FPSLREB Decisions

Grievances referred to adjudication

1 Devadas Ilapogu (“the grievor”) worked at the Regional Treatment Centre, Correctional Service of Canada, in Abbotsford, British Columbia. This decision considers two grievances that he filed in 2004 against separate disciplinary actions taken by the Correctional Service of Canada (“the employer”). The first grievance (PSSRB File No. 166-02-34932), received by the employer on March 22, 2004, disputed the grievor’s indefinite suspension without pay. The second grievance (PSSRB File No. 166-02-35305), received by the employer on September 21, 2004, contested the termination of the grievor’s employment.

2 The grievor was unsuccessful in challenging both disciplinary actions through the internal grievance procedure. With the support of his bargaining agent, the Professional Institute of the Public Service of Canada, he referred the grievances to the Public Service Staff Relations Board (“the former Board”) for adjudication on July 30, 2004, and December 1, 2004, respectively.

3 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

4 On agreement of the parties, the former Board appointed a mediator who convened discussions on April 1, 2005. The mediation did not result in a settlement.

5 The Public Service Labour Relations Board (“the Board”) scheduled a hearing on April 13, 2005. Shortly before the start of the hearing, the parties informed the assigned adjudicator that they had reached a settlement.

6 On April 22, 2005, a registry officer from the Board wrote to the parties, indicating that it was the bargaining agent’s responsibility to inform the Board when a settlement had been duly signed by the necessary parties and that it was withdrawing the grievances on behalf of the grievor so that the Board could close its files.

7 Over the following months, the Registry Officer wrote to the bargaining agent at regular intervals, requesting an update regarding the statuses of the settlement and the grievances. After failing to respond to the first such request, dated August 17, 2005, the bargaining agent’s representative answered the second inquiry from the Registry Officer dated October 13, 2005, and indicated that certain elements of the settlement remained to be executed. Between that date and May 8, 2007, 19 months later, the Registry Officer contacted 1 or both parties on at least 9 occasions. The information received from the parties indicated that discussions were underway to resolve several different outstanding concerns with implementing the settlement that were identified by the grievor’s representative. The Board granted requests for extensions of time as necessary to allow the parties to report on developments.

8 On May 8, 2007, the grievor’s representative informed the Board via email that an issue relating to the grievor’s pension record remained outstanding. On June 12, 2007, the employer’s representative responded as follows:

…

Attached is a copy of the settlement agreement signed by the parties in April 2005. The obligations of the Correctional Service of Canada are outlined at page 2 …

The settlement document contains no reference to a “transfer of pensionable service” and the Employer maintains that this subject was never part of the terms of settlement. The Employer asserts that it has fulfilled all of the terms of settlement.

Accordingly, the Employer submits that the grievor should fulfill his obligations under the agreement and withdraw the above-noted grievances with respect to his suspension and termination of employment.

…

9 The Registry Officer requested the bargaining agent’s response to the employer’s position on June 15, 2007. Due to the illness and then the most unfortunate death of the grievor’s bargaining agent representative, the Board granted an extension to August 31, 2007, for the reply.

10 On September 4, 2007, the Registry Officer reminded the grievor’s new bargaining agent representative that a reply was overdue. He responded that he had been unable to contact the grievor, that he had sent a final email to him and that he was waiting for the grievor’s instructions. The Registry Officer then indicated to the representative that the matter could not be held in further abeyance without the Chairperson’s approval of a request for an extension. The representative then replied that he had succeeded in securing the grievor’s file and that he expected to be able to respond to the Board “next week” (i.e., the week of September 24, 2007).

11 The Registry Officer did not receive the promised response. On October 26, 2007, the Registry Officer once more requested, via email, an update from the grievor’s representative and set November 2, 2007, as the deadline for receiving a reply. Again, there was no response.

12 On November 21, 2007, the Registry Officer formally wrote to both the grievor’s representative and the employer’s representative stating that the Board required an update on the statuses of the files on or before December 5, 2007. The letter stipulated the following: “… Failure to reply by the above-noted due date may result in the file(s) being closed.”

13 Still without a response, the Registry Officer sent a final letter to both the grievor’s representative and the employer’s representative on December 17, 2007, that included the following notice: “… failure to inform the Board’s Registry of the status of these matters by January 8, 2008, will result in the files being closed.”

14 As of the close of business on January 8, 2008, the Board’s Registry had not received a response from either party.

Reasons

15 The Board’s practice is to require confirmation from a grievor’s representative that his or her grievances are withdrawn because of a settlement agreement before the Board officially closes the files.

16 As of the writing of this decision, it has been 33 months since the parties concluded a settlement agreement for the 2 grievances brought before the Board. According to the information provided to the Registry Officer, discussions continued between the parties for a substantial part of that period to address outstanding issues regarding implementing the terms of the settlement.

17 On June 12, 2007, the employer’s representative notified the Registry Officer that the employer considered that it had fulfilled all of the obligations arising from the settlement. It took the position that the remaining item alleged to have been outstanding by the grievor’s representative was never part of the settlement agreement.

18 Neither then nor since has the grievor’s representative provided a formal substantive response to the employer’s position.

19 The Registry Officer continued to seek clarification from the grievor’s representative regarding the statuses of the grievances during fall 2007. On both November 21, 2007, and December 17, 2007, the Registry Officer formally contacted both parties in writing, requesting an update. The letters clearly alerted the parties first to the possibility that the Board would close the files and then to the Board’s intention to close the files if it did not receive a response.

20 Given the parties’ failure to respond to the Board’s request by the required date, I am satisfied that no issue remains to be determined in this matter. The two files in this case should now be closed.

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

Order

22 I direct the Board’s Director, Registry Operations and Policy, to close the files.

February 6, 2008

Dan Butler,
adjudicator