FPSLREB Decisions

I. Matter before the Board

1 This is an interim decision on an application made by the Canada Revenue Agency (“the employer” or CRA), in a written submission dated February 6, 2009, requesting the dismissal summarily of this grievance, which Stanley Bahniuk (“the grievor”) filed on May 8, 2007.

II. Individual grievance referred to adjudication

2 In a letter dated April 3, 2007, the employer suspended the grievor for one day (7.5 hours) for his “objectionable and unacceptable” conduct and demeanour during a meeting with his manager on March 1, 2007. The letter of discipline notes that the grievor’s behaviour “… demonstrates a lack of professionalism and a lack of respect for management…” and states that the employer expects the grievor to adhere to the CRA’s Code of Ethics and Conduct, and the CRA’s values and the policies that underlie it.

3 The grievor grieved, under section 208 of the Public Service Labour Relations Act (“the Act”), “… the quantum of discipline action by CRA as per the Letter of Discipline April 3 2007.” He alleged that “… the events surrounding the generation of the Letter of discipline are not about cooperation, professionalism and respect but the managers [sic] own lack of competence, effort and integrity.”

4 The grievor requested wide-ranging corrective action. He sought the following:

All harassment cease and a full independent investigation is undertaken on past events that are the basis for the latest action by Mr. [“X”] and Senior management. Under the policy on “Indemnification of and Legal Assistance for CCRA Employees” I am requesting approval of private legal counsel, as I believe the current actions are vindictive, defamatory and malicious. I believe these actions are not designed for performance issues or disciplinary [sic] but rather disguised intimidation to respond to previous wilful negligence in dealing with past actions and past grievances.

5 The grievance was referred to adjudication under paragraph 209(1)(b) of the Act by a document dated August 17, 2007. The date of the file at the Public Service Labour Relations Board (“the Board”) is August 24, 2007.

III. Events following the referral of the grievance to adjudication

6 The hearing of the grievance, initially scheduled for September 16 to 19, 2008, was postponed due to the grievor’s unavailability. The hearing was rescheduled for December 2 to 5, 2008.

7 On October 2, 2008, counsel for the employer wrote to the Board noting that, under section 224 of the Act, an adjudicator may decide any matter referred to adjudication without holding an oral hearing and stating that he could “…only presume that this means that summary disposition is available in relation to matters such as this, which have been referred to adjudication.” Counsel for the employer noted that, in his view, the grievance “… has no merit whatsoever.” He requested the opportunity to make written submissions to the adjudicator through an application for summary disposition of the matter to either narrow the issues or possibly eliminate the need for a hearing.

8 By letter dated October 21, 2008, the grievor strenuously opposed the employer’s request to proceed by way of written submissions. The grievor is self-represented. He alleged that, among other things, making only written submissions would limit his ability to prove his case and to cross-examine any witnesses and that, by the broad scope of the information involved, clarification would be required that would be better suited to a hearing.

9 On October 22, 2008, the Chairperson of the Board denied, without reasons, the employer’s request to proceed by written submissions. The Chairperson indicated in his instructions that the adjudicator should have a teleconference with the parties to limit the evidence to what is relevant.

10 A teleconference was held on November 6, 2008. During the teleconference, the grievor disclosed that he had filed a similar grievance to the one presently before me about the same disciplinary issue (the quantum of discipline, a one-day suspension, imposed by the April 3, 2007 letter of discipline) and that it was currently at the third or fourth level of the grievance process. He stated that that grievance requested different corrective action than does the grievance currently before me, and that it was supported by his bargaining agent. Apparently, the bargaining agent had taken exception to including a harassment element and a request for related corrective action, in the grievance and it refused to represent him on that element. The grievor then filed a separate grievance, dated May 8, 2007, about the same incident but requesting different, broader corrective action and it is this latter grievance that is before the Board and was the subject of the teleconference.

11 During the teleconference, I set out the jurisdictional framework of an adjudicator appointed by the Board under the Act. With respect to the scope of the grievance before me, I noted that the grievor is contesting the quantum of discipline imposed on him in the April 3, 2007 letter of discipline. I explained to the grievor that, for evidence presented at the hearing to be admissible, it must be relevant to a material issue in the case. I further explained that a grievance on the quantum of discipline imposed by an employer generally involves material issues of whether the grievor has engaged in some form of work-related misconduct for which some discipline could be imposed and, if so, whether the discipline imposed by the employer was reasonable in the circumstances.

12 I ended the teleconference by stating that I would hear arguments on the two preliminary matters, namely, the duplicate grievances and an adjudicator’s jurisdiction to award the broad corrective action relief sought by the grievor, at the beginning of the hearing on December 2, 2008.

13 By letter of November 13, 2008, counsel for the employer officially informed the Board that the employer’s primary witness, the grievor’s manager when the discipline in question was imposed, was terminally ill and that he was no longer able to testify or appear before the Board. Because the employer’s replacement witness, Rick Leigh, was unavailable on the scheduled dates, counsel for the employer requested a postponement of the hearing scheduled for December 2 to 5, 2008. He further requested that the two preliminary issues identified during the teleconference be dealt with by way of written submissions.

14 By letter of November 22, 2008, the grievor strenuously objected to the requested postponement. The grievor alleged that, among other things, the employer knew about the manager’s terminal illness in late August or early September 2008 and that, to his knowledge, it had only indicated the unavailability of its substitute witness during the teleconference on November 6, 2008.

15 Before deciding on the employer’s request, I asked that counsel for the employer provide me with the exact date on which he knew that the illness of the employer’s primary witness would necessitate a request for postponement.

16 On the basis of counsel for the employer’s email reply, dated November 25, 2008, and my assessment that the grievor would suffer no prejudice by the postponement while potential existed for real prejudice to the employer, given the wide-ranging issues that the grievor wished to raise, if the employer were required to proceed without its most suitable management replacement witness, I granted the employer’s request for a postponement.

17 With respect to counsel for the employer’s request of November 13, 2008 to proceed on the two preliminary matters identified during the teleconference by written submissions, I noted that the grievor had not specifically addressed that issue in his reply of November 22, 2008. I requested that the grievor provide the Board with his position on proceeding with written submissions to deal with the preliminary issues raised, which were that this matter is “duplicitous” and that the adjudicator “lacks jurisdiction” to grant the grievor’s requested relief as corrective action even if the adjudicator were to find for the grievor on the merits.

18 By letter dated December 16, 2008, the grievor objected to proceeding by way of written submissions on the preliminary issues. The grievor’s position was that the Chairperson of the Board had already dealt with the issue of written submissions in his October 23, 2008 decision.

19 I reviewed counsel for the employer’s request of November 13, 2008 and the grievor’s reply, dated December 16, 2008. I also reviewed the employer’s earlier request to the Board of October 2, 2008, the grievor’s reply of October 21, 2008 and the Chairperson of the Board’s decision of October 22, 2008. That decision denied, without reasons, counsel for the employer’s request of October 2, 2008 that the hearing proceed by way of written submissions.

20 The grievor’s objection of October 21, 2008 to the employer’s earlier request to proceed by written submissions was successful even though the Chairperson of the Board gave no reasons for denying the employer’s request. The grievor’s position before the Chairperson had been that the suspension was the end result of a number of events that he believed constituted an abuse of authority and that, by making only written submissions, his ability to prove his case and to cross-examine witnesses would be limited. The grievor also stated that he did not have the employer’s resources and that he did not want to drag the matter out with numerous submissions. At that time, the grievor’s position also was that “…by the broad scope of the information there will be clarification required that would be better suited to a hearing.”

21 In reviewing the documents noted above, I determined that the Chairperson’s decision of October 22, 2008 could be read as being limited to denying the employer’s request to proceed by written submissions on the evidence and arguments on the merits of the grievance as a whole, and that I could consider the employer’s request that the two preliminary issues identified during the teleconference of November 6, 2008 proceed by way of written submissions. I granted the employer’s request in part.

22 On January 9, 2009, the Board wrote to the parties informing them that the issue of whether the adjudicator has jurisdiction to grant any of the relief that the grievor requested as corrective action, should the adjudicator find for the grievor on the merits of the grievance, would be addressed by way of written submissions. The issue of duplicate proceedings would be dealt with at the outset of the hearing, now scheduled for June 16 to 19, 2009.

23 On February 6, 2009, the employer provided a detailed submission with an appendix of case authorities and documents.

24 On March 9, 2009, the grievor filed with the Board a brief response to the employer’s application in which the grievor concurred in part with the employer’s submission.

25 The grievor’s initial grievance, dated April 20, 2007 and relating to the quantum of discipline imposed by the employer’s letter of discipline of April 3, 2007, was referred to adjudication on January 8, 2009 (PSLRB File No. 566-34-2743). At the grievor’s request, that grievance will be heard along with this grievance (PSLRB File No. 566-34-1413) at the hearing scheduled from June 16 to 19, 2009.

26 A teleconference was held on May 12, 2009 to discuss the parties’ submissions in this grievance. Also discussed were procedural issues arising from the parties’ submissions and the Board’s decision that the grievances will be heard together at the June 2009 hearing.

27 During the teleconference, I asked the grievor to clarify his reply letter of March 9, 2009 and asked him if he was voluntarily withdrawing his grievance. I explained to him that I agreed with the employer’s argument that I had no jurisdiction to grant any of the corrective action he was seeking, should I find for him on the merits of the grievance. The grievor assured me that he understood that I did not have jurisdiction in that regard but that he was not voluntarily withdrawing his grievance.

28 I also reminded the grievor of matters discussed during the earlier teleconference. First, the evidence to be presented at the hearing must be relevant to a material issue in the case to be admissible. Second, a grievance on the quantum of discipline imposed by an employer generally involves issues of whether the grievor has engaged in some form of work-related misconduct for which some discipline could be imposed and, if so, whether the discipline imposed by the employer was reasonable in the circumstances.

29 At the end of the teleconference, I informed the parties that I was not granting the employer’s request to summarily dismiss this grievance. Counsel for the employer requested a written decision so that he might consider an application for judicial review.

30 On May 15, 2009, the Board wrote the following to the parties:

This is further to the pre-hearing teleconference …

In the absence of Mr. Bahniuk’s voluntary withdrawal of his grievance in Board file number 566-34-1413, the adjudicator has denied the employer’s request for the summary dismissal of the grievance at this time.

A written decision regarding the above will be issued in due course.

[Note: The Board file is in error regarding the date of the teleconference. It was held on May 12, 2009]

31 This decision addresses only the arguments and my decision on this preliminary issue.

IV. Summary of the arguments

32 The employer’s position is summarized in paragraph 3 of its submission dated February 6, 2009, which reads as follows:

As outlined below, it is the Employer’s position that given the nature of the Corrective Action sought, specifically an investigation into his alleged harassment, and a request for legal fees at public expense, that Mr. Bahniuk seeks relief outside the jurisdiction of the PSLRB. Further, the Corrective Action sought also makes it clear that this matter is not properly before the Adjudicator in the first place as it does not fall within any of the parameters of s. 209 of the Public Service Labour Relations Act (the “Act”).

33 Counsel for the employer argues that the grievor seeks, in the details section of his grievance, a review of the disciplinary action imposed on him — the one-day suspension, and that normally would allow me to adjudicate the matter under paragraph 209(1)(b) of the Act. However, it is argued that that is not the case here because the corrective action sought makes it clear that discipline is not the essential nature of the grievance. The employer argues that the core of this grievance concerns an ongoing series of “events” involving the grievor and that it is, in essence, a harassment complaint. Therefore, the employer argued that I do not have jurisdiction to hear this case.

34 The employer further argues that an employee must obtain the approval of his or her bargaining agent to represent him or her in adjudication proceedings, according to subsection 209(2) of the Act. Because the grievor has not done so, he is not in compliance with the Act.

35 The employer also argues that the grievor’s grievance is very similar to the grievance in Canada (Attorney General) v. Lâm, 2008 FC 874. Given that the grievor in this case is essentially seeking the same relief sought by the grievor in Lâm, I am bound by that decision.

36 The grievor’s reply of March 9, 2009 is brief and states the following:

In review of the employer’s submission of February 6, I have chosen not to submit any representation on the matter relating to harassment. I believe the adjudication process cannot give me the remedy I am seeking nor does [sic] have the ability to address the vicarious liability of Canada Revenue Agency. Therefore with regards to the harassment and the remedy sought but only for that specific element, I have to concur with the employer that the Board does not have jurisdiction. I should be able to pursue that part of the complaint through a different judicial process.

[Emphasis added]

V. Reasons

37 The employer’s application for the summary dismissal of the grievor’s grievance, dated May 8, 2007, raises two issues. First, does the Board have jurisdiction for summary dismissal? Second, if the Board does have that jurisdiction, do the circumstances of this case support the Board summarily dismissing this grievance?

38 The employer raised the issue of the Board’s jurisdiction to dismiss a grievance summarily in its letter to the Board of October 2, 2008 as a logical presumption from an adjudicator’s authority under section 224 of the Act. That authority enables an adjudicator to decide any matter referred to adjudication without holding an oral hearing. However, that issue was not argued before me, and I have decided to proceed only on the basis of the merits of the employer’s application for summary dismissal. That is, I am not deciding whether the Board has jurisdiction to summarily dismiss a grievance. Instead, I am assuming that the Board has that authority.

39 The employer’s oral argument to summarily dismiss the grievance was that it had demonstrated through its written submission that the adjudicator has no jurisdiction to grant any of the grievor’s requested corrective actions even were the adjudicator to find for the grievor on the merits of the case. Furthermore, the grievor, by his own written submission, agrees with the employer on this jurisdictional matter.

40 The grievor’s position was that he concurs with the employer that the Board does not have jurisdiction over “… the harassment and the remedy sought but only for that specific element …” and that he is not prepared to voluntarily withdraw his grievance.

41 While I accept the employer’s argument that I do not have jurisdiction to grant any of the corrective action that the grievor seeks in this grievance, I do not believe that necessarily means the grievance is not properly before me and that it should be dismissed summarily.

42 In the federal public service, the Act gives an employee the right to grieve anything under section 208 but limits what can be referred to adjudication under section 209.

43 The relevant portion of section 209 of the Act provides as follows:

Reference to adjudication

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

…

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

44 The reference to adjudication in this case was made under paragraph 209(1)(b) of the Act. The grievor grieved a disciplinary penalty, a one-day suspension, assessed by his employer by letter of discipline dated April 3, 2007 for alleged inappropriate workplace behaviour during a meeting with his manager. Therefore, the substance of the grievance on its face falls within the parameters of paragraph 209(1)(b) of the Act. My jurisdiction is determined by the substance of the grievance. The redress portion, while important, is secondary and does not affect my jurisdiction to hear the matter. The grievor is entitled to a fair opportunity to prove his case on the facts. Should he do so, there may be a remedy that is appropriate and within my jurisdiction to provide.

45 The Lâm decision is distinguishable from this grievance. The substance of the grievance in Lâm was harassment. The grievor contested the decision of her employer, Health Canada, on her harassment complaint and alleged that her employer’s representatives failed to respect the spirit and letter of the Health Canada and Treasury Board policies on harassment and that the employer had breached several articles of the collective agreement, particularly articles 1 and 19.

46 The Court did not find that the alleged harassment involved a breach of the collective agreement. The Court held that article 19 of the collective agreement did not apply to the grievor because it did not mention personal harassment. The Court also held that there was nothing in the collective agreement that could support a finding that it was meant to include the Treasury Board policy on harassment. The Court found that article 1 was a general clause, an introduction or a preface that did not grant any substantive rights to employees. The adjudicator, by deciding that the Treasury Board’s workplace harassment policy was consistent with the objectives of article 1 of the relevant collective agreement, had misinterpreted that article and exceeded his jurisdiction and that the grievance should be dismissed.

47 In contrast, the substance of the grievance before me is the quantum of discipline (i.e., a one-day suspension) imposed by the employer on the grievor. Paragraph 209(1)(b) of the Act provides a substantive right to employees to refer a disciplinary action, including suspension, to adjudication. Furthermore, the context in which discipline is imposed by the employer may be relevant to the issue of the reasonableness of the quantum of discipline imposed.

48 With respect to the employer’s argument on subsection 209(2) of the Act, I believe that counsel for the employer has misinterpreted that subsection. It provides as follows:

209.(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

49 Paragraph 209(1)(a) of the Act speaks of an employee referring an individual grievance to adjudication that is related to the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award.

50 The grievor referred his grievance to adjudication under paragraph 209(1)(b) of the Act, not under paragraph 209(1)(a), and there is no requirement in subsection 209(2) for the grievor to obtain the approval of his bargaining agent to represent him in the adjudication proceedings in such circumstances.

51 It also should be noted that the grievance of May 8, 2007, which is the subject of this decision (PSLRB File No. 566-34-1413), was referred to adjudication before the other grievance (PSLRB File No. 566-34-2743) and that I have jurisdiction over the May 8, 2007 grievance regardless of the other grievance. The issue of duplicate grievances can be dealt with at the outset of the hearing scheduled for June 16 to 19, 2009, as noted in the instructions to the parties set out in the Board’s letter of January 9, 2009.

52 As a final matter, it should be noted that this is an interim decision on the employer’s application to summarily dismiss the grievance and, as such, is being made based on a review of limited evidence and argument. A final determination on the merits of the grievance will be made after a full hearing.

53 For all of the above reasons, I make the following orders:

VI. Orders

54 The employer’s application to summarily dismiss the grievance is denied.

55 The hearing will proceed as scheduled.

June 11, 2009.

Margaret E. Hughes,
adjudicator