FPSLREB Decisions

I. Complaints before the Board

1 On December 27, 2006, Hélène Dumont, Francine Jomphe, Françoise GauthierTardif, Micheline Boulay and Caroline Guay (“the complainants”) filed five similar complaints under paragraph 190(1)(b) of the Public Service Labour Relations Act (“the Act”), alleging that the Department of Social Development (“the respondent”) contravened section 106. Paragraph 190(1)(b) reads as follows:

190. (1) The Board must examine and inquire into any complaint made to it that

…

(b) the employer or a bargaining agent has failed to  comply with section 106 (duty to bargain in good faith);

Section 106 reads as follows:

106. After the notice to bargain collectively is given, the bargaining agent and the employer must, without delay, and in any case within 20 days after the notice is given unless the parties otherwise agree,

(a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

(b) make every reasonable effort to enter into a collective agreement.

2 The complainants claim that they became aware of the facts giving rise to their complaints on June 11, 2003. They describe those facts as follows:

[Translation]

Termination and hiring of 17 people who had to be trained. Decision made before our departure. Reason given: budgetary constraints.

3 The complainants demand the following as a corrective measure:

[Translation]

Because of the unfair labour practice of our employer, we were prevented from obtaining permanent status, for which we would have been eligible. Corrective measures would be that we obtain permanent status.

4 Mses. Dumont, Jomphe, Boulay and Guay also mention the following in their complaints:

[Translation]

…

We have been term employees for 10, 15 and 17 years. Almost every year, the department has made us write exams to draw up a new eligibility list.

We have been subjected to that stress year after year to continue doing our work in a professional manner.

As well, our work was frequently evaluated to assess our productivity, performance and attitude.

We are convinced that the department could have used those assessments to determine whether we were qualified to do the work.

Furthermore, in 2003, they terminated our contract after 2 years and 9 months of continuous service and then hired 17 employees of uncertain status.

All of those injustices have led to us filing a complaint as well as to all of the events that followed.

Our file contains proof of what we have said.

5 Ms. Gauthier Tardif submits the following in her complaint:

[Translation]

In my case, I have been under constant stress for a number of years. Who to obtain permanent status and continue to work [sic].

Since 1993, when I had filed a complaint with the Public Service Commission of Canada [sic]. That complaint was proven to be founded and was settled in 1995. Since then, it’s like I’ve been receiving special treatment from the employer, which is to prevent me from obtaining permanent status.

Tangible proof of what I’m saying: I have a document dated August 9 saying that I did not show up for the CR-04 exam. But I did show up and was ranked 41st.

In the last round, on January 16, 2006, I was not called; they had decided that I was unavailable. No check was done to determine my availability. They called me after everyone else had started, because my coworkers were wondering what had happened to me. I received the call at around 10:00 on that same morning.

Does it seem normal to you that since January 1987, at my age, I still have to write exam after exam just to continue working.

On Saturday, December 2, 2006, I had to write an exam to continue working. If I did not pass, I would have lost my job in the department. I am still fighting just to keep my job.

As well, each time I was about to obtain permanent status, they found a reason not to give it to me. Their latest reason was that there was a moratorium.

It’s very hard on my health. Exam after exam, always unsure about whether I’ll still have a job. After so many years of loyal service, that’s what I get!

6 There is no disagreement between the parties about the facts set out in the complaints. As well, it was agreed that the complaints would be heard together and that a single decision would be rendered.

II. Objection to jurisdiction

7 On February 6, 2007, the respondent objected to the Board’s jurisdiction to hear these complaints. On November 9, 2007, the respondent requested that the Board deal with the jurisdiction issue on the basis of written submissions. The Board agreed to the respondent’s request and asked the parties, on December 6, 2007, to file written submissions on the following questions:

[Translation]

1. Were the complaints filed within a reasonable time?

2. Do the complaints involve a duty that the respondent would have with respect to negotiating a collective agreement under section 106 of the Act?

3. Do the complainants have grounds to complain that the respondent has failed to comply with the duties set out in section 106 of the Act?

III. Summary of the arguments

A. Written submissions

8 The complainants filed their written submissions on December 18, 2007. Their submissions read as follows:

[Translation]

…

This is a follow-up to your letter dated December 6, 2007.

Our written submissions on the questions are as follows:

1. Were the complaints filed within a reasonable time?
   Considering the obstacles we have had to face since June 2003, one would have to agree that the complaints were filed within a reasonable time.

2. Do the complaints involve a duty that the respondent would have with respect to negotiating a collective agreement under section 106 of the Act?
   Under section 106 of the Act, the respondent has a duty to bargain in good faith. In our opinion, that was not done, since none of the answers we received were satisfactory.

3. Do the complainants have grounds to complain that the respondent has failed to comply with the duties set out in section 106 of the Act?
   The respondent has failed to comply with the term employee policy. That policy came into force on April 1, 2003. Those factors bring us back to section 106 of the Act and constitute an unfair labour practice by the respondent. Our contract terminated on September 6, 2003. We had been working in the same positions for 2 years and 9 months. Our work was halted for over 60 consecutive calendar days, preventing us from accumulating 3 years of continuous service. During the stoppage, our employer hired other people to do our work. We believe that our rights have been infringed upon.

We hope that these answers will be satisfactory, so that our file can be dealt with fairly.

…

9 On January 2, 2008, the respondent filed the following written submissions:

[Translation]

…

To follow up on your December 6 letter, this letter contains the Employer’s written submissions regarding the above-mentioned complaint. We will answer each of your questions separately.

1. Were the complaints filed within a reasonable time?
   No, for the following reasons:

   Subsection 190(2) of the PSLRA, on the time limit for filing a complaint, reads as follows:

   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.

   The above-mentioned complaint was filed on December 20, 2006, under section 190(1)(b), more than 90 days after the disputed events at the end of their term employment on September 25, 2003, due to a lack of work. The employer submits that the complaint was filed late because the time limit prescribed in the PSLRA is mandatory and cannot be extended. See Castonguay v. Public Service Alliance of Canada, (2007 PSLRB 78).

2. Do the complaints involve a duty that the respondent would have with respect to negotiating a collective agreement under section 106 of the Act?
   No. Section 106 deals with the duty to negotiate a collective agreement in good faith between the Employer and a bargaining agent and reads as follows:

   After the notice to bargain collectively is given, the bargaining agent and the employer must, without delay, and in any case within 20 days after the notice is given unless the parties otherwise agree,

   (a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

   (b) make every reasonable effort to enter into a collective agreement.

   As we have already stated, the above-mentioned complaint deals with the termination of term employment and has nothing to do with negotiating a collective agreement.

3. Do the complainants have grounds to complain that the respondent has failed to comply with the duties set out in section 106 of the Act?
   No, since their allegations are unrelated to the negotiation of a collective agreement. In any case, only a bargaining agent or employer can file a complaint under section 106. That section does not provide a personal right.

   The Employer respectfully requests that you dismiss the complaint without a hearing since, on one hand, the complaints were filed late and, on the other hand, the complaints do not involve a violation of section 190(1)(b). Moreover the Board does not have jurisdiction to provide the corrective measure sought, which is obtaining a permanent position.

   [Emphasis in the original]

B. Replies

10 On January 23, 2008, the respondent replied to the complainants’ written submissions as follows:

[Translation]

…

In response to the letter dated December 18, 2007, from the complainants in the case mentioned above, the Employer would like to make the following remarks:

The Employer maintains that the complaint did not meet the deadline and emphasizes that section 190(2) of the Public Service Labour Relations Act does not mention a “reasonable time” for filing a complaint, as the complainants state, but rather a mandatory 90-day window starting on the date on which the complainant knew of the action or circumstances giving rise to the complaint. See Castonguay,2007 PSLRB 78. In any case, the Employer submits that it is not reasonable to have waited over four years to file their complaint and that the complainants give no valid explanation for the delay.

Second, section 106 of the PSLRA does not deal with negotiating an employment contract but rather with negotiating a collective agreement, which is not the case in this file.

Third, the complainants’ contracts terminated on September 26, 2003 for Mses. Boulay, Dumont, Tardif and Jomphe and on October 3, 2003 for Ms. Guay for operational reasons. Note that Ms. Guay became a permanent employee on January 29, 2007. The complainants were working at the Regional Operations Centre (ROC), which was responsible for the Guaranteed Income Supplement program. Each year, term employees are hired to meet the operational requirements of administering the program. The period of employment starts between January and March and ends in late September. The contracts of all term employees, not only those of the complainants, terminated on September 26, 2003, with the two exceptions mentioned above.

The Employer would also like to mention that on September 26, 2003, the date on which the complainants’ contract terminated, the term employment policy had not yet come into force in the department. That policy only came into force in the department on October 1, 2003. Departments had one year starting on April 1, 2003, to implement the Treasury Board policy so that they could identify their requirements. Consequently, at the time that their contracts terminated, the previous policy requiring five years of continuous employment was still in effect in the department.

For all of those reasons, the Employer respectfully submits that the complaint should be dismissed.

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11 On January 25, 2008, the complainants filed their reply (dated January 17) to the respondent’s written submissions. The reply reads as follows:

[Translation]

…

We filed a complaint with the Public Service Commission dated November 6, 2003. That complaint was filed through a union member, Mr. Marc Labrecque, on November 19, 2003. Therefore, our complaint was not untimely.

We received a reply four months later, on March 22, 2004, informing us that we had to go to the Treasury Board.

On April 6, 2004, our union, through Mr. RéjeanGenest, indicated that we could file a complaint under the new policy with either the Public Service Commission or the Treasury Board. The complaint was redirected to the Treasury Board, which increased the delays.

On July 26, 2004, we received a response from Mr. Richard Burton, Public Service Human Resources Management Agency of Canada. According to his information, our employer had no more work for us at the end of September 2003. Since that was not true, we found the response unacceptable.

On November 25, 2005, after new facts had emerged, we sent Mr. Richard Burton another letter asking him to review our file through Mr. Marc Labrecque. According to Mr. Burton, budgetary constraints justified not extending the complainants’ contracts.

In the letter dated January 2, 2008, Cécile La Bissonnière, an employer representation officer, stated that our employment had been terminated because of a lack of work.

A memo dated October 24, 2003, from Mr. Philippe Villion, director at the time, stated that on October 27, 2003, once trained, 18 new employees would process the variance reports.

The employees belonged to the “visible minorities” category, which is discrimination against us. Processing those reports was an integral part of our work. The employees had an initial 90-day contract. That contract would have made it possible for us to obtain a permanent position. In addition, they worked overtime during that period.

In a letter dated August 15, 2006, from Bélec & Associés Avocats, they state that the reason given for not extending the complainants’ contracts was justified by budgetary constraints, according to the department. On January 2, 2008, according to the respondent, a lack of work is stated as the reason, which is contradictory.

Our manager at that time, Ms. Charlotte Gilbert, recognized that we had been treated unfairly. She obtained staffing numbers from Deputy Minister Ms. Nicole Barbeau, but Ms. Barbeau then introduced a moratorium, which meant that there would be no more appointments to permanent positions.

Who can examine our situation fairly and equitably?

Looking at our file, one can see that we have been in term positions for a number of years and that we are in a difficult situation.

The respondent failed to comply with the term employment policy, which came into force on April 1, 2003.

As for a reasonable time limit, we have already presented our argument, and here we would add that we nevertheless continued taking action.

In a letter dated January 2, 2008, the respondent states that the Board does not have jurisdiction to provide the corrective measure sought, which is a permanent position. We completely disagree with that statement, given all the steps taken so far.

This will be our final reply; thus, we leave it to the Public Service Labour Relations Board and maintain our decision to be heard at the hearing on the planned dates.

…

IV. Reasons

12 Subsection 190(2) of the Act states that a complaint under subsection 190(1) must be filed within 90 days:

190(2) …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.

The 90-day time limit is mandatory.

13 On the face of it, it is clear that these complaints are late. They were filed over three years after the complainants knew of the facts giving rise to their complaints.

14 Even if the 90-day time limit did not apply in this case, I would still have found that the complainants had waited too long to file their complaints. They did not provide me with an acceptable explanation for their lack of diligence.

15 Moreover, the complainants allege that the respondent failed to comply with section 106 of the Act by prematurely terminating their term employment on June 11, 2003. Section 106 is clear, and its legal scope is unambiguous: it applies only to bargaining in good faith for a collective agreement between an employer and a bargaining agent. The complainants cannot use either paragraph 190(1)(b) or section 106 as a basis for disputing the decision to terminate their term employment.

16 Since the complaints were not filed within the time limit prescribed in the Act, and since the complainants cannot use either paragraph 190(1)(b) or section 106 of the Act as a basis for disputing the decision to terminate their term employment, the complaints are dismissed.

17 For all of the above reasons, the Board makes the following order:

V. Order

18 The complaints are dismissed.

March 18, 2008.

P.S.L.R.B. Translation

Roger Beaulieu,
Board Member