FPSLREB Decisions

I.      Complaint before the Board

[1]   The complainant, Simon Cloutier, filed a complaint under section 23 of the Public Service Staff Relations Act (the “former Act”), R.S.C. (1985), c. P-35, on September 4, 2000, alleging that the respondent had contravened the prohibitions set out in sections 8 and 9 of the former Act. His complaint reads as follows:

[Translation]

. . .

You will see that the facts described involve several people who acted on the employer’s behalf. For this reason, my complaint is directed against the Department’s culture as well as the conduct of its employees under the direction of Monique Leclair, Director General, Quebec Region.

My reading of the incidents has convinced me that the Department tried to prevent me, especially in my capacity as a union representative, from exercising certain key rights set out in the collective agreement, among others. For example, by deliberately misinterpreting the provisions for union leave, thereby creating a situation that burned out representatives and made them vulnerable. In addition, the policy on the use of the employer’s tools was actually used only to limit freedom of expression but officially justified by other reasons. Use of e-mail is a good example of this fact since its illegal use was widely tolerated in some circumstances and also severely reprimanded in others. This created unfair discrimination, especially toward the union representative, which is what I was.

I also denounce the fact that the Department unfairly impugned my reputation and the perception that members have of their union representative. All of the incidents described testify to this fact, which constitutes a violation of sections 8 and 9 of the PSSRA.

. . .

[2]    The complainant asks for the following corrective action:

[Translation]

. . .

Remedy of damages

Acknowledgement of harassment and of contravention of the Public Service Staff Relations Act.

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.

[3]    This complaint was placed on the roll along with a complaint (PSSRB file No. 561-02-70) and two grievances filed by Micheline Rioux on July 6, 2000, in which the latter essentially alleges having been the target of reprisals and discrimination because of her union activities. Several incidents related by the complainant and Ms. Rioux are covered by both complaints, since the complainant and Ms. Rioux were involved jointly, as employees or as representatives of the bargaining agent, depending on the specific circumstances.

[4]    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.

[5]    Mr. Cloutier represented Ms. Rioux in her grievances against certain disciplinary measures imposed on her. The evidence adduced with respect to Ms. Rioux’s grievances, which were decided in Rioux v. Treasury Board (Citizenship and Immigration Canada), 2002 PSSRB 68, is included in this case because it is relevant to it.

[6]    Exhibits adduced by Mr. Cloutier are identified by the designator “G”. Exhibits adduced by Ms. Rioux 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”.

[7]    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 Ms. Rioux, 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.

[8]    On May 20, 2003, the complainant and Ms. Rioux 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?

. . .

[9]    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 Ms. Rioux. 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.

[10]    Despite this information, the complainant maintained that he was “. . . [concerned] about an appearance of impartiality in favour of the opposing party.” I pointed out to him 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.

[11]    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

[12]    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 his complaint until September 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

[13]    The complainant claimed that, at the time his complaint was filed, he was performing the responsibilities of a union representative. The evidence he adduced in this regard shows that Ms. Rioux 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.

[14]    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).

[15]    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).

[16]    Mr. Cloutier was released for union activities on a full-time basis from April 2 to September 4, 1998 to serve as the person responsible for mobilization in the PSAC pay equity matter. During this time, he received his salary as a government employee while performing his union duties full time.

[17]    Following the local’s elections on March 29, 1999, Mr. Cloutier was elected President (Exhibit G-65). Ms. Rioux was not a candidate in this election. She testified that she decided to cease her union activities after receiving a disciplinary measure 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 employer 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 Ms. Rioux, 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

1.        Call centre officer

[22]    Mr. Cloutier received training, which was suppose to run for six weeks beginning on February 17, 1997, for the position of call centre officer. The employer terminated Mr. Cloutier’s assignment to this training on March 20, 1997, after alleged misconduct by the complainant (Exhibit G-23). Mr. Cloutier considered this decision to be an abuse of power against a union representative (Exhibit G-22). A grievance was filed against this decision (Exhibit G-25). The representations made to the employer on this occasion describe the decision as an attack against Mr. Cloutier as an individual and as a union representative (Exhibit G-24). The grievance was dismissed at the final level of the grievance procedure and was not referred to adjudication (Exhibit G-26). During his testimony, Mr. Cloutier explained that this decision by the employer was the start of the latter’s actions against him, as a union representative, in violation of the prohibitions set out in paragraph 8(2)(c) of the former Act.

2.        Hiring of a retired government employee and impact on the selection competition

[23]    A complaint was filed with the Public Service Commission (PSC) by a group of employees represented by Mr. Cloutier, opposing the hiring in June 1997 of a retired government employee (Exhibit G-28). Mr. Cloutier alleges that he was threatened and intimidated during an informal union meeting with Graziella Mousseau (Manager, Montréal CIC) in regard to this matter (Exhibit G-27). The appointment of the retired employee to a position in the Public Service was allegedly cancelled after the complaint was filed.

[24]    Mr. Cloutier claims that Ms. Mousseau developed a grudge as a result of this incident. She allegedly asked the person who had hired the retired employee to make negative and dishonest comments about Mr. Cloutier to the selection committee for a position as head of records (Exhibits G-30 and G-31). The appeal of this staffing action was dropped since Mr. Cloutier was no longer interested in the position. Similar negative remarks were also allegedly made to the selection committee during the competition held in June 1998 for the PM-01 position in case management (Exhibit G-29). Mr. Cloutier was the successful candidate and obtained the position desired.

3.        Performance related to union activities

[25]    An employer/union meeting was held on March 9, 1998, with Monique Leclair, Regional Director, another employer representative, Andrée Pothier (National Vice-President, CEIU), Ms. Rioux and Mr. Cloutier. Mr. Cloutier was allegedly threatened that his acting appointment would be terminated because his union activities were apparently having a negative effect on his performance (Exhibits G-33 and G-34). Following this meeting, Ms. Pothier told Mr. Cloutier that a complaint under section 23 of the former Act could be filed with respect to the threat. Mr. Cloutier did not file a complaint at that time, believing the incident to be an isolated case.

[26]    Mr. Cloutier ranked last on the eligibility list for a PM-02 position in summer 1998. An appeal by an employee who did not qualify was dismissed. Mr. Cloutier obtained the PM-02 position in question. The notes of Christiane Beaupré, a member of the selection committee, mention problems related to Mr. Cloutier’s performance, which were apparently caused by his union activities (Exhibit G-68). Mr. Cloutier claims that these comments, which were shared with the employee who appealed, were discriminatory and unfounded and impugned his reputation as an employee and union representative. He claims that this is an example of organizational harassment, where the Department uses employees to carry out harassment.

[27]    Mr. Cloutier’s performance appraisal, conducted on July 15, 1998 by Diane L’Écuyer (manager), mentions the complainant’s union involvement (Exhibit G-29). A grievance was filed against this appraisal claiming that article M-16 of the master agreement had been violated (Exhibit G-70). Ms. Leclair allowed the grievance, stating that union activities must not be mentioned in performance appraisals (Exhibit G-71). The performance appraisal was rewritten omitting the reference to union activities, but Mr. Cloutier did not sign it (Exhibit G-72).

[28]    At the hearing, Mr. Cloutier adduced his “statistics-case management” reports in which he recorded his union activities (Exhibit G-75). These statistics are interpreted in a table (Exhibit G-73), which he believes shows that he met the performance level set for him by the employer, in proportion to the time devoted to union activities and to the performance of the duties of his position. In his testimony, he was critical of the fact that his manager did not acknowledge that his union activities were bringing his production down, although he presented his statistics during a meeting with Ms. L’Écuyer on November 16, 1998 in the presence of a union representative (Exhibits G-77 and G-78).

[29]    In the competition for an editor position in the winter of 1999, Mr. Cloutier was ranked last on the eligibility list (Exhibit G-86). The selection committee’s notes, a copy of which he obtained, show that his union activities were taken into account as a negative factor and that he was criticized for unsatisfactory performance (Exhibits G-80 to G-86). Mr. Cloutier abandoned the appeal he had filed with respect to that competition.

4.        Corrective action (reclassification)

[30]   Mr. Cloutier was invited by Ms. Pothier to attend information meetings in October 1998 that were organized by Monique Leclair to inform employees about the results of a reclassification following a complaint filed with the PSC. At the meeting on October 26, 1998, Ms. Leclair asked Mr. Cloutier to send his questions through Ms. Pothier. According to Mr. Cloutier’s testimony, Ms. Leclair then allegedly clarified that he did not have the right to speak. Mr. Cloutier was humiliated by being treated in this way in front of the members of the local and asked for an explanation (Exhibit G-48).

5.        Agreement in principle

[31]    In November 1998, an agreement in principle was reached regarding sector negotiations. Mr. Cloutier was denied permission to distribute information documents to members of the local (Exhibit G-107). In a fax sent to Gray Gillespie, Director, Representation and Consultation, Labour Relations Division, Treasury Board Secretariat, he objected to the fact that his recommendation to give the PSAC permission to hold information meetings and the ratification vote during work hours and in the workplace was not followed (Exhibits G-109 and G-110). After the fax was sent, the employer granted the necessary time.

[32]    Mr. Cloutier and Ms. Rioux were absent from their workstations for a period of time on December 9, 1998, to contact the PSAC by telephone from the office allocated to the local by the employer. They did not ask permission to be absent from their workstations and received a disciplinary measure consisting of a written reprimand and a reduction in pay for the two hours not worked (Exhibits P-6 and G-111). Grievances were filed against the disciplinary measure on January 15, 1999 (Exhibits G-112 and G-113). The grievances allege that the disciplinary measures related to union activities and constituted intimidation of union representatives.

[33]    The grievances were dismissed at each level of the grievance procedure (Exhibits G-114, G-115 and G-116). A chronology of events prepared by André Cardinal was entered in evidence (Exhibit G-117). The two-hour period withheld by the employer was contested by the complainant on the basis of Mr. Cardinal’s time line, despite the fact that 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 the PSAC on December 9, 1998. Mr. Cloutier and Ms. Rioux explained that it was not necessary to ask permission before leaving to take a break (Exhibit G-118). They repeated this explanation during their testimony. They claimed that the employer’s investigations of their requests for leave for PSAC business constituted interference in union business.

[34]    Ms. Rioux testified that she had discussed this incident with Ms. Pothier and that the latter apparently mentioned that she could file a complaint under section 23 of the former Act in the circumstances. The complainant, Ms. Rioux and Ms. Pothier met with Pierrette Vaillant-Pierre, who is a CEIU representative, to prepare a complaint. Despite this meeting, the complaint was never prepared, Ms. Vaillant-Pierre saying that she was not familiar with section 8 of the former Act. Under cross-examination, Ms. Rioux explained that she believed that Ms. Pothier had rendered Ms. Leclair a good service in deciding to influence her not to file a complaint under section 23 of the former Act.

6.        Pressure on/intimidation of the union representative

[35]    Following a meeting on November 13, 1998 between a classification officer and employees, Claude Bourget (manager) apparently made disparaging comments about Mr. Cloutier. The latter claimed that saying that he was [Translation] “waving his arms around” ridiculed him as a union representative and on the basis of his sexual orientation. Following explanations from Mr. Bourget, Mr. Cloutier indicated that he would like to close this file (Exhibit G-67).

7.        Assignment of a workstation

[36]    Ms. Rioux filed a grievance on behalf of Mr. Cloutier on November 26, 1998 alleging contravention of article M-16 of the master agreement (Exhibit G-38) when an interim workstation was assigned. Mr. Cloutier argues that this work space did not give him room to install the local’s filing cabinet, that it was filled with the personal effects of a female employee occupying another temporary position, and that it did not allow for confidential meetings or telephone conversations relating to problems involving the local. During his testimony, he stated that the members of the local had no trouble understanding that the employer had assigned this workspace to him to make it harder for him to perform his new duties as acting President of the local. The local had a closed office that was provided for its exclusive use by the employer. That office, located in the workplace, was equipped with a telephone and furniture, including a filing cabinet that could be used for storing documents. The article of the master agreement signed on May 17, 1998 between the Treasury Board and the PSAC is worded as follows:

ARTICLE M-16

NO DISCRIMINATION

M-16.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability or membership or activity in the union.

. . .

[37]    According to Mr. Cloutier, he could not exercise his union duties properly because the employer required him to ask and obtain permission to leave his workstation each time he had to check information located in the local’s filing cabinet. The relevant article of the collective agreement on this matter reads as follows:

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

. . .

ARTICLE M-9

USE OF EMPLOYER FACILITIES

. . .

M-9.02 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.

. . .

[38]    Despite the fact that Mr. Cloutier was assigned a new workstation on January 8, 1999, (Exhibit G-42) and expressed his satisfaction with it, hearings continued at various levels of the grievance procedure. A new grievance was filed on January 15, 1999, alleging that the employer had not respected the confidentiality of his previous grievance (Exhibit G-43). The responses at the various levels of the grievance procedure dismissed both grievances (Exhibit G-35, G-44 and G-45). It was noted in the responses that, in his representations with respect to his grievances, Mr. Cloutier raised the fact that the preparation time given him by the employer was inadequate (Exhibit G-46 and G-47). Neither grievance was sent to adjudication.

8.        Leave for representation

[39]    A problem with the application of the collective agreement was raised in connection with several incidents that could have been the subject of grievances in 1998 and 1999. Members of the local and their representatives wanted to be given leave with pay to assess the possibility of filing certain grievances and to prepare the arguments for other grievances already filed. The employer refused such leave for the purpose of evaluating and drafting grievances, but did grant leave to prepare arguments on grievances already filed.

[40]    E-mail messages dated in November and December 1998 refer to requests by Mr. Cloutier to be away from his workstation to attend various meetings (case management, reclassification exercise, hearing of his grievance at the first level and the evaluation report (Exhibits G-122 and G-123)). In an e-mail dated December 9, 1998, the employer explained to Mr. Cloutier that the large number and variety of his requests for leave made them hard to keep track of. Mr. Cloutier was informed that paid leave for PSAC business under clause M-14.09 of the master agreement is granted only with prior submission of a request for leave form. The employer’s procedure for requests for leave for PSAC business is complex and, in Mr. Cloutier’s view, makes it difficult to carry out union business. Mr. Cloutier adduced the list of requests for leave for PSAC business approved for Mr. Thibault (union representative in 1995 and 1996), arguing that Mr. Thibault had received better treatment (Exhibit G-16).

[41]    Extensive correspondence shows that the employer maintained its interpretation of clauses 14.01, 14.07 and M-14.09 of the collective agreements relating to leave with pay for union representatives and employees to draft grievances or to prepare and present arguments relating to grievances or complaints.

[42]    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.

[43]    The following exhibits were adduced with respect to such requests for leave:

• November 27, 1998 (Exhibit G-51): request for time denied to Anne Cadet to meet with Mr. Cloutier. Carole Lamarre denied the request. Clause M.14.09 is invoked in support of the request.
• November 27, 1998 (Exhibit G-52): request for time denied to Cathy Chilakos to meet with Mr. Cloutier. Claude Bourget denied the request.
• December 4, 1998 (Exhibit G-53): request for time denied to Mr. Cloutier to meet with his union representative. André Cardinal (supervisor) denied the request.
• January 12, 1999 (Exhibit G-50): request for time denied to Ms. Rioux to meet with her union representative. Diane L’Écuyer denied the request.
• Other requests to prepare new grievances denied (Exhibit G-90, G-91 and G-92).
• January 27, 1999 (Exhibit G-54, G-55 and G-56): Mr. Cloutier considers the time granted by Claude Bourget to prepare the hearing of a grievance inadequate. The time granted was upheld by Carole Lamarre.
• Other requests to prepare grievance hearings (Exhibits G-1, G-7, G-8, G-9, G-88, G-89, G-96 and G-98).
• Requests related to time for other union activities:
  

  - classification grievance (ExhibitG-49)

  - complaint to the Board (Exhibit G-89)

  - representation of a contract employee (Exhibit G-6)

  - participation in a survey sponsored by the PSAC (Exhibit G-10)

• February 9, 1999 (Exhibit G-57): Mr. Cloutier requested time for several activities. Carole Lamarre asked to be informed of the provision of the collective agreement covering each request and the approximate time needed. No follow-up by Mr. Cloutier.
• August 18, 1999 (Exhibit G-95): the employer maintains its position that leave with pay to discuss a grievance is approved only when the grievance has been presented, despite a decision rendered by Adjudicator Wexler in 1986.
• October 25, 1999 (Exhibit G-97): the leave requested by Mr. Cloutier to prepare submissions at the third level of the grievance procedure was granted after the expiration of the time for making them. As a result, the submissions were not made.
• November 3 and 4, 1999 (Exhibit G-99): procedure for requests for leave for PSAC business and to attend grievance hearings.
• December 6 and 7, 1999 (Exhibit G-93): request granted to prepare for the hearing of grievances, but the employer allegedly made the procedure more complicated by requiring the signature of a union representative.
• December 15 to 17, 1999 (Exhibit G-95): request denied to allow representation of a contract employee. This individual can be represented by a person of his choice, who can receive leave without pay.

[44]     Some of these grievances had been at the third level of the grievance procedure since November 1998 when a request by Mr. Cloutier on October 26, 1999, to extend the time for submissions was denied (Exhibit G-101). Written submissions could not be made within the time period for the final level of the grievance procedure for all the grievances related to clause 14.07 (on leave to prepare and/or present grievances). Mr. Cloutier explained that he was unable to get leave with pay to prepare these submissions.

[45]    In December 1998, requests for leave for PSAC business for matters relating to the local’s internal affairs were denied for December 3 and 4, 1998. Other leave requested on the same basis was granted for December 2 and 3, 1998 (Exhibit G-108). Mr. Cloutier testified that the employer continued to make it complicated for him to exercise his rights by seeking to create confusion around his various leave requests (Exhibit G-102: October 25 and 26, 1999). During arguments presented on January 28, 2000, before Carole Lamarre, Director, External Services, the representatives (Robert P. Morissette, PSAC regional representative, and Mr. Cloutier) pointed out that article M-14 of the master agreement is a crucial tool in enabling the local to hear from its members and to represent them properly (Exhibit G-106). In an e-mail message dated February 23, 2000, he was denied leave to prepare a grievance (Exhibit G-104). On June 1, 2000, the employer granted him one hour and a half to meet with his union representative to present a grievance (Exhibit G-103).

9.        Managing electronic messages

[46]    The administrator of the electronic network at the Montréal CIC asked Mr. Cloutier to clean up his e-mail messages. On September 3, 1999, there were 2,913 messages in Mr. Cloutier’s electronic mailbox, exceeding the 1,000-message limit (Exhibit G-121). Mr. Cloutier asked for time to carry out this task. His supervisor refused, believing that managing his e-mail was part of his duties. She suggested that he take a day or two to do the clean-up, while advising him to maintain his productivity. On October 13, 1999, an automatic message was sent from the server informing Mr. Cloutier that the maximum message limit had been exceeded and that some messages would be returned to their sender with a message that they could not be delivered. On October 15, 1999, Mr. Cloutier argued that his involvement in the union resulted in many e-mails and he had little free time because of his union activities. Access to e-mail was still impossible on November 3, 1999. Mr. Cloutier testified that the employer’s repeated refusals to allow him time to manage his e-mail messages and the fact that he no longer had access to his e-mail system constituted harassment of a union representative and of an employee who performs this union activity.

10.      Petition for withdrawal from the CEIU

[47]    The members of the local’s executive, who no longer wanted to be represented by the CEIU, circulated a petition in fall 1999. Mr. Cloutier asked permission to send out an electronic message and to post it on September 15, 1999 in the following terms (Exhibit G-125):

[Translation]

Although I believe that your message authorization policy constitutes interference in union business, it seems that we have no choice but to ask you for permission to disseminate this message by e-mail and to post it on the union bulletin board.

Please respond to me as quickly as possible.

Message:

IMPORTANT

In accordance with the mandate that many of you gave to the local executive, a petition is presently circulating asking to withdraw from the CEIU.

. . .

[Emphasis in original]

[48]    The permission requested was denied by Ms. Beaupré on September 17, 1999, who commented as follows (Exhibit G-125):

[Translation]

. . .

In response to your message below, I wish to inform you that I cannot approve your request. Our decision is based on clause 12.01 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada, which states that bulletin boards will be used to post official Alliance notices. The message that you want to send out is not such a notice.

Please note that our message authorization policy is based on this article of the collective agreement and consequently does not in any way constitute interference in union business.

In addition, I would like to remind you that, pursuant to subsection 10(1) of the Public Service Staff Relations Act , “except with the consent of the employer, no … representative of an employee organization shall attempt, on the premises of the employer during working hours of an employee to persuade the employee to become, refrain from becoming, continue to be a member of an employee organization.”

Please contact me if you require further information.

. . .

[49]    On September 20, 1999, Mr. Cloutier sent a blank copy of the petition to Marc Yelle (an employee of the Hull CIC) using the employer’s fax machine (Exhibit G-127).

[50]    On September 21, 1999, Mr. Cloutier sent Mr. Yelle a copy of the e-mails dated September 15 and 17, 1999, commenting to him as follows (Exhibit G-125):

[Translation]

Hello Marc:

I understand that people want to know more. You will see from the attached message the problem we have with informing people in the offices.

I suggest that you contact . . ., she is the union representative in Toronto and is coordinating the activity. You can reach her at . . ..

Sorry that I was unable to help further. Given the attached messages, I suggest that you be somewhat discreet at the workplace regarding this activity. Unfortunately, it seems that our rights end there.

See you soon.

[51]    The members of the local’s executive had the petition signed during lunch hour, outside the workplace on September 23, 1999. At that time, Carole Lamarre asked Mr. Cloutier why he was not at his workstation, when he was actually on his meal break. Ms. Lamarre explained that she realized afterwards that it was not yet 1:00 p.m. Mr. Cloutier sees this as harassment of a union representative because Ms. Lamarre apparently did not make the same comments to other employees present. In an e-mail sent to Ms. Lamarre on September 24, 1999, Mr. Cloutier points out the following (Exhibit G-120):

[Translation]

. . .

Following refusal to hold a union activity in the offices, we decided to hold it outside the workplace and outside work hours in order to comply with the Department’s order. But you came and accosted me personally on the street. Why did you make this comment to the President of the local when several other people who report to you were present, not just the members of the union executive, but employees as well?

Under the Public Service Staff Relations Act , there is to be no discrimination against union representatives. You contravened this obligation and you do not appear to understand the seriousness of the situation. Nor is this the first time since, during a competition, you commented on my conduct at work by referring to my union role. Moreover, you are interfering in union affairs by asking your employees for explanations of an activity held outside the workplace and outside work hours.

This conduct constitutes not only harassment but also a violation of the Public Service Staff Relations Act and I would like to have your comments on this, that is, what you intend to do to correct this misconduct.

. . .

[52]    Ms. Beaupré called Mr. Cloutier to a meeting to find out about the circumstances surrounding the distribution of the petition in violation of the instructions received. After an exchange of e-mails, a meeting was held at about 1:30 p.m. on October 15, 1999 with Mr. Cloutier, who was accompanied by a union representative (Exhibit G-124). Mr. Cloutier refused to answer Ms. Beaupré’s questions and asked to receive them in writing (Exhibit G-128). Ms. Beaupré’s questions, sent by e-mail, were as follows (Exhibit G-124):

[Translation]

. . .

1.	To what office did you send a fax about the petition using the employer’s equipment? and to what person?
2.	Did you use other means of communication belonging to the employer to communicate with employees on this matter?
3.	If so, what instructions were given to these people regarding the material?
4.	To whom did you send an e-mail containing my message of September 17 and, of course, your own, which had not been authorized for distribution, since it was in contravention of the collective agreement and the Staff Relations Act [sic]; what explanation do you have for these actions, which are all contrary to the instructions that you were given?

. . .

[53]    Mr. Cloutier responded as follows to Ms. Beaupré on October 18, 1999, after consulting a PSAC representative (Exhibit G-124):

[Translation]

Here are the replies to the questions that you asked me on October 15, 1999.

1.	Your question, as worded, constitutes interference in union business and to respond would make me an accomplice to your offence.
2.	What other means of communication are you referring to?
3.	Your question, as worded, constitutes interference in union business and to respond would make me an accomplice to your offence.
4.	Your question, as worded, constitutes interference in union business and to respond would make me an accomplice to your offence.

Your questions constitute interference in union business because the employee organization to which the Public Service Staff Relations Act refers is, in this case, the Public Service Alliance of Canada.

Our members are first members of the Public Service Alliance because the by-laws of that organization take precedence over any of the by-laws and regulations of its various components.

The instructions that you gave us and the question that you tried to force me to answer on October 15, 1999, constitute interference in the affairs of the Public Service Alliance. I also asked myself whether you are certain that your instructions were applied in all regions of Canada.

I am also informing you that I have sent a formal complaint to the Director General, CIC, Quebec Region. The complaint concerns this matter, but also, and among other things, relates to the way in which you have handled this matter from the beginning, in particular, the tone and nature of your comments and the circumstances surrounding your meeting on October 15, 1999.

. . .

[54]    The complaint sent to the Director General (CIC, Quebec Region) criticized the alleged harassment and interference in union business by Ms. Beaupré during this incident. That complaint was referred to an Assistant Regional Director to be heard. A hearing was held at the second level on March 7, 2000 and will be dealt with later in this decision. Mr. Cloutier suspended this complaint because he was dealing with many matters and was having trouble managing them all.

[55]    Mr. Cloutier received a disciplinary measure at a meeting on November 5, 1999 in the presence of a labour relations officer and Ms. Rioux, who was acting as Mr. Cloutier’s representative. Mr. Cloutier received a three-day suspension for insubordination for having used the Department’s equipment without permission (fax machine and e-mail) and in contravention of the instructions received on September 17, 1999 (Exhibit G-126). The employer ended the meeting with the following instruction (Exhibit G-126):

[Translation]

. . .

In future, you are always to ask and obtain permission from Christiane Beaupré to use government equipment for the purpose of distribution to employees of the CIC, Quebec Region, in accordance with the policy on the use of electronic mail and the Department’s code of conduct (copies attached). Any further violation or misconduct could lead to more severe disciplinary measures, up to and including dismissal.

. . .

[56]    Mr. Cloutier explained in his testimony that, at the same time that it imposed a disciplinary measure on him, the employer ordered him to leave the premises by 5:00 p.m. He was accompanied to his workstation by the manager and the labour relations officer, as well as his representative, Ms. Rioux. Ms. Rioux then told the employer that this situation would be brought to the Board’s attention. Mr. Cloutier posted a copy of the disciplinary measure on the outside of his workstation’s partition. (Exhibit G-130). The disciplinary measure was grieved (Exhibit G-138).

[57]    Mr. Cloutier received a copy of the policy on the use of electronic mail and the Department’s code of conduct, along with the disciplinary measure of November 5, 1999. He was also given a memorandum dated December 12, 1996, on the use of electronic mail, which states (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 . . . .

. . .

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

11.      Denial of sick leave

[59]    Mr. Cloutier believes that the employer put pressure on him by refusing to grant him an hour of sick leave to cover his tardiness on October 26, 1999 (Exhibit G-141). A request for sick leave for November 23, 1999 (from 4:30 p.m. to 6:30 p.m.) was denied (Exhibit G-140). Mr. Cloutier worked the two hours following the denial.

12.      Local placed in trusteeship

[60]    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 placed in trusteeship by the CEIU and that the local representative was Mr. Lambert (Exhibit G-133).   Members of the local were informed of the trusteeship by letter from Mr. Lambert dated November 25, 1999 (Exhibit G-134).

[61]    Mr. Cloutier asked Ms. Beaupré for permission to post the two letters dealing with the trusteeship on the union bulletin board (Exhibit G-136). This permission was refused and a grievance was presented under article 12 of the collective agreement (Exhibit G-131). The articles of the collective agreements relevant to postings read as follows:

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

. . .

ARTICLE M-9

USE OF EMPLOYER FACILITIES

**

M-9.01 Reasonable space on bulletin boards in convenient locations will be made available to the Alliance for the posting of official Alliance notices. The Alliance shall endeavour to avoid requests for posting of notices that the Employer, acting reasonably, could consider adverse to its interests or to the interests of any of its representatives. Posting of notices or other materials shall require the prior approval of the Employer, except notices related to the business affairs of the Alliance, including the names of Alliance representatives, and social and recreational events. Such approval shall not be unreasonably withheld.

. . .

[62]    The employer dismissed the grievance at the first level of the grievance procedure, stating, among other things, that a request to post a notice must be made by the PSAC, for which Mr. Cloutier was not an authorized representative (Exhibit G-137).

13.      Participation in a grievance hearing – March 7, 2000

[63]    A harassment grievance was filed against Ms. Beaupré following the incidents surrounding the distribution of documents on September 20, 1999 (concerning the petition for withdrawal from the CEIU) and was the subject of a hearing before Ms. Leclair at the second level of the grievance procedure. Mr. Morissette represented Mr. Cloutier at the hearing, which was scheduled for 2:00 p.m. on March 7, 2000. Mr. Morissette asked that Ms. Rioux be released to act as technical adviser at the request of Mr. Cloutier (Exhibit G-144).

[64]    Ms. Rioux’s supervisor asked her to fill out a request for leave prior to the March 7, 2000, meeting. The employer then clarified to Ms. Rioux that her leave would not be paid. This issue was submitted to Mr. Morissette, who raised it with Ms. Leclair at the hearing. According to Ms. Rioux’s testimony, she agreed with the complainant and Mr. 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 a debate on that issue, Mr. Morissette, the complainant and Ms. Rioux ended the hearing without making representations concerning the harassment grievance. As a result, the grievance was dismissed at the second level of the grievance procedure on March 16, 2000 (Exhibit G-152).

[65]    Mr. Morissette, the complainant and Ms. Rioux met to evaluate the situation after ending the hearing at the second level of the grievance procedure. The option of filing a complaint pursuant to section 23 of the former Act was raised. Mr. Morissette recommended that Ms. Rioux not sign the request for leave and that she inform her supervisor that she would grieve any reduction in salary. Upon her return to her workstation, Ms. Rioux informed Ms. Tester, her supervisor, of these decisions.

[66]    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 calling her to a meeting. It was explained to her in this message that she could be accompanied by a union representative. Ms. Rioux responded to the message on April 12, 2000, stating that she preferred to receive the disciplinary measure by internal e-mail since Mr. Cloutier would suffer a loss of pay if he was absent from his workstation to represent her (Exhibit P-19). The elements of this message regarding the meeting are described in greater detail in the decision on Ms. Rioux’s complaint (PSSRB file No. 561-02-70).

[67]    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.

. . .

[68]    Despite this intervention, a disciplinary measure was imposed on Ms. Rioux on April 25, 2000, consisting of a two-day suspension without pay for being away from her workstation without permission on March 7, 2000 (Exhibit P-23). The disciplinary measure was given to Ms. Rioux, who acknowledged receipt of the measure, without being accompanied by a representative.

[69]    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

(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).

. . .

[70]    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.

. . .

[71]    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.

[72]    Mr. Cloutier testified that he was informed of the Department’s policy on the use of electronic mail by the memorandum dated December 12, 1996. He also received a copy of this policy and the Department’s code of conduct with the disciplinary measure imposed on him on November 5, 1999 (Exhibit G-126).

[73]    Ms. Lamarre received a petition on June 8, 2000. The petition asked her to reconsider the measure imposed on Mr. Cloutier, arguing that the penalty was excessive and that the actions for which the measure was imposed related to union activities (Exhibit G-149). Ms. Lamarre’s reply was sent by e-mail to “small groups” of employees (Exhibit G-150).

14.      Leave for PSAC business

[74]    Mr. Cloutier requested leave for union business to prepare this complaint on July 17, 2000. A reply granting him the two days requested was given to him on July 24, 2000. Authorization for one additional day was granted on July 27, 2000. According to Mr. Cloutier, the procedure used at the time by the Department shows that it tried to make exercising the remedy provided under the former Act more difficult. Since the request for leave was handled by two unionized employees temporarily replacing their supervisor, Mr. Cloutier considers this type of manipulation to be harassment of him, through the dissemination of his personal information (Exhibit G-151).

15.      Disciplinary measures imposed on Ms. Rioux

[75]    Ms. Rioux received disciplinary measures, between December 1997 and April 2000, for incidents related to activities that she and Mr. Cloutier describe as union-related. These disciplinary measures are dealt with more specifically in Ms. Rioux’s complaint (PSSRB file No. 561-02-70). For the purposes of this case, it is appropriate to list the disciplinary measures imposed on Ms. Rioux:

• December 1, 1997: letter of reprimand (Exhibit E-3) to Ms. Rioux for distributing the document entitled “Ébauche de réorganisation” in contravention of the Department’s policy. This disciplinary measure was grieved on December 18, 1997 (Exhibit E-7).
• December 30, 1997: one-day suspension without pay (Exhibit E-4) for distributing documents without permission on December 1 and 10, 1997. A grievance against this disciplinary measure was presented on January 23, 1998.
• February 2, 1998: three-day suspension without pay for forwarding an e-mail from Mr. Tremblay on December 29, 1997 (exhibit E-5). This suspension was grieved on February 24, 1998 (Exhibit P-46). In that grievance, Ms. Rioux alleged that she was intimidated and her union activities restricted; she based her remedy on clause M-16.01 of the master agreement.
• December 17, 1998: written reprimand and a two-hour cut in pay for unauthorized absence from her workstation on December 9, 1998 (Exhibit P-6). Mr. Cloutier also received a disciplinary measure for the same infraction. This disciplinary measure was grieved on January 15, 1999 (Exhibit P-7), on the basis of clause M-16.01 of the master agreement, alleging intimidation and an attempt by the employer to restrict union activities. This incident is described earlier under heading “5. Agreement in principle”.
• April 25, 2000: two-day suspension without pay for failing to ask permission before leaving her workstation on March 7, 2000 (Exhibit P-23). This disciplinary measure was grieved on April 25, 2000 (Exhibit P-26).

[76]    The PSAC assessed the first three disciplinary measures imposed on Ms. Rioux. In its letter of January 26, 2000, the PSAC informed Ms. Rioux that the grievances contesting the one-day and three-day suspensions had been sent to adjudication. However, the reference was not made pursuant to the application of article M-16 of the master agreement. The PSAC explained to Ms. Rioux that it had to file a complaint under section 23 of the former Act because a grievance based on article M-16 of the master agreement cannot be sent to adjudication. The PSAC also raised the issue of the time limit for filing a complaint pursuant to section 23 of the former Act. On these matters, the PSAC stated 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, since the development of case law 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 are related 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 and 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 on 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.

. . .

C.        The respondent’s evidence

[77]    The respondent did not adduce any evidence with respect to Mr. Cloutier’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

[78]    The interlocutory decision in Rioux and Cloutier v. Leclair, 2003 PSSRB 73, was rendered with respect to the complainant’s request to add to his complaint the additional elements that he had submitted on March 30, 2003. As a result of that decision, all elements relating to incidents that occurred after September 4, 2000 will not be dealt with in this case.

[79]    On March 31, the former Act was repealed (SI/2005-21). On April 1, 2005, the new 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

[80]    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?

[81]    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.

[82]    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 he had been duly informed of the receipt of the respondent’s written arguments and comments.

[83]    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 Act.

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 new 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.

[84]    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

---

1.        Respondent’s arguments

[85]    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).

[86]    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).

[87]    According to the respondent, the complainant cannot file a complaint in his 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 his 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.

[88]    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.

[89]    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.

[90]    The respondent also argues that the complainant did not file his complaint within a reasonable time. Mr. Cloutier alleges incidents that cover the period from January 1997 to June 2000, while his complaint was filed in September 2000. Since he was an authorized PSAC union representative until the trusteeship imposed in November 1999, he was familiar with the complaint and grievance procedures, and did not show diligence by delaying the filing of his complaint.

[91]    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 the employer 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.

[92]    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).

[93]    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.

[94]    The complainant argued that he delayed filing his complaint because he wanted to give the employer a chance and he 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.

2.        Complainant’s arguments

[95]     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 his complaint, Mr. Cloutier alleges that the employer intimidated him to try to dissuade him 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 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.

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

3.        Respondent’s reply

[97]    In reply, the respondent argued that, as of November 3, 1999, the complainant was no longer a PSAC representative and that, at the time his complaint was filed, he could not act on behalf of the PSAC. He was not authorized by the PSAC to act on behalf of the bargaining agent with respect to his complaint.

C.        Merits of the complaint

1.        Complainant’s arguments

[98]    Mr. Cloutier reviewed the incidents described in his complaint, which he believes show that the employer discriminated against him. According to him, the employer knowingly piled on the disciplinary measures and intimidation tactics to prevent or discourage him from representing the local’s members.

[99]    The employer treated the President of the local who held the position in 1975-1976 differently, granting him more leave for PSAC business than Mr. Cloutier (Exhibit G-16). In Mr. Cloutier’s case, the employer did everything to complicate approval of leave for PSAC business, thereby interfering in union business and attempting to control the time needed to prepare for hearings. By restricting leave for PSAC business and refusing to delay the hearing, on October 30, 1999, of the grievances related to leave for the preparation of grievances, the employer showed bad faith. By maintaining its narrow interpretation of the collective agreement and disregarding the Board’s decisions on this issue, the employer harassed the complainant by denying him the right to union representation.

[100]    The employer’s criticism of Mr. Cloutier during his training for the position of call centre officer and its decision to withdraw him from that training shows that the employer abused its power with respect to a union representative (Exhibit G-22). Mr. Cloutier’s efforts concerning the hiring of a retired federal employee in June 1997 (Exhibit G-28) were the source of the reprisals experienced during subsequent competitions where his union commitment was seen as a negative factor (Exhibits G-29 to G-31 and G-68 to G-70). The employer harassed a union representative by assigning him in November 1998 a workstation that was not appropriate (Exhibit G-39) and by threatening to terminate his acting appointment because of his union activities in March 1998.

[101]    On a number of occasions, the employer ridiculed the union representative, Mr. Cloutier, in front of members of the union local (calling him to a meeting of the employer, in October 1998, but denying him his right to intervene (Exhibit G-67); the [Translation] “arm waving” incident (Exhibit G-67); and then the signing of the petition at noon hour and outside the workplace (Exhibit G-120)). The employer deliberately placed Mr. Cloutier at the bottom of the eligibility list for the PM-02 position in summer 1998 (Exhibit G-87) to make him vulnerable to attacks from other candidates. It did the same during the competition for the editor position (PM-03) held in February 1999 (Exhibit G-86).

[102]    During events associated with acceptance of the agreement in principle in December 1998, the employer clearly demonstrated bad faith by refusing to allow the distribution of documents during work hours and did so against the recommendation of the Director, Representation and Consultation, Labour Relations Division, Treasury Board Secretariat (Exhibit G-110). The employer interfered in the business of the local by pushing its investigation into the union office (Exhibit G-117). The disciplinary measures imposed on Mr. Cloutier and Ms. Rioux constitute harassment since they were exercising their union responsibilities during their breaks (Exhibit G-118).

[103]    The incident related to the accumulation of e-mails shows that the employer was harassing on the basis of union activities (Exhibit G-121). In October 1999, another incident concerning the petition that members of the local circulated to withdraw from the CEIU shows the employer’s interference in the internal affairs of the local (Exhibit G-124). The employer allowed itself to investigate this activity and interfered in union business by asking Mr. Cloutier the names of those to whom he had sent the petition, the means and the instructions that had been given to the recipients regarding the material received. A formal complaint was presented to the employer denouncing this interference in PSAC business (Exhibit G-124, October 18, 1999).

[104]    The disciplinary measure (suspension of November 5, 1999, Exhibit G-130) imposed following the distribution of the petition resulted in Mr. Cloutier’s expulsion when he was escorted outside like a criminal, in front of employees. This is clearly an intimidation tactic by the employer, which uses strong measures to limit freedom of expression in lawful union activities. In addition, the employer took advantage of Mr. Cloutier’s suspension to allow the trustee of the local to hold elections in the workplace, during work hours (Exhibit G-143).

[105]    The employer does not apply the instructions on the sending of e-mail messages to the trustee of the local when the latter copied the members of the executive (Exhibit G-136), but Mr. Cloutier was penalized for doing the same thing (Exhibit G-146).

[106]    The employer targeted Mr. Cloutier and Ms. Rioux because of their union involvement. The employer took disciplinary action against them to intimidate them and prevent them from representing members of the local (disciplinary measures imposed following Mr. Cloutier’s intervention on behalf of Ms. Rioux; Exhibit G-145).

[107]    Mr. Cloutier cited the following decisions in support of his 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

[108]    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 he was involved in a petition to this end. He wanted this activity to be held in the workplace, during work hours, which is prohibited by subsection 10(1) of the former Act.

[109]    In addition, for his 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 his burden of proof and the complaint accordingly must be dismissed.

[110]    The collective agreement clearly states that PSAC must inform the employer of the name of its representative and that representative’s jurisdiction. The union representative concept, established under the collective agreement, was examined in Dodier (supra). That decision states 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 informed 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 union business as a “technical adviser” was not based on any provision of the collective agreement.

[111]    The disciplinary measure imposed on Ms. Rioux resulted from the fact that she had refused to fill out a request for permission to leave her workstation as her supervisor had asked. Ms. Rioux was told 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 “paid” leave. The complainant and Ms. Rioux had a hidden agenda: they wanted the employer to grant Ms. Rioux leave with pay despite the trusteeship and to recognize her status as a union representative.

[112]    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.

[113]    The penalty imposed on the complainant with respect to his absences from his 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 he had not asked permission to leave his workstation and that he had exceeded the time allotted for his break under the collective agreement. In these circumstances, the reason given for the disciplinary measure is real and is not a pretext.

[114]    The employer criticized Mr. Cloutier for using the employer’s property to distribute documents related to the petition of members of the local to withdraw from the CEIU. The disciplinary measure imposed on Mr. Cloutier on November 5, 1999, was based on the fact that Mr. Cloutier went ahead with distributing the documents despite the fact that he had clearly been denied permission to do so. Mr. Cloutier acted against the employer’s instructions and received a disciplinary measure because of this, which does not constitute a pretext or camouflage. The disciplinary measure cannot be linked in any way whatsoever to action by the employer resembling an unfair labour practice or interference in union business. The complainant was able to participate in the lawful union activity of petitioning to change PSAC elements, but could not do so by using the employer’s property and by contravening a clear instruction not to use its property for that purpose.

[115]    The disciplinary measure imposed on Mr. Cloutier on June 2, 2000, was based on the fact that he contravened the Department’s policy by forwarding, without permission, a copy of an e-mail to persons who were not affected by it. Mr. Cloutier was aware of the policy stating that permission was required to distribute an electronic message to persons outside his work group. The complainant was familiar with the Department’s policy, issued in 1996, and the regional policy, distributed in 1997 and he decided not to comply with them by claiming that his representations were of a union nature, despite the fact that he had not been a union representative since the trusteeship imposed in November 1999.

[116]    The employer is within its rights to prefer a particular interpretation of an article of the collective agreement regarding what leave may be granted to a union representative or an employee to assist in the preparation of a grievance. It can maintain its interpretation despite the fact that an adjudicator has ruled on a different interpretation in a specific case. The adjudicator’s decision applies only to the specific grievance submitted to adjudication. The complainant could submit the matter to another adjudicator if he disagreed with the application of clause M-14.09 or 14.07 of the collective agreements, something that was not done. The complainant did not submit any evidence to the effect that he allegedly asked the bargaining agent to refer the grievances on this matter to adjudication following the trusteeship in November 1999. Nor was it shown that the respondent acted in bad faith.

[117]    The employer’s refusal to allow Mr. Cloutier to post correspondence from the bargaining agent announcing the trusteeship, in November 1999, is justified and does not show any malicious intent on the part of the respondent (Exhibit G-136). The employer is required under the collective agreement to accept the union representative appointed by the bargaining agent and to respect the representation mandate that this individual assumes for business arising from the rights attributed to the bargaining agent by the collective agreement.

[118]    The complainant stated in his complaint that he criticizes the “Department’s culture” but says that managers are not personally named because they have no choice but to apply that culture. A complaint pursuant to section 23 of the former Act must be directed at individuals and the prohibitions set out in sections 8 and 9 of the former Act are applicable to “persons”.

[119]    As for the remedy sought, the complainant did not adduce evidence of damages, either with respect to his 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.

[120]    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

[121]    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.

[122]    According to the complainant, it is contrary to his 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.

[123]    The employer did not treat the trustee in the same way with respect to the use of the employer’s property to disseminate union documents. The e-mail dated November 9, 1999, (Exhibit G-143), authorized by the employer, dealt with internal CEIU procedures (election of representatives). Similar requests made by the complainant were denied (petition to change affiliation, Exhibit G-130). A request to post correspondence related to the trusteeship (Exhibit G-136) was also denied. On these occasions, the employer clearly gave preferential treatment to the trustee, unlike that given to the duly elected members of the local’s executive.

VI.       Reasons

A.        Application of the new Act and transitional provisions

[124]    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.

[125]    Section 12 of the new Act came into force on April 1, 2005, (SI/2005-22). On that date, the complaint presented on September 4, 2000, by Mr. Cloutier 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.

[126]    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 his participation in union activities.

[127]    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.

[128]    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.

[129]    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.

[130]    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.

[131]    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.

[132]    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.

[133]    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.

[134]    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.

[135]    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.

. . .

[136]    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.  . . .

. . .

[137]    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.

[138]    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.

[139]    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).

[140]    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.

[141]    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

[142]    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.

[143]    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]

[144]    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;

[145]    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).

[146]    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.

. . .

[147]    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).

. . .

[148]    At the time that he filed his complaint (in September 2000), the complainant was not a union representative within the meaning of the collective agreement. 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). As of the date of the trusteeship, the complainant was no longer a PSAC representative, as defined in article M-8 or article 9 of the collective agreements.

[149]    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 his 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.

[150]    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.

[151]    It is still possible for the complainant to file a complaint alleging a violation of subsection 8(2) of the former Act, in his own name, even if he were acting as a union representative at the time that the incidents occurred, on the basis that the respondent wanted to prevent him 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

[152]    In his complaint, the complaint refers to incidents dating back to March 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.

. . .

[153]    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.

. . .

 

[154]    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.

[155]    Mr. Cloutier argued that he was unaware of the procedures of the former Act and the collective agreement and that he learned belatedly of the existence of the complaint remedy provided under section 23 of the former Act. He alleged that he was not informed of the time limit for the presentation of such a complaint. He also submitted that he had many cases to manage when he was the union representative and that this limited his availability to prepare and file his complaint. The employer allegedly made this task difficult for him by limiting the time given to him to do it. He explained that his 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.

[156]    The complainant criticized the employer’s actions toward him, which he 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 him from assuming the duties of a union representative, all of which started in 1997. He used 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. He also used the complaint procedure provided for in the policy on harassment in the workplace and the Public Service Employment Act.

[157]    At the time of these various remedies, the complainant was sometimes advised and/or represented by experienced individuals who told him 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 he received a disciplinary measure for being absent from his workstation without permission so that he could contact the bargaining agent (Exhibit G-111 to G-113). On the latter occasion, Ms. Pothier, the complainant and Ms. Rioux apparently met with a CEIU advisor to assess the possibility of filing a complaint under section 23 of the former Act.

[158]    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.

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

[160]    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 he 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). Mr. Cloutier was aware of that letter.

[161]    Prior to the trusteeship, the complainant acted as union representative for the local and represented his colleagues in numerous matters. In that capacity, he had an obligation to inform himself about the rights, obligations and procedures set out in the former Act and the collective agreement so that he could assume the obligations associated with his 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. "

. . .

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

[163]    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 the grievances submitted by Ms. Rioux were beyond a reasonable period of time. He still waited until September 4, 2000, over seven months later, to file his complaint. In practice, in Mr. Cloutier’s case, I consider that only the events related to the disciplinary measure imposed on him on June 2, 2000, and related to the meeting with Ms. Leclair on March 7, 2000, concerning the sending of an e-mail message in breach of the Department’s policy, were contested within a reasonable time. Since the leave requested by Mr. Cloutier to prepare his complaint in July 2000 was granted to him, I am unable to agree that these events can support the allegations made.

[164]    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

[165]    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.

[166]    In brief, that hearing before Ms. Leclair should have dealt with the allegations of interference in union business explained in Mr. Cloutier’s correspondence of October 18, 1999 (Exhibit G-124).

[167]    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).

[168]    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, his union representative and Ms. Rioux 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.

[169]    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.

[170]    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 Ms. Rioux then left the hearing, as they had previously planned.

[171]    Ms. Rioux was informed verbally by Lise Gignac, Director of the investigation and referrals section, that she would receive a disciplinary measure for being absent from work without prior authorization (Exhibit P-19). Mr. Cloutier sent an e-mail message to Ms. Gignac on April 17, 2000, to denounce the notice of a disciplinary measure and to ask that it not be imposed (Exhibit G-145). He felt personally targeted by the disciplinary measure, which he viewed as harassment of Ms. Rioux because she attended the hearing at the request of his representative. On June 2, 2000, the employer (Carole Lamarre, Director, Internal Service) imposed a disciplinary measure on Mr. Cloutier, who had allegedly violated the policy on the use of electronic mail by copying his correspondence, without permission, to individuals not concerned with the content of the e-mail message (Exhibit G-146). The employer imposed a five-day suspension because it was his third infraction relating to insubordination.

[172]    In his complaint, Mr. Cloutier stated his arguments, which he explained in greater detail in his testimony, as follows (Exhibit G-3):

[Translation]

. . .

Incidents related to our petition (fall 99)

. . .

I sent an electronic message to the manager in question to try to resolve the issue of this offence, which earned me a disciplinary measure. The reason given is once again the so-called illegal use of the employer’s equipment because I copied members of our executive in trusteeship. Moreover, the disciplinary measure refers to insubordination due to the fact that I allegedly deliberately violated the policy. The people copied were affected by the situation and I did not defy the policy on the use of electronic mail.

The Department tried to put up barriers to all representation, going so far as to intimidate witnesses useful to the presentation with respect to remedy; in this case, this action constituted indirect harassment of me. A petition signed by some 100 members was sent to the employer to challenge my suspension. I learned that the employer replied to the petition by e-mail and by small groups, thereby making the discussion personal.

Once again, the Department made a spectacle of this excessive disciplinary measure by “placing a guard at my office”, thereby treating me like a dangerous criminal and impugning my reputation.

The Department’s bad faith is evidenced by the fact that it sought ways to invent offences against me rather than trying to resolve its own violations of the PSSRA and the principles of natural justice.

. . .

[173]    Mr. Cloutier raises four points concerning this incident:

(1)	the disciplinary measure was unjustified;
(2)	the employer wanted to interfere with his right to a remedy by trying to prevent any representation through intimidation of his witness (Ms. Rioux);
(3)	the employer’s action constitutes indirect harassment of him;
(4)	the employer harassed him in impugning his reputation by “placing a guard” on his office.

[174]    According to the complainant, these allegations represent actions covered by the prohibitions set out in subparagraph 8(2)(c)(ii) of the former Act, which states as follows:

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

. . .

(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

. . .

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

[175]    With respect to the allegation that the disciplinary measure was unjustified, the complainant admitted during his testimony that he read the Department’s policy when it was issued in November 1995. He also read the memorandum issued on December 12, 1996, which reminded employees of certain aspects of the policy (Exhibit G-148). The documents state the following:

[Translation]

[Policy on electronic mail, November 1995]

. . .

Electronic messages are to be sent only to recipients of the operational groups concerned to whom the information is useful. Electronic mail is not to be used to send personal messages (e.g. a curriculum vitae or employment notices) or to invite staff to social, sporting or other events.

Misuse

. . .

Unauthorized access and abusive or incorrect use, including reading electronic mail belonging to another person, constitutes misuse of the system and can lead to administrative or disciplinary measures.

. . .

[Memorandum of December 12, 1996]

. . .

Accordingly, all employees who must send an electronic message to employees outside their group or region must first obtain permission from the appropriate manager. . . . Employees who use the system for purposes other than those authorized could be subject to disciplinary or other measures. . . .

. . .

[176]    Mr. Cloutier received a disciplinary measure on November 5, 1999 for his use of e-mail (Exhibit G-126). On that occasion, the employer explained the following to him:

[Translation]

. . .

In future, you are always to ask and obtain permission from Christiane Beaupré to use government equipment for the purpose of distribution to employees of the CIC, Quebec Region, in accordance with the policy on e-mail use and the Department’s code of conduct (copies attached). Any further violation or misconduct could lead to more severe disciplinary measures, up to and including dismissal.

. . .

[177]    In light of the above warning, it is clear that Mr. Cloutier was informed of the policy on e-mail use and that the messages should have been sent only to recipients in the operations groups concerned, and that prior authorization from the manager was necessary in order to send an electronic message to employees outside his group. Moreover, in the disciplinary measure he received on November 5, 1999, he was explicitly informed that he must request and receive prior permission from Ms. Beaupré to send e-mails to employers of CIC, Quebec Region.

[178]    Based on the evidence adduced before me, Mr. Cloutier did not request or receive prior permission from Ms. Beaupré to send the e-mail on April 17, 2000, to the people on the copied list. He sent this message to [Translation] “members of the executive of the local in trusteeship –Local 10405”, among others (Exhibit G-145). Members of the executive of the local in trusteeship are employees who have no personal interest in the matter raised by Mr. Cloutier in his e-mail, namely, a disciplinary measure announced to Ms. Rioux. Nor do the members of the executive of the local in trusteeship have status as union representatives within the meaning of the collective agreement but are merely employees of other work units or groups. The message sent is personal, denouncing a situation that Mr. Cloutier considers unfair, but which has nothing to do with the responsibilities of the recipients of the e-mail. Thus, on this point, it appears that disciplinary measure imposed on Mr. Cloutier is based on fact, showing a violation of the policy on e-mail use.

[179]    In addition, Mr. Cloutier was allegedly guilty of insubordination because he clearly acted in contravention of the instruction set out in the disciplinary measure of November 5, 1999, in that he did not ask and did not obtain prior permission from Ms. Beaupré to send an e-mail to employees of the CIC, Quebec Region. The disciplinary measure of June 2, 2000, appears to be based on real infractions.

[180]    According to the case law, it is the responsibility of the complainant to show that the disciplinary measure imposed on him 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.

. . .

[181]    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.)).

. . .

[182]    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.

. . .

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

[184]    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. Denial of such leave does not demonstrate, in such circumstances, that the respondent wanted to prevent Ms. Rioux from acting as a technical adviser or that this was intended to intimidate or prevent Mr. Cloutier from exercising representation rights at this hearing.

[185]    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.

. . .

[186]    The employer did not prevent the representations that could have been made concerning the grievance. That no representation was made is due clearly and fundamentally to the fact that the complainant and his representative withdrew from the meeting with Ms. Leclair. Although they gave the employer’s denial of leave with pay for Ms. Rioux as the reason for not making representations on his harassment grievance, it is clear that it was the complainant and his representative who decided not to make representations on the matter. Representations at this level of the grievance procedure could have been made by the complainant and his representative despite the employer’s refusal to grant Ms. Rioux leave with pay. The issue of leave with pay could have been grieved after the fact. In this regard, none of the evidence adduced before me establishes that, at the March 7, 2000 meeting, the respondent demonstrated anti-union animus based on a desire to prevent representations at the grievance hearing.

[187]    Moreover, the complainant did not demonstrate discrimination against him arising from the disciplinary measure of June 2, 2000. Nor did he prove that the respondent acted to prevent him from exercising a right of representation in connection with a harassment grievance, in violation of a prohibition set out in subparagraph 8(2)(c)(ii) of the former Act.

[188]    As for the question of the leave requested by the complainant under article M-14 of the master agreement or article 14 of the collective agreement for the Program and Administrative Services Group, although these aspects of the complaint were found to be untimely and/or related to the rights of the bargaining agent, it is important to point out that the complainant did not show bad faith on the part of the respondent in this regard. I do not agree that the fact that the employer, by maintaining its interpretation of articles of the collective agreement (no right to leave with pay for meetings prior to filing a grievance) over a long period of time and doing so despite a contrary ruling by an adjudicator, is evidence of bad faith or establishes its anti-union animus. Bad faith does not arise solely from the accumulation of refusals on this issue; it must be proven or shown by actions, words, or written communication that demonstrate anti-union animus and the intent to prevent the complainant from exercising a right conferred on him by the former Act. It is well established in law that bad faith cannot be presumed.

[189]    Nor does the fact that the employer escorted the complainant to his workstation and then to the exit of the building as a means of enforcing his suspensions demonstrate its intent to undermine the complainant by impugning his reputation in treating him like a criminal. The complainant did not show that, by escorting him to the exit, the employer intended to undermine him or impugn his reputation. That allegation must be supported by evidence of facts attributable to the respondent.

[190]    Despite the fact that the other incidents are untimely and/or associated with rights of the bargaining agent, they could not in any event be considered as an accumulation of incidents demonstrating anti-union animus or acts of bad faith aimed at compelling the complainant to refrain from exercising a right conferred on him by the former Act in the absence of evidence to that effect. The reasoning applied to the incidents linked to the March 7, 2000, grievance hearing would also apply to all of the other incidents alleged in the complaint. The complainant based his evidence of bad faith or anti-union animus strictly on the accumulation of these incidents.

[191]    For each of the other incidents alleged in the complaint, it was not proven that the respondent intended, by acting as it did, to intimidate the complainant so as to prevent him from participating in the lawful union activity of representing members of the local. The reasons cited earlier on this issue can be applied to all of the alleged facts.

[192]    Notwithstanding the decision to consider them untimely, the incidents surrounding the signing of the members’ petition to withdraw from the CEIU and the trusteeship imposed on the local are relevant to explaining the context in which the events of March 7, 2000, took place.

[193]    The complainant alleged that the purpose was to restrict his involvement in lawful union activities by intimidating him by using unjustified disciplinary measures, among other means. That argument cannot be accepted with respect to the suspension imposed on Mr. Cloutier for distributing the documents associated with the petition (Exhibit G-126).

[194]    On that occasion, Mr. Cloutier received a three-day suspension for distributing documents by e-mail and by fax when he had been denied permission to do so on September 17, 1999. Although the request for permission was only for e-mail dissemination and posting on the bulletin board, the employer’s response was negative and could not be misunderstood. By sending the documents despite the refusal, Mr. Cloutier acted in violation of the employer’s instruction, which appears reasonable in light of the collective agreement. Mr. Cloutier knew the consequences that might result from his action, going so far as to advise caution in the following terms (Exhibit G-125):

[Translation]

. . .

. . . Given the attached messages, I suggest that you be somewhat discreet at the workplace regarding this activity. . . .

. . .

[195]    The employer was not interfering by wanting to know from Mr. Cloutier if he had contravened the instruction received. While the questions may have been poorly worded, the employer wanted to know Mr. Cloutier’s version to verify the accuracy of the information it had been given (Exhibit G-124). The collective agreement allows posting to the bulletin board with prior approval by the employer, which cannot be denied without a valid reason. The employer’s refusal, based on the reasons given in its response of September 17, 1999, appear valid to me given the collective agreement; the message was obviously not an official PSAC notice. Furthermore, allowing the dissemination of the message could have been prejudicial to the employer, who might have been seen as supportive of a group of employees, in contravention of subsection 10(1) of the former Act, by allowing the dissemination of a document calling for the section’s withdrawal from the CEIU. The fact that Mr. Cloutier was escorted from the workplace following the imposition of the disciplinary measure cannot be deemed discriminatory toward him in the absence of any concrete evidence to that effect.

[196]    The argument that everyone who acted for the employer was applying the Department’s culture can definitely not succeed. The complainant had to show the existence of animosity toward him, because of his union activities, aimed at discouraging him from participating in these lawful union activities. The complainant did not show how or in what way Céline Tremblay (who received Ms. Rioux’s request for leave for PSAC business, Exhibit G-144), Ms. Gignac (who received the written intervention from Mr. Cloutier on behalf of Ms. Rioux, Exhibit G-145), Ms. Lamarre (who imposed the disciplinary measure on Mr. Cloutier, Exhibit –146) and Ms. Leclair (who was at the March 7, 2000, meeting) allegedly contravened the prohibitions set out in subparagraph 8(2)(c)(ii) of the former Act.

[197]    The complainant cited several decisions in support of his arguments, which relate to complaints under the Quebec Labour Code. 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):

[Translation]

. . .

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.

. . .

[198]    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 his complaint.

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

VII.      Order

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

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

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

January 26, 2006.

P.S.L.R.B. Translation

Léo- Paul Guindon,
Board Member