FPSLREB Decisions

Complaint before the Board

1 The complainant, Martin Cyr, has held an indeterminate seasonal position at the Parks Canada Agency (“the employer”) since 1983. He is part of the management unit that operates the tourism site of the Mingan Archipelago National Park Reserve (Basse-Côte-Nord). He is classified GL-MAN-04 and belongs to a bargaining unit represented by the Public Service Alliance of Canada.

2 This case involves an unfair labour practice complaint filed on October 11, 2005, under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”). The complainant alleges that the adjustments made to the employer’s expectations at the beginning of the 2005-2006 season and the performance appraisal that followed constitute psychological harassment. His rebukes are directed at Daniel Landry, President of the union local, who exercises managerial functions with respect to Mr. Cyr.

Summary of the evidence

3 Because of his behaviour at work and after complaints from employees and the public, three disciplinary measures were imposed on the complainant in the summer of 2003. He grieved the measures. The grievances were referred to adjudication. One disciplinary measure was upheld (see Cyr v. Parks Canada Agency,2005 PSSRB 15), and two were reduced (see Cyr v. Parks Canada Agency, 2005 PSSRB 16, and Cyr v. Parks Canada Agency, 2005 PSSRB 17).

4 After the third measure, the complainant resigned as president of the union and was replaced by Mr. Landry. He asked Mr. Landry and the union representative, Yves Méthot, to assist him in defending his interests with respect to the third measure.

5 The complainant was dissatisfied with the union’s actions and filed a complaint with the Public Service Labour Relations Board (“the Board”) alleging that the union had breached its duty of fair representation under section 23 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35. Adjudicator Tessier heard that complaint and dismissed it (see Cyr v. Public Service Alliance of Canada, 2006 PSLRB 57).

6 On May 24, 2005, at the beginning of the 2005-2006 operating season, the employer sends the complainant a letter that refers to the events leading to the disciplinary measures, as well as to the work expectations for the season based on those events.

7 On June 10, 2005, the employer’s representatives meet with the complainant to follow up on the letter of May 24, 2005. At that meeting, the complainant asserts that it was improper for the employer to refer to his behaviour in 2003, given that those events are over. He disputes the contents of the May 24, 2005, letter because it repeatedly looks to the past instead of expressing appreciation for his current work. He says that being assigned monotonous duties since the disciplinary measures were imposed constitutes harassment.

8 Another follow-up meeting is held with the complainant on July 20, 2005. He points out that because two years have passed, the disciplinary measures are no longer on his file. At the complainant’s request, the employer agrees to change the letter confirming his employment for the season. His superiors tell him that his current performance is satisfactory.

9 In October, the complainant receives a performance appraisal for the period from May 23 to October 8, 2005. On October 11, 2005, he files this complaint about his appraisal. Although the performance rating is “satisfactory,” the performance appraisal contains remarks that the complainant believes are negative and unwarranted, especially about the amount of work accomplished and his spirit of cooperation. The employer agrees to revise the appraisal. On February 28, 2006, the Supervisor of Technical Services sends him a memorandum describing the revisions made to the disputed performance appraisal. However, the employer denies the complainant’s request to end Mr. Landry’s supervision and reassures the complainant that in order to create a good working environment, the follow-up on expectations with respect to performance objectives next season will be done more carefully.

Summary of the arguments

10 The complainant argues that the disciplinary measures that were imposed on him no longer exist because there has been no recurrence for two years. He maintains that in 2002, the mediation of a number of previous grievances had resulted in an agreement and that he trusts the employer to erase the past and move into the present. He attributes his health problems in 2005 to the stress caused by the employer, given the criticisms levelled at him for a number of years. He is disappointed that the employer repeatedly brings up his past actions even though he is making serious efforts to ensure good performance.

11 The employer asserts that the complaint before me is not one of reprisal within the meaning of the Act, but a complaint of so-called “psychological harassment” over which the Board has no jurisdiction. A letter at the beginning of the operating season and a performance appraisal are not evidence of an unfair labour practice. The complaint process before the Board is not for reviewing the fairness of performance appraisals. The documents filed go back to 1999 and cannot support this complaint. The part of the complaint that deals with the letter sent at the beginning of the operating season is out of time since it was filed more than 90 days after the complainant knew of the facts. The employer submits that the fact that it changed the performance evaluation renders that part of the complaint moot. Accordingly, the complainant’s complaint does not satisfy the criteria set out in paragraph 190(1)(g) of the Act. To support its position, the employer refers me to Duclos v. Bujold, 2006 PSLRB 98.

12 Mr. Landry, through his counsel, argues that he is not implicated in any way in the letter confirming the complainant’s employment for the season and that there is no evidence that the performance rating given to the complainant was influenced by the dispute he had with the complainant before the Board. Furthermore, the “satisfactory” rating in the appraisal is not being challenged; it is the explanation for the rating that is in dispute. In any event, the explanation was subsequently changed to the complainant’s satisfaction. There is no basis for an unfair labour practice complaint against Mr. Landry.

Reasons

13 At the hearing, the complainant had the opportunity to present his entire case and to set out his allegations. Although the complainant did not respond to the employer’s objection to the admissibility of his complaint, he presented explanations and documents that enabled me to determine that the complaint on its face does not fall within the Board’s jurisdiction.

14 Adjusting work objectives and evaluating performance are within the exclusive jurisdiction of the employer. A public servant who is dissatisfied can use the grievance process to complain, but this grievance is not of the type that can be referred to adjudication under subsection 209(1) of the Act. The complainant cannot bypass that impediment by relying on provisions that deal with unfair labour practice complaints.

15 To the extent that the complainant alleges harassment in the workplace, he could avail himself of the process set out in the employer’s harassment prevention policy or file a grievance under his collective agreement. He has not taken either of those steps, and the Board does not have jurisdiction to remedy that situation.

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

Order

17 The complaint is dismissed.

May 20, 2008.

PSLRB Translation

Michele A. Pineau,
Vice-Chairperson