FPSLREB Decisions

I. Complaint before the Board

1 On February 15, 2006, Guy Bouchard (“the complainant”) filed a complaint with the Public Service Labour Relations Board (“the Board”) under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22. The complainant claims that the Economic Development Agency of Canada for the Regions of Quebec (“the respondent”) took actions toward him that constitute unfair labour practices within the meaning of section 185 of the Act. More specifically, the complainant states in his complaint that he was a victim of psychological harassment.

2 In the complaint and in the documentation that he filed with the Board, the complainant claims that two managers, who are both employees of the respondent, harassed him between 2003 and March 31, 2005, when his employment was terminated. In addition, on March 15, 2005, the complainant filed a harassment complaint under the respondent’s internal policy. That complaint was dismissed on May 24, 2005. In December 2005, the respondent re-examined the file after the bargaining agent, the Professional Institute of the Public Service of Canada, intervened. On January 26, 2006, the respondent, after re-examining the complaint, confirmed that it was dismissed. The complainant then decided to come to the Board and filed this complaint.

3 The Board suggested holding a hearing in September 2006, but the respondent was unavailable. The parties then agreed that the hearing would take place from November 7 to 10, 2006. However, the complainant later informed the Board that he was no longer available on those days. The parties agreed to move the hearing to November 27 to 30, 2006. On September 30, 2006, the complainant informed the Board that he was no longer available since he was awaiting a response to a complaint he had filed with the Office of the Privacy Commissioner. The Board accepted the complainant’s new request to postpone the hearing. The complainant did not receive a response from the Office of the Privacy Commissioner until November 2008. The hearing was then scheduled for April 15 to 17, 2009. The complainant informed the Board that he was no longer available on those days. It was agreed that the new hearing dates would be June 11 and 12, 2009.

4 In response to the complaint, the respondent raised some preliminary objections on April 18, 2006. After reviewing the file, I decided to deal with those objections based on written submissions. If the respondent’s objections are allowed, the complaint will be dismissed. If the objections are dismissed, the hearing will take place as planned on June 11 and 12, 2009.

II. Preliminary objections

A. For the respondent

5 The respondent maintains that the Board does not have jurisdiction to deal with the complaint since it does not involve an unfair labour practice within the meaning of section 185 of the Act. Rather, the complaint falls under the respondent’s policy on harassment in the workplace.

6 For the Board to have jurisdiction to deal with an unfair labour practice complaint, the complaint must involve a situation or facts that are unfair labour practices within the meaning of section 185 of the Act. However, in his complaint, the complainant does not make such allegations against the respondent. Instead, he claims that he was harassed and that he was treated unfairly as an employee.

7 The respondent also argues that the complaint is past the time limit. On March 15, 2005, the complainant filed a harassment complaint under the respondent’s internal policy. On May 24, 2005, that complaint was judged inadmissible by the delegated manager for harassment. Following that response, the complainant filed this complaint on February 15, 2006. Therefore, the complaint was filed outside the 90-day time limit prescribed in subsection 190(2) of the Act.

B. For the complainant

8 In response to the objections raised by the respondent, the complainant submitted the following:

[Translation]

First objection:

My psychological harassment complaint should have been filed under the Policy on Prevention and Resolution of Harassment in the Workplace, in force since June 1, 2001.

Second objection:

That policy on psychological harassment states that a complaint must be filed within one year of the alleged harassment. The harassment in this case continued until the very end of my employment, until March 31, 2005. Therefore, I had until March 31, 2006, to file my complaint.

In addition, I had to consult legal advisors after learning of the employer’s position on May 24, 2005, which caused delays.

Furthermore, Mr. Bordeleau was assigned to determine the admissibility of my complaint. I identify him as the employer. Therefore, there was a total absence of objectivity. The whole thing should have been handled by an independent party. That is why I pursued my course of action.

9 The complainant also added that he was invoking paragraph 208(1)(b) of the Act with respect to his harassment complaint.

III. Reasons

10 The complaint was filed under paragraph 190(1)(g) of the Act. That paragraph refers to section 185. In his arguments, the complainant also referred to paragraph 208(1)(b). Therefore, the complaint and the parties’ arguments refer to the following sections, subsections or paragraphs of the Act:

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

…

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

…

185. In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

…

208. (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award; or

(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

11 Clearly, the complaint was not filed against a bargaining agent but rather against an employer and its representatives who, according to the complainant, harassed him. Nowhere in the complaint or in the attached documents is it mentioned that the alleged harassment could be directly or indirectly related to the complainant’s activities in an employee organization or to the fact that he may have exercised his rights under the Act or a collective agreement. That is, the complainant makes no allegation that unfair labour practices may have occurred within the meaning of subsections 186(1) and (2), sections 187 and 188, or subsection 189(1) of the Act.

12 Even if the complainant were to prove his allegation that he was a victim of harassment by managers who are employees of the respondent, I would still allow the respondent’s objection about my jurisdiction. A complaint under subsection 190(1) of the Act is admissible only when the complainant can establish that what the respondent is being criticized for may constitute an unfair labour practice within the meaning of the Act. In this case, the complainant has made no attempt to establish that situation.

13 In his arguments, the complainant suggested that his complaint was admissible under paragraph 208(1)(b) of the Act. That paragraph does not deal with complaints to the Board but rather with a grievor’s right to file a grievance. However, the complainant has filed a complaint with the Board and not a grievance with his employer. Moreover, the complainant cannot file a grievance with the Board. The Board will not intervene in a grievance unless it has been referred to adjudication after having been filed with the employer within the time limit set out in the collective agreement.

14 Taking all that into account, I need not deal with the employer’s objection that the complaint was filed outside the 90-day time limit set out in the Act.

15 Therefore, having accepted the employer’s objection, I find that I do not have jurisdiction to rule on the complaint.

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

IV. Order

17 The employer’s objection is allowed.

18 The complaint is dismissed.

April 21, 2009.

PSLRB Translation

Renaud Paquet,
Board Member