not submit any argument with respect to the questions to which I requested a reply and did not file any rebuttal to the respondent’s arguments or provide comments on decision 2005 PSLRB 50.

B. Objection based on subsection 8(1) or 9(1) of the former Act and the timeliness of the complaint

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1. Respondent’s arguments

[89]   The master agreement recognizes the PSAC as the bargaining agent (clause M–7.01) and the same recognition is granted in the collective agreement for the Program and Administrative Services Group (clause (9.01).

[90]   The right to represent the union is given to a representative duly authorized by the PSAC. The PSAC must inform the employer of the name of the person who will act as the union representative and of the person’s jurisdiction under the procedure set out in the collective agreement (clauses M–8.01 to M–8.03 of the master agreement, clauses 13.01 and to 13.03 of the agreement for the Program and Administrative Services Group).

[91]   According to the respondent, the complainant cannot file a complaint in her own name when the prohibitions concerning the rights of the bargaining agent are not respected by the employer. Only the PSAC or someone it has appointed as its representative may file a complaint under section 23 of the former Act alleging contravention of the prohibitions set out in subsection 8(1) or 9(1). Employees may file a complaint only in cases where their rights have been violated with respect to the prohibitions set out in subsection 8(2) of the former Act. Otherwise, the complainant must seek her remedy through grievances challenging the actions by the employer that allegedly contravene the provisions of the collective agreement. These grievances should have been filed within 25 days of the grievors’ becoming aware of the events giving rise to them.

[92]   The complainant alleges that the employer interfered in the administration and formation of an employee organization or interfered in the representation of employees by an employee organization. The complainant cannot file a complaint on these grounds without a specific mandate from the employee organization. In her arguments on the merits, the respondent reiterated the arguments that she had presented in the preliminary objection.

[93]   With respect to the incidents relating to leave for PSAC business, the employer could have a different interpretation of the collective agreement than the complainant. In terms of the rights of a union representative, the bargaining agent could have filed a complaint pursuant to section 99 of the former Act to enforce an obligation arising from the collective agreement. It is not the responsibility of an employee to claim the right of a union representative to leave for PSAC business; this right must be claimed by a person duly mandated by the bargaining agent.

[94]   The respondent also argues that the complainant did not file her complaint within a reasonable time. Ms. Rioux alleges incidents that cover the period from January 1997 to June 2000, while her complaint was filed in July 2000. Since she was an authorized PSAC union representative until December 1998, she was familiar with the complaint and grievance procedures, and did not show diligence by delaying the filing of her complaint.

[95]   In addition, the doctrine of laches should apply to this case, given that the respondent experienced prejudice as a result of the delay. It is practically impossible for her to present a defence of incidents that occurred several months, and in some cases several years, prior to the presentation of the complaint. The reasonable delay rule has allowed for the dismissal of complaints in cases similar to this one.

[96]   The respondent adduced the following PSSRB decisions in support of its arguments

• on time limits and the doctrine of laches:

  • Harrison v. Public Service Alliance of Canada and Treasury Board (Revenue Canada Taxation), 161–02–725 (1995)(QL);

  • Machnee v. Klaponski et al., 2001 PSSRB 28.

• on the ability to file a complaint (section 23 of the former Act):

  • Dodier v. Treasury Board (Employment and Immigration), 166–02–14640 (1985) (QL);

  • Reekie v. Thomson, 161–02–855 (1998) (QL);

  • Reekie v. Thomson, 161–02–88 (1999) (QL);

  • Feldsted et al. v. Treasury Board, 161–02–944, 947 and 954 (1999)(QL).

[97]   The following decisions were added in support of the elements adduced by the respondent in its preliminary objection with respect to the doctrine of laches; this doctrine was applied by the Board in Teeluck v. Public Service Alliance of Canada, 2001 PSSRB 45, and Canada (Treasury Board) v. Lévesque, PSSRB file No. 194–02–49 (1978) (QL). The principle of reasonable delay set out in Saint–Hubert (Ville) c. Syndicat des cols bleus de la Ville de Saint–Hubert, [1998] Q.A. No. 3665 (QL), must be applied in this case.

[98]   The complainant argued that she delayed filing her complaint because she wanted to give the employer a chance and she had many files to manage at the same time. These reasons are not valid grounds for failing to file a complaint within a reasonable time.

[99]   The collective agreement clearly provides that PSAC must inform the employer of the name of its representative and the representative's jurisdiction. The concept of a union representative established according to the collective agreement is at issue in Dodier (supra). That decision explains that the employer has no obligation to a person who is not a union representative within the meaning of the collective agreement.  Consequently, the employer did not have to grant Ms. Rioux union status at the meeting on March 7, 2000. On that date, the local was in trusteeship and the bargaining agent had told the employer that Mr. Lambert was acting as the union representative as of November 3, 1999. Thus, Mr. Cloutier and Ms. Rioux no longer had status as union representatives as of November 3, 1999. Ms. Rioux’s request for leave for PSAC business as a “technical adviser” was not based on any provision of the collective agreement.

2. Complainant’s arguments

[100]   According to the complainant, it is not possible to make a distinction between the function of union representative exercised by a person and that person as an individual. When the employer prevents a union representative from performing his representation duties, it is also infringing at the same time on the right of that person to participate in a lawful union activity, that is, to make representations as a union representative. In her complaint, Ms. Rioux alleges that the employer intimidated her to try to dissuade her from assuming responsibilities as a union representative, which is a lawful union activity. The employer used strategies to interfere with the performance of duties by people acting as union representatives in such a way as to discourage them from participating in this union activity. It is against the employee, and not the union representative, that the employer took disciplinary action. In Willan v. Potts et al., PSSRB file No. 161–02–834 (1997) (QL), the Board found that one of the respondents had interfered with the complainant’s right to represent employees and to take part in the lawful activities of the bargaining agent, in violation of sections 6 and 8 of the former Act. That decision does not distinguish between the “person” of Ms. Willan and the “union representative”. In Linetsky v. Resanovic et al., PSSRB file No. 161–02–316 (1985) (QL), the Board acknowledged that the respondents prevented the complainant from exercising the rights conferred on him by section 6 of the former Act (right to participate in lawful union activities) by threatening him with disciplinary action if he represented an employee before the Unemployment Insurance Board of Referees.

[101]   With respect to the question of the time between the incidents and the filing of the complaint, the complainant argues that, at the time, she was not familiar with the former Act or with sections 8 to 10. She seek a variety of remedies or attended as the representative of Mr. Cloutier, including a harassment grievance and other grievances based on article M–16 of the master agreement, which dealt, among other things, with union discrimination. She did not have technical knowledge of the former Act and she was unable to trust the PSAC and CEIU advisers, or their representatives at the regional or national level, who were working against her during the trusteeship. In addition, the complainant had to manage many remedy files that were ongoing at the time and she had to set priorities. In light of this problem, she did what her common sense told her to do.

3. Respondent’s reply

[102]   In reply, the respondent argued that, as of December 1998, the complainant was no longer a PSAC representative and that, at the time her complaint was filed, she could not act on behalf of the PSAC. She was not authorized by the PSAC to act on behalf of the bargaining agent with respect to her complaint.

C. Merits of the complaint

1. Complainant’s arguments

[103]   Ms. Rioux submitted that the employer imposed three disciplinary measures on her on December 11 and 12, 1997 and on February 2, 1998. She viewed these measures as a subterfuge by the employer to discourage her from participating in union activities. According to her, the employer played with the dates of the violations and kept some in reserve so as to increase the number of disciplinary measures and thus to exert pressure on her. The fourth measure imposed on her, when she consulted the representatives of the bargaining agent during her break regarding the agreement in principle, made her decide not to campaign for election as a member of the local’s executive. She made this decision in December 1998, before the trusteeship was imposed in November 1999. The number of disciplinary measures meant that Ms. Rioux lost credibility and it became difficult in these circumstances for her to continue to represent the members.

[104]   The second disciplinary measure was imposed on Ms. Rioux when she was making a representation in a case involving Mr. Cloutier, on December 30, 1997. The disciplinary measure, which was imposed on her for distributing material without authorization, does not refer to the Department’s policy on e-mail use. Ms. Rioux submits that she received the policy on February 2, 1998, at the same time as the third disciplinary measure, which was imposed on her for recirculating Mr. Tremblay’s e-mail message.

[105]   The third disciplinary measure was imposed on February 2, 1998, because of an e-mail transmission (on December 27, 1997) that took place before the second disciplinary measure (of December 30, 1997). According to Ms. Rioux, she was punished because she sent information on the results of an appeal to the PSC. The e-mail message contained points specified in the PSC decision and cannot be considered as abusive or discriminatory. She considered that her role as a union representative was to publish this information and that the employer was trying to discourage her from exercising this role by punishing her.

[106]   The disciplinary measure imposed for recirculating Mr. Tremblay’s e-mail message “to everyone” in December 1997 shows the employer’s bad faith, since Mr. Tremblay was not punished for distributing the e-mail message. At that time, Ms. Rioux did not know about the policy on e-mail use and took it for granted that, if Mr. Tremblay was not penalized for distributing the e-mail message, this meant that the distribution was authorized. Mr. Tremblay got off with an apology, while Ms. Rioux received a disciplinary measure for the same offence.

[107]   The guidelines on disciplinary action (Exhibit P-41) provide that discipline must not be imposed in a discriminatory manner. The employer tolerates, as a standing practice, that the employees generally do not comply with the e-mail distribution policy, but it punishes them when this is done by “disruptive” employees, acting as representatives. The regional policy on e–mail use (Exhibit E-2) providing that union messages must be authorized in advance was not applied to Mr. Tremblay and Ms. Rioux in the same way.

[108]   The disciplinary measure imposed on December 17, 1998 for unauthorized absence for union activities during a break is clearly abusive. The fact that the activity continued beyond the time allowed for the break was not premeditated, and the activity's length was exaggerated by the employer. The time stated by Mr. Cardinal (between 9:40 a.m. and 10:20) in his report (Exhibit G-117) corresponds to the time of a break; that time became two hours (from 9:00 a.m. to 11:00 a.m.) in the disciplinary measure. According to Ms. Rioux, she did not have to get permission to take a break and yet this is what the employer criticized her for (Exhibit P-6). The employer’s purpose was to intimidate her so as to restrict her right to participate in union activities.

[109]   The fifth disciplinary measure that was imposed on Ms. Rioux on April 25, 2000 relates to her participation in a union activity during the representations at the second level of the grievance procedure. Ms. Rioux’s presence had been requested by Mr. Morissette at a PSAC union activity. The disciplinary measures imposed on the complainant and Mr. Cloutier constituted intimidation during a union activity.

[110]   Ms. Rioux cited the following decisions in support of her arguments:

• Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 , 2003 S.C.C. 42: collective agreements are subject to human rights.

• Cloutier c. Société des alcools du Québec , Quebec Labour Court File No. 500–28–000124–859 (1986): the Court ruled that it is not necessary to show the employer’s illegal intent by direct evidence in a complaint involving reprisals. Presumption can serve to establish said intent when there is a change in the work situation of an employee that coincides with the exercise of a right conferred on him by the Quebec Labour Code.

• Fleury c. Épiciers Unis Métro–Richelieu Inc ., Quebec Labour Court File No. 500–28–001187–848 (1985): even if the employer had reasonable grounds to believe in the validity of the complaints, it must present convincing evidence because of the seriousness of the allegations.

• Pavillon du Parc Inc. c. Rossignol , Quebec Labour Court File No. 500–28–000070–896 (1989): the disciplinary measure was set aside because the employee objected to the refusal of a legitimate request for release. In this case, insubordination could not be found because the release was allowed by the collective agreement.

• Granada Location de T.V. Ltée c. Trempe , Quebec Labour Court File No. 500–28–001986–827 (1983): the respondent was justified in refusing the appellant’s order to remain at his workstation because there was an emergency. In this case, the telephone call made to the union regarding the distribution of the agreement in principle was an urgent situation.

• Roger Rainville & Fils c. Bisaillon , Quebec Labour Court File No. 500–28–000914–838 (1984): when the sanctions imposed differ with respect to the employees concerned, the court must examine the grounds for the different treatment to ensure that the reason given is not merely a pretext.

• Robichaud v. Canada (Treasury Board) , [1987] 2 S.C.R. 84: the employer is responsible for discriminatory acts carried out without authorization by its employees in the course of their employment.

• Fortin v. Canada (Attorney General) , 2003 FCT 51: employer must act impartially in the evaluation process and the adjudicator must take the principle of impartiality into account.

2. Respondent’s arguments

[111]   The complainant showed that an internal conflict had arisen within the bargaining agent, the PSAC. One of the PSAC’s elements is the CEIU; the local belongs to the CEIU and the complainant is a member of the local. The complainant wanted the local to withdraw from the CEIU and she was involved in a petition to this end. She wanted this activity to be held in the workplace, during work hours, which is prohibited by subsection 10(1) of the former Act.

[112]   In addition, for her complaint under section 23 of the former Act to be successful, the complainant had to show that the respondent intended to act against the bargaining agent (anti–union animus). In Canada (Attorney General) v. Social Science Employees Association, 2003 F.C.A. 165, the Federal Court stated that, for there to be violation of statutory prohibitions, intent to discriminate must be proven. In the absence of evidence of anti–union animus on the respondent’s part, it must be concluded that the complainant did not discharge her burden of proof and the complaint accordingly must be dismissed.

[113]   The disciplinary measure imposed on Ms. Rioux on April 25, 2000 was motivated by the fact that she had refused to fill out a request for permission to absent herself from her workstation as her supervisor had requested. Ms. Rioux was informed before the meeting that the employer would allow her to be absent without pay, and she planned to create an incident based on the refusal to grant leave “with pay”. The complainant and Mr. Cloutier had a hidden agenda: they wanted the employer to grant Ms. Rioux leave with pay despite the trusteeship and to recognize her status as union representative.

[114]   The Supreme Court of Canada stated in Lafrance v. Commercial Photo Service Inc., [1980] 1 S.C.R. 536, that the reason given for imposing a disciplinary measure must be verified to ensure it is real rather than a pretext or camouflage. If an adjudicator finds that the reason given by the employer for imposing a disciplinary measure is real and substantive, he cannot review the severity of the sanction imposed by substituting his judgment for that of the employer. In the case at hand, it appears that the disciplinary measures imposed on the complainant are in response to actual misconduct and the Board may not intervene by evaluating the severity of those measures.

[115]   The penalty imposed on the complainant with respect to her absence from her workstation without permission on December 9, 1998, is based on the fact that no prior request was submitted to the employer. The complainant admitted that she had not asked permission to leave her workstation and that she had exceeded the time allotted for her break under the collective agreement. In these circumstances, the reason given for the disciplinary measure is real and is not a pretext.

[116]   The employer is entitled to prefer a particular interpretation of a clause in the collective agreement concerning the leave that can be granted to a union representative or an employee to help in preparing a grievance. It can maintain its interpretation even though an adjudicator has ruled on a different interpretation of one case in particular. The decision of an adjudicator has effect only with respect to the particular grievance that was submitted to adjudication. The complainant could submit the issue to another adjudicator if she disagreed with the application of clause M-14.09 or clause 14.07 of the collective agreements, which she did not do. No evidence was submitted by the complainant that she had asked the bargaining agent to refer the grievances on this issue to adjudication after the November 1999 trusteeship. On the other hand, it has not been shown that the defendant was acting in bad faith.

[117]   The complainant explained in her complaint that she denounced the “culture of the Department” and that the managers were not personally targeted, because they had no choice but to bend to this culture. A complaint under section 23 of the former Act must be directed at a person, and the prohibitions listed in sections 8 and 9 of the former Act are directed to “persons”.

[118]   As for the remedy sought, the complainant did not adduce evidence of damages, either with respect to her health or some other aspect. Adjudicators may award damages to the extent that a causal link has been demonstrated between the fault and the damage, which was not done in this case.

[119]   The respondent cited the following decisions in support of its arguments: Lafrance v. Commercial Photo Service Inc. (supra); Canada (Attorney General) v. Social Science Employees Association (supra); Saint-Hubert (Ville) c. Syndicat des cols bleus de Ville de Saint-Hubert (supra); Saint-Hubert (City) c. Syndicat des cols bleus de Ville de Saint-Hubert, [1999] C.S.C.R. No. 75 (QL); along with the following PSSRB decisions: Gagnon v. Public Service Alliance of Canada et al., 161-02-687 (1993) (QL); Galbraithv. Treasury Board(Employment and Immigration), 166-02-21044 (1991) (QL); Hanzekv.McKinnon et al., 161–02-334 (1986) (QL); Hanzek v. Treasury Board (National Defence), 166-02-17269 and 17271 (1988) (QL); Jacksonv.Séguin, 161–02–399 (1988) (QL); Kennedy v. Buffie, 161-02-487 (1988) (QL); Roberts v.Treasury Board (Department of National Revenue), 166–02–14933 (1985) (QL); Smallv.Propper et al., 161-02-364 and 365 (1987) (QL); Tillerv. Pettis et al., 161-02-614 (1991) (QL); Veilleuxv.Public Service Commission et al., 161–02–245 (1983) (QL).

3. Complainant’s reply

[120]   The complainant argues that the respondent wanted to apply labour relations principles by which it would be necessary to negotiate the right to union representation. The right to representation that the complainant claimed cannot be negotiated and the employer interferes in union affairs when it wants to control the time required to prepare representations. The employer wants to limit acquired rights, which are set out in the former Act and the collective agreements, on the basis that they derive from concessions to its right to manage.

[121]   According to the complainant, it is contrary to her right to representation to require that union representatives lose pay when they meet with members who have labour relations problems to bring to them. Union representatives devote a great deal of their time to internal union business and they should not also have to sacrifice their salary when trying to resolve labour relations problems with the employer.

VI. Reasons

A. Application of the new Act and transitional provisions

[122]   The transitional provisions of subsection 39(1) of the PSMA indicate that proceedings before the former Board on March 31, 2005, continue before the new Board.

39. (1) Subject to this Division, any proceeding that the former Board was seized of immediately before the day on which section 12 of the new Act comes into force is transferred to the new Board to be disposed of in accordance with the new Act.

[123]   Section 12 of the new Act came into force on April 1, 2005, (SI/2005–22). On that date, the complaint presented on July 6, 2000, by Ms. Rioux had been heard and was under deliberation, the parties having concluded their evidence and submitted their arguments. The application of subsection 39(1) of the PSMA requires the proceeding to continue before the new Board. This element does not create a problem of interpretation, unlike the last part of the subsection, which states that the new Board shall dispose of the proceeding in accordance with the new Act.

[124]   This complaint is based on paragraph 23(1)(a) of the former Act and criticizes the contravention of the prohibitions in sections 8 and 9 and, in general, alleges that the respondent was guilty of interfering in the affairs of an employee organization and/or discriminated against and intimidated the complainant because of her participation in union activities.

[125]   Complaints of this nature are now deemed to be “unfair labour practices” as defined in section 185 of the new Act. A complaint may be filed against unfair labour practices by an employer pursuant to paragraph 190(1)(g) of the new Act. The complaint must be made within 90 days of the date on which the complainant knew (or ought to have known) of the action or circumstances giving rise to it, as set out in subsection 190(2). This time limit did not exist in the former Act.

[126]   In addition, subsection 191(3) of the new Act states:

(3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

[127]   This subsection states that a respondent is presumed guilty of an unfair labour practice upon presentation of a complaint in writing to that effect. The burden is then on the respondent to prove that the practice did not occur. These elements are new law under the new Act.

[128]   Thus, the new Act creates new obligations associated with a complaint of unfair labour practice, specifically, a 90–day time period and a presumption that the employer committed an unfair labour practice and bears the onus of showing otherwise. The question to decide is therefore whether these new obligations apply to this complaint and whether the scheme of the new Act has a retroactive effect on the complaint at issue.

[129]   None of the transitional provisions of the PSMA specifically state how complaints pursuant to section 23(1)(a) of the former Act are to be handled under the new Act. In sections 59 and 60 of the PSMA, Parliament made it clear that complaints under paragraph 23(1)(b) of the former Act will be deemed to be policy grievances for the purpose of the new Act while those pursuant to paragraph 23(1)(c) of the former Act will be deemed to be withdrawn as at April 1, 2005. These elements show that Parliament’s intent is definitely to apply to complaints under paragraphs 23(1)(b) and 23(1)(c) of the former Act the new rules altering parties’ rights and obligations as of April 1, 2005.

[130]   I do not believe that the general statement in subsection 39(1) of the transitional provisions of the PSMA (in accordance with which proceedings before the former Board on March 31, 2005, must be disposed of in accordance with the new Act) indicates that Parliament intended to alter retroactively the rights and obligations of parties with respect to complaints before the former Board under paragraph 23(1)(a) of the former Act. Since Parliament did not specifically state how the new scheme for unfair labour practice complaints could be applied to complaints before the former Board under paragraph 23(1)(a), the Board must determine whether Parliament’s intent was to alter the rights and obligations of the parties retroactively.

[131]   The principle of the non–retroactivity of statutes, mentioned by the employer, is set out in the Interpretation Act, R.S.C (1985), c. I–21, which states as follows:

. . .

REPEAL AND AMENDMENT

42.(1) Every Act shall be so construed as to reserve to Parliament the power of repealing or amending it, and of revoking, restricting or modifying any power, privilege or advantage thereby vested in or granted to any person.

43. Where an enactment is repealed in whole or in part, the repeal does not

. . .

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

. . .

(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.

[132]   Under section 43 of the Interpretation Act, the repeal of an enactment in whole or in part does not affect the previous operation of the enactment so repealed, anything duly done or suffered thereunder, or any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed. The complaint before us was filed under the previous enactment (paragraph 23(1)(a) of the former Act) and the parties assumed the obligations and liabilities arising therefrom (presentation of the complaint within a reasonable time; complainant must show that the allegations of a contravention are founded). Since the case had reached the deliberation stage at the time the former Act was repealed, the parties had exercised their rights and privileges thereunder and enjoy the rights and privileges acquired at that stage of the proceedings.

[133]   Case law has established certain criteria to be used to distinguish accrued rights from simple expectations. Pierre–André Côté’s The Interpretation of Legislation in Canada, 3rd edition, published by Carswell Thomson Professional Publishing, makes two points that warrant particular consideration (page 161):

. . .

. . . The courts require the individual to establish that his legal situation is tangible and concrete, rather than general and abstract, and that this situation was sufficiently constituted at the time of the new statute’s commencement.

. . .

[134]   At page 209 of that work, referring to the decision of the Federal Court of Appeal in Picard v. Public Service Staff Relations Board, [1978] 2 F.C. 296 (C.A.), Pierre–André Côté explains:

. . .

In labour law, the referral of a dispute to an adjudicator and the laying of a complaint regarding discrimination in employment have justified survival of the earlier statute. . . .

. . .

[135]   Since the complaint before us was filed and heard prior to March 31, 2005, the parties’ situation was constituted prior to the repeal of the former Act, in accordance with the principle established in Picard v. Public Service Staff Relations Board (supra). It seems clear that the legal situation of the parties to this complaint is tangible and concrete as a result of the filing of the complaint and the holding of the hearing.

[136]   As for the new time limit established by subsection 190(2) of the new Act, I find this is a substantive rule and not merely a procedural one. The principle set out in Laquerre v. Canada (Royal Canadian Mounted Police), [1995] F.C.J. No. 1082 (QL), by which a new time limit set out in a new statute does not apply to a matter begun under the former statute, must be applied in this case.

[137]   To apply the new Act, and the provisions of subsections 190(2) and 191(3) in particular, to this case would be to go against the principle of interpretation that statutes do not have retroactive effect, unless clearly stipulated by Parliament. If Parliament had wanted to alter retroactively the rights and obligations of the parties with respect to complaints made under paragraph 23(1)(a) of the former Act, it would have clearly stated that, as it did for complaints made under paragraphs 23(1)(b) and 23(1)(c).

[138]   Furthermore, the Interpretation Act clearly stipulates that the repeal of a statute does not have an effect on investigations, legal proceedings or remedy related to rights, benefits, obligations or responsibilities, acquired or incurred by the parties (subsection 43(e)). Section 43 of the Interpretation Act clearly states that any investigation, legal proceeding or remedy may be instituted and continued as if the enactment had not been repealed.

[139]   I agree with the respondent, who states in its arguments that the time limit and the presumption of unfair labour practices by the employer are substantive rules creating rights and obligations of a substantive nature that may not be applied to this complaint. Accordingly, this complaint is decided on the basis of the rights and obligations arising from the former Act, as though it had not been repealed.

B. Objection based on subsection 8(1) or 9(1) of the former Act

[140]   During the hearing on August 8, 2003, I informed the parties that the objection filed by the respondent to the effect that the complainant cannot file a complaint or adduce arguments relating to the alleged violations of subsections 8(1) and 9(1) of the former Act was allowed and that the reasons for that decision would be provided in writing in the final decision. These reasons are set out below.

[141]   The following paragraphs of the former Act set out certain prohibitions:

. . .

8. (1) No person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall participate in or interfere with the formation or administration of an employee organization or the representation of employees by such an organization.

. . .

 9. (1) Except in accordance with this Act or any regulation, collective agreement or arbitral award, no person who occupies a managerial or confidential position, whether or not the person acts on behalf of the employer, shall discriminate against an employee organization.

. . .

[Emphasis added]

[142]   The expression “employee organization” is defined as follows in subsection 2(1) of the former Act:

"employee organization" means any organization of employees the purposes of which include the regulation of relations between the employer and its employees for the purposes of this Act, and includes, unless the context otherwise requires, a council of employee organizations;

[143]   Only an employee organization may complain of a violation of the prohibitions set out in subsections 8(1) and 9(1) of the former Act because these prohibitions clearly affect the rights that belong to these employee organizations. In particular, this principle was recognized in Reekie v. Thomson, PSSRB file No. 161-02-855 (1998) (QL) and Feldsted et al. v. Treasury Board (supra).

[144]   The Board ruled as follows in Reekie v. Thomson, PSSRB file No. 161-02-855 (1998) (QL):

. . .

A section 23 complaint under the PSSRA could refer to violations of sections 8, 9 and 10 of the PSSRA. Mr. Reekie's complaint alleges a breach of subsections 8(1) and 9(1) of the PSSRA. Subsections 8(1) and 9(1) refer to "employee organization", in this case the PSAC, as a properly defined employee organization under section 2 of the PSSRA. Since Mr. Reekie is not an official representative of the PSAC, nor was anyone before me at the hearing representing the PSAC with respect to the complaint, I cannot find that Mr. Reekie has standing to file his complaint under section 23 and, therefore, that I have jurisdiction to hear Mr. Reekie's complaint.

The statutory rights under subsections 8(1) and 9(1) were established by Parliament to protect employee organizations, such as the PSAC, and not individual employees, against employer interference or discrimination.

. . .

[145]   This reasoning was respected by the Board in Feldsted et al. v. Treasury Board (supra), in the following terms:

. . .

I agree with both propositions put forth by Mr. Kremer. First it is clear upon reading subsections 23(1) and 8(1) of the PSSRA that only an employee organization or a person acting on its behalf has the statutory authority to bring a complaint alleging employer interference in the affairs of the employee organization. I fully agree with the findings of Board member Turner in the Reekie case ( supra ).

. . .

[146]   At the time that she filed her complaint (in July 2000), the complainant was not a union representative within the meaning of the collective agreement. She had ceased to be a PSAC representative as of December 1998, having refused to run in the election for the local’s executive. As of November 3, 1999, the union designated Mr. Lambert as its representative to the employer and had withdrawn this status from the members of the local’s executive at the time it was placed in trusteeship (Exhibit G–134). The employer was informed, by the employee organization, of the name of the person who was acting as the union representative on November 19, 1999 (Exhibit G–133).  In July 2000, Ms. Rioux was no longer a PSAC representative as defined in clause M-8 or 9 of the collective agreements.

[147]   I cannot accept the complainant’s argument that it is impossible to distinguish between the employee as a person and the employee as a union representative because, regardless of her status, it is always the “person” who acts. In Willan v. Potts et al. (supra), the fact that the complainant was a union representative within the meaning of the collective agreement was not contested. Similarly, in Linetsky v. Resanovic et al. (supra), the complainant was a union representative and President of the local and this fact was not contested. Accordingly, these decisions are of no use with regard to the principle recognized in Reekie v. Thomson, PSSRB file No. 161–02–855 (1998) (QL) and Feldsted et al. v. Treasury Board (supra), and are in keeping with the finding that only the employee organization, acting through a duly mandated representative, may file a complaint alleging a violation of subsections 8(1) and 9(1) of the former Act.

[148]   The complainant may not denounce a violation of the prohibitions set out in subsections 8(1) and 9(1) of the former Act affecting the rights of an employee organization. On this point, the respondent’s objection is allowed.

[149]   It is still possible for the complainant to file a complaint alleging a violation of subsection 8(2) of the former Act, in her own name, even if she were acting as a union representative at the time that the incidents occurred, on the basis that the respondent wanted to prevent her from participating in lawful union activities set out in section 6 of the former Act. That section is worded as follows:

6. Every employee may be a member of an employee organization and may participate in the lawful activities of the employee organization of which the employee is a member.

C. Objection that the complaint was untimely

[150]   In her complaint, the complainant refers to incidents dating back to November 1997. The former Act and the PSSRB Regulations and Rules of Procedure, 1993 do not set a time limit for the presentation of complaints. Board decisions, however, stipulate that such complaints must be filed within a reasonable delay. In Horstead v. Public Service Alliance of Canada et al., PSSRB file No. 1661–2–739 (1995) (QL), the Board cites an extract from Canadian Labour Law on the question of the time limit. In my view, that extract is especially relevant to the case at hand and explains how the Ontario Labour Relations Board dealt with the issue of delay:

. . .

The Board assesses its treatment of delay on a consideration of various relevant factors. These were summarized by Board Vice-Chairman R.O. MacDowell in City of Mississauga:

A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.

. . .

[151]   I agree with the following conclusion expressed by the Board on Horstead v. Public Service Alliance of Canada et al. (supra):

. . .

I therefore agree that even though the Public Service Staff Relations Act contains no statutory time limit regarding the filing of a complaint, as Estey C.J.O. wrote "labour relations delayed are labour relations defeated and denied".

In Canadian Labour Law , Mr. Adams states at page 247 :

There can be no exhaustive listing of all pertinent factors that relate to the reasonableness of delay in filing a complaint. Some delay may well be reasonable in a particularly difficult case. What is significant, though, is that in the absence of specific statutory time limits, a labour relations tribunal can apply practical labour relations considerations in dealing with unfair labour practice complaints not filed as promptly as they should have been.

. . .

[152]   The following decisions of the Board have established that, when there is an extended delay, it is the responsibility of the complainant to prove that he filed his complaint in a reasonable period of time: Harrison v. Public Service Alliance of Canada and Treasury Board (Revenue Canada Taxation) (supra); Giroux v. Séquin et al., 161–02–825 and 826 (1999) (QL); and Machnee v. Klaponski et al. (supra). I share this point of view, which must be applied to this complaint.

[153]   Ms. Rioux argued that she was unaware of the procedures of the former Act and the collective agreement and that she learned belatedly of the existence of the complaint remedy provided under section 23 of the former Act. She alleged that she was not informed of the time limit for the presentation of such a complaint. She also submitted that she had helped Mr. Cloutier manage a large number of cases when she was union representative and that this limited her availability to prepare and file her complaint. The employer allegedly made this task difficult for her by limiting the time given to her to do it. She explained that her involvement with the petition to try to withdraw from the CEIU created tension with the CEIU or PSAC representatives, resulting in a loss of confidence in these representatives and limiting the local’s sources of information in terms of the remedy available.

[154]   The complainant criticized the employer’s actions toward her, which she deemed to be union discrimination, harassment of a person wanting to participate in union activities as a union representative, interference in the internal affairs of the bargaining agent or intimidation aimed at discouraging her from assuming the duties of a union representative, all of which started in 1997. She used a or participated in a variety of processes to denounce the employer’s actions, including grievances based on the non–discrimination articles of the collective agreements, posting rights, use of the employer’s facilities, and leave for union business or to prepare and make representations concerning grievances or complaints. She also used or participated in the complaint procedure provided for in the policy on harassment in the workplace and the Public Service Employment Act.

[155]   At the time of these various remedies, the complainant was sometimes advised and/or represented by experienced individuals who told her about the remedy under section 23 of the former Act. Andrée Pothier, CEIU Vice–President and representative at the regional level, mentioned to the complainant the possibility of filing a complaint on this basis on two occasions: the first time following the union/employer meeting on March 9, 1998, when the alleged threat to terminate Mr. Cloutier’s acting appointment was made because his union activities were apparently negatively affecting his performance (Exhibit G–33 and G–34) and the second time, in December 1998, when she received a disciplinary measure for being absent from her workstation without permission so that she could contact the bargaining agent (Exhibit G–111 to G–113). On the latter occasion, Ms. Pothier, the complainant and Mr. Cloutier apparently met with a CEIU advisor to assess the possibility of filing a complaint under section 23 of the former Act.

[156]   Ms. Rioux was aware that at the time of the incidents related to the petition to leave the CEIU, in September 1999, a PSAC representative apparently advised Mr. Cloutier about the employer’s alleged interference when it questioned him about his actions. At that time, Mr. Cloutier filed a complaint to the Director General, CIC, Quebec Region (Exhibit G–124) denouncing the employer’s harassment and interference in union business.

[157]   Mr. Morissette spoke about the possibility of filing a complaint under section 23 of the former Act during the meeting with the complainant and Mr. Cloutier following the incident with Ms. Leclair on March 7, 2000.

[158]   In correspondence dated January 26, 2000, the PSAC clearly explained to the complainant the elements associated with the remedy provided for in section 23 of the former Act, in terms of both the applicability of this section and the issue of the time she had to act. The bargaining agent’s representative clearly states in that letter that it was too late at that time to file a complaint under section 23 of the former Act with respect to the incidents raised in the grievances contesting the disciplinary measures imposed on Ms. Rioux (Exhibit G–119).

[159]   Prior December 1998, the complainant acted as union representative for the local and represented her colleagues in numerous matters. In that capacity, she had an obligation to inform herself about the rights, obligations and procedures set out in the former Act and the collective agreement so that she could assume the obligations associated with her mandate. In this regard, I agree with the Board’s comments in Machnee v. Klaponski et al. (supra):

. . .

In the case at hand, Mr. Machnee alleged that the harassment complaint that he filed with the Public Service Commission on December 13, 1996 also included a complaint pursuant to section 23 of the Act. He added that he had not been properly informed to file a complaint with the Board and seemed to suggest that his employer, his bargaining agent and the Public Service Commission were to blame in this regard. I would be remiss in not taking into consideration that the complainant was a steward within his bargaining unit and, as such, was representing and advising co-workers in relation to their rights and obligations. In his capacity as steward, the complainant had to work within the ambit of both his collective agreement and the Act. In the event that the complainant did not know of the complaint process provided for in the Act, he surely ought to have known of it. As the Board wrote in Giroux, supra, "... [t]here is no reason why through the exercise of due diligence he should not have been able to obtain information about the complaint process years ago. "

. . .

[160]   Since the complainant had known on several occasions since 1998 that she could file a complaint under section 23 of the former Act, it is my view that she could have informed herself properly and could have filed a complaint within a reasonable time after the alleged incidents. She could have obtained the necessary information to prepare her complaint from the Board if, as she claimed, the circumstances surrounding the local's trusteeship resulted in a mistrust of her union representatives. Furthermore, the complainant’s statements during the hearing to the effect that she did not file the complaint because of a lack of time, having other priorities to handle, or because she wanted to try to resolve the problem by other means, cannot constitute valid reasons for not acting within a reasonable time after the incidents.

[161]   For these reasons, it is my opinion that the incidents that occurred prior to January 26, 2000, were not the subject of a complaint within a reasonable period of time. On that date, the complainant was informed that the incidents giving rise to her grievances were beyond a reasonable period of time. She still waited until July 2000, over five months later, to file her complaint. In practice, in Ms. Rioux’s case, I consider that only the events related to the disciplinary measure imposed on her following the meeting with Ms. Leclair on March 7, 2000, for absenting herself from her workstation without obtaining permission in advance were challenged within a reasonable time.

[162]   The respondent’s objection that the complaint was untimely is allowed in part, the alleged incidents that occurred prior to January 26, 2000 not having been contested within a reasonable time.

D. On the merits of the complaint

[163]   Only the incidents that occurred after January 26, 2000, are deemed to have been submitted within a reasonable time based on my findings on this matter cited previously. Thus, the incidents related to and arising from the hearing held before Ms. Leclair on March 7, 2000, at the second level of the grievance procedure are considered to have been contested within a reasonable time.

[164]   The incidents arising from the meeting of March 7, 2000 remained in dispute. This meeting, which was a hearing before Ms. Leclair at the second level of the grievance procedure, was intended to deal with the allegations of interference in union business explained in Mr. Cloutier’s correspondence of October 18, 1999 (Exhibit G–124).

[165]   Mr. Cloutier was represented at the hearing by Mr. Morissette, PSAC regional representative in Montréal. Mr. Cloutier wanted Ms. Rioux to attend the hearing and Mr. Morissette informed the employer that he wanted to be joined by Ms. Rioux as his technical adviser. Mr. Morissette asked the employer to grant Ms. Rioux leave for PSAC business on this occasion (Exhibit G–144).

[166]   An incident occurred following this request, the employer refusing leave with pay for Ms. Rioux to attend the hearing. Only this issue was discussed at the hearing before Ms. Leclair. The complainant, her union representative and M. Cloutier left the hearing without making representations on the substance of the grievance. Following advice from her union representative, Ms. Rioux refused to fill out a request for leave for her attendance at the hearing.

[167]   It is important to point out that the evidence shows that Ms. Tester had asked Ms. Rioux, before the hearing, to fill out such a leave request (Exhibit P–18). Ms. Rioux discussed this with Mr. Morissette because Ms. Tester had said that the employer would not approve leave with pay for the occasion. He decided that the issue of leave with pay would be submitted to Ms. Leclair at the beginning of the hearing.

[168]   At the beginning of the hearing, the issue of leave with pay was raised and Ms. Leclair maintained that the employer would not assume the costs of Ms. Rioux’s leave. The complainant, Mr. Morissette and Mr. Cloutier then left the hearing, as they had previously planned.

[169]   The complainant, her representative and Mr. Cloutier evaluated the situation after this meeting. The union representative recommended that Ms. Rioux not fill out the leave request and that a grievance be filed after the anticipated salary reduction. She accordingly informed Ms. Tester of her decision in this regard upon her return to work in the afternoon of March 7, 2000. In her notes, which were filed as Exhibit P-18, Ms. Tester situates the conversation in which Ms. Rioux confirmed her refusal to complete a leave request as taking place on March 20, 2000. I find Ms. Rioux’s version more credible since the allegations in her complaint were confirmed by her testimony at the hearing of this complaint, whereas Ms. Tester’s version is hearsay.

[170]   In a conversation on April 10, 2000, Ms. Gignac told Ms. Rioux that she wanted to meet with her concerning her absence from her workstation on March 7, 2000. The evidence adduced shows that Ms. Gignac wanted to hold an administrative investigation into this absence and that Ms. Rioux was told that she could be accompanied by a union representative. These points are confirmed by Ms. Gignac’s e-mail message and the response by Ms. Rioux (Exhibit P-19). Ms. Rioux waived the administrative investigation, explaining that her supervisor had already obtained her version of the facts and that Mr. Cloutier was not authorized to represent her at that meeting without suffering a loss of salary.

[171]   In a grievance filed on April 25, 2000, Ms. Rioux stated that Ms. Gignac had told her that Mr. Cloutier could represent her at this investigation but that he could not use his leave with pay to do so (Exhibit P-22). In this grievance, Ms. Rioux asked that subclause 13.04(c) of the collective agreement be applied; it provides that an employee acting as a union representative should not suffer a loss of pay. Clause 13 as a whole specifically deals with representatives who are appointed or designated by PSAC and does not apply to another sort of representative. On this point, subclause 13.04(c) of the collective agreement does not apply to Mr. Cloutier who, since the trusteeship in November 1999, had ceased to be a representative appointed or designated by PSAC. Thus, Mr. Cloutier cannot have the leave with pay specified in this subclause.

[172]   Contrary to what is alleged by Ms. Rioux, there is nothing to show that the disciplinary measure of April 25, 2000, was imposed on her “without a hearing” and in response to her grievance. That the events occurred at the same time is not in itself indicative of an intention on the part of the employer to intimidate Ms. Rioux in the exercise of the remedies provided for in the former Act and the collective agreement.

[173]   The disciplinary measure was imposed on Ms. Rioux on April 25, 2000, by Ms. Gignac, who called her into her office. Ms. Gignac explained to her that she did not need a union representative. The complainant said in her complaint that she was dumbfounded to receive a disciplinary measure since Ms. Gignac had never heard her version of the facts. In addition, Mr. Cloutier had urged Ms. Gignac to hold back on the measure until the complainant could have full and complete union representation.

[174]   With regard to the first point, it emerges from the correspondence by Ms. Rioux to Ms. Gignac on April 12, 2000 that the complainant waived the administrative investigation. After that, then, she cannot be heard to complain that this inquiry did not take place. The intervention by Mr. Cloutier on April 17, 2000 does not indicate that Ms. Rioux had changed her mind about waiving the administrative investigation. Clause M-33.03 of the Master Agreement and clause 17.02 of the Collective Agreement for the Program and Administrative Services Group provide that the employer must respect the employee’s right to be accompanied by a PSAC representative at a meeting where a decision is to be issued on a disciplinary measure. These provisions do not oblige the employer to agree to the presence of a representative of the employee who is not a PSAC representative. Furthermore, since these provisions provide that the employer must react “at the request” of the employee who is called to such an investigation, the implication is that the employee can choose, explicitly or not, not to make such a request. Thus the employer did not interfere with Ms. Rioux’s representation rights in an administrative investigation; moreover, she had waived such a right.

[175]   Since Ms. Rioux did not want to encourage “union volunteerism” by having Mr. Cloutier act as an “unpaid” representative, she did not propose an alternative to the employer except to proceed with the measure without a representative’s being present. Moreover, clause M-33 of the Master Agreement and clause 17 of the Collective Agreement for the Program and Administrative Services Group do not provide for a right of representation when an employee is notified of a suspension in writing. At most, the clauses provide that the employer must inform the representative of the PSAC local of such a suspension.

[176]   Therefore, I find that the employer did not infringe on Ms. Rioux 's rights by not conducting an administrative investigation before imposing the disciplinary measure. Nor did the employer violate Ms. Rioux’s rights by imposing the disciplinary measure on her without a representative’s being present. If this had not been the case, her recourse would have been to file a grievance charging that the provisions of the applicable collective agreements had not been applied.

[177]   According to the case law, it is the responsibility of the complainant to show that the disciplinary measure imposed on her was unfair and a violation of the prohibitions set out in subsection 8(2) of the former Act. In this regard, the Board commented as follows on a complaint based on subsection 8(2) of the former Act in Veilleux v. Public Service Commission et al. (supra):

. . .

9. It is clear from the text of the above clauses that the complainant had a twofold burden of proof to discharge in this complaint. First, he had to prove that he had in fact been discriminated against or had in fact been subjected to intimidation, ostracism, harassment and blackmail. In short, he had to prove that the acts alleged against the defendants had in fact been committed. Second, he also had to establish the intent of the acts alleged in the complaint; in other words, he had to prove that these acts were designed to prevent him from exercising a right conferred on him by the Act. In this case, the complainant alleges that the respondents' behaviour toward him was designed to prevent him from performing union duties and exercising his right to grieve.

. . .

[178]   The Federal Court of Appeal endorsed this position in Canada (Attorney General) v. Social Science Employees Association (supra), in the following terms:

. . .

[51] Paragraph 23(1)(a) of the Act provides that the Board shall examine and enquire into any complaint pertaining to an employer's failure to "observe any prohibition contained in section 8, 9 or 10". There can be no doubt whatsoever that such proof rests with the person or persons making the complaint, in this case, the respondents (See Veilleux and Public Service Commission, [1983] C.P.S.S.R.B. No. 9; Prue and Bhabba, [1989] C.P.S.S.R.B. No. 210; Public Service Alliance of Canada v . Little, [1996] C.P.S.S.R.B. No. 76 (Q.L.)).

. . .

[179]   In the same judgment, the Federal Court also held that the complainant must prove that the employer had intent or anti–union animus if his complaint were to be allowed:

. . .

[53] At paragraph 94 of its decision, the Board correctly, in my view, states that discrimination contrary to sections 8 and 9 of the Act "requires intent or anti-union animus". In Re Major Foods, supra, at page 136, the arbitrator stated:

Labour boards have held for there to be an offence against a statutory prohibition, there must be demonstrated an intent to discriminate.

[54] It is clear from the Board's decision that there was no proof adduced before it that could support a conclusion of anti-union animus on the part of Treasury Board. Consequently, the only possible conclusion that the Board could have reached, on the evidence, was that the respondents had not met their burden of proof.

. . .

[180]   The complainant wanted to show that the disciplinary measure imposed on her arose from the employer’s intention to discriminate against her, based on an anti–union animus. In her complaint, she alleges that the meeting on March 7, 2000, at which the respondent attempted to restrict her right to make representations by going so far as to intimidate her as witness, was tainted with such anti–union animus (Exhibit G–3). For her allegations to succeed, the complainant had to show that Ms. Leclair wanted to prevent her from acting as a witness at the hearing of the harassment grievance of Mr. Cloutier (at the second level) or that the decision to refuse Ms. Rioux leave with pay to do so constituted an act of intimidation.

[181]   The evidence pertaining to these elements does not support the allegations. First, the leave requested for Ms. Rioux was so that she could attend the grievance hearing as a technical adviser and not as a witness (Exhibit G–144). At no time during the hearing before Ms. Leclair was there any indication that Ms. Rioux had witness status. Second, the element at issue is whether the employer had to assume the costs of Ms. Rioux’s leave. I do not see how the question of leave with or without pay could constitute a threat (or intimidation) toward someone. It was not shown that the right to leave with pay for an employee acting as a technical adviser during a grievance hearing is provided for in the collective agreement.

[182]   As for the employer’s refusal to grant Ms. Rioux leave with pay, the Board’s reasoning in Tiller v. Pettis et al. (supra) can be applied to this case. The following extract from that decision, with which I agree, states the reasoning as follows:

. . .

. . . Nevertheless, it is incumbent on the complainant to demonstrate that the basis of his complaint is subsumed by the prohibitions found in section 8, 9 or 10. In my view the complainant has not demonstrated that the actions of the respondents in denying him his leave requests under clause M-14.09 constituted an attempt to compel him to refrain from exercising his rights. The respondents consistently explained the employer's position as to the interpretation of clause M-14.09. It is not up to the Board in these proceedings to determine the correctness of their interpretation; however there is nothing in the evidence to suggest that this interpretation was made in bad faith or used as a means to thwart the exercise by the grievor of a right recognized in the Act. In fact, the response by the employer's representatives in granting him annual leave on every occasion that he sought to obtain leave for purposes of preparing a grievance belie the contention that the respondents were attempting to compel the grievor to refrain from exercising his rights. While doubtlessly the complainant would have preferred to have been granted leave under clause M-14.09 in the circumstances, rather than having to resort to annual leave, that per se does not bring this matter within the ambit of the prohibitions set out in section 8. This conclusion might well be different if there were evidence of bad faith in respect of the employer's decision in regard to leave requests; however, no such evidence was brought forward in the instant case.

. . .

[183]   On these points, Ms. Rioux did not show how the defendant had failed to observe the prohibitions in subsection 8(2) of the former Act, or that she had acted in bad faith.

[184]   Concerning the disciplinary measure that was imposed on Mr. Cloutier on June 2, 2000, Ms. Rioux submitted that it affected her as if it had been personally addressed to her. I understand that Ms. Rioux might react emotionally to the issuing of this disciplinary measure because Mr. Cloutier had intervened with Ms. Gignac to support the complainant in a situation that he considered unjust. I cannot regard this incident as supporting the general allegation that the employer was attempting by this means to intimidate Ms. Rioux from exercising her rights. I explained in the decision on Mr. Cloutier’s complaint (PSSRB File 561-02-71) that this disciplinary measure was imposed by the employer pursuant to a real violation by Mr. Cloutier of the e-mail distribution policy. In Mr. Cloutier’s complaint, I found that it had not been shown that the employer intended to prevent Mr. Cloutier from participating in union representation activities in this instance. Nor do I see any evidence to support the allegation that this disciplinary measure was imposed on Mr. Cloutier in order to intimidate Ms. Rioux.

[185]   Mr. Cloutier submitted a number of decisions in support of his arguments that deal with complaints under the Quebec Labour Code, which were included in the record of Ms. Rioux’s complaint at her request. In these cases, the complainant’s burden of proof is very different from his burden under the former Act. The Quebec Labour Code establishes a presumption in favour of a complainant when it is shown that the employee is exercising a right arising from the Code. That presumption is presented as follows in Cloutier c. Société des alcools du Québec (supra):

. . .

Section 17 of the Code, which deals with the presumption, was amended at the same time as section 15 to reflect this new reality:

If it is shown to the satisfaction of the Commission, on being seized of the matter, that the employee is exercising a right arising from this Code, there is a presumption in his favour that the sanction was imposed on him or the action was taken against him because of his exercise of that right, and …

. . .

It seems important to me to question this premise, because it suggests that there is no need, where a complaint of reprisals is involved, to show the employer’s unlawful intention by direct evidence, just as there is no need to do so in a complaint of [wrongful] dismissal. In either case, it is the presumption that may serve to establish this intention, which would often be difficult to prove in another manner. Thus, in the case of reprisals, it may be concluded that a change in an employee’s work situation coincident with his exercise of a right under the Code, suffices for the presumption to apply?

To require more would seem to me to be contrary to the spirit and the letter of sections 15 et seq.

. . .

Having established the presumption, the Commission must consider the explanation provided by the S.A.Q.’s representatives to determine if it constitutes good and sufficient reason to rebut the presumption or if, on the contrary, the explanation is only a pretext to mask a reprisal. While I clearly understand that the Commission chose the first solution, I must respectfully find that it erred in that finding.

. . .

[186]   Such a presumption, once established, shifts the burden of proof and requires the employer to provide an explanation to rebut it. Under the former Act, there is no such presumption shifting the burden of proof to the respondent. The decisions cited earlier stipulate that, under the former Act, it was the complainant’s responsibility to demonstrate the merits of her complaint.

[187]   For all the above reasons, the Board makes the following order:

VII. Order

[188]   The complainant cannot file a complaint alleging contravention of the prohibitions set out in subsections 8(1) and 9(1) of the former Act.

[189]   The complainant’s allegations regarding incidents that occurred prior to January 26, 2000, were not presented within a reasonable time.

[190]   The complaint is dismissed with respect to all of the other allegations.

February 2, 2006.

P.S.L.R.B. Translation

Léo-Paul Guindon,
Board Member