FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Leona Wong (“the grievor”) referred a grievance to adjudication on February 20, 2009 under paragraph 209(1)(b) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”). She attached a copy of her grievance in the form of a three-page letter dated March 17, 2008 to her employer, the Canadian Security Intelligence Service (“the respondent” or “the CSIS”), in which she outlined her concerns. The following excerpts from the letter illustrate her perspective on the circumstances under which the respondent terminated her employment:

…

… I wish to grieve the termination of my employment based on unfair hiring practices, mismanagement, unethical practices, and harassment leading to a harsh and unwelcoming work environment within Facilities Management.

The issues of mismanagement, harassment and discrimination though related and directly impacted my chances of continued employment with Facilities Management, will be pursued through other more appropriate channels …

… I was part of a year-long hiring process including an experience and education screening and the extensive security check that lead to my valid security clearance. All this effort of HR and CSIS collectively will be discarded because my immediate management dislikes me and does not wish to renew my employment? The reasons for this dislike are, among others, my gender, perceived age, and education. These reasons of sexism, jealousy, and fear of competition are not acceptable nor legal grounds for not renewing my employment…

As normal practice in CSIS for new hires, a probationary period is used to assess the performance and abilities of the new employee, and not to be used for existing employees and supervisors to gauge their tolerance for a visible minority, or tolerance for a female, or tolerance for a formally educated professional, or tolerance for a person who is perceived to be “younger”.

…

In the new fiscal year, my current work will be the responsibility of three people: all of whom have been awarded permanent positions through developmental assignment, and none of whom had relevant experience or training. My immediate management would rather promote three inexperienced friends to share my responsibilities than hire me, who has been fulfilling this position competently for a year and a half…

…

… There is absolutely no premise to not renew my term, other than the fact that                      and                        with the complete support of                         dislike me for the reasons aforementioned, and wish to use my end of term to end my career with CSIS.

…

… An employee such as I who achieved above standard on the PER and who has a valid Security Clearance, deserves a fair chance to continue proving one’s worth to the Service and justify the costly expense paid by taxpayers to hire her despite not having “friends” in the right places within the Service…

…

[Emphasis in the original]

[Names omitted in the original]

[Sic throughout]

2 In a subsequent submission to the Deputy Head during the grievance process, dated April 23, 2008, the grievor identified the corrective action that she sought as follows:

…

I wish to be reinstated to an indeterminate level 07 position because I have met and exceeded all expectations within the probation period without any formal or informal negative feedback from management. All Facilities Management colleagues who entered the same time as I did received indeterminate and subsequent promotions to level 07’s and level 08’s within a year. I alone was not offered equal opportunities…

…

3 In a letter to the respondent dated December 8, 2008, the grievor clarified the corrective action that she sought as follows:

…

1) Reinstatement to Grade 8, Indeterminate position…

2) Departure PER from FM annulled and Probation period waived…

3) Training for official languages…

4) Access to training, career development and Mentorship…

5) Remuneration: Retroactive pay and Union dues reimbursed…

…

4 At the same time she filed her reference to adjudication to the Public Service Labour Relations Board (“the Board”), the grievor provided notice to the Canadian Human Rights Commission (CHRC) that her grievance raised an issue involving the interpretation or application of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (“the CHRA”). In that notice, she described the issue as follows:

…

Facilities Management’s managers created an unwelcoming and unequal opportunity for a female, visible minority with professional training for employment. I did not receive fair and equal treatment, equal access to opportunities to a career as those who entered at the same time as me because my managers disliked me because of my age, gender, race and color.

…

5 On March 9, 2009, the CHRC notified the Board that it did not intend to make submissions in the matter.

6 On April 14, 2009, the respondent submitted to the Board its position that an adjudicator does not have jurisdiction to hear and determine Ms. Wong’s grievance because the non-renewal of a term appointment does not constitute a termination within the meaning of paragraph 209(1)(b) of the Act.

7 The grievor responded to the respondent’s position as follows on May 11, 2009:

…

Contrary to the employer’s position, I believe that an adjudicator does have jurisdiction to hear my case. My dismissal is disguised as non-renewal and made in bad faith by managers with ulterior motives. Through an internal investigation, allegations of harassment and discrimination against these managers were founded.

Their actions, hidden behind a technicality, but based on discrimination ultimately prevented any possibility of my continued employment. Every other employee who entered the Service at the same time, or thereafter, under similar circumstances were subsequently offered permanent positions as well as promotions. An adjudicator has jurisdiction to examine the employer’s conduct.

…

8 When the Chairperson assigned me in October 2009 to hear and determine the matter, I reviewed the file. The grievor’s detailed written submissions on initiating the grievance and at the final level of the grievance procedure were among the documents provided to the Board. Those statements contained both the principal facts of the case from the grievor’s perspective as well as her arguments outlining their purported significance. I judged at that time that the documents on file could provide a sufficient basis to decide the respondent’s objection to my jurisdiction, presuming for that purpose that the facts alleged by the grievor were true. Nevertheless, I opted to seek written submissions from the parties on a further element that might come into play. Specifically, I was concerned about understanding whether the scope of available corrective action, if any, in the circumstances of the case might itself be a factor in addressing the jurisdictional issue raised by the respondent.

9 The Registry of the Board wrote to the parties on my behalf as follows on November 3, 2009:

…

The grievor has referred her grievance to adjudication under paragraph 209(1)(b) of the Public Service Labour Relations Act (“the Act”).  The subject matter of a grievance referred to adjudication under paragraph 209(1)(b) is “…a disciplinary action resulting in termination, demotion, suspension or financial penalty.” The respondent argued in its letter of April 14, 2009, that an adjudicator does not have jurisdiction to hear the grievance because the non-renewal of the grievor’s term appointment does not constitute a termination of employment that an adjudicator may review under paragraph 209(1)(b).

The adjudicator has decided to proceed in the first instance by way of written submissions. Following the schedule outlined below, the parties are directed to address the following jurisdictional issue:

1. If the adjudicator were to conclude that the non-renewal of the grievor’s term was the product of disciplinary action against her, or of discrimination, does the adjudicator have the jurisdiction to order her reinstatement, either on a term or full-time basis?
2. If the adjudicator cannot order any of the above corrective measures, does this affect the adjudicator’s jurisdiction to hear the grievance?

The adjudicator may rule on the respondent’s objection to jurisdiction solely on the basis of the parties’ written submissions. He may also order that the hearing tentatively scheduled for March 2-5, 2010, proceed if he believes that it is necessary to hear oral testimony and/or further arguments to determine the objection to jurisdiction, or if he is satisfied that he should also proceed to hear evidence and arguments on the merits of the grievance itself at that time.

…

[Emphasis in the original]

10 The written submissions of the parties are summarized as follows.

II. Summary of the written submissions

A. For the respondent

11 The grievor was appointed to two specified-period appointments with the CSIS, the first from October 10, 2006 to October 9, 2007 (Respondent’s Book of Documents, Tab A-1) and the second from October 9, 2007 to April 1, 2008 (Tab A-2).

12  By letter dated March 12, 2008 the respondent reminded the grievor that her period of employment with the CSIS would end on April 1, 2008, at the close of business (Tab A-3).

13 According to the respondent, failure to renew a term appointment does not constitute a “termination” within the meaning of paragraph 209(1)(b) of the Act. The grievor’s employment ended in accordance with the provisions of her term contract and in accordance with the respondent’s policy on external recruitment (Tab B-1) which states as follows:

…

9.3 Term employees will receive a letter specifying … the commencement and termination dates of the term… .

9.3.1 At no time should anything in the letter be construed as an offer of indeterminate employment.

…

The respondent did not “terminate” the grievor’s employment as she alleges in her grievance. Therefore, she may not refer her grievance to adjudication under section 209 of the Act.

14 In the respondent’s submission, the jurisprudence of the Board and the Federal Court concerning the non-renewal of term appointments has been quite constant. In Pieters v. Treasury Board (Federal Court of Canada), 2001 PSSRB 100, the adjudicator wrote as follows:

…

45. … no action was required on the employer’s part, as would be the case, for example, in the rejection on probation or the lay-off as an employee, to bring the grievor’s employment to an end. Rather, it came to an end by virtue of the provisions of his term contract …

…

The adjudicator further held that the employer’s motivation for not renewing a term contract is irrelevant to the determination of an adjudicator’s jurisdiction. He stated the following:

…

46.     …In Laird, (supra), although the employer's decision to lay off a term employee prior to the end of her contract was motivated by bad faith, the adjudicator found that he only had jurisdiction to award the grievor compensation for the balance of her term. Under the circumstances, the employer's motivation for not renewing Mr. Pieters' term contract is irrelevant to the determination of the adjudicator's jurisdiction…

…

15 In Monteirov. Treasury Board (Canadian Space Agency), 2005 PSSRB 27, the adjudicator followed the same reasoning, adding that the concept of termination implies a unilateral decision by the employer:

…

11.     The jurisdiction conferred on an adjudicator by section 92 is quite narrow and may not be broadened, even by consent of the parties. This jurisdiction is limited, first, to the interpretation or application of a collective agreement and, second, to disciplinary action, termination of employment, or demotion. According to the wording of his grievance, Mr. Monteiro contests the termination of his employment. I must therefore begin by determining whether the employer's decision not to renew the grievor's employment contract constitutes either a "termination of employment" within the meaning of paragraph 92(1)(b) of the PSSRA or, as Mr. Monteiro claims in his grievance, a constructive dismissal. I do not believe that this is the case, for the following reasons.

12.     First, the employer did not have to take any specific steps to that end, as it would have had to do, for example, to send the grievor for training, or to lay him off in order to terminate his employment. The evidence has established that Mr. Monteiro's employment ended in accordance with the provisions of his term employment contract and section 25 of the PSEA. I consider that the Federal Court of Appeal decisions in Dansereau v. National Film Board, [1979] 1 F.C. 100, and Eskasoni School Board/Eskasoni Band Council v. MacIsaac, [1986] F.C.J. No. 263 ( C.A.) support this finding. The concept of termination of employment implies a unilateral decision by an employer to terminate an employment contract that would otherwise have continued to exist.

…

16 The respondent also referred me to Zhou v. National Research Council of Canada, 2008 PSLRB 51; Kerr-Alich v. Treasury Board (Department of Social Development), 2007 PSLRB 33; Savic v. Canadian Food Inspection Agency, 2001 PSSRB 104; Lecompte v. Treasury Board (Health Canada), PSSRB File No. 166-02-28452 (19990721); Hanna v. Treasury Board (Citizenship and Immigration Canada), PSSRB File No. 166-02-26983 (19960624); Beaulieu v. Treasury Board (Justice Canada), PSSRB File No. 166-02-27313 (19970110); Laird v. Treasury Board (Employment and Immigration), PSSRB File No. 166-02-19981 (19901207); Dansereau v. National Film Board and Lachapelle, [1979] 1 F.C. 100 (C.A.); and Eskasoni School Board/Eskasoni Band Council v. MacIsaac, [1986] F.C.J. No. 263 (C.A.)(QL).

17 The respondent acknowledged Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68, in which the adjudicator wrote the following about the Act:

…

14.     … the new Act, in particular under paragraph 226(1)(g), grants authority to an adjudicator to hear the merits of a grievance involving the decision not to renew a specified term of employment where it is alleged that the reasons for the decision are prohibited discriminatory practices of the employer.

…

The respondent maintains that that reasoning in Gibson is flawed. Furthermore, the adjudicator’s statement constitutes an obiter dictum (an incidental remark), not the basis of his decision. Gibson suggests that sections 209 and 226 of the Act stand side by side and together enunciate the powers of an adjudicator. The respondent submits that section 226 flows from section 209. The powers listed in section 226 are not conferred upon an adjudicator unless jurisdiction has been established in accordance with section 209. The power to interpret and apply the CHRA exists only in relation to a matter that is properly referred to adjudication once the adjudicator acquires jurisdiction to hear the grievance pursuant to section 209.

18 In Attorney General of Canada v. Amos, 2009 FC 1181, the Federal Court confirmed that the powers stated in section 226 of the Act did not increase or expand an adjudicator’s jurisdiction. The Court stated the following:

…

[39]    The Court is of the view that there is no substantial change between section 92 of the PSSRAand section 209 of the PSLRA. Therefore, there is no need, as suggested, to exclude case law interpreting section 92 of the PSSRA. That being said, the Court also recognizes that there have been some changes with the PSLRA, notably with the inclusion of subsection 226(2) and section 236, as discussed below.

…

[46]    At the hearing, the Respondent and Interveners argued that subsection 226(2) coupled with the preamble of the PSLRA, the general labour relations policy, the liberal interpretation of the statute and the fact that the PSLRA constitutes a comprehensive scheme, all illustrate that the legislator’s intention was to increase the Adjudicator’s jurisdiction. However, the Court’s understanding of section 226(2) of the PSLRA, of the Adjudicator’s powers, and especially of the decision-maker’s jurisdiction within the PSLRA, does not correspond to the Respondent’s and interveners’ position.

…

19 The jurisprudence supports the finding that the grievor’s appointment was not “terminated” in accordance with paragraph 209(1)(b) of the Act. Therefore, the adjudicator is without jurisdiction to consider the grievance and, as a result, does not have the power under paragraph 226(1)(g) to consider whether the failure to renew the appointment was the product of discrimination.

1. The jurisdiction to order reinstatement either on a term or full-time basis

20 An adjudicator does not have the jurisdiction to order the reinstatement of the grievor either on a term or full-time basis. A reinstatement necessarily implies an appointment to a position. Under paragraph 8(1)(a) of the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, the Director has exclusive authority to appoint employees and to provide for the terms and conditions of their employment. It is well-established that, where the exclusive authority to appoint employees has been granted by statute, an adjudicator does not have the authority to reappoint a grievor on any basis or to award compensation in lieu; see Foreman v. Treasury Board (Indian and Northern Affairs Canada), 2003 PSSRB 73; Laird; Zhou; Dansereau and Monteiro.

2. As the adjudicator cannot order any of the above corrective measures, is the adjudicator’s jurisdiction to hear the grievance affected? 

21 The inability of an adjudicator to order a particular corrective measure does not necessarily affect the adjudicator’s jurisdiction to hear the grievance. Jurisdiction and remedy are distinct. To consider a remedy, the adjudicator must first determine that he or she has jurisdiction.

22 In the alternative, the respondent submits that an adjudicator risks acting outside his or her jurisdiction in taking jurisdiction over a matter for which he or she cannot order a remedy. If it is settled law that the adjudicator cannot reappoint or award compensation in lieu, what remedy is open to the adjudicator? The Laird decisionstated the following:

…

While, on the evidence before me, I believe that Ms. Laird was worthy of having her contract renewed in priority to either Ms. Burningham or Ms. Banks, it is clear that I have no authority to declare this to be the case as this would be tantamount to making an appointment and, thus, beyond my jurisdiction.  Although I am inclined to feel that Ms. Laird has a moral claim to compensation beyond 30 June 1989, possibly for as much as a year past that date, I make no order in this regard for want of authority to do so.

…

23 Employment status and discrimination are two separate issues. The employment status issue can be finally determined as discussed in the jurisprudence presented earlier. The discrimination issue cannot be determined by the Board for lack of jurisdiction. The allegations of discrimination raised by the grievor were already dealt with through an earlier complaint process. Clearly, other avenues of redress are or were available to her.

24 In conclusion, the respondent submits that an adjudicator does not have jurisdiction to consider any of the grievor’s allegations nor to grant the remedy requested. In accordance with section 227 of the Act, the adjudicator should decide the matter solely on the basis of the parties’ written submissions. Should the adjudicator consider holding an oral hearing, the respondent requests that the hearing be limited in the first instance to the issue of jurisdiction.

B. For the grievor

25 The grievor submitted as follows:

…

I wish to submit that the examples of PSLRB cases provided by the Employer are not closely comparable to my situation and are not fair references. The jurisprudence referenced do not specifically indicate that the organizations shared the same hiring practices to those of the Canadian Security Intelligence Service at the time of my employment, nor the motivation for the terminations in their respective decisions. 

In my case, a non-renewal is no different than a termination with the Employer. CSIS Personnel Services indicated to me that it is the practice of the Employer to hire new employees as terms, who in turn become indeterminate employees normally within a year. This became clear as every other new employee who entered into service with the Employer at the same time as I, were subsequently offered indeterminate positions as well as promotions within the time of my employment. The Employer has a lengthy and thorough investment of effort in screening for suitability and security prior to hiring new employees. This process spans many months, and in my case, close to one year. It can be assumed that the intentions of the Employer would not be as regular practice, to invest up to one year of effort to hire employees for a term and allowing their employment to end merely as a reason of non-renewal.

I maintain my position that my employment was deliberately terminated because of managers who discriminated against me and abused their authority to terminate my employment veiled as a non-renewal. The motivation to terminate my employment was discrimination. This is beyond bad faith as referenced by the Employer in Pieters, but a breach of Human Resource practices and policies of the Employer, as well as a violation of the Canadian Human Rights Act. This makes the motivation behind a termination relevant to the adjudicator’s jurisdiction.

When considering the motivation as well as the normal hiring practices of the Employer, the non-renewal in my case is no different than a termination of an indeterminate employee. The normal course of a career was to continue with indeterminate employment offered by management after completing the customary term for new employees. But in my case, the hatred brought on by discrimination, became the reason for my termination. Through an internal investigation by Employer, allegations of harassment and discrimination against those individuals responsible for the decision of termination were founded in violation of the Canadian Human Rights Act.

I hope the Board can consider my unique case of termination as a result of discrimination and harassment during my employment with the Employer, as well as the unethical human resources practices in Facilities Management at CSIS and proceed with adjudication.

…

C. Respondent’s rebuttal

26 The respondent reiterated its position that the non-renewal of a term appointment does not constitute a termination, citing the Zhou decision as follows:

…

108 The jurisprudence of the Federal Court, the PSSRB and the PSLRB has therefore established quite clearly that the non-renewal of a term appointment does not constitute a termination of employment. In this case, the grievor’s employment contract expired at the end of its term, and the employer decided not to make another appointment.  There was no termination of employment within the meaning of paragraph 209(1)(b) of the PSLRA.

…

27 While the grievor refers to the respondent’s alleged practice to make new term employees indeterminate within a year, it was clearly stated in the grievor’s letter of appointment, acknowledged in writing by the grievor, that “… [n]othing in this letter should be construed as an offer of indeterminate employment.”

28 The respondent submits that the grievor is incorrect in asserting that hers is “a unique case of termination.” Instead, it is a case of a term appointment coming to an end. The grievor’s other allegations either should be, or should have been, dealt with in other forums.

29  The grievor did not address the adjudicator’s questions or offer any evidence regarding those questions. Therefore, the respondent submits that there are no convincing reasons to hold a hearing in this matter.

III. Reasons

30 The grievor referred this matter to adjudication under paragraph 209(1)(b) of the Act, which reads 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

…

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

31 I am satisfied that the documents on file as well as the written submissions of the parties allow me to determine the respondent’s objection to my jurisdiction without further submissions or an oral hearing. The authority of an adjudicator to make a ruling without convening an oral hearing is provided under section 227 of the Act as follows:

227. An adjudicator may decide any matter referred to adjudication without holding an oral hearing.

32 The basic evidence in this case is straightforward. In its letter dated September 20, 2007 (Tab A-2), the respondent offered the grievor a specified period appointment for a term of approximately six months beginning October 9, 2007 and ending April 1, 2008. The letter explicitly stated that “… [n]othing in this letter should be construed as an offer of indeterminate employment.” The respondent signed the letter of offer immediately below the following sentence: “I accept this offer and the above terms and conditions.” On March 12, 2008, the respondent wrote to the grievor and reminded her “… that your period of employment with the Service will terminate on 2008-04-01 at close of business” (Tab A-3). The grievor’s employment ended once her term appointment expired. On the basis of the two documents provided by the respondent, both unchallenged by the grievor, I find that the respondent has met its initial evidentiary burden to establish that the action contested by the grievor was, on its face, the non-renewal of a term appointment.

33 The respondent’s authority to appoint employees is prescribed under paragraph 8(1)(a) of the Canadian Security Intelligence Service Act as follows:

8. (1) Notwithstanding the Financial Administration Act and the Public Service Employment Act, the Director has exclusive authority to appoint employees and, in relation to the human resources management of employees, other than persons attached or seconded to the Service as employees,

(a) to provide for the terms and conditions of their employment;

…

There is no evidence or argument that the respondent acted without the requisite statutory authority in this case.

34 To establish my jurisdiction to consider her grievance, the grievor must prove that, on a balance of probabilities, the respondent’s action was something other than what it appears to be on its face. Specifically, having referred her grievance to adjudication under paragraph 209(1)(b) of the Act, the grievor bears the burden of proving that the respondent’s decision in reality comprised a disciplinary action resulting in the termination of her employment.

35 In my opinion, the grievor has not met that burden. Indeed, what is most remarkable about the grievor’s written submissions during the grievance process as well as her argument filed with the Board on December 21, 2009 is that she never refers to discipline or depicts the respondent’s action as motivated by an intent to discipline, except in one single, brief and ambiguous reference.

36 In the initial statement of her grievance, dated March 17, 2008, the grievor outlines the nature of her grievance in the first paragraph as follows:

…

… I wish to grieve the termination of my employment based on unfair hiring practices, mismanagement, unethical practices, and harassment leading to a harsh and unwelcoming work environment within Facilities Management.

…

Everything in the rest of the letter amplifies the grievor’s allegations that the respondent treated her unfairly and discriminated against her, that it did not follow its usual staffing procedures, that managers disliked her, and that she was harassed. There is no mention whatsoever of any incident that might be characterized as misconduct or of anything said or done by the respondent that could be viewed as an attempt to correct the grievor’s behaviour through a disciplinary response.

37 The grievor’s letter dated April 23, 2008 to the Deputy Head is substantially the same. She introduces her argument by again stressing the themes of harassment and discrimination. She writes as follows:

…

… Through discrimination and harassment, the management of Facilities Management had intentionally made the environment unwelcoming, and ultimately used the expiration of my term as the technicality to terminate my employment… My longer term career within Facilities Management was deliberately ended on a technicality by those who chose to do so because of discrimination, intolerance and prejudice.

…

Once more, there is nothing of substance in the rest of the text to suggest discipline other than the following statement:

…

In my view, these actions of several unfit managers and supervisors go beyond just the merit of possible internal disciplinary measures pending the findings of a formal investigation…

…

It is entirely unclear what the reference to “possible internal disciplinary measures” means. In my view, it is impossible to qualify the grievor’s letter as a grievance against disguised discipline based upon a solitary and ambiguous use of the word “disciplinary.” Much more telling, by way of contrast, is the grievor’s own admission earlier in the letter to the following effect:

…

The technicality of my term expiration may justify [name omitted] in choosing to end my employment with CSIS, and “wrongful termination” may technically and legally be the incorrect term …

…

38 In her submission to me dated December 21, 2009, the grievor finally leaves no doubt about the nature of her allegation, as follows:

…

I maintain my position that my employment was deliberately terminated because of managers who discriminated against me and abused their authority to terminate my employment veiled as a non-renewal. The motivation to terminate my employment was discrimination. This is beyond bad faith as referenced by the Employer in Pieters, but a breach of Human Resource practices and policies of the Employer, as well as a violation of the Canadian Human Rights Act…

…

By her own words, the grievor’s case is about alleged discrimination and bad faith. It is not about disguised discipline. On that basis alone, I find that her reference to adjudication does not fall under paragraph 209(1)(b) of the Act.

39 The grievor expresses her hope that “… the Board can consider my unique case of termination as a result of discrimination and harassment … .” If there were a basis to accept jurisdiction to consider the grievor’s case, it would be that the allegations of discrimination that lie at the heart of the grievance clothe an adjudicator with authority despite the apparent absence of any proven element of disguised discipline. In that regard, the respondent cited, and then disputed, the finding in the Gibson decision to the following effect:

…

14… the new Act, in particular under paragraph 226(1)(g), grants authority to an adjudicator to hear the merits of a grievance involving the decision not to renew a specified term of employment where it is alleged that the reasons for the decision are prohibited discriminatory practices of the employer.

…

Paragraph 226(1)(g) of the Act reads as follows:

226. (1) An adjudicator may, in relation to any matter referred to adjudication,

…

(g) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any;

…

40 The situation examined in the Gibson decision can be distinguished in at least one important respect. In that case, the grievor alleged a violation of the no-discrimination article of the collective agreement and referred her grievance to adjudication under paragraph 209(1)(a) of the Act as a matter concerning the interpretation or application of a provision of a collective agreement. That is not the case here.

41 With great respect to the adjudicator in the Gibson decision, I must concur with the respondent’s argument that a grievance must be properly referred to adjudication under subsection 209(1) of the Act before the adjudicator acquires the authority to interpret and apply the CHRA; see, for example, Wong v. Canada Revenue Agency, 2006 PSLRB 133, at paragraph 35. In my view, the authority given to an adjudicator under paragraph 226(1)(g) is not a means by which any situation involving an allegation of discrimination prohibited by the CHRA becomes his or hers to decide. The authority may be exercised only for subject matter that comes within one or more of the enumerated paragraphs of subsection 209(1). Thus, in the Gibson decision, the adjudicator may arguably have had jurisdiction to consider the grievance as a matter involving discrimination because the grievance on its face concerned a matter of collective agreement interpretation under paragraph 209(1)(a) — an alleged violation of the no-discrimination article of the applicable collective agreement — but not because of the grant of authority to interpret the CHRA under paragraph 226(1)(g). In the case before me, I have found no basis to identify the subject matter of the grievance as a disciplinary termination under paragraph 209(1)(b). The fact that the grievor alleges that the respondent discriminated against her in bringing her employment to an end contrary to the CHRA does not alter that finding nor independently found my jurisdiction.

42 I have noted the extensive case law cited by the respondent to the effect that a non-renewal of a term appointment does not constitute a disciplinary “termination” within the meaning of paragraph 209(1)(b) of the Act. As argued, the jurisprudence under both the Act and under the previous law is consistent and unfavourable to the grievor’s case. I do not believe that I need to review it in detail here.

43 I turn finally to the questions that I posed to the parties about corrective action in the case of the non-renewal of a term appointment. The respondent offered brief comments on those questions; the grievor none. On further reflection, I find that I do not need to factor in the element of remedial authority to determine my jurisdiction in this case. The respondent’s unchallenged assertion that an adjudicator cannot reappoint an employee once his or her term appointment has expired appears to be well founded. However, that does leave open the possibility that some other corrective action may be available to an adjudicator where he or she properly decides to accept jurisdiction over a grievance that, on its face, concerns the non-renewal of a term appointment. If it turned out in such a case that other types of corrective action were inappropriate or impractical, there might be a reason to question whether the case could or should proceed to a hearing, but that determination does not appear to be jurisdictional in nature.

44 In retrospect, it may have been unnecessary to ask for submissions on the questions that I posed. Nonetheless, I found that the parties’ submissions did provide important additional support for the finding that I do not have jurisdiction in this matter.

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

IV. Order

46 The grievance is dismissed.

February 4, 2010.

Dan Butler,
adjudicator