FPSLREB Decisions

Individual grievance referred to adjudication

1 Stephen Hureau (“the grievor”) works for the Department of the Environment (“the employer”) in Delta, British Columbia. His position is classified BI-02, and he is presently acting in a position classified BI-03. He is covered by the Applied Science and Patent Examinationcollective agreement between the Treasury Board and The Professional Institute of the Public Service of Canada, expiry date September 30, 2007 (“the collective agreement”).

2 On June 12, 2006, the grievor submitted an application for an internal job opportunity for the position of Northern Ecosystem Specialist. The position was located in Whitehorse, Yukon, and was for the specified period from June 2006 to March 2007. The process was open to employees of the employer occupying positions in the Pacific and Yukon region.

3 During the assessment process, the employer contacted references to obtain information relating to personal suitability factors such as effective interpersonal skills, initiative and dependability.

4 By letter dated September 25, 2006, the employer informed the grievor that he was found not qualified in the appointment process, as he did not obtain the required pass mark for personal suitability and effective interpersonal skills.

5 On October 18, 2006, the grievor submitted a grievance as follows:

…

(Grievance details)

On October the 4^th, 2006 I was informed that I was unsuccessful in Appointment Process Number 06-DOE-IA-PYR-ESB-3178, Northern Ecosystem Specialist, with Environment Canada in Whitehorse (Position Number 2530-9174, PC-02) due to the fact that my present and former supervisors in the Canadian Wildlife Service have given the Selection Board adverse references regarding my character and suitability for the position, despite the fact that, according to the Selection Board, I was otherwise fully qualified for the position.

I consider these adverse references to be not only a violation of Articles 5 and 42 of the Collective Agreement, but also defamatory of my character.

(Corrective action requested)

1. A declaration that the employer has violated the Collective Agreement;

2. A declaration that the adverse references by my present and past supervisors were without any basis in fact and were defamatory;

3. That all adverse references regarding my character be retracted and expunged from the Appointment Process;

4. That a Selection be made on the basis of the Appointment Process without consideration of the adverse references; and

5. That I be made whole in all respects.

…

6 The grievance was denied at all levels of the internal grievance procedure. The grievor referred the matter to adjudication with the Public Service Labour Relations Board (“the Board”) on May 31, 2007. The bargaining agent, The Professional Institute of the Public Service of Canada, agreed to represent the grievor in the adjudication proceedings.

7 On April 15, 2008, the employer advised the Board of its preliminary objection that the grievance pertained to the staffing process and that the Board did not have jurisdiction under subsection 208(2) of the Public Service Labour Relations Act (“the Act”).

8 The Board asked the parties to provide their written submissions on the employer’s objection by June 2, 2008. On June 3, 2008, the parties were provided with each other’s submissions and were asked for their rebuttals no later than June 16, 2008. The employer submitted a rebuttal on June 12, 2008, and the grievor advised the Board that he would not be submitting a rebuttal.

Summary of the arguments

9 The employer argues that subsection 208(2) of the Act sets out a specific bar to the right of an employee to present a grievance related to a matter in respect of which an administrative procedure for redress is provided under any Act of Parliament. In such a case, the aggrieved employee is barred from pursuing the grievance and adjudication procedures set out in sections 208 and 209 of the Act. Instead, the employee must submit his or her complaint to the authority that, under the appropriate statute, has the power to deal with it.

10 The employer also argues that the parties recognized the statutory bar when they agreed to clause 35.05 of the collective agreement.

11 From the employer’s point of view, the grievance deals directly with the staffing process. The grievor alleges that an adverse reference by his supervisor resulted in his elimination from the staffing process. The employer argued that it was of particular note that the grievor was seeking, by way of corrective action, that “a selection be made on the basis of the Appointment Process without consideration of the adverse references.”

12 The employer argued that the issues raised by the grievor should be addressed in the context of a staffing complaint rather than a grievance. To that effect, the Public Service Employment Act (“the PSEA”)sets out an exhaustive recourse for staffing actions within the federal public service. That recourse, it argued, can be exercised through a complaint to the Public Service Staffing Tribunal.

13 To support her argument, the employer’s counsel submits the following cases: Chopra v. Canada (Treasury Board), [1995] 3 F.C. 445; Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459; Browne et al. v. Treasury Board (Revenue Canada - Customs, Excise and Taxation), PSSRB File Nos. 166-02-27650 to 27661 (19971201); Dhudwal et al. v. Canada Customs and Revenue Agency, 2003 PSSRB 116; and Cooper (Re), [1974] 2 F.C. 407 (C.A.). The employer’s counsel also submits two decisions from the Public Service Staffing Tribunal.

14 In her written submission and rebuttal, the employer’s counsel submits, in the alternative, arguments to the effect that there has been no violation of the collective agreement. Considering the purpose of this decision, I do not believe that it is necessary for me to report those arguments.

15 The grievor’s representative argues that the issue does not deal with staffing and arguing that the matter is within the purview of the PSEA is misleading. Article 42 of the collective agreement is a stand-alone article that deals with employer references regarding staffing. The grievor seeks to hold the employer accountable within that article, which focuses very narrowly on staffing references only and not on the staffing process or the appeal process.

16 The grievor is not alleging that he should have succeeded in the appointment process. He is alleging a breach of article 42 of the collective agreement in that the employer breached the limitations he argues are imposed by that article, which details the attributes on which the employer may comment. These are length of service, principal duties and responsibilities and the performance of such duties. In his grievance, the grievor is alleging that the employer breached that article by giving a subjective view of the grievor’s character.

17 The grievor’s representative argues that accepting the employer’s objection would render article 42 of the collective agreement meaningless. The employer did not negotiate and agree on an article only to now say that it is meaningless. The grievor’s representative further submits that the Board does not have the authority to delete, alter, revise or render an article invalid or meaningless. In that regard, he cites Brown and Beatty, Canadian Labour Arbitration, 3rd edition, at 2:1201.

18 The grievor’s representative further submits that in order to keep the Board focused on article 42 of the collective agreement, the grievor withdraws part of the relief sought, i.e., “that the Board order the employer to re-run the job competition.”

Reasons

19 When applied to this case, subsection 208(2) of the Act prevents an employee from presenting a grievance to obtain redress in a staffing process. It reads as follows:

      208.(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

20 Clause 35.05 of the collective agreement reinforces that principle:

35.05  Subject to and as provided in Section 208 of the Public Service Labour Relations Act, an employee who feels treated unjustly or aggrieved by an action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 35.03, except that:

(a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint such procedure must be followed,

and

(b) where the grievance relates to the interpretation or application of this Collective Agreement or an Arbitral Award, the employee is not entitled to present the grievance unless he has the approval of and is represented by the Institute.

21 This grievance is about an alleged violation by the employer of clause 42.01 of the collective agreement, which reads as follows:

42.01 On application by an employee, the Employer shall provide personal references to the prospective employer of such employee indicating length of service, principal duties and responsibilities and performance of such duties. Personal references requested by a prospective employer outside the Public Service will not be provided without the written consent of the employee.

22 For his fourth requested corrective action, the grievor asked that “a selection be made on the basis of the Appointment Process without consideration of the adverse references…” Granting such a remedy would clearly be outside the Board’s jurisdiction considering subsection 208(2) of the Act and clause 35.05 of the collective agreement. However, the grievor has withdrawn that particular corrective action in his submission.

23 For his third corrective action, the grievor asked for an intervention from the Board in the appointment process in requesting that all adverse references be retracted from that process. As with the fourth corrective action, granting such a remedy would clearly be outside the Board’s jurisdiction.

24 The jurisprudence submitted by the employer’s counsel clearly establishes that an adjudicator of the Board does not have jurisdiction to hear a case and make a decision regarding matters if another administrative procedure is provided by or under any Act of Parliament to deal with the employee’s specific complaint.

25 However, this does not mean that I accept the objection raised by the employer. On the contrary, I accept the argument from the grievor’s representative that I have jurisdiction to hear the grievance, but only as a possible violation of the collective agreement. Both parties agreed to the collective agreement and to its clause 42.01. It is inconceivable that if a conflict in its interpretation arose that it could not be reviewed by the third party mandated to do so, namely, an adjudicator of the Board.

26 The employer, in arguing that the grievance is not within the Board’s jurisdiction, points to several of the corrective measures included on the face of the grievance. While I have indicated that I agree with the employer’s argument that these measures may be beyond the jurisdiction of the Board, the grievance itself is not. The grievance concerns the interplay between the actions of the employer in giving references regarding the grievor and the dispositions of article 42. This is entirely within my jurisdiction.

27 For the above-mentioned reasons, I reject the objection raised by the employer, and I accept jurisdiction to hear the grievance. However, any argument or any remedy requested by the grievor that involves the staffing process will be considered as being outside my jurisdiction.

28 If the objection were dismissed, the employer suggested that the grievance be decided without an oral hearing, pursuant to section 227 of the Act. I do not accept that suggestion. The parties should have the opportunity to be fully heard on the merits of the grievance.

29 For all of the above reasons, I make the following order:

Order

30 The employer’s objection is dismissed.

31 The Board will contact the parties to schedule a hearing on the merits of the grievance.

July 3, 2008.

Renaud Paquet,
adjudicator