FPSLREB Decisions

Complaints before the Board

1 This decision is about the timeliness of two complaints.

2 On October 18, 2007, Michael Panula (“the complainant”) filed two complaints with the Public Service Labour Relations Board (“the Board”) under section 190 of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (“the Act”).

3 The first complaint (Board File No. 561-34-190) identified the Minister of National Revenue as the respondent. On examination of the complaint’s particulars, submitted separately by the complainant, the Board determined that the appropriate respondent was the complainant’s employer, the Canada Revenue Agency (“the employer respondent”), as itself and as the successor to the Canada Customs and Revenue Agency (CCRA) and Revenue Canada - Taxation.

4 The second complaint (Board File No. 561-34-191) identified Betty Bannon, President, Union of Taxation Employees (“the bargaining agent respondent”), as the respondent.

5 Both complaints cited paragraphs 190(1)(a) through (g) inclusive as the provisions of the Act on which they were based. Paragraphs 190(1)(a) through (g) read as follows:

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

(a) the employer has failed to comply with section 56 (duty to observe terms and conditions);

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

(c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions);

(d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

(f) the employer, a bargaining agent or an employee has failed to comply with section 132 (duty to observe terms and conditions); or

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

6 In both complaints, the complainant referred to a document that he submitted to the Board on August 31, 2007, as the “… statement of the act, omission or other matters complained of.” The statement is lengthy. I reproduce it here virtually in its entirety given the difficulty I encountered in trying to summarize it faithfully in a more abbreviated form and because the complainant refers to it as his defence against the timeliness objection raised by the respondents.

…

This letter of my complaints is being made further to a telephone conversation I had [with a member of the Board’s staff]. I told her of unfortunate events going back to the early 1980’s and the drastic effects these had on me personally and how the future course of my career was changed and put in jeopardy, and the unfair labour practices conducted by my Employer, back then and still now, and that my Union did not give me fair and proper representation back then in filing grievances, and still will not do so now … . my team leader stated in a 2001 team meeting that we would be held accountable and responsible for not only current expense claims we file, but also for any previously filed expense claims, even those going over twenty years back… . I requested to have that statement confirmed, however my employer has written to me a letter to deny that statement was ever made. I then filed a written complaint to the Director of Toronto East Tax Services about this false document, and as it was necessary, several ensuing letters. The Employer took reprisal and sent to me by Registered Mail, dated April 5, 2006, a letter stating that I was to choose one of the options presented, and that the CRA has the authority to terminate my employment as per Section 51(1)(g) of the Canada Customs and Revenue Act. The employer has violated Article 35.09 of the agreement between the CCRA and PSAC, by sending me that letter as I have not yet exhausted my sick leave credits. I am dealing with a major health issue, having been diagnosed with cancer in 2001. I am on LWOP and have been since March 2002… . I have previously made a complaint to the Canadian Human Rights Commission about that letter and at the urging of [a representative of the CHRC], I am making a complaint also to the PSLRB. In addition to this act of reprisal by the Employer, I am also making complaints of other unfair labour practices and a complaint against the Union for not providing me with fair and proper representation. It is very important to me to have it confirmed in writing that my team leader did in fact make that statement, despite of denials. In our team, I was the only one present who was filing expense claims for travel by private vehicle twenty years back. So even though she said it in front of the team she was directing that remark about the twenty years at me. She acted in a very harassing manner towards me from the very beginning that she transferred in from Toronto Centre and became my Team Leader in 2000. In the 1980’s, I was a payroll auditor in the Toronto District Office and I and used my private vehicle to conduct the duties of my position, wherever I was assigned, and I submitted claims for travel, and other expenses, as stipulated by the Employer. My unit head at the time was Betty Bannon. She is now National President of Union of Taxation Employees. The provisions for travel and reimbursement of expenses for that period are contained in Treasury Board of Canada, Travel Directive, Chapter 370, September 1980. It was mandatory that this authority be followed. Betty Bannon was the one who told me that my travel claims were being adjusted. I had to reimburse the Employer the amount of $1009.72 by April 1, 1983 for this adjustment for the claims I previously filed for 1981/82 and 1982/83… . Betty Bannon assigned me to the patrol audit requests and the areas where I was to work. So even though my residence is in Scarborough, Betty Bannon, gave me assignments in such farawyay places as Mississauga, and other places which were outside of and to the west of the Headquarters area. She said this was due to ‘operational requirements.’ When I was there I would be in ‘travel status’ and to which I would drive directly from my residence most of the time, rather than going to the workplace first, and then proceeding to the taxpayer. Of the amount of the adjustment, fully eighty percent resulted because of my supposed improper calculation of the ‘lesser of rule.’ I made that reimbursement on the promise made to me that I would retain my position as a payroll auditor and to put an end to the harassment I was getting and because my employment was put in jeopardy. This was not the case however. I was removed from my position as a payroll auditor and assigned to other duties and then to Collections. I filed a grievance to be returned to payroll audit and to have the amount I reimbursed to be given back to me. I filed this grievance even though I was told by management that they would bury me if I did. I was eventually returned to payroll audit, but I did not get my money back. The harassments in the workplace continued. By mid 1985 I had to go on medical leave under the care of a psychiatrist and my family doctor. I only returned to duties in mid January 1990. It was during a retraining course that the instructor explained amongst other things, procedures to follow in filing expense claims. What he said was that we were to claim actual mileage driven from the residence to the taxpayer when working in travel status. Upon returning to work in the Scarborough District Office, I questioned the former Toronto Chief of Budget, who was now working there. She admitted to me that the Department made an error in how they interpreted the Travel Directive. I then approached the Director. He made enquiries to Head Office in Ottawa on what were the rules for travel and the reimbursement of expenses that ought to have been applicable for the period 1981/82 and 1982/83. Head Office replied by denying that there was any wrongdoing in how they applied the Travel Directive. I became frustrated, but at the same time I became more determined to get the truth. I wrote to Dave Flinn, then National President, Union of Taxation Employees, requesting from him the proper rules of travel for that period. I received his reply dated March 15, 1993, together with copies of correspondence between Head Office and Treasury Board of Canada. I now had copies of the documents that proved that it was the Employer that did not follow Treasury Board Travel Policy. With this new information I approached the Director again. I eventually received an ex gratia payment dated March 4, 1994 in the amount of $1009.00. The travel claims I submitted were proper and consistent in the ways and manner that I was instructed to by a more senior co-worker who I accompanied out on the road in order to gain practical on the job field training. He gave me his copy of a previously filed expense claim for me to use as a guide for me to use when I file my own expense claims. When I was being investigated I was asked who showed me how to file expense claims. I gave his name, but nothing ever became of that. I was being discriminated against by my Employer and I was being treated differently than the others. I later checked the mileages he claimed and found out that each and every distance that he claimed could be challenged and adjusted. The greater loss in financial terms in the lost years and all the terrible harassment that I was put through and suffered would not even have had occurred if the Employer had followed Treasury Board Travel Policy, and if the Union would have given me fair and proper representation.

The ex gratia payment was far short of making me ‘whole.’ That is to be in the same financial position in terms of money and money’s worth … had it not been for the error made by the Employer and its unfair labour practices, and if the Union would have provided with fair and proper representation. For that which I have lost, I quote from Mark Twain, On Losing Money...There must be something fearfully disintegrating to character in the loss of money. People suffer other bereavements and keep up; but when they lose money, straightaway the structure which we call character, and are so proud of, and have such placid confidence in, and think is granite, begins to crumble and waste away, and then … The granite that had once been sand is sand again!

I have made numerous attempts to obtain assistance from others in order that I be made whole again. I have requested assistance from my Union and its President, Betty Bannon, several times but they still will not do so. I have approached the Employer directly on my own, and I have sought their assistance and have filed previous complaints to them. I have approached other Federal Government bodies, including Members of Parliament, for their assistance. When I approached a lawyer in private practice, he told me that I am a unionized worker, I ought to go through my Union. Despite all of my attempts, nothing has ever been done to make me whole again … . There is much more that I have been through, but as you can appreciate, it is not possible to put everything that occurred over many years onto a few page letter and it took me several re-writes to do this letter. Aldous Huxley said it best when he stated “facts do not cease to exist because they are ignored.” When I spoke to [a member of the Board’s staff] …, she also went on to say that the Employer and the Union could seek the protection of the Statute of Limitations. However, because of the precedents established by the Employer, it would be an unfair labour practice for the Employer to seek that protection and it would be unfair to me to have the Employer be granted that protection. The Employer either ought to now honour, or be forced to honour now, its financial obligations that it did not fulfill in the past, together with the financial consequences and repercussions for not having done so. It would also be an unfair labour practice to have only the Employee, but not the Employer, to be held accountable and responsible for incidents that are over twenty years old. Also, because my complaints against the Employer and the Union are still standing, can they even now resort to seek protection under the Statute of Limitations? Certain officers of the Employer have treated me very unfairly. They have abused their positions of trust and authority. Such activity is a criminal offence in Canada. The Employer by definition includes those persons that represent it. It is unfair that no one from the Employer has ever made to me a voluntary disclosure that it was not following the Treasury Board Travel Policy. My Union ought to have known Treasury Board Travel Policy when they represented me in filing grievances over travel. Without that knowledge, my Union did not, and it could not, provide me with fair and proper representation. As my travel claims were adjusted against Treasury Board Travel policy, it was, and still continues to be, very unfair to me. I am requesting that the Public Service Labour Relations Board have both the Employer and my Union do now what is required in order for me to be made whole again … .

…

[Sic throughout]

Summary of the arguments on timeliness

7 The employer respondent’s representative replied to the complaint on November 13, 2007. After stating her position that the complaint’s subject matter did not conform to any of the paragraphs of subsection 190(1) of the Act, the representative objected to the complaint on the grounds that it was untimely:

…

… according to paragraph 190(2), a complaint 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. As the complaint submitted refers to circumstances dating back a number of years, it is the Employer’s position that the complaint is untimely pursuant to paragraph 190(2).

…

8 The employer respondent’s representative asked the Board to dismiss the complaint without a hearing.

9 The representative of the bargaining agent respondent replied to the complaint on November 14, 2007. She, too, stated that the details of the complaint did not reveal the basis for a cause of action under the various paragraphs of subsection 190(1) of the Act. She also took the position that the complaint was untimely and that it should be dismissed on that basis.

10 In parallel letters filed on December 2, 2007, the complainant responded to the objections submitted by both respondents. Regarding the employer respondent’s position on timeliness, the complainant stated that “… [b]ecause of the Employer’s history of denying any and all wrongdoing, I also gave reasons why it would be unfair to me to grant the Employer the protection of the Statute of Limitations… .” Regarding the bargaining agent respondent’s position, the complainant wrote, “… I have stated in my complaint why the Statute of Limitations ought not to be applied in my situation… .”

Reasons

11 Timeliness is a primordial issue in these complaints. The respondents have raised concerns about whether it is appropriate for the Board to consider the allegations made by the complainant as appropriate subject matter for a complaint under the various paragraphs of subsection 190(1) of the Act cited by the complainant. Those concerns do not come into play, however, should the Board determine that the complaints are untimely, as argued by both respondents.

12 Subsection 190(2) of the Act governs my consideration of the respondents’ objections on timeliness:

     (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.

13 The cross-referenced subsections 190(3) and (4) of the Act read as follows:

     (3) Subject to subsection (4), no complaint may be made to the Board under subsection (1) on the ground that an employee organization or any person acting on behalf of one has failed to comply with paragraph 188(b) or (c) unless

(a) the complainant has presented a grievance or appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given ready access;

(b) the employee organization

(i) has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to the complainant, or

(ii) has not, within six months after the date on which the complainant first presented their grievance or appeal under paragraph (a), dealt with the grievance or appeal; and

(c) the complaint is made to the Board not later than 90 days after the first day on which the complainant could, in accordance with paragraphs (a) and (b), make the complaint.

     (4) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by an employee organization to comply with paragraph 188(b) or (c) that has not been presented as a grievance or appeal to the employee organization, if the Board is satisfied that

(a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; or

(b) the employee organization has not given the complainant ready access to a grievance or appeal procedure.

14 I am satisfied that I do not need to make a determination on the application of either subsection 190(3) or (4) of the Act to decide the preliminary issue of timeliness. I am also satisfied that the complainant’s detailed statement of his complaints provides a sufficient basis on which to dispose of the timeliness objections without the need for an oral hearing. Finally, I believe that it is appropriate to determine the preliminary issue of timeliness for both complaints in this common decision given that the complainant himself has drawn the actions of the respondents so closely together in his complaint.

15 The complainant has referred to a “Statute of Limitations” and to reasons that it should not apply in his case. He has also referred to advice purportedly given to him by a member of the Board’s staff to the effect that Board precedents limit the application of the “Statute of Limitations” in some fashion in the circumstances that he has experienced.

16 The “Statute of Limitations” that applies in this case is subsection 190(2) of the Act. It binds the complainant to the requirement that he must have submitted his complaints within 90 days of the date on which he knew or, in the Board’s opinion, ought to have known about the action or circumstances that gave rise to his complaint. I am not in a position to inquire into what a member of the Board’s staff may have said to the complainant, if anything, with respect to the application of subsection 190(2), nor is it appropriate or material that I do so. My obligation is to apply subsection 190(2) to the facts before me and rule on the objections raised by the respondents.

17 Whatever else the writings of Mark Twain or Aldous Huxley might arguably urge in the complainant’s view, I have concluded that there is no defensible construction of the facts in this matter that supports a conclusion that the complainant submitted his complaints in the time frame required by subsection 190(2) of the Act.

18  Of the various events mentioned in the complainant’s narrative to which a date can be reasonably assigned, the most recent was the employer’s letter dated April 5, 2006, that purportedly offered the complainant certain options related to his leave without pay status and asserted the employer’s statutory right to terminate him. The complainant stated that “[t]he employer has violated Article 35.09 of the agreement between the CCRA and PSAC, by sending me that letter as I have not yet exhausted my sick leave credits.”

19 On its face, the violation alleged by the complainant appears to involve an issue that would normally be addressed in a grievance and, as necessary, a reference to adjudication under section 209 of the Act. As the subject matter is the interpretation or application of a provision of the collective agreement, such a grievance and reference to adjudication would have required the support of, and representation by, the bargaining agent.

20 Let me assume, for the sake of argument, that the violation alleged by the complainant regarding the employer’s letter instead constituted the proper subject of an unfair labour practice complaint against the employer under section 190 of the Act. The complainant must have become aware of the letter, or ought to have become aware of the letter, soon after the employer sent it on April 5, 2006. As such, the action complained of predated the complaint to the Board against the employer by at least 16 months if the complainant’s original August 31, 2007, letter to the Board is used to anchor the calculation, and 18 months if the formal complaint filing date of October 18, 2007, is substituted. The complainant clearly did not, by any reasonable assessment, comply with the 90-day filing requirement under subsection 209(2) of the Act.

21  Turning to the bargaining agent, if it were the case that the subject matter of the complaint was a breach of its duty of fair representation to the complainant with respect to the employer’s letter of April 5, 2006, the complainant was obliged to indicate clearly in his complaint the nature of the faulty representation that allegedly ensued. He did not. There is no clearly specified act, omission or other matter identified with respect to the bargaining agent’s representation of the complainant in response to the letter of April 5, 2006, or concerning any action or event subsequent to the letter. The complainant’s statement that the bargaining agent did not give him fair and proper representation in the past “… and still will not do so … [emphasis added]” is not sufficient for that purpose. It obviously follows that I have no triggering allegation before me against the bargaining agent that could have been properly filed as a complaint within the 90-day period preceding the complaint.

22 I wish to note for the record that the complainant specified July 12, 2007, on both complaint forms as the “… date on which the complainant knew of the act, omission, or other matter giving rise to the complaint.” As there is nothing in the complaints or in the documents attached to them that reveals the significance of that date, I can only conclude that it was a fabrication or a mistake.

23 The foregoing analysis explored the possibility that the issues motivating the complaints could have involved something that happened recently — something for which a complaint filed in 2007 could possibly have been timely. It is abundantly clear, however, that the real sources of the complaints are of much greater vintage. The complainant himself betrayed that reality when he identified “February 27, 1984” on both Form 16’s (“Complaint under Section 190 of the Act”) as the “… date on which a grievance or appeal was presented … .”

24 The complainant’s problems apparently began in 1983 when certain travel claims were adjusted and a requirement was imposed on him by the employer to repay a purported overpayment of $1009.72. The complainant’s narrative suggests that the problem again became a live issue in 1993 when, after his protracted efforts, the employer reimbursed a similar amount to correct what it came to acknowledge was a mistaken recovery action. Crucially, the complaint asserts that the reimbursement never, in the complainant’s opinion, made him whole. The matter resurfaced again in 2001 when a team leader allegedly made a comment that the complainant interpreted as allowing or requiring him to continue to pursue his concerns that the reimbursement was an insufficient remedy. The problem may even have figured as a persisting irritant when the complainant took leave without pay in March 2002.

25 Whatever the case, the complainant waited many more years before he approached the Board with the current complaints. I am confident that the issues that began in 1983 remain continuing issues of great importance in the complainant’s mind. That, however, does not make them continuing issues for purposes of determining the timeliness of his complaints. Something much more concrete and more recent in the actions, or lack thereof, of either or both of the respondents is required to establish the basis of a timely cause of action under section 190 of the Act. It is not there. I believe, therefore, that there is no justification available to me to make a finding other than that the complainant did not file his complaints within the time limit established by subsection 190(2) of the Act.

26 For those reasons, I uphold the objection of both respondents that the complaints are untimely.

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

Order

28 The complaints are dismissed.

January 10, 2008.

Dan Butler,
Board Member