FPSLREB Decisions

I. Individual grievance referred to adjudication

1 James Johnston (“the grievor”) worked for the Canada Border Services Agency (“the employer” or CBSA) in Windsor, Ontario. His position was excluded from collective bargaining.

2 The grievor filed a grievance on April 4, 2007. The grievance reads as follows:                  

…

The last meeting that I had with the Regional Director was what I consider to be the last harassment that I will take from him. In trying to illicit a response of which I am unsure what he wanted to hear, I was forcefully asked four times if I was committed to CBSA. Each time I answered simply “yes”. I wanted to qualify my statement by adding that I am committed to an organisation that actually adheres to its commitment to values and ethics but chose to remain silent rather than provoke the situation. My commitment I think has been successfully shown by the successes that this office has had and there was no need for that behavuour…

…

Accordingly, I grieve that I have been harassed once again by my Regional Director who has also stated to me in one-way conversations “you’re not a lawyer, you’re not good at it, get some help”. I have continually warned him not to be speaking to me like that. I also objected to him screaming at me when called to his office with his door open so that all staff near could hear these tirades.

Further, when the new organisations were formed in 2005, all Intelligence Directors in Canada acted as combined Director. Now that Windsor St Clair has chose to combine, another Director has taken over as acting. It is believed that no competitive process will occur until after I retire as the previous management competitive process did not meet the Agency standards of values and ethics, rather it was based on favouritism. It is believed that trying a similar competitive process would be subject to too much scrutiny. [It is manipulation of results.] It also allows the Regional Director to get what he wanted anyhow in keeping me out of any chance for the Director’s job. I grieve that through abuse of power and discrimination, I am being cut off from any access to that position. It should be noted that over the years I have managed Intelligence and Investigations for lengthy periods of time also including Intelligence and Investigations for both Windsor and Niagara. All periods resulted in major cases successfully completed in both locations.

[Sic throughout]

3 The corrective action requested is as follows:

I want my job to be classified at the EX level as it should be. That discriminatory practises against me stop. I want to be properly compensated at the EX level since the date of position conversion. Acknowledgement that the discrimination has adversely affected my health. I want the abuse of power to stop.

…

This harassment and humiliating treatment by the regional Director has had a negative affect on my health. Accordingly I want all harassment to stop. I want to be compensated for the missing acting at the EX level that all my counterparts received. I want acknowledgement by the Agency that I have been harassed, used and systematically worn down due to this treatment. In other words I want to be compensated for the lack of values and ethics the Agency purports exist.

[Sic throughout]

4 The grievor referred the matter to the Public Service Labour Relations Board (“the Board”) for adjudication on August 29, 2008, following the denial of his grievance at the final level of the grievance process on August 8, 2008. The grievor used the grievance form prescribed by the Board for termination, demotion, suspension, financial penalty or deployment (Form 21).

5 On the form, he specified paragraph 209(1)(d) and subsection 209(3) of the Public ServiceLabour Relations Act (PSLRA).Those provisions read as follows:

      209.(1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

…

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

…

       (3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)(d).

6 The Director of Registry Operations and Policy at the Board wrote to the grievor to inform him that only one separate agency has been designated under subsection 209(3) of the PSLRA and that is the Canadian Food Inspection Agency. Therefore, his grievance cannot be referred to adjudication under that provision.

7 In an email dated September 8, 2008, which was part of the initiating documents sent to the employer, the grievor clarified that his grievance relates to subparagraph 209(1)(c)(i) of the PSLRA, which reads as follows:

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct … .

…

8 Paragraphs 12(1)(d) and (e) of the Financial Administration Act (FAA) read as follows:

          12.(1) Subject to paragraph 11.1(1)(f) and (g), every deputy head in the core public administration may, with respect to the portion for which he or she is deputy head,

…

(d) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service whose performance, in the opinion of the deputy head, is unsatisfactory;

(e) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service for reasons other than breaches of discipline or misconduct; and

9 The employer responded to the reference to adjudication by taking the position that an adjudicator has no jurisdiction to consider the matter under the PSLRA, as follows:

The grievance cannot be referred under subsection 209 (1) (b) or (c) as there has not been any disciplinary action taken nor has there been any demotion or termination for unsatisfactory performance. Mr. Johnston retired from CBSA as of August 15, 2008. His grievance is dated April 5, 2007.

10 The Chairperson of the Board assigned me to determine this matter as an adjudicator. A hearing for the parties to present their oral submissions with respect to the Board’s jurisdiction to hear this case was scheduled for March 12 and 13, 2009.

II. Summary of the evidence

11 In his opening statement, the grievor’s representative asked that I hear all the evidence before issuing a decision on the Board’s jurisdiction. He proposed to present a constructive dismissal line of argument. Counsel for the employer objected. I informed the parties that I would hear their arguments with respect to this objection, and that I would rule on it before proceeding further.

A. Submissions of the employer on the constructive dismissal argument

12 Constructive dismissal is a private-sector concept. In the federal public service, the PSLRA gives an employee the right to grieve anything under section 208 but limits what can be referred to adjudication under section 209. An examination of the grievance reveals that its essence is harassment and classification, two subjects that the Board cannot address. Furthermore, the grievor retired on August 15, 2008, more than one year after he filed his grievance on April 4, 2007.

B. Submissions of the grievor on the constructive dismissal argument

13 The Board must consider the entire situation, starting with the unfair promotion process in 2005. That led to harassment and bullying from the Director, which forced the grievor to take medical leave and, ultimately, to retire in August 2008. This summarizes the spirit and intent of the grievance.

C. Ruling on the constructive dismissal argument

14 After considering the arguments from both parties, I find that the employer’s objection is well-founded. My authority as an adjudicator under the PSLRA is limited to hearing arguments on the grievance that was filed in April 2007 and that was referred under subsection 209(1)(c). The grievance cannot be based on events that took place more than a year later.

III. Summary of the arguments

A. For the employer

15 Counsel for the employer submitted that the grievance filed on April 4, 2007, cannot be referred to adjudication under subparagraph 209(1)(c)(i) of the PSLRA because no demotion or termination took place for unsatisfactory performance. The grievor retired from the CBSA on August 15, 2008.

16 The content of the grievance is clear. The grievor feels that the comments from his director and the way the reorganization and staffing took place in 2005, which denied him a promotion to the EX-01 level, were an abuse of power that constituted personal harassment.

17 If the grievor felt harassed, he could have sought recourse under the Treasury Board’s Policy on Prevention and Resolution of Harassment in the Workplace or he could have filed a grievance under section 208 of the PSLRA.

18 As for classification, a classification grievance process exists.

19 Harassment, staffing and classification are not adjudicable under the PSLRA, and the grievor cannot now try to change his grievance, claiming that disguised discipline occurred.

20 Counsel for the employer cited Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8, AttorneyGeneral of Canada v. Lachapelle and PSSRB, [1979] 1 F.C. 377, and Nagle v. Treasury Board(Consumer and Corporate Affairs), PSSRB File No. 166-02-21445 (19911202).

B. For the grievor

21 The grievor’s counsel submitted that the new thinking in law is not to examine a specific provision of an Act but to examine the entire statute in question along with its intent and spirit. Burchill dates back to 1981.

22 He acknowledged that although the grievance was written in a tortured manner, I should keep in mind that the grievor wrote it and that he is not a lawyer.

23 The grievance is about the grievor’s unfair treatment in a 2005 reorganization about what was actually his demotion and about his being denied acting pay at that EX‑01 level. The grievor wants to be compensated for that loss.

24 The grievor’s counsel argued that I have to consider the whole of section 209 of the PSLRA and not only subparagraph 209(1)(c)(i). I would then find that paragraph 209(1)(b) applies to this case. Neither the PSLRA nor the FAA defines discipline, but if I were to consider the circumstances as a whole, I would find that the grievor has been disciplined. The financial penalty is being denied acting pay at the EX‑01 level.

25 The grievor is not asking to be classified at the EX-01 level but to be compensated under section 226 of the PSLRA.

26 The grievor’s counsel cited Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225 (QL).

IV. Reasons

27 The question before me is whether the grievance filed by the grievor on April 4, 2007 and referred to the Board under subparagraph 209(1)(c)(i) of the PSLRA is adjudicable.

28 On reading the grievance, any reasonable person would identify harassment, staffing and classification as the issues raised in the grievance. The text that accompanies the referral to adjudication raises the possibility that he was the subject of a demotion or a termination as specified in subparagraph 209(1)(c)(i) of the PSLRA.

29 The grievor now submits that I have to consider section 209 in its entirety, not just subparagraph 209(1)(c)(i), but also paragraph 209(1)(b), and that I have to find that he was subject to a demotion and a financial penalty.

30 The 1981 Federal Court of Appeal decision in Burchillenunciated the principle that the employer should be entitled to know the specifics of a grievor’s complaint so that it may address the issues raised.

31 The stipulation under subsection 209(1) of the PSLRA is that an employee may only refer to adjudication an individual grievance “. . . that has been presented up to and including the final level in the grievance process … ” When a grievor fails to raise an issue until after the conclusion of the grievance process, Burchill applies in that the grievor has not in fact presented a grievance about the newly raised issue “… up to and including the final level in the grievance process … ” This constitutes a bar to adjudication under any paragraph of subsection 209(1).

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

V. Order

33 The employer’s jurisdictional objection is allowed.

34 The grievance is dismissed.

April 23, 2009.

Michel Paquette,
adjudicator