FPSLREB Decisions

Complaints before the Board

[1]   By his letter dated June 21, 2004, Fermin Garcia Marin lodged a number of complaints with the Board.  They were related to a grievance he filed on April 2, 2004 against his employer, Public Works and Government Services Canada (PWGSC), complaining about the lack of a performance appraisal and performance pay for the 2002-2003 period (PSSRB File No. 166-2-34072).

[2]   The complaints sent to the Board on June 21, 2004 read as follow:

Allow me to take this opportunity to lodge the PSSRB my formal complaint about the following breaches by PWGSC of the PSSRA Regulations:

1.	The Department missed the period set by TB to respond at the 3rd level to my grievance (Board File No.561-02-94).
2.	The Department missed the period set by the TB to respond at the last level to my grievance (Board File No. 561-02-95).
3.	The grievance was “heard” at the last level, by the wrong person, despite my protest.   The grievance was heard by Yvette Alöisi, ADM instead of the DM as set out by PWGSC in accordance with the PSSRA, article 100(4). See Attachment No.5 for the list of designated grievance levels in PWGSC (Board File No. 561-02-96).
4.	The Department failed to comply with articles 69(1) and (2) of the PSSRB Regulations (Board File No. 561-02-97).

[ Sic throughout]

On the basis of these allegations, the Board opened four files, respectively under No. 561-02-94 to 97.

[3]   By letter dated July 13, 2004, the Board requested that Mr. Garcia Marin provide particulars:

I acknowledge receipt of your letter received at the Board on June 22, 2004, primarily related to your reference to adjudication, but also alleging a complaint.

Each complaint filed with the Board must identify the respondent(s) by name and address.   It must also identify the paragraph under section 23 of the Public Service Staff Relations Act under which the alleged failure is covered as well as the section of the Act or P.S.S.R.B. Regulations and Rules of Procedure that is alleged to be contravened.  It should further set out particulars of the matter(s) complained of as well as the remedy being sought and describe the steps taken by or on behalf of yourself to adjust the matter(s) giving rise to the complaint.   Failure to provide these particulars may delay the processing of the complaint.

. . .

Further, a complaint under the Act should contain information sufficient to enable us to determine the nature of the complaint, the parties to the complaint and their addresses, and the nature of the relief sought.   All complaints filed with the Public Service Staff Relations Board must indicate the name and address of the defendant(s).   It must also describe the circumstances of the matter giving rise to the complaints, set out the corrective action requested and describe the action that you have taken or that has been taken on your behalf to resolve the matter giving rise to the complaint.   Failure to provide this information could result in a delay in reviewing your complaint.

. . .

[4]   In his reply of July 20, 2004, Mr. Garcia Marin stated the following:

With respect to my complaint I would like to offer the following additional information:

The respondent to the 4 complaints is:
I. David Marshall, Deputy Minister / Deputy Receiver General
for Canada Public Works and Government Services Canada
OFFICE OF THE DEPUTY MINISTER AND DEPUTY RECEIVER GENERAL FOR CANADA
Portage III, 17A1, 11 Laurier Street
Gatineau, Quebec
Canada
K1A 0S5

Complaint no.1 (Board File No. 561-02-94)
The Department missed the period set to respond at the 3^rd level to my grievance in contravention of the PSSRA, section 23, paragraph (d) and the PSSRB Regulations section 74 (1).
The emails contained in attachment no. 1 are self- explanatory and contain the particulars of the subject matter of the complaint.

Complaint no.2 (Board File No. 561-02-95)
The Department missed the period set to respond at the last level to my grievance in contravention of the PSSRA, section 23, paragraph (d) and the PSSRB Regulations section 74 (1).
As stated in attachment no.1, last email, on May 3, 2004 I made my last formal request to be heard at the final level.   On May 30, 2004 I faxed Form 14, Reference to Adjudication, to the Board, followed by the original request by mail.

Complaint no.3 (Board File No. 561-02-96)
Grievance “heard” at the last level by the wrong person despite my protest.   Grievance heard by Yvette Alöisi, ADM, instead of the DM as set out by PWGSC in the Act.   See attachment no.2 for the list of designated grievance levels in PWGSC.

Complaint no.4 (Board File No. 561-02-97)
The Department failed to comply with article 69. (2) of the PSSRB Regulations. There are no notices posted or communicated to employees in contravention of articles 69.(2) and (3) of the PSSRB Regulations.

As far as remedies sought, for each infraction I request that the department be ordered to comply with the part infringed and be ordered to pay me $25,000 for exemplary punitive damages.

[Sic throughout]

[5]   On July 30, 2004, the Board acknowledged receipt of Mr. Garcia Marin’s letter dated July 20, 2004, and provided a copy to the respondent, giving it until August 24, 2004 to reply.   The respondent requested an extension of time until August 27, 2004 to reply to the complaints.

[6]   On August 25, 2004, the respondent submitted that it had not failed, under paragraph 23(1)(d) of the Public Service Staff Relations Act (PSSRA), to comply with the regulations in respect of the grievance and that Mr. Garcia Marin suffered no prejudice in the filing of the grievance.  On September 8, 2004, Mr. Garcia Marin answered the respondent and submitted to the Board, among other things, that:

. . .

The respondent failed to reply to the complaints within the maximum period of time allowed by the PSSRB Regulations and Rules of Procedure, section 16 and as stated in the Board’s letter dated July 30, 2004.   I submit that the reply from the respondent is late and should be treated as though not received, and certainly the request should not be granted.

. . .

[7]   Simultaneous interpretation was granted by the Board at the request of counsel for the respondent.   A common hearing was held from January 4 to 7 and April 19 and 20, 2005, in Ottawa on the four complaints and on the grievance referred to adjudication with the Board (166-02-34072).   Mr. Garcia Marin and the respondent presented oral arguments to the Board on April 20, 2005.   The Board allowed Mr. Garcia Marin to reply to the respondent’s arguments in writing.   Mr. Garcia Marin submitted his reply on May 11, 2005, and the respondent’s reply was received by the Board on December 7, 2005.

[8]   On April 1, 2005, the Public Service Labour Relations Act (the “new Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22 (PSMA), was proclaimed in force and the PSSRB was replaced by the Public Service Labour Relations Board (the Board).  Pursuant to section 39 of the Public Service Modernization Act, the Board continues to be seized with these complaints, which must be disposed of in accordance with the new Act.

[9]   On April 1, 2005, the Board, pursuant to sections 39, 237 and 238 of the new Act, enacted the Public Service Labour Relations Board Regulations (the “new Regulations”), which were registered as SOR/2005-79 on the same day.  The “new Regulations” were published in Part II of the Canada Gazette on April 20, 2005.

[10]   On May 27, 2005, the Board requested that the parties submit written arguments on the following issue:

1)	What effect does the coming into force of the new Act have on complaints filed under paragraph 23(1)(d) of the former Act, in light of the transitional provisions contained in sections 36 to 66 of the PSMA and, more particularly, of those contained in section 39?

[11]   The parties were also requested on June 10, 2005 to provide their position regarding a decision issued by the Board on June 6, 2005 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(IAMAW), 2005 PSLRB 50, which dealt with transitional provisions relating to complaints.   The respondent replied to the Board on June 10, 2005, as follows:

It is the Respondent’s position that the Board’s decision may be rendered as a decision of the new Board, and may be enforced as such, in accordance with the new legislation. However the substantive provisions of the former Act apply.

There are no specific transitional provisions in the new legislation with respect to complaints under s. 23(1)(d) of the former Act. Where Parliament intended that a different scheme apply to the proceeding, it expressly outlined how the matter was to be dealt with (see e.g., PSMA, s. 59). However, it did not do so for s. 23(1)(d) complaints. There is presumption that legislation is not intended to have a retroactive affect nor interfere with vested rights, but procedural provisions may apply immediately. (see Sullivan and Driedger on the Construction of Statutes, 4 th ed., pp 542-590. See also the Interpretation Act, s. 43). Section 39(1) of the PSMA merely clarifies that the order that will be issued is an order of the new Board. Therefore, in this case, section 39 PSMA has no effect on the section 23(1)(d) complaint filed under the former Act, whose provisions apply in substance (see recent Board decision in IAMAW and Correctional Service, 2005 PSLRB 50, at paragraph 81).

[12]   On July 4, 2005, counsel acting on behalf of the Mr. Garcia Marin indicated to the Board that he had no additional comments to add to those provided by the respondent’s counsel.

Summary of the evidence

[13]   The following excerpts from the former Act are relevant to the complaints:

  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

. . .

(d) to comply with any regulation respecting grievances made by the Board pursuant to section 100.

   (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 he 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

(b)  where that person has acted or purported to act on behalf of an employee organization, be directed as well to the chief officer of that employee organization.

. . .

  100. (1)   The Board may take regulations in relation to the procedure for the presentation of grievances, including regulations respecting

. . .

   (3)  The Board may make regulations in relation to the adjudication of grievances, including regulations respecting

(a)  the manner in which and the time within which a grievance may be referred to adjudication after it has been presented up to and including the final level in the grievance process,

(b)  the manner in which and the time within which boards of adjudication are to be established,

(c)   the procedure to be followed by adjudicators,

(d)   the form of decisions rendered by adjudicators.

   (4)  For the purposes of any provision in this Act respecting grievances, the employer shall designate the person whose decision on a grievance constitutes the final or any level in the grievance process and the employer shall in any case of doubt, by notice in writing, advise any person wishing to present a grievance, or the Board, of the person whose decision thereon constitutes the final or any level in the process.

[14]   The following excerpts from the P.S.S.R.B. Regulations and Rules of Procedure, 1993, are also relevant to the complaints:

Interpretation

. . .

2. (2)   When a period of time is specified in these Regulations as a number of days, the period shall be computed as being the number of days specified, exclusive of Saturdays and holidays.

. . .

Grievance Process

  67.    Where an employer has not established, in accordance with section 68, the number of levels, or has not made available to employees in accordance with subsection 70(3) copies of the grievance form, the Board may, on application of an aggrieved employee, direct the manner of presenting a grievance and the procedure by which the grievance is to be processed or adjudicated.

  68.    A grievance process shall consist of a first level and a final level and shall not consist of more than four levels.

  69.(1)   An employer shall inform each employee to whom the grievance process applies of the names or titles of the person designated pursuant to subsection 100(4) of the Act and the name or title, as well as the address of the immediate supervisor or local officer-in-charge to whom a grievance is to be presented.

    (2) Subject to subsection (3), an employer shall post notices containing the information required by subsection (1) [notices containing the information required by subsection (1)] in conspicuous places where the notices are most likely to come to the attention of the employees to whom the grievance process applies.

    (3) The Board may authorize an employer to communicate to employees the information required by subsection (1) by a means other than posting notices, if by that means, the information is most likely to come to the attention of the employees to whom the grievance process applies.

. . .

Presentation of Grievance

  71.(2) An employee described in paragraph 92(1)(c) of the Act may present a grievance to the employee’s immediate supervisor or the local officer-in-charge, in the form referred to in section 70,

(a) where the grievance does not relate to classification or disciplinary action resulting in termination of employment, at the first level of the grievance process; and

(b) where the grievance relates to classification or disciplinary action resulting in termination of employment, at the final level lf the grievance process.

. . .

  72.(1)  Immediately, after receiving a grievance presented by an employee, the supervisor or local officer-in-charge shall

(a) forward a copy of the grievance to the authorized representative of the employer at the appropriate level,

and

(b) deliver to the employee a receipt stating the date on which the grievance was received by the supervisor or the local officer-in-charge.

. . .

  (3) The period during which an employer shall reply to a grievance at any level is calculated as beginning on the day on which the grievance is received by the employee’s immediate supervisor or the local officer-in-charge.

  73. An employee may present a grievance, other than a grievance under paragraph 71(1)( b) or 71(2)(b), at a level higher than the first level in the grievance process.

(a) no later than on the tenth day after the day on which the employee receives a reply to the grievance at the proceeding lower level; or

(b)  where the employee does not receive a reply to the grievance not later than on the thirtieth day after the last day on which the authorized representative of the employer was required, pursuant to section 74, to reply to the grievance at the proceeding lower level.

  74.(1)  Where an employee presents a grievance at any level in the grievance process in accordance with section 71 or 73, other than a grievance that relates to classification, the authorized representative of the employer at that level shall provide the employee with a reply, in writing, to the grievance, no later than on the fifteenth day after the day on which the grievance was presented at that level.

. . .

Adjudication Procedure

  76.(1)   An employee may refer a grievance to adjudication under section 92 of the Act by filing with the Secretary in duplicate a notice in Form 14 of the schedule, together with a copy of the grievance that the employee submitted to the employee’s immediate supervisor or the local officer-in-charge, pursuant to paragraph 71( a) or ( b) or paragraph 71(2)( a) or ( b), no later than the thirtieth day after the earlier of

(a) the day on which the employee received a reply at the final level lf the grievance process,

(b) the last day on which the authorized representative of the employer was required, pursuant to the provisions of a collective agreement or arbitral award or pursuant to section 74, to reply to the grievance at the final level of the grievance process.

[15]   Mr. Garcia Marin submitted during his testimony that he presented his grievance relating to a performance assessment and performance pay on April 2, 2004, and requested that it be heard at the fourth level of the grievance procedure since the persons implicated in the grievance were at the third level of the grievance procedure (Exhibit E-3).   On May 3, 2004, he requested by e-mail (Exhibit G-25) that his grievance be heard at the fourth and final level on the basis that the employer failed to reply to his grievance on or before April 17, 2004, in accordance with section 74 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993.

[16]   The employer’s request that Mr. Garcia Marin reconsider his position and agree to a grievance hearing at the third level on May 6, 2004 was denied (Exhibit G-25).   The employer transmitted the grievance to the fourth level on May 5, 2004 and advised Mr. Garcia Marin that a Labour Relations Advisor would be appointed.

[17]   Mr. Garcia Marin stated that the PWGSC had until May 20, 2004 to reply in writing to his grievance at the fourth level of the grievance procedure in accordance with section 74 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, but failed to do so.   On May 27, 2004, John Bremner, Senior Labour Relations Consultant, Human Resources, PWGSC, met with Mr. Garcia Marin to exchange information and share documents prior to the hearing of the grievance at the fourth level.   The written reply of the employer at the fourth level was dated June 7, 2004 (Exhibit G-5).

[18]   The evidence received at the hearing shows that Mr. Garcia Marin submitted to Mr. Bremner that Yvette Aloïsi, the Assistant Deputy Minister (ADM), Human Resources, was not the right person to proceed with the final-level hearing.   For Mr. Garcia Marin, the last level of the grievance procedure was the responsibility of the Deputy Minister, as provided in the grievance procedure described in Exhibit G-24, which was forwarded to him on April 28, 2004, by the Department’s Labour Relations Branch after his request.   In that document, the levels for the grievance procedure are listed as follows:

Level 1 – Manager

Level 2 – Director

Level 3 – Director General

Level 4 – Deputy Minister

[19]   The ADM and Mr. Bremner testified that the fourth level of the grievance procedure was delegated to the ADM but they could not get a copy of delegation of authority in writing.   Mr. Bremner stated that the delegation of authority to the ADM, Human Resources, was in force for at least 15 years.   The high number of grievances heard at the final level of the grievance procedure could not be heard by the Deputy Minister and that is why the delegation was given to the ADM, Human Resources.   Mr. Garcia Marin submitted that the “Delegation of Human Resources Authorities” states (Exhibit G-3, page 11):

The authority to respond to a final level departmental grievance rests with the Deputy Minster or his representative(s).

[20]   Mr. Garcia Marin filed photographs that he took on December 28 and 29, 2004 of the posting board located in Section 12CI of the PWGSC’s office, which was his work location after June 2003 (Exhibit G-28).   No notice posted on this posting board provided the names or titles of the persons designated by the employer to the different levels of the grievance procedure against the stipulations of subsection 100(4) of the PSSRA and subsection 69(2) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993.

[21]   No such information was provided on the posting board in Section 6B1, which was his work location before June 2003, in violation of subsection 100(4) of the PSSRA or subsection 69(2) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993 (Exhibit G-29).   This information was on the posting board for the Aerospace, Marine and Electronics Systems Sector in Sections 8C1 and 8C2 of the PWGSC’s office (Exhibit G-30).   The grievance procedure for this Sector was described in a notice signed by the Director General on August 3, 2004.   Mr. Garcia Marin submitted in his testimony that, at the time that he filed his grievance, he did not really know the grievance procedure, notwithstanding that he acted as the first level of the grievance procedure as the Manager of the Clothing and Textiles Division.   He received the description of the grievance procedure for employees of the Supply Operations Service Branch (Exhibit G-24) on April 28, 2004 after he requested it from the Labour Relations Branch.

[22]   Mr. Garcia Marin is requesting $25,000 for exemplary punitive damages for each of the complaints.   The respondent requested that I reserve jurisdiction on damages since no evidence was heard on this aspect at the hearing.

Summary of the arguments

For the complainant

[23]   The employer did not reply within the delay at the third and fourth levels of the grievance procedure in contravention of subsection 74(1) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993.   This is a serious matter and the absence of a response or a reply within the deadline had consequences on Mr. Garcia Marin.   Consequently, the Board should conclude that the respondent contravened subsection 74(1) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, in PSLRB File Nos. 561-02-94 and 561-02-95.

[24]   At the final level, the hearing proceeded in front of the ADM contrary to the grievance procedure established by the PWGSC.   That grievance procedure stated that the fourth level of the grievance procedure is at the Deputy Minister level (Exhibit G-24) and that authority was not delegated to the ADM.   That breach of the grievance procedure was denounced to Mr. Bremner and to the ADM at a meeting and at the hearing held on May 27, 2004.   The policy on the “Delegation of Human Resources Authorities” states that the authority to respond at the final level rests with the Deputy Minister (Exhibit G-3). In the absence of a formal delegation, the policy was contravened when the ADM replied to the grievance at the fourth level of the grievance procedure.   Consequently, the Board should conclude that the complaint in PSLRB File No. 561-02-96 is well-founded.

[25]   The evidence showed that the employer did not post a notice of information of the grievance procedure and the names or titles of the persons designated pursuant to subsection 100(4) of the PSSRA.   The absence of posting is in violation of subsection 69(2) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, and the Board should accept the complaint in PSLRB File No. 561-02-97.

[26]   An order for compliance should be issued by the Board in each complaint.   Mr. Garcia Marin concluded the presentation of his complaints in his June 22, 2004, letter as follows:

. . .

Considered individually, these are all serious breaches.   However, when considered collectively they demonstrate the department’s total lack of respect for established rules.   This is demonstrated by the department’s refusal to adhere to its own rules and those of the PSC, PSSRB and the laws and regulations of Canada and not just the well-known widely publicized breaches of the procurement rules.   I would also like to call your attention to what seems to be a lack of balance on the consequences applied to either party in the grievance process for not adhering to the rules and/or deadlines that apply to the process.   On one side if a griever misses any of the tight deadlines (this applies particularly to unrepresented employees) then the griever misses the opportunity for justice and redress.   On the other side, however, when the department fails to adhere to its obligations nothing of consequence ensues to the department.   There does not seem to be a watchdog or oversight role to ensure compliance to the rules by departments or even a body to lodge these types of rule infringement complaints.

For the respondent

[27]   The evidence showed that Mr. Garcia Marin never presented his grievance at the third level but he requested it to be heard at the final level as stated in his e-mail dated May 3, 2004 (Exhibit G-25). On the basis of subsection 74(1) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, the obligation of the employer to reply in writing to the grievance applied to a level of the grievance procedure only on the presentation of the grievance at that level.   The employer had no obligation to respond at the third level because the grievance was never presented at that level by the grievor. Consequently, there is no violation of subsection 74(1) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993.   The complaint in PSLRB File No. 561-02-94 should be dismissed.

[28]   At the fourth and last level of the grievance procedure, a response was sent to Mr. Garcia Marin in writing on June 7, 2004 (Exhibit G-5).   Previously, a hearing was held on May 27, 2004 (Exhibit E-10).   The written response was provided 10 days after the hearing, within a reasonable delay.  Previous to the hearing, some discussions were going on between the employer and Mr. Garcia Marin as to the possibility of referring the grievance to the third level (Exhibit G-29).   In those circumstances, the response of the employer at the last level of the grievance procedure was outside the 15-day time limit prescribed in subsection 74(1) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, and is a minor violation.   That situation did not affect Mr. Garcia Marin’s right to refer his grievance to adjudication pursuant to paragraph 76(1)(b) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993.   In those circumstances, counsel for the respondent submitted that a declaration that the reply was outside the time limit is a sufficient decision in PSLRB File No. 561-02-95.

[29]   The testimony of the ADM and Mr. Bremner shows that the ADM had delegated authority to proceed to the fourth level of the grievance procedure.   This practice had been going on for a long time and was allowed by the “Delegation of Human Resources Authorities” (Exhibit G-3):

The authority to respond to final level departmental grievances rests with the Deputy Minister or his representative(s).

[30]   It is not because the ADM did not have written delegation of authority that she could not act as the Deputy Minister’s representative to respond to the grievance at the final level of the grievance procedure.   Consequently, the employer did not act against subsection 69(1) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, when it informed Mr. Garcia Marin that the ADM was the person designated to proceed to the fourth level of the grievance procedure pursuant to subsection 100(4) of the PSSRA.   Consequently, no violation of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, was established in PSLRB File No. 561-02-96.

[31]   As the Manager of the Clothing and Textiles Division, Mr. Garcia Marin was an excluded employee and was the first-level in the grievance procedure.   In PSLRB File No. 561-02-97 he is complaining that the respondent did not post notices containing information on the grievance procedure in violation of subsection 69(2) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993.

[32]   However, subsection 69(3) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, authorizes the employer to inform employees by other means than posting notices.   In the present file, Mr. Garcia Marin was informed of the grievance procedure and knew where he could find information if he needed it.   The evidence showed that the posted notice was found on another floor (Exhibit G-30).   The pictures taken on December 28 and 29, 2004, do not demonstrate that the information was not posted on April 2, 2004, the date on which the grievance was filed by Mr. Garcia Marin.   The evidence did not demonstrate a violation of subsection 69(2) of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, and the complaint in PSSRB File No. 561-02-97 should be denied.

Reply

[33]   Mr. Garcia Marin presented a written reply to the respondent’s pleadings to the Board on May 11, 2005.   He included in his reply copies of two e-mails dated April 26, 2004 and September 6, 2004 concerning the reference of the grievance to the second and third levels.   Those exhibits were added to the correspondence already filed at the hearing before the Board as Exhibit G-25, the respondent’s counsel not having raised an objection to that additional evidence in his reply of December 7, 2005.

[34]   The complainant’s written reply reads as follows:

Complaint #1320 (New file no. 561-02-94)

My complaint reads, “The employer missed the period set to respond at the 3^rd level of my grievance in contravention…”

I have always shown and maintained that I requested the grievance to be heard at the 4^th level.

It was the employer’s decision to hear the grievance at the 3^rd level. The employer advised me of such decision by email from Helene Gorley April 26, 2004 (copy attached).   Prior to that, on April 26, 2004 I had received a phone call from Helene Gorley to inform me that the department had decided to refer the grievance to the 2 nd or the 3^rd level (to be decided). I had protested the decision to Helene Gorley without any positive result and confirmed to her that I would comply with the employer’s instructions on how to proceed with this matter.   Copy of my email to Helene Gorley dated April 26, 2004 confirming our telephone conversation is attached.

In conclusion, the department missed the period to hear the grievance at the level they had set themselves. I am protesting that, if it was the employer’s intention to answer the grievance at the 3^rd level, it should have done so within the period set out in the PSSRB regulations as clearly seen in the above correspondence and in G-25, emails dated May 3 and May 4.   I would like you to note that the employer did not question the well-founded basis of my request to transmit the grievance to the 4^th level nor did they dispute the fact that the department had missed the deadline to respond to the grievance at the 3^rd level.

Complaint #1321 (New file no. 561-02-95)

Counsel for the employer has tried hard to convince the Board that exceeding the delays set by the PSSRB Regulations to respond at the final level was a justified and a minimal contravention, almost trivial.

I have previously brought to the attention of the Board, the imbalance that seems to exist between the consequences to an employee for missing the deadline to present a grievance and the consequences to the employer for missing the deadlines to answer a grievance at any level.   If the employee fails by as little as a single day to present a grievance or to request that it be heard at the next level, the employee looses his only opportunity to obtain justice and redress, and this happens at every level of the grievance process.   On Selwyn Pieters and the Attorney General of Canada, Federal Court judicial review decision date: 11 Mach 2004, Docket #T-224-03, Mr. Justice O’Reilly upheld the decision of the Administrator that the grievance had been filed out of time:

Mr. Pieters should have filed his grievance by January 4, 2000.   His papers were dated December 24, 1999 but were post-marked January 12, 2000.   The collective agreement specifically stated that the relevant date is the date on which the grievance is postmarked.

It is clear in this case that a delay of, at most 6 days (there is a weekend between January 4 and 12) is not justifiable (even over Christmas and New Year period) and it is not consider a minimal contravention; on the contrary, the grievor looses his only opportunity to obtain justice and redress.   I then ask the question: Why should the employer’s delays be treated more deferentially than those of employees?

The employee faces 5 tight deadlines to meet, on a 4 level grievance, to get the complaint to the Board or his only opportunity to obtain justice disappears.   If the employer fails to respond to the grievance within the deadlines imposed by the Act and the Regulation, nothing of consequence happens to the employer.   I fact, there is a transfer of responsibility back to the employee to request that the grievance be transferred to the higher level and is faced yet with another deadline.   Even if the employer refuses the complaint on time, the employee has to still meet the next tight deadline to retain the opportunity to obtain justice or the case is over.   This goes on up to and including the final level and a possible subsequent referral to adjudication.  In summary, in view of the employer abundance of resources, familiarity with the issues and process and lack of serious consequence for missing deadlines, the Board should not be deferential to the employer and exercise it powers in order to achieve full compliance with the requirements of the Act and the Regulations.

I issued the grievance on April 2, 2004.   I requested that it be referred to the 4^th level.   I gave solid support to justify my request. My request was denied, despite my strong objections, without explanation or justification. The employer did not even take the matter seriously enough to reply to it in writing.   All of this, after months of attempts to get some answers to my concerns. From April 2 to June 9^th (actual date I received the reply dated June 7^th) 45 days elapsed (excluding weekends and holidays) this delay exceeds the maximum delay set by the Regulations by 300% i.e. 3 times longer than the time established by regulation as reasonable.   This is enough time to respond to 3 different grievances.    The employer is required to give an answer to the employee not later than on the 15th working day from the date of the grievance.   Even if it had just been a 10-day late answer, 10 days extra are 75% longer than contemplated by the Regulations.   Such a delay is not a small or minimal delay, it is a very substantial one and it should be regarded and dealt with as such.

The Regulations make no distinction between the importance attached to the deadlines for the employee and to those for the employer; both are equally important under the Act and so they should be.   If a one-day difference makes or breaks the case for the employee, baring very rare exceptional and justifiable reasons, a day should make or break the case for the employer as well.   In a level, balanced field, the employer should loose its opportunity to refuse the grievance at the first occurrence of non-compliance with the Act.

The Board has the responsibility to administer the Act and make certain that it is fully implemented.   These common contraventions (refer to G-33, email dated January 14, 2003: a grievance presented on December 11, 2002 had not been acknowledged let alone answered) when left unchecked increase the level of intimidation felt by the employee that believed in the system and took the risk to come forth and complain.   The end result of failing to uphold the rights and responsibilities of both sides is a lack of trust in the system and those charged with administering it.   Growing cynicism and loss of respect for the institution of government will harm both employer and employees in the end.

Counsel argues that the adjudicator has jurisdiction only to make a declaration to the effect that the employer’s answer was outside of the maximum delay.  That is certainly not so.   Subsection 96.1 of the regulations state that an adjudicator has all the powers of the Board except that of making regulations, and the Board, as per subsection 23(2) is provided the following explicit authority:

Where under subsection (1), the Board determines that the employer, an employee organization or a person has failed in a 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 regulations, 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. (Underlined for emphasis)

The adjudicator can, if he deems it appropriate, issue an order to the employer to comply with the Act and the Regulations and can also make the employer pay damages as he sees fit.   In that respect, I would suggest that the employer saves a lot of money by not allocating sufficient resources to ensure timely responses to grievances.   An order by the Board alone may not be a long-term solution without the prospects of a fine high enough to balance the savings realized in allocating fewer resource.

Complaint #1322 (New file no. 561-02-96)

Contrary to counsel’s arguments, I have not alleged here that the “wrong person” hearing the grievance did so in contravention of 69(1).   I have stated, “Grievance heard by Yvette Alöisi, ADM, instead of the DM as set out by the Supply Operations Branch in accordance with the PSSRB Regulations, article 69(1).   The DM was identified to be the final level in accordance with 69(1).   I have alleged that it was in contravention of the information given under subsection 100(4) of the Act.   Both the Act and the Regulations, subsection 69(1), must give information that is true and that will be adhered to.   That is what the employer failed to do.

That Y. Alöisi believed that she had authority from verbal expressions of a DG, without verification, or that, for a long time, such has been the practice in the department without the required and proper delegation from the DM in charge, does not make it correct.   For anyone, other than the DM to hear a grievance at the final level, a specific delegation of authority, formally executed in writing as required in the policy (see G-3), must be given by the DM in charge before his authority is exercised by that other person so delegated.   Once the department officially confirmed in G-24, in accordance with subsection 100(4) of the Act, that the Deputy Minister would hear the grievance at the final level, it had an obligation to hear any grievance.   It did not, and therefore, Y. Alöisi heard the grievance at the final level without authority to do so.

Complaint #1323 (New file no. 561-02-97)

Counsel says that it is peculiar that I complain now about the lack of posted information since I knew from where to get the Information.   It is irrelevant if I knew or did not know.   The point is that the Act and the Regulations require that the employer comply with its own requirements.   The Act does not explicitly or implicitly say that the information should be posted for those who do not know where to obtain it.   This information must be there all the time, to inform the hundreds of thousands of employees of the Public Service, all of them, without distinction.  That is why it has to be posted at all the time where employees can see it.

Whether the employer has or does not have an explanation of its failure is not the point.   It is over one year since I personally lodged my complaint to Y. Alöisi and nothing has been done to correct the situation.   It is not up to counsel to weight and measure the potential consequences of the employer’s contraventions of the Act and the Regulations. Once the Board has confirmed the contravention, it is the Board’s responsibility to administer the Act and ensure that all parties adhere to it, all the time.   It is also incumbent on the Board to determine the necessary action it should take to accomplish its mandate.

Having viewed the little respect that the employer shows for the requirements of the Act and the Regulations and the lack of remedial action on the part of the employer after the complaints were made, I respectfully request that an order for compliance to all the complaints be issued in the strongest of terms and that exemplary, punitive damages be awarded to me for every complaint granted by the Board as requested or as deemed appropriate by the Board.

(Sic throughout)

[35]   In response to the Board, the respondent’s counsel submitted the following on December 7, 2005:

This is in response to your letter dated December 6, 2005 where you forwarded Mr. Garcia Marin’s material filed on May 10, 2005. In reference to Mr. Garcia Marin’s representations regarding damages, the employer/ respondent would ask that, since no evidence was heard on this aspect at the hearing, the adjudicator/board member reserve jurisdiction within his decision on the merits.   In the event the grievance and/or complains are allowed, this would allow the parties an opportunity to present evidence and submission if they fail to agree on the appropriate remedy.

Reasons for decision

The applicable legislative scheme

[36]   In the present case, the complaints were filed before the PSSRA (the former Act) pursuant to paragraph 23(1)(d) on June 21, 2004.   There are no specific transitional provisions in the PSMA or in PSLRA with respect to complaints filed under 23(1)(d) of the former act.   Section 36 of the new act states the general powers of the Board, including the making of orders requiring compliance with the Act and the regulations made under it.

[37]   Pursuant to section 39(1) of the PSMA, the Board continues to be seized with the complaints filed pursuant to the former Act and they must be disposed with in accordance with the new Act.   Since the complaint before me was filed prior to March 31, 2005, the parties’ situation was crystallized prior to the repeal of the former Act.   The legal situation of the parties to those complaints is tangible and concrete as a result of the filing of the complaints.   Furthermore, subsection 43(e) of the Interpretation Act states 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.  

[38]   The Board hereby gives effect to the presumption that legislation is not intended to have a retroactive effect nor interfere with vested rights of the parties (IAMAW (supra), Lamarche v. Marceau, 2005 PSLRB 153, Cloutier v. Leclair, 2006 PSLRB 5).   That presumption should also apply in Mr. Garcia Marin’s complaints and in fact, the parties are in agreement on this point.  

[39]   Consequently, those complaints are examined and decided on the basis of rights and obligations arising under the former Act.

PSLRB File No. 561-02-94

[40]   Mr. Garcia Marin presented his grievance to the employer on April 2, 2004 and requested a hearing at the fourth and last level of the grievance procedure (Exhibit E-3).  The employer replied that it preferred to proceed at the second or third level and advised Mr. Garcia Marin that a hearing at the third level could be held on May 6, 2004.  Mr. Garcia Marin declined that offer and insisted that it be heard at the last level.  The employer agreed and referred the grievance to the last level on May 5, 2004.

[41]   Normally, pursuant to subparagraph 71(2)(a) of the PSSRBRegulations and Rules of Procedure, 1993 (the Regulations), the grievance should be presented at the first level of the grievance procedure in a case not related to classification or disciplinary action resulting in termination of employment.  The Regulations do not prohibit that, by agreement between the parties, a grievance can be presented at another level without a hearing at a previous level.   In the present complaint, the parties agreed to proceed at the fourth and last level of the grievance procedure after a discussion in writing of that issue.  Consequently, the agreement of the parties was to not refer the grievance to the first three levels of the grievance procedure.  Pursuant to that agreement, no hearing at the third level was held.

[42]   It is not because it takes more than the 15 days to settle the issue of referring the grievance directly to the last level that the employer can be blamed for a violation of subsection 74(1) of the Regulations.  The discussions on that issue were not tainted with bad faith by the employer or Mr. Garcia Marin.  By agreement between the parties, in good faith, they decided not to proceed to the third level and, consequently, the employer had no obligation to provide a reply to Mr. Garcia Marin at that level.  In the circumstances, I conclude that Mr. Garcia Marin did not demonstrate a violation by the employer of subsection 74(1) of the Regulations.

PSLRB File No. 561-02-95

[43]   The employer referred Mr. Garcia Marin’s grievance to the fourth and last level of the grievance procedure on May 5, 2004.  A hearing was held on May 27, 2004 and a written reply was dated June 7, 2004 (Exhibits E-10 and G-5).

[44]   It is clear from the evidence that the employer failed to provide its written reply at the last level of the grievance procedure within the 15-day time limit provided in subsection 74(1) of the Regulations and to that extent the complaint in PSLRB File No. 561-02-95 is well-founded.

[45]   Mr. Garcia Marin did not lose the opportunity to obtain justice and redress, because he referred his grievance to adjudication on June 7, 2004 before receiving the employer’s reply.  In fact, the remedy for a failure of the employer to reply within the time limit is provided in the Regulations itself: the employee is free to refer the grievance to the next level.   At the date of the present decision, a formal order to the employer to comply with the Regulations, specifically subsection 74(1), would be purely academic, the grievance having now been heard by the adjudicator.

PSLRB File No. 561-02-96

[46]   Mr. Garcia Marin complained that the hearing at the last level of the grievance procedure was heard by the wrong person.  The hearing proceeded before the ADM on May 27, 2004 (Exhibit G-5).  Mr. Garcia Marin submitted that the grievance procedure for employees of the Supply Operations Service Branch of the PWGSC stated that the Deputy Minister is responsible for the fourth level (Exhibit G-24).  He also filed the “Delegation of Human Resources Authorities” which states (Exhibit E-3):

The authority to respond to final level departmental grievances rests with the Deputy Minister or his representative(s).

[47]   Mr. Bremner and the ADM testified that the fourth level of the grievance procedure was entrusted to the ADM, Human Resources, but they could not file a copy of the delegation of authority in writing.  Mr. Bremner’s statement to the effect that it was the ADM, Human Resources, who conducted the fourth level hearings, at least for the past 15 years was not contradicted by Mr. Garcia Marin.

[48]   Subsection 100(4) of the PSSRA clearly states that the employer shall designate a person whose decision on a grievance constitutes the final or any level in the grievance process.  In other words, it is the employer’s prerogative to designate a person to act at any level of the grievance procedure.  The “Delegation of Human Resources Authorities” is drawn up pursuant to the employer’s prerogative and it designates the Deputy Minister or his representative(s) to respond at the final level.

[49]   The evidence demonstrated that the ADM acted as the person designated to proceed to the last level hearing for Mr. Garcia Marin’s grievance.   I conclude that the ADM can act as a representative of the Deputy Minister at the fourth level and the evidence did not convince me that this had to be done by a formal written delegation of authority.   To the contrary, the “Delegation of Human Resources Authorities” states that “representative(s)” of the Deputy Minister can act at the last level of the grievance procedure.  The wording of the departmental policies (DP045) authorizes the Deputy Minister to appoint any representative to act at the last level with no need of a formal delegation of authority to do so.  

[50]   The evidence demonstrated that Mr. Garcia Marin was informed that the last level response was delegated to the Deputy Minister as he stated to Mr. Bremner at the meeting held previously to the last level hearing on May 27, 2004. The grievance procedure, which was obtained by Mr. Garcia Marin after his request in April 2004 (Exhibit G-24), can be understood that way because it did not state that the fourth level was delegated to the Deputy Minister or his representative(s) as specified in the Policy. On that point, it is important that the PWGSC make the correction to the grievance procedure to state that the authority at the fourth and last level rests with the Deputy Minister or his representative(s) to ensure that it is in accordance with the “Delegation of Human Resources Authorities” policy established pursuant to subsection 100(4) of the PSSRA.

[51]   I conclude that Mr. Garcia Marin did not demonstrate that the employer violated subsection 100(4) of the PSSRA when it assigned the ADM to respond to his grievance at the fourth level.

PSLRB File No. 561-02-97

[52]   Mr. Garcia Marin submitted photographs that he had taken on December 28 and 29, 2004 of the posting boards located in Section 12C1 (his work location after June 2003) and in Section 6B1 (his work location before June 2003) (Exhibit G-28 and G-29).   Those photographs demonstrated that no information was posted to provide the names or titles of the persons designated by the employer at the different levels of the grievance procedure.  For Mr. Garcia Marin, this constitutes a violation of subsection 100(4) of the PSSRA and subsection 69(2) of the Regulations.

[53]   Subsection 100(4) of the PSSRA states that the employer shall designate a person to act at the final level of the grievance procedure and it is the obligation of the employer to advise a grievor in writing of such a designation in case of doubt.  In the present circumstances, the evidence demonstrated that Mr. Garcia Marin expressed to Mr. Bremner on May 27, 2004 a doubt that the ADM was the right person to hear the grievance at the last level.

[54]   Mr. Bremner told Mr. Garcia Marin that the ADM was the person responsible at the last level and the ADM’s response on June 7, 2004 can be understood as a written notice that she was the person designated by the employer.  Exhibit E-10 shows that Mr. Garcia Marin submitted to the ADM, at the final level hearing, his submissions on the issue of the designated person and the delay in responding at each level of the grievance procedure.  I conclude that the employer’s reaction to the doubt expressed by Mr. Garcia Marin is in respect of subsection 100(4) of the PSSRA and that no violation related to that subsection was demonstrated.

[55]   The testimony and evidence submitted by Mr. Garcia Marin in relation to the absence of posting of the grievance procedure, pursuant to section 69 of the Regulations, was not contradicted by the employer.  That evidence demonstrated the absence of such notice on the posting boards of Sections 12C1 and 6B1 where he performed his work before and after June 2003.  The poster showing the titles of the persons designated to act at each level of the grievance procedure was posted on the posting board of Section 8C1 (Aerospace, Marine and Electronics Systems Sector) of the PWGSC.

[56]   Subsection 69(2) states that the employer shall post notices containing the information required by subsection 69(1) in conspicuous place where the notices are most likely to come to the attention of the employees.  The posting of the notice in another sector of the Department outside the working sector of an employee does not meet the obligation stated in subsection 69(2) of the Regulations.   Posting boards were available in Section 12C1 (Science, Informatics and Professional Services Sector) and Section 6B1 (Industrial and Commercial Products and Standardization Services Sector) where Mr. Garcia Marin performed his duties before and after June 2003. The employer did not submit any reason to explain why it did not post the notice on those posting boards, which are conspicuous places, where the notice is more likely to come to the attention of the employees performing their duties in those areas. Consequently, I conclude that the employer did not comply with the requirements of subsection 69(2) of the Regulations.

[57]   The employer has a clear obligation to inform each employee of the names or titles of the persons designated at each level of the grievance procedure, as well as the address of the immediate supervisor or local officer-in-charge to whom a grievance is to be presented pursuant to subsection 69(1) of the Regulations.  In the present case, the employer did not post notices containing this information, and its failure to do so is in contravention of subsection 69(2).

[58]   This brings me to determining the appropriate redress in the face of this contravention of the Regulations, particularly in light of the changes that have occurred on April 1, 2005 resulting in the repeal of the PSSRA and the former Regulations (P.C. 2005-372).   This raises the question as to whether it would be appropriate for the Board to order the enforcement of a provision that is now repealed.

[59]   In the new Regulations enacted by the Board following the proclamation in force of the new Act on April 1, 2005, the obligation of the employer to notify employees of the levels of the grievance process and of the persons whose decision on a grievance constitutes a level in the individual grievance process is stated in subsection 65(1) of the new Regulations.   That obligation is similar to the one specified in subsection 69(1) of the Regulations made under the PSSRA.  The obligation of the employer, stated in subsection 65(2) of the new Regulations to post the notice is to the same effect as the one stated in subsection 69(2) of the Regulations made under the old Act.

[60]   Consequently, the obligations stated in the new Regulations (subsections 65(1) and (2) are to the same effect as the ones in the old Regulations (subsections 69(1) and (2)).   Pursuant to section 39 of the Public Service Modernization Act, the Board continues to be seized of the complaints referred to it pursuant to the old Act and those complaints must be disposed of in accordance with the new Act.   I find therefore that the Board can order the employer to comply with its obligations to inform and post, as provided in the new Regulations.

Exemplary and punitive damages

[61]   Mr. Garcia Marin requested $25,000 in each complaint for exemplary and punitive damages.  He submitted that the amount saved by the PWGSC is surely greater than the amount claimed per infringement and that this amount will deter the PWGSC from indulging in these practices.   He did not explain on what basis or how the PWGSC would save some money by not applying the Regulations.   He did not establish any quantifiable damage resulting from that contravention.

[62]   The issue of exemplary and punitive damages was at the heart of the decision rendered by the Federal Court in Canada (Attorney General) v. Hester, [1999] 2 F.C. 706.  Gibson J. stated as follows:

. . .

In effect, the Tribunal is saying: this respondent is going to receive a remedy, not calculated by reference to the damage or loss that he has suffered, but rather by relation to a standard designed to ensure that, in future cases, the employer abides by the bargains that it has struck. In effect, the Tribunal is imposing a remedy, for conduct it finds worthy of punishment, with the respondent herein, as opposed to the State Treasury, being the beneficiary with the effect that the respondent will, by definition, be over-compensated.

Against this analysis, I am satisfied that the Tribunal has imposed a remedy in the nature of an award of punitive damages.

Mr. Justice McIntyre goes on at pages 1105-1106 in Vorvis to state:

When then can punitive damages be awarded? It must never be forgotten that when awarded by a judge or a jury, a punishment is imposed upon a person by a Court by the operation of the judicial process. What is it that is punished? It surely cannot be merely conduct of which the Court disapproves, however strongly the judge may feel. Punishment may not be imposed in a civilized community without a justification in law. The only basis for the imposition of such punishment must be a finding of the commission of an actionable wrong which caused the injury complained of by the plaintiff.

Finally, Mr. Justice McIntyre states at pages 1107-1108 of the Vorvis decision:

Moreover, punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.

[63]   In the opinion of Justice Gibson of the Federal Court, the Tribunal can impose a remedy for conduct it finds worthy of punishment.  In quoting Mr. Justice McIntyre in Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1985, the Federal Court agreed with the principle that punitive damages can be awarded only in respect of conduct which was harsh, vindictive, reprehensible and malicious in nature.  In the present case, Mr. Garcia Marin established that the employer did not act in accordance with the Regulations in the complaints related to subsection 74(1) of the Regulations (PSLRB File No. 561-02-95) and subsection 69(2) of the Regulations (PSLRB File No. 561-02-97).

[64]   My review of the evidence submitted by Mr. Garcia Marin did not demonstrate that the employer engaged in harsh, vindictive, reprehensible and malicious conduct in the course of its handling of the complainant’s grievance.  Consequently, in the absence of such evidence, I have no basis on which to issue or award exemplary and punitive damages.

[65]   For these reasons, I make the following order:

Order

[66]   The complaints in PSLRB File Nos. 561-02-94 and 561-02-96 are denied.

[67]   I declare that the respondent acted in violation of subsection 74(1) of the Regulations when it responded on June 7, 2004, outside the 15-day time limit at the fourth level of the grievance procedure.

[68]   I declare that the respondent acted in violation of subsection 69(2) of the Regulations when it failed to post a notice containing information stated in subsection 69(1) of the Regulations in a conspicuous place where it was most likely to come to the attention of the complainant in December 2004.

[69]   I order the respondent to comply with subsection 65(2) of the new Regulations by posting the notice containing the information required by subsection 65(1) of the new Regulations in conspicuous places where it is most likely to come to the attention of the employees who perform duties in the Science, Informatics and Professional Services Sector (Section 12C1) and in the Industrial and Commercial Products and Standardization Services Sector (Section 6B1).

[70]   The request to grant exemplary and punitive damages is denied.

March 8, 2006.

Léo-Paul Guindon,
Board Member