FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Did the respondent discipline an employee when it removed her supervisory responsibilities for a two-year period, or was its action a non-disciplinary administrative measure? If the respondent’s action was disciplinary, does an adjudicator have jurisdiction to review it under paragraph 209(1)(b) of the Public Service Labour Relations Act (“the PSLRA”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22? Those are the principal issues considered in this decision.

2 Sawsan A. Sharaf (“the grievor”) was an excluded manager in a PM-06 position at the Ontario/Nunavut Regional Office of the Public Health Agency of Canada (“the PHAC”) in Toronto. She received a letter dated December 5, 2007 from her regional director, Mauricette Howlett, which reads as follows:

…

The following will serve to provide you with an update on the outstanding grievances filed against you in July of 2003 for alleged harassment. We recognize that you have accepted a secondment to Health Canada until March 31, 2008. Nevertheless, we wish to inform you of the measures we have taken to address the situation.

After review [sic] the information, it has been determined that there was no clear evidence of harassment. Yet, even if the allegations filed against you did not constitute harassment as per the definition of the Treasury Board Prevention and Resolution of Harassment Policy, we have unveiled strong evidence of inappropriate behaviour on your part towards the grievors.

In this regard, it was demonstrated that you have acted on several occasions in an unprofessional and disrespectful way towards employees working under your authority. The investigation further established that there were reports of you yelling, being abrupt in your approach with employees, using a commanding and berating tone and saying embarrassing comments to an employee in front of other colleagues. According to the facts, this behaviour made the employees feel humiliated, embarrassed and unvalued.

Your behaviour is clearly unacceptable especially coming from a manager. This behaviour is also contrary to the Public Service Values and Ethics Code. For this reason, in October 2007 we partially accepted all 14 grievances filed.

As part of the corrective measures granted in the grievances, we have indicated to all 14 grievors that they will, under no circumstances, work again under your authority.

As part of a second administrative measure, should your [sic] return to the Public Health Agency of Canada (PHAC), due to evidence of your difficulties interacting with other employees, it was decided that no employees will be reporting to you for a period of two years. Please note that you will remain at your current group and level and will not suffer any financial consequences, however, new duties will be assigned to you that will not require having employees work under your authority. Furthermore, before you can resume your supervisory duties and should you return to the PHAC, you will be required to attend a communication and harassment awareness session within this two-year period.

It is important to point out that this letter will not be added to your personal file. A copy will however be kept for my files and a copy will be provided to Labour Relations for their records.

We trust that the behaviour described above will not occur again. However, should similar patterns of behaviour be observed when you return to PHAC, disciplinary measures could be imposed.

…

[Emphasis added]

3 The grievor contested the letter of December 5, 2007 in a grievance (PSLRB File No. 566-02-1930) (“the first grievance”) that opened with the following assertions:

…

The alleged 14 grievances were submitted against me 5 years ago. Senior management did not deal with the issues raised, despite my repeated requests. I was not given the opportunity to see what was alledged against me. Five years later, the RD, whom I have a grievance against her, suddenly sent me a letter (attached) basically playing the role of the judge, jury and the court system. The content of the letter displays lack of fairness, lack of transparency and lack of procedural justice.

Although, according to the letter there were 14 grievances, I dispute this number/figure. Although, none were founded, it was managed to find a “misconduct”.

…

[Sic throughout]

4 The grievor requested the following corrective actions:

…

1. Unconditional letter of apology for the pain and suffering I have endured over the last five years.
2. Compensation for lost opportunities in my career development as a result of the alleged grievances and not resolving them immediately (An example is attached).
3. Upon returning from my current assignment (with Health Canada) back to the Agency, I will be re-instated [sic] in my rightful position, I am the incumbent, with no hesitation or conditions. I will be allowed to manage my staff again. Who among us have the luxury of choosing his/her own boss?

…

5 The grievor referred the first grievance to adjudication on April 2, 2008 under paragraph 209(1)(b) and subparagraph 209(1)(c)(i) of the PSLRA. On April 4, 2008, she added subparagraph 209(1)(c)(ii) and paragraph 209(1)(d). At the hearing, the grievor argued her case only under paragraph 209(1)(b). As she did not address the other cited elements of subsection 209(1), I need only consider my jurisdiction to determine the first grievance under paragraph 209(1)(b) in this decision.

II. Preliminary matters

6 On May 29, 2008, the respondent objected to an adjudicator’s jurisdiction to consider the grievance. The respondent argued that the temporary removal of the grievor’s supervisory responsibilities does not comprise a matter that may be referred to adjudication under subsection 209(1) of the PSLRA. It requested that the reference to adjudication be dismissed without a hearing for lack of jurisdiction.

7 At a brief hearing on April 21, 2009, I considered an additional preliminary matter raised by the respondent concerning section 225 of the PSLRA. After some discussions, the respondent indicated that it was satisfied, based on the record, that I should consider the grievor to have complied with section 225. I accepted the respondent’s position.

8 On April 29, 2009, the grievor referred a further grievance to adjudication (PSLRB File No. 566-02-2868) (“the second grievance”). She asked that it be held in abeyance until there was a decision on her first grievance.

9 On July 16, 2009, the respondent asked for an extension of time to file an objection to the timeliness of the second grievance. The respondent also argued that the second grievance covered the same matter as the first grievance and that it did not fall within an adjudicator’s jurisdiction. It requested that the second grievance be dismissed without a hearing. In the alternative, it requested that an adjudicator hear the first and second grievances together.

10 The Chairperson of the Board referred the respondent’s request for an extension of time as well as its request that the two grievances be heard together to a Vice-Chairperson of the Board.

11 On July 29, 2009, the grievor requested that the respondent disclose certain documents that were allegedly relevant to the first grievance. After canvassing the respondent’s position on the disclosure request and receiving further submissions from the grievor on the matter, I convened a pre-hearing conference to discuss the outstanding issues.As a result of the pre-hearing conference, I ordered the respondent to provide the grievor with copies of the first-level decisions on the 14 grievances mentioned by Ms. Howlett in her letter of December 5, 2007. I also directed the parties to continue to discuss a number of other disclosure matters.

12 I also ruled at the pre-hearing conference that the hearing scheduled for December 2009 would consider the evidence and arguments about an adjudicator’s jurisdiction to consider the first grievance. I notified the parties that they should also prepare themselves for the possibility that the issue of an adjudicator’s jurisdiction to hear the second grievance might also be addressed at that hearing.

13 On September 29, 2009, Deputy Head (Public Health Agency of Canada) v. Sharaf, 2009 PSLRB 115, denied the respondent’s application for an extension of time to file an objection to the timeliness of the second grievance. That decision did not consider the respondent’s request that an adjudicator hear the first and second grievances together.

14 On October 2, 2009, the parties were asked, on my behalf, for their written submissions on whether the following issues should be held in abeyance until such time as I determined my jurisdiction concerning the first grievance:

…

(1) the grievor’s original request to hold the second grievance in abeyance pending the adjudicator’s decision in the first grievance;

(2) the respondent’s position that the second grievance deals with the same issue raised in the first grievance, that it does not raise subject matter within an adjudicator’s jurisdiction under section [sic] 209(1)(b) or (c)(ii) of the Public Service Labour Relations Actand that it should, as a consequence, be dismissed without a hearing; and,

(3) the respondent’s alternate position that the second grievance should be heard with the first grievance if the adjudicator does not dismiss the second grievance without a hearing.

…

15 On October 20, 2009, the respondent agreed with the grievor’s request to hold her second grievance in abeyance. On October 23, 2009, the grievor filed written submissions that focused in greatest part on rebutting the respondent’s argument that the two grievances covered the same matter. She also offered comments in support of her contention that an adjudicator does have authority to consider her second grievance.

16 On the basis of the written submissions of the parties, I ruled as follows:

…

… The grievor’s detailed description of the circumstances that led her to file her first grievance suggest to [me] that, as a practical matter, the full four days scheduled for this matter in December may well be required to consider evidence and arguments regarding the respondent’s objection to jurisdiction to entertain that grievance. As a result, [I have] ruled that issues related to the second grievance will be held in abeyance at this time. [I] will reconsider how to proceed with the second grievance once [I have] decided whether [I] have jurisdiction over the first grievance.

To that extent, the grievor’s original request to hold the second grievance in abeyance is granted in the interim.

Consistent with the ruling given at the pre-hearing conference held on August 28, 2009, the hearing scheduled for December 15 to 18, 2009 will be limited to receiving evidence and arguments regarding the respondent’s objection to an adjudicator’s jurisdiction to hear the first grievance.

…

[Emphasis in the original]

III. Summary of the evidence

17 Four witnesses testified at the hearing — the grievor and three witnesses for the respondent.

18 In both her own testimony and her cross-examination of the respondent’s witnesses, the grievor sought at times to lead evidence that I believed was essentially about the merits of the respondent’s decision to remove her supervisory responsibilities rather than about my jurisdiction to hear her grievance. She also quite frequently strayed over the line separating evidence and argument. I tried on several occasions to provide procedural guidance and made several rulings not to admit documents that I considered unrelated to the issue of jurisdiction or that were problematic for other reasons. Nonetheless, I found it appropriate to accord the grievor some substantial degree of flexibility during the evidence phase of the hearing on the possibility that the facts of interest to her about the history of her situation and her treatment by the respondent might reveal evidence that could place in clearer context the nature of the respondent’s decision on December 5, 2007. The summary of evidence that follows is abbreviated. Many details have been omitted that do not assist me in determining the jurisdictional issue.

19 As a result of a national competition designated for bilingual employees from employment equity groups, the grievor joined the Ontario/Nunavut Region of what was then Health Canada on September 16, 2002 in the position of Section Manager, Healthy Child Development. Her position was classified at the PM-06 group and level. Her acting regional director was Anuradha Marisetti.

20 Ms. Marisetti removed the grievor’s section manager duties from her and moved her to a different office in September 2003 after 14 employees filed grievances against her. The grievor testified that she did not know the nature of their allegations until 2005. She felt humiliated and left in limbo and viewed Ms. Marisetti’s decision as a suspension without just cause.

21 The grievor filed a grievance against Ms. Marisetti, which contained 37 allegations of wrongdoing, as well as a harassment complaint.

22 Pegeen Margaret Walsh returned as regional director in April 2004. Ms. Walsh recounted that the grievor was on special assignment between September 2003 and September 2004. The grievor testified that that meant that she was doing “nothing about nothing.” Nonetheless, she also testified that Ms. Walsh assigned her to develop a business continuity plan and, beginning in April or May 2004, asked her to lead the Policy and Knowledge Development Section for six months. In that capacity, the grievor supervised staff, had a budget, interacted with stakeholders, and managed grants and contributions. The grievor also mentioned that Ms. Walsh assigned her to work on a “prestigious” research project about immigrant women in collaboration with individuals from Health Canada and the University of Toronto.

23 Before returning to the regional directorship, Ms. Walsh had encountered Ms. Marisetti, who had told her that there were interpersonal issues in the Healthy Child Development section involving the grievor. Once back in her director’s role, Ms. Walsh learned about the 14 outstanding grievances and continued the inquiries begun by Ms. Marisetti. She met with the employees involved, individually and collectively with their bargaining agent representatives, as well as with the grievor. Pamela Kartinen, Manager of Client Services, from the region’s Human Resources section, attended the meetings with her and provided advice. When she met with the grievor, Ms. Walsh gave her a summary of what she had heard from the affected employees (Exhibit G-1).

24 Ms. Walsh’s inquiries identified a range of issues involving the grievor, including concerns about trust, not showing personal respect, embarrassing and humiliating employees, harassment, and difficulties with communicating and with her decision-making style. Ms. Walsh testified that the grievor reacted with anger and frustration and that she said that it was all untrue. The grievor testified that her meeting with Ms. Walsh was the only occasion when the respondent asked her for input about the allegations.

25 On the basis of her inquiries, Ms. Walsh judged that some of the allegations were founded and that some were not. She felt that the organization had been badly damaged and that the parties could no longer work together. While the grievor was asking to be returned to her section manager role, the bargaining agent representing the 14 employees was seeking corrective action that would ensure that the grievor would not return to that position. Human Resources staff advised that the best option was to provide training and support to the grievor. Ms. Walsh testified that she preferred that approach. She asked the grievor to join her in a mediation conducted by a professional mediator. The grievor agreed.

26 Ms. Kartinen testified that Ms. Walsh was not contemplating disciplinary action at that time. She stated that discipline was only one of a range of possible options available to Ms. Walsh. Ms. Kartinen indicated that Ms. Walsh’s focus instead was on training and coaching and on finding what Ms. Kartinen called a “win-win” solution.

27 Ms. Walsh herself denied in cross-examination that she used the word “discipline” in her conversations with the grievor. She recalled saying that they were dealing with the consequences of the grievances, some of which she had determined were founded. She said that she talked with the grievor about interpersonal relationship training and particularly about “emotional intelligence.”

28 Mediation resulted in an agreement that the grievor accept a new position, Section Manager, Policy, Planning and Aboriginal Health (PM-06). The grievor began working in that position following the mediation. In an email to managers in the region, Ms. Walsh wrote that the grievor “… will continue the work started related to the health of immigrant women, as well as support me on files related to the new public health work under the agency …” (Exhibit G-3). Ms. Walsh formalized the change in a letter dated November 29, 2005 (Exhibit E-3), signed several days later as agreed by the grievor. Noting the grievor’s expressed desire to again supervise employees, Ms. Walsh indicated to the grievor that she could staff one or two positions in her new role and that they would “see how that evolves.” According to Ms. Walsh, the grievor surrendered her rights to her old position and was in a new job with new responsibilities.

29 Ms. Walsh left the PHAC in December 2004 to accept a position with the Province of Ontario. Elfreda Burkholder replaced her as acting regional director. Ms. Walsh outlined that she did not prepare a formal report about, or issue a formal reply to, the 14 grievances before leaving. She left her summary of the incidents and her recommendations with the PHAC on departing.

30 Ms. Howlett arrived as the new regional director in October 2006. She testified that she was not aware of the past problems involving the grievor when she took up her duties. However, when the bargaining agent of the employees who had grieved against the grievor filed an access-to-information request approximately one month later seeking details about the status of the 14 grievances, she learned about the situation and that no formal decisions had been issued at the first level. She consulted the notes on file from Ms. Marisetti, Ms. Walsh and Ms. Kartinen as well as two investigation reports submitted by an outside consultant concerning the grievor’s harassment complaint against Ms. Marisetti. Ms. Howlett indicated that she also talked with Ms. Marisetti, Ms. Burkholder and Ms. Kartinen but not with Ms. Walsh. In cross-examination, Ms. Howlett confirmed that she did not investigate the grievances herself. Instead, she relied on the investigations already conducted by Ms. Marisetti and Ms. Walsh.

31 Ms. Howlett testified that she focused in 2007 on “wrapping up” the issues raised by the 14 grievances because the morale of the office was at a low. She felt that she needed to bring closure to past problems so that the office could move forward. Based on the notes on file, her discussions with her predecessors and with labour relations advisors, Ms. Howlett finally issued first-level responses to the 14 grievances on November 7, 2007. She followed on December 5, 2007 with the letter to the grievor that is the subject of this hearing.

32 As of the date of the letter, a complaint filed by the grievor in April or May 2007 against Ms. Howlett was on file. The complaint contained 41 allegations of wrongdoing against her. The grievor had also written to the Chief Public Health Officer and to the responsible minister. Ms. Howlett testified that the outstanding complaint had no impact on her decision.

33 Ms. Howlett described the decision outlined in the December 5, 2007 letter as an administrative action. She concluded that the grievor’s supervision “factor” was an issue that she had to address. She wanted to do so through training to ensure that the workplace could become productive once more and that the grievor could again make an effective contribution. Ms. Howlett insisted that she did not design the letter to punish the grievor. Noting that Ms. Walsh had already set the tone that training was required, Ms. Howlett stated that she did not contemplate discipline as an option.

34 In the period before the letter of December 5, 2007, Ms. Howlett negotiated two assignments for the grievor with Tony Sangster, Ontario Regional Director General, Health Canada. One assignment started in May 2007, and the second began in September 2007. From Ms. Howlett’s perspective, the assignments allowed the grievor to be in a different environment “not laden” with the issues in her former work unit. Ms. Howlett also provided $3000 in funding for executive coaching for the grievor while on assignment in “… the spirit of ensuring that she would be on a path to returning to a more productive note.”

35 At the time Ms. Howlett sent the December 5, 2007 letter to the grievor, and continuing until October 2008, the grievor remained on assignment to Health Canada. Ms. Howlett testified that she expected that the grievor would continue to perform PM-06 duties when she returned to the PHAC and that she would be able to contribute productively to its work.

36 The grievor testified about several incidents in late 2006 and the first half of 2007. In the first, the grievor prepared application documents for an Employment Equity Corporate Leadership Development Initiative (“the EE Initiative”) for submission to Gary J. Ledoux, acting Director General, Regional Operations at the PHAC (Exhibit G-11). She stated that Ms. Howlett told her that Mr. Ledoux did not want to approve her participation in the EE Initiative. The grievor testified that Ms. Howlett also told her that Mr. Ledoux did not want her at the PHAC and that he wanted her “to find something else.” The grievor persisted with her application, submitting it to the Deputy Chief Public Health Officer, who indicated in reply that he did not wish to intervene because he understood that the grievor’s regional director and director general did not support her application (Exhibit G-12). Ms. Howlett objected in her testimony that she never told the grievor that Mr. Ledoux wanted her out. She also emailed the grievor to that effect on November 16, 2006 (Exhibit G-13). For her part, the grievor noted that Ms. Howlett’s email directly linked her recommendation against participation in the EE Initiative to the “… significant number of staff relations issues pending.”

37 The grievor recalled that “… things after [the exchange about the EE Initiative] were not as rosy …” and that she noticed that she was being treated differently. On January 12, 2007, the grievor asked for a meeting with Ms. Howlett about plans for a reorganization that involved a change to the grievor’s title from Section Manager, Strategic Policy, Planning and Aboriginal Health to Advisor, Special Projects (Exhibits G-14 and 15). The grievor believed that the revised title — which was soon changed back — also signified that duties would be substantially modified. Ms. Howlett emailed the grievor on January 26, 2007, informing her that her title and duties would remain the same but that she would be assigning the grievor a number of other special projects. She also stated that the grievor was “… currently double-booked with one of the other managers against the same position number …” — a “puzzle” that Ms. Howlett had to work out. When the grievor continued to seek an opportunity to discuss her concerns, she testified that Ms. Howlett indicated that she did not wish to talk about “the impasse.” The grievor said that she also tried to discuss the matter with Mr. Ledoux in early February 2007, but he, too, would not speak with her.

38 The grievor’s next step was to file a grievance against Ms. Howlett on February 16, 2007. The grievor testified that she told Mr. Ledoux and Michelle Laframboise, Director, Corporate Policy and Labour Relations at the PHAC, that her only goal in filing the grievance was to resolve her concerns informally. Three days after filing her grievance, Mr. Ledoux called her and told her that she should leave the premises within one hour and that she was indefinitely “suspended” (the grievor’s description) pending an investigation into her grievance against Ms. Howlett. The grievor stated that Mr. Ledoux told her not to speak to her colleagues about being away from work. In the grievor’s words, she “… disappeared for seven weeks and could not explain to anyone why.”

39 During her absence, the grievor learned that Ms. Howlett had sought and secured access to her email account. In her testimony, Ms. Howlett said that she found out that the grievor had not placed an out-of-office message on her email. National headquarters had alerted Ms. Howlett that the grievor had missed a deadline for filing an official languages report and that she did not answer email inquiries about the report. Ms. Howlett indicated that she sought access to the grievor’s email because she was concerned that the office would have no knowledge of emails arriving for the grievor and that more deadlines might be missed. In cross-examination, Ms. Howlett explained that she did not call the grievor at home about the situation because it was not appropriate to do so while she was on administrative leave, specifically because the grievor had alleged in her grievance that the workplace was unsafe for her due to Ms. Howlett’s actions.

40 In an email to Mr. Ledoux, the grievor raised the access-to-email issue. She also discussed her concerns about having to remain at home, stating that she felt that she was being disciplined for complaining about Ms. Howlett (Exhibit G-22). The grievor did return to work on April 10, 2009 after meeting with Mr. Ledoux and Ms. Laframboise. She returned under what she referred to as a “restrictive environment” stipulated in a letter from Ms. Laframboise (Exhibit G-24). Among the conditions imposed on her, the grievor was to “[c]ommunicate by e-mail whenever possible …” and a third party was to be present at any meeting with Ms. Howlett. As well, any required “… clarification of an Agency policy or practice …” was to be sought from either Mr. Ledoux or Ms. Laframboise.

41 On April 27, 2007, the grievor received a written reprimand from Mr. Ledoux (Exhibit G-25). The reprimand addressed two incidents. The first concerned the grievor responding to a lawyer’s letter about a “Windsor file” not assigned to her. The second focused on a request from the grievor to Ms. Howlett’s assistant asking her to search all Ms. Howlett’s email and provide the grievor with “… copies of her correspondence without her prior knowledge or permission.” The grievor testified that she tried to explain and re-explain the situations to Mr. Ledoux but that he never told her why he rejected her explanations. She said that no disciplinary hearing or investigation took place before Mr. Ledoux issued the letter of reprimand.

42 Later in spring 2007, Ms. Howlett included the grievor in a request to all managers for input into the annual commitment-setting process. The grievor submitted information for her performance discussion process (PDP) report (Exhibit G-26) and asked for a meeting with Ms. Howlett to discuss how the grievor’s commitments could fit into Ms. Howlett’s commitments. After first agreeing to a meeting, Ms. Howlett cancelled it through her assistant (Exhibit G-27). The grievor testified that the cancellation coincided with the grievor sending her grievance against Ms. Howlett to the final level.

43 The grievor also testified that she learned about a notice posted on the electronic bulletin board announcing the location of a staff meeting about the harassment grievances against the grievor. The grievor sent an email to Ms. Howlett asking “… why it was done that way.” Ms. Howlett replied that she would instruct her assistant “not to do that” the next time. Later, the grievor acknowledged that Ms. Howlett replied to the grievor’s email within approximately eight minutes. However, according to the grievor, Ms. Howlett responded in a fashion that lacked sensitivity, and she failed to apologize for what happened.

44 Returning to the letter of December 5, 2007, the grievor posed a series of questions to Ms. Howlett about its tone and contents. Ms. Howlett denied repeatedly that references in the letter conveyed discipline and insisted that it clearly identified the action taken as “administrative.” Asked whether she ever met with the grievor to hear her side of the story, Ms. Howlett answered that she did not meet with the employees who had grieved or with the grievor because she “… did not want to reopen what had been a difficult and painful situation for all.” Concerning her reference in the letter that “… there was no clear evidence of harassment …”, Ms. Howlett said that the documentation that she reviewed did not provide enough evidence to show “pure harassment” but that there was evidence of inappropriate behaviour. She testified that she would characterize the grievor’s behaviours identified in the letter as “unprofessional” but noted that she did not use the word “misconduct.” Challenged that she did in fact refer to misconduct in a subsequent letter sent to the grievor on January 7, 2008 (Exhibit G-9), Ms. Howlett maintained that the “… bottom line was that there was unprofessional behaviour.”

45 In her examination-in-chief, the grievor testified that she felt that the letter was not conciliatory in tone. It gave her no sense that there was a future for her relationship with Ms. Howlett and offered no apology for the delays in dealing with the 14 grievances against her. She stated that the letter had a negative impact on her, both personally and professionally. It subjected her to “an unfair, lengthy and indefinite removal” of her supervisory duties — duties that constituted “most” of her responsibilities as a manager. She also described the requirement that she undergo training as punishment.

46 During the respondent’s cross-examination of the grievor, the grievor confirmed that two employees filed grievances against her while Ms. Burkholder was the acting director and that Ms. Burkholder removed from the grievor’s responsibilities the programs in which the two employees worked.

IV. Summary of the arguments

47 At the pre-hearing conference, I asked the respondent to lead evidence and argue its case first for largely practical reasons. However, I made it clear to the parties that they should not consider that my direction about the order of proceedings indicated that the respondent bore the burden of proof.

A. For the respondent

48 According to the respondent, I must answer the two following questions: 1) has the grievor established that, on a balance of probabilities, the letter of December 5, 2007 was a disciplinary action; and 2) has the grievor established, in turn, that the letter resulted in a termination, demotion, suspension or financial penalty? The respondent maintains that I must answer both questions in the negative.

49 The evidence as far back as 2004 and 2005 reveals no intent on the part of representatives of the respondent to discipline the grievor. Ms. Walsh tried to correct a situation and improve what had become a poisoned work environment. Her testimony, supported by Ms. Kartinen, showed that she focused on training rather than on disciplinary measures. When Ms. Howlett arrived as regional director, she did not take a different approach. She wanted to bring closure to issues that were dragging on too long. She categorically denied contemplating disciplinary action. To put an end to an ongoing and recurrent problem, she chose the mechanism of temporarily removing the source of the problem — the grievor’s supervisory duties. Her frame of mind was not to discipline the grievor. Even though the respondent does not bear the onus of proof, it is important to note that Ms. Howlett’s testimony about her state of mind is nothing short of credible and compelling proof of the absence of disciplinary intent.

50 In both direct and cross-examination, Ms. Howlett offered legitimate explanations for the actions that she took, none of which amounted to discipline. Hers was an administrative action within the prerogative of management and one that an adjudicator should not probe. The PHAC must be allowed to manage its operations, to assign and reassign duties as it sees fit, and to take the actions that it believes are necessary to address problems: Schofield v. Treasury Board (Department of Foreign Affairs and International Trade), 2002 PSSRB 47, at para 18.

51 The respondent referred me to Garcia Marin v. Treasury Board (Department of Public Works and Government Services Canada), 2006 PSLRB 16, at para 85, for the proposition that the grievor’s feelings of having been treated unfairly do not amount to proof of discipline. Garcia Marin also supports the principle that an adjudicator ought not to intervene in matters concerning the organization of work or assignment of duties unless there is clear and cogent evidence of disguised discipline — which the grievor has not established in this case.

52 Gingras v. Treasury Board (Citizenship and Immigration Canada), 2004 PSSRB 7, reconfirms that the onus of proof rests with the grievor. In the situation reviewed in Gingras, an adjudicator found that removing a diplomat from a foreign posting and reassigning him to duties at headquarters in Ottawa was not a disciplinary action and that it did not deprive him of the benefits that come with a posting. The actions taken were administrative and resulted from improper conduct or bad behaviour (Gingras at paragraphs 44-46).

53 The respondent had nothing to gain by hiding behind an administrative action. It could easily have resorted to discipline and would have been able to rely on Mr. Ledoux’s reprimand of April 27, 2007 to embark on progressive discipline. For reasons explained by Ms. Howlett in her testimony and in her letters, she chose not to take that path. The last sentence of her letter of December 5, 2007 is clear. It does not say that “further” disciplinary measures could be taken. It states that “… disciplinary measures could be imposed.” The respondent’s valid concerns about the grievor’s behaviour justified what was a measured and appropriate administrative response within the respondent’s authority.

54 Because the letter is not disciplinary, the question of whether the grievor sustained a demotion, suspension, or financial loss or penalty does not arise. In the alternative, even if I accept that the respondent’s action was discipline, I must still be convinced by the grievor that it resulted in one of the four outcomes identified in paragraph 209(1)(b) of the PSLRA. Termination is clearly not an issue. Removal of a duty does not amount to a suspension. There is no evidence that the respondent demoted the grievor — to the contrary, it maintained her pay and classification level. Finally, the grievor did not provide a shred of evidence to establish a financial loss or penalty.

55 The fact that the grievor’s actions may or may not be considered misconduct or that they may have warranted discipline does not trump the respondent’s true motives and objectives. Ms. Howlett took action to protect staff and to return to a positive and productive work environment in the best interests of the regional office. At the end of the day, the grievor did not establish that what Ms. Howlett did amounted to discipline or that her decision resulted in termination, demotion, suspension or a financial penalty. Accordingly, I must find that I lack the jurisdiction to consider the grievance and that I must, as a consequence, dismiss it.

B. For the grievor

56 The grievor disputed the relevance of the decisions argued by the respondent. In her submission, Schofield should be distinguished because the grievor in that case was a rotational employee and “… did not have a position in his name.” The grievor in Garcia Marin never argued during the grievance process that he was being deprived of performance pay for disciplinary reasons or that the absence of performance pay constituted discipline within the meaning of the statute. Furthermore, there was no evidence that misconduct played any role in the employer’s decision. Gingras involved issues of incompetence and incapacity. There was no “voluntary malfeasance” — the distinguishing attribute of discipline according to Evans v. Treasury Board (Department of the Solicitor General), PSSRB File No. 166-02-10226 (19821223).

57 The grievor maintained that I have jurisdiction to consider her grievance because it involves a suspension or financial penalty within the meaning of paragraph 209(1)(b) of the PSLRA.

58 The grievor took issue with senior management’s failure to observe internal procedures for processing grievances. She claimed that she suffered from exclusion and defamation. The PHAC’s failure to resolve grievances in a timely fashion left a stain on her professional reputation and damaged her relationships with her colleagues. The damage was exacerbated by the deficient investigation and the punishment that resulted. In the grievor’s submission, it would be a disservice not to hear the merits of her case.

59 The grievor referred me to: (1) the definitions of “suspend” and “suspension” in Black’s Law Dictionary, 6th ed., as cited in Marchand and Segall v. Treasury Board (Transport Canada), PSSRB File Nos. 166-02-25869 and 25870 (19950120), at 24-25; (2) the definition of “bad faith” in Black’s Law Dictionary; and (3) an excerpt from Brown and Beatty, Canadian Labour Arbitration, para. 7:4210, describing the nature of disciplinary action, as cited in Marchand and Segall, at 20-21.

60 According to the grievor, the best evidence of the respondent’s motive can be found in what it said and did. The discipline imposed on her by the letter of December 5, 2007 was the culmination of a long-standing agenda and sequence of events. The grievor maintained that the following situations place the letter in context and, viewed as a pattern, reveal the respondent’s motives as disciplinary: (1) her suspension from the duties of the position of Section Manager, Healthy Child Development, in September 2003 as a result of the allegations made against her by 14 employees; (2) the decision not to allow the grievor to participate in the EE Initiative on the recommendation of Mr. Ledoux and Ms. Howlett, directly linked to the “… significant number of staff relations issues pending …”; (3) Ms. Howlett’s attempts in January and February 2007 to change the grievor’s job title and functions; (4) Mr. Ledoux’s decision in February 2007 to suspend the grievor for a period of seven weeks, with an accompanying gag order, after the grievor filed a grievance against Ms. Howlett; (5) Ms. Howlett securing access to the grievor’s email during the suspension; (6) the restrictive conditions placed on the grievor when she returned to work after the suspension; (7) receiving a letter of reprimand from Mr. Ledoux three or four days after her return; (8) Ms. Howlett’s decision to cancel a meeting about the grievor’s PDP at the same time as the grievor sent her grievance against Ms. Howlett to the final level; and (9) the incident when the electronic bulletin board displayed a notice of a meeting about the harassment grievances against the grievor, and Ms. Howlett’s failure to apologize. The grievor described each of the foregoing situations in detail, emphasizing her own efforts throughout to find voluntary solutions (which were rebuffed), the respondent’s repeated failure to offer her due process and a fair hearing, its continuing bad faith, and the adverse consequences to her throughout the sequence of events, both personally and professionally.

61 The grievor argued the relevance of the following decisions: Bédirian v. Treasury Board (Justice Canada), 2002 PSSRB 89; Tse v. Federal Express Canada Ltd., 2005 FC 599; Canada (Attorney General) v. Bédirian, 2007 FCA 221; Marchand and Segall; Nolan v. Treasury Board (Health and Welfare Canada), PSSRB File No. 166-02-25229 (19940908); Gaw v. Treasury Board (National Parole Service), PSSRB File No. 166-02-3292 (19780220); Guay v. Treasury Board (Revenue Canada, Taxation), PSSRB File No. 166-02-24899 (19950217); Canada (Attorney General) v. Grover,2007 FC 28; Canada (Attorney General) v. O’Leary, 2008 FC 212; and Canada (Attorney General) v. Frazee, 2007 FC 1176.

62 The grievor argued that I should apply the six-point formula in Bédirian, 2002 PSSRB 89, at para 401, for determining wrongdoing in a disciplinary decision to Mr. Ledoux’s decision to issue her a written reprimand.

63 According to the grievor, Tse, at para 19-22, established three requirements for procedural fairness that are applicable to any investigation. Because the PHAC failed over a lengthy period to adequately investigate the facts surrounding the 14 grievances against the grievor, its “administrative” decision should be viewed as disciplinary action.

64 Bédirian, 2007 FCA 221, at para 23, citing from Bédirian c. Canada (Procureur général), 2006 CF 1239, supports the proposition that disciplinary action that results from a deficient investigation and procedure cannot meet the standard of fair conduct to an employee. In the grievor’s case, it was not appropriate for Ms. Howlett to hear the 14 grievances “at the second level” nor can she be considered unbiased in her dealings with the grievor. The grievor launched a grievance against her, and she “… launched back discipline and an assignment.” The respondent refused to fulfill its duty or “some contractual obligations” in addressing her grievance. There was no investigation or hearing date or decision.

65 The grievor identified multiple phrases and references in the letter of December 5, 2007 that, in her opinion, possess the characteristics of discipline imposed based on misconduct, voluntary malfeasance and unacceptable behaviour and practices.

66 The grievor argued that a removal of duties can constitute discipline within the jurisdiction of an adjudicator even where the suspension is with pay: see Nolan and Gaw. Where significant employment responsibilities are taken away, an adjudicator may find that there is a suspension: Guay and Evans. The concept of suspension also includes the substitution of an employee’s regular duties with duties at a lower level: Guay and Nolan. The focus should be on the existence of voluntary malfeasance. If an employee is denied the opportunity to perform the full range of his or her duties because of voluntary malfeasance, the removal of duties comprises discipline: Evans.

67 The grievor submitted that it is not open to the respondent to argue that there was no discipline because it did not use the word “discipline” in the letter of December 5, 2007: Nolan and Gaw. She argued that the concept of “disguised discipline” is a necessary and well-known consideration that allows an adjudicator to look behind an action to determine what was actually intended.

68 In Grover, the Federal Court’s analysisshows that an adjudicator must look at the surrounding facts and circumstances and at the purpose and effect of an employer’s actions. The adjudicator must assess the substance of a decision rather than its form.

69 O’Leary shows that it is important to examine the motives or reasons behind the actions of the parties before disciplinary action is taken. Good faith must apply, and the manner in which discretion is exercised is an important indicator. It is also relevant to look at the effects of an employer’s actions on an employee, including immediate adverse effects and the effects on career prospects.

70 Frazee also stresses the importance of assessing the purpose and effect of a decision. The essential characteristic of a disciplinary action is an intention to correct an employee’s bad behaviour.

C. Respondent’s rebuttal

71 The respondent contended that the removal of one specific duty is not tantamount to a suspension.

72 The respondent noted that the grievor offered no evidence as to how and when the alleged suspension actually impacted her. Ms. Howlett testified that there were still significant duties and responsibilities attached to the grievor’s position and that she expected that the grievor would come back, fulfill those duties and contribute productively. The grievor was not even at the PHAC in 2007. Instead, she was on assignment at Health Canada until October 2008.

73 Concerning some of the incidents in the sequence of events described by the grievor, the respondent made the following points: (1) Ms. Howlett categorically denied under oath the proposition that Mr. Ledoux wanted the grievor out of the PHAC; (2) there was no change to the grievor’s duties in January and February 2007, and the change of job title was only temporary; (3) there is no evidence that the respondent ever considered the grievor’s alleged 7-week suspension as a disciplinary suspension with pay; (4) in any event, I am not seized with the action taken by Mr. Ledoux; (5) Ms. Howlett explained Mr. Ledoux’s decision by referring to the fact that the grievor’s fear of being at work in Ms. Howlett’s presence was the premise underlying 1 of the 41 allegations made by the grievor against Ms. Howlett; and (6) nothing turns on the length of time it took the respondent to reply to the 14 grievances filed against the grievor.

74 The respondent distinguished several of the decisions argued by the grievor as follows: (1) the procedural requirements outlined in Tse apply to a third-party neutral investigator and not to an employer; (2) the circumstances in Marchand and Segall were different inasmuch as the employer removed all duties from the grievor and suspended him with pay; (3) Nolan concerns an actual suspension; (4) there is no evidence that the respondent assigned lower-level duties to the grievor as in Guay; (5) O’Leary is a decision about the merits of a disciplinary measure, not about the jurisdiction of an adjudicator; and (6) Frazee resolves the issue raised in Guay and Evans by finding that the analysis should focus on the nature of the duties that remain, when some are removed, rather than on the duties removed.

V. Reasons

75 To the extent that the respondent bears a burden of proof in this case, it is the initial requirement to substantiate its claim that Ms. Howlett’s letter of December 5, 2007, on its face, was an administrative measure rather than discipline. I find that the respondent has offered adequate evidence to that effect, primarily in the form of the letter itself. The author does not use the term discipline. She identifies unacceptable behaviour on the part of the grievor but makes no formal finding of misconduct. The letter communicates several measures to address the grievor’s alleged “unprofessional and disrespectful” actions but does not impose what would normally be recognized as a disciplinary penalty. Beyond the contents of the letter, Ms. Howlett clearly testified that she did not intend to impose discipline when she sent the letter and that she viewed it instead as an administrative measure.

76 Against that evidence, the grievor’s burden is to prove that, on a balance of probabilities, the respondent did impose discipline through its letter of December 5, 2007 and that the nature of the discipline qualifies it as an appropriate subject matter for a reference to adjudication under paragraph 209(1)(b) of the PSLRA.  

77 This, then, is essentially a case about disguised discipline. The grievor argued that I must look behind the respondent’s depiction of the December 5, 2007 letter as an administrative measure to discover its true nature. Her case rests to a substantial extent on the proposition that the disciplinary character of the letter becomes apparent when viewed against the history of her case over the preceding four years. Beginning in 2003, when 14 employees filed grievances against her, the grievor alleges that the PHAC consistently treated her unfairly, left unfounded charges unaddressed, denied her basic procedural rights and imposed disciplinary penalties without cause. Taken together, she argued that the respondent’s actions comprised a concerted campaign to undermine her role and authority as a manager and ultimately to remove her from the workplace. Taking away her supervisory responsibilities in December 2007 was part of that campaign. According to the grievor, it was an unjustified act of discipline that resulted from a flawed investigation of the grievances against her.

78 My analysis of my jurisdiction to consider the first grievance begins and ends with paragraph 209(1)(b) of the PSLRA. It 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;

Under that paragraph, I must be convinced, on a balance of probabilities, both that the letter of December 5, 2007 was “a disciplinary action” and that it resulted in “… termination, demotion, suspension or financial penalty …” to accept jurisdiction to determine the first grievance. If I find that the letter was not a disciplinary action, the matter ends there. If I find that the letter did not result in a termination, demotion, suspension or financial penalty, the matter also ends. In either event, I would have no jurisdiction to continue, and the first grievance would have to fail.

79 The evidence presented to me certainly depicts a troubled relationship between the grievor and representatives of the respondent. Some elements of that evidence reasonably raise concerns about, for example, the length of time it took the PHAC to reach conclusions about the 14 grievances brought against the grievor in 2003 and about how it conducted that investigation. However, the issue of jurisdiction ultimately does not turn on those types of concerns. With due respect to the grievor’s contention that she was mistreated over a lengthy period and that she was denied procedural fairness, the history that she outlines does not change one crucial reality. Even were I to reach the conclusion that the December 5, 2007 letter was disciplinary rather than administrative in nature, I am unable to find proof in the evidence, on a balance of probabilities, that the letter resulted in a termination, demotion, suspension or financial penalty. At most, it might be considered a letter of reprimand — a subject matter over which I have no jurisdiction.

80 To be specific, the evidence was that the grievor continued at all material times to be employed at the PHAC, although she was sometimes on secondment to other organizations. Her employment was never terminated, and the grievor did not make that allegation.

81 The respondent never demoted the grievor. While the grievor obviously considered that her status in the workplace was reduced by the removal of managerial or supervisory responsibilities on several occasions, the evidence was clear that the PHAC never appointed her to a position formally classified at a lower level. The authority of a deputy head to demote an employee is established under paragraph 12(1)(c) of the Financial Administration Act, R.S.C. 1985, c. F-11 (“the FAA”), as follows:

12.(1) Subject to paragraphs 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,

…

(c) establish standards of discipline and set penalties, including termination of employment, suspension, demotion to a position at a lower maximum rate of pay and financial penalties;

…

By definition, a decision to demote an employee must involve placing that employee in “… a position at a lower maximum rate of pay … ” In this case, the evidence was that the grievor remained at the PM-06 group and level after the December 5, 2007 letter. The letter itself explicitly stated that the grievor “… will remain at [her] current group and level … ” She cannot claim to have been demoted.

82 Did the respondent suspend the grievor? The grievor referred me to the definitions of “suspend” and “suspension” from Black’s Law Dictionary, cited in Marchand and Segall, at pages 24-25 as follows:

…

… Black's Law Dictionary, Sixth Edition, defines "suspend" in the following terms:

To interrupt; to cause to cease for a time; to postpone; to stay, delay, or hinder; to discontinue temporarily, but with an expectation or purpose of resumption. As a form of censure or discipline, to forbid a public officer, attorney, employee, or ecclesiastical person from performing his duties or exercising his functions for a more or less definite interval of time.

To postpone, as a judicial sentence. To cause a temporary cessation, as of work by an employee; to lay off.

From the same dictionary, the meaning of the word "suspension" is as follows:

A temporary stop, a temporary delay, interruption, or cessation. Thus, we speak of a suspension of the writ of habeas corpus, of a statute, of the power of alienating an estate, of a person in office, etc.

A temporary cutting off or debarring one, as from the privileges of one's profession.

Temporary withdrawal or cessation from employment as distinguished from permanent severance accomplished by removal; "removal" being, however, the broader term, which may on occasion include suspension.

…

The grievor also referred me to decisions such as Nolan, Gaw, Guay and Evans purportedly to support the following two propositions: (1) that a removal of duties or of significant employment responsibilities can constitute discipline that would be within the jurisdiction of an adjudicator; and (2) that the substitution of an employee’s regular duties with duties at a lower level is a suspension. According to the grievor, I should find that the respondent suspended her within the meaning of paragraph 209(1)(b) of the PSLRA because it denied her the opportunity to perform the full range of her duties as a result of a “voluntary malfeasance” on her part.

83 Nothing in the evidence shows that the respondent removed the grievor from the workplace as a result of the December 5, 2007 letter. There was no temporary interruption of the requirement that she perform duties for the PHAC in the manner normally associated with a suspension. There was no stop, delay, interruption or cessation of work. In that sense, I find that I cannot bring the respondent’s action in this case within the definitions offered in Black’s Law Dictionary. Indeed, the letter states that “… new duties will be assigned to [the grievor] … .” For the grievor’s argument to succeed, I must instead accept that the act of removing some duties — her supervisory responsibilities — was equivalent to a suspension.

84 I have reviewed the case law cited by the grievor for guidance on that point. Nolan, in my view, can be readily distinguished. The adjudicator in Nolan qualified the employer’s action in that case as a disciplinary suspension rather than an administrative measure but did so on the basis of facts that were very different from what happened to the grievor on or after December 5, 2007. The adjudicator summarized what transpired as follows (at pages 26-27):

…

… the grievor was unceremoniously removed from his job, told to leave his office immediately, told to hand over the office keys in his possession, told not to communicate with any one in the office or business clients, told not to return to the office without special permission, told that an “investigation” in relation to him was being pursued and not told any of the specific “complaints” against him or who were those who had lodged such complaints. At the time of the hearing he had been kept away from his job for some eleven months. In light of the evidence adduced, I am satisfied that the employer’s motives were punitive in nature and I cannot characterize the action taken against the grievor as anything but disciplinary action.

…

85 In Gaw, the principal issue was whether a suspension with pay constituted a disciplinary measure. Whether there was a suspension to begin with was not in dispute. Under the explicit wording of the employer’s letter to the grievor in Gaw, the grievor was “… suspended from duty …” and “… prohibit[ed] from entering the … [o]ffice … for the purpose of conducting any business …” (at page 6). The grievor did not face that situation in this case.

86 In Guay, the question before the adjudicator was whether “… the concept of suspension … include[s] substitution of one’s regular duties with duties of a position at a lower level without a resulting decrease in pay …” (at page 16). Again, the fact situation in this case is materially different. In my view, the grievor has not shown that the duties that the respondent assigned her to perform in the wake of the December 5, 2007 letter were the “… duties of a position at a lower level …”

87 In Evans, the employer removed the grievor “… from the full range of duties of a correctional officer …” who “… [f]rom that time forward … never performed duties of a correctional officer inside an institution …” (at page 22). On that basis, Evans must also be distinguished.

88 While there might conceivably be circumstances where the removal of duties from an employee is so substantial or so fundamentally undermines the employee’s status in the workplace as to have an effect closely comparable to a suspension, the facts in this case have not convinced me that such a threshold was ever crossed. The respondent had the authority to assign or reassign duties. It removed some duties from the grievor — the evidence does not show what proportion — but the grievor continued to perform duties at the same group and level in the wake of the December 5, 2007 letter. Without any other clear evidence of how the letter affected the grievor in a manner that makes it the equivalent of a suspension from duty, I must conclude that the grievor did not prove that she was suspended within the meaning of paragraph 209(1)(b) of the PSLRA.

89 The grievor did not prove that she incurred a financial penalty. The December 5, 2007 letter states directly that the grievor “… will not suffer any financial consequences … ” The grievor undoubtedly believes that her career has been harmed, perhaps irrevocably, by the respondent’s action. She may have reason for that belief. However, speculation about the impact of the December 5, 2007 letter on her career is not sufficient to establish, on a balance of probabilities, that she sustained a financial penalty within the meaning of paragraph 209(1)(b) of the PSLRA. At minimum, some clear and tangible evidence of a quantifiable financial penalty or loss, current or future, is required. None was provided.

90 In sum, I find that the grievor has not proven on a balance of probabilities that the respondent’s letter of December 5, 2007 resulted in a termination, demotion, suspension or financial penalty. As a consequence, were I to find that the December 5, 2007 letter was disciplinary in nature, it could not comprise the type of disciplinary measure over which an adjudicator has jurisdiction under paragraph 209(1)(b) of the PSLRA. I might possibly have a basis to characterize the December 5, 2007 letter as a written reprimand, but no more.

91 That finding is sufficient reason to allow the respondent’s objection to my jurisdiction. The subject matter of the grievance does not fall within the ambit of paragraph 209(1)(b) of the PSLRA.

92 The grievor cited a number of other authorities in her effort to persuade me that the history of her case makes it clear that the respondent’s intent was to discipline her when it sent the December 5, 2007 letter. Although it is not necessary for my decision, I would like to briefly address some of those authorities.

93 The grievor suggests that I should apply the six-point formula in Bédirian, 2002 PSSRB 89, to Mr. Ledoux’s decision to issue her a written reprimand. First and most obviously, I am not making any determination in this decision about any action taken by Mr. Ledoux. The evidence indicated that the decision communicated in the December 5, 2007 letter was Ms. Howlett’s. It was a determination separate and distinct from Mr. Ledoux’s decisions in February 2007 to place the grievor on “administrative leave” and to issue her a written reprimand on April 27, 2007. Even were I to accept that there was a direct link between Mr. Ledoux’s actions and Ms. Howlett’s December 5, 2007 letter, the six-point formula applied in Bédirian has little or no relevance. That formula was designed for a specific and different purpose. As clearly indicated at paragraphs 366 and 367 of that decision, where the six points first appear, the formula arises in a case concerning the credibility of an investigation into sexual harassment. For greater certainty, those points are as follows:

…

a) Has the whole of the evidence surrounding the conduct in question been obtained, considered and evaluated?

b) Has the evidence shown in a clear, cogent and compelling manner that the acts in question were in fact committed?

c) Did the behaviour consist of persistent and repeated acts or words or is a serious act referred to?

d) Are the respective versions of the alleged victim and the person who is the subject of the complaint credible in themselves in light of all the facts and, if so, which version is the more credible on a balance of probabilities?

e) Is the version consistent with what a practical and informed person in the same place and circumstances would immediately recognize?

f) In light of all of the facts surrounding the behaviour, would a reasonable person feel that the behaviour was blameworthy, unwelcome and sexual in nature?

…

94 The grievor argued that the three requirements for procedural fairness established in Tse should be applied to judge the respondent’s investigation of the 14 grievances against her. The Federal Court’s decision in Tse concerned the standards of procedural fairness that a quasi-judicial decision maker — in that instance, the Canadian Human Rights Commission — must meet in determining a complaint. The same standards do not necessarily apply, or may not apply to the same degree, to a disciplinary investigation conducted by an employer. In any event, my task in this decision has been to determine the preliminary issue of jurisdiction. For that purpose, the nature of the disciplinary investigation that the respondent conducted into the 14 grievances is not directly germane.

95 Decisions such as Grover, O’Leary and Frazee provide important guidance. They stress in different ways that a decision maker should broadly examine the context in which a decision is made for evidence of disciplinary intent and of its disciplinary effects. Because I have determined that I lack jurisdiction in this case based on the grievor’s failure to prove, on a balance of probabilities, that the letter of December 5, 2007, resulted in a termination, demotion, suspension or financial penalty, I have not needed to answer what is often the prior question: did the respondent discipline the grievor? To that extent, Grover, O’Leary, Frazee and other similar case law have not played a prominent role in my analysis.

96 Pending my ruling in this decision, I held in abeyance the second grievance. In doing so, I also temporarily set aside the respondent’s submission that the second grievance deals with the same issue raised in the first grievance, that it does not raise subject matter within an adjudicator’s jurisdiction and that it should, as a consequence, be dismissed without a hearing.

97 Under the authority given to an adjudicator by section 227 of the PSLRA, I have decided to consider the respondent’s objection to my jurisdiction over the second grievance by proceeding with written submissions. Should I find that those submissions are insufficient to allow me to determine the matter, or should they reveal a disagreement over facts relevant to my decision that cannot be resolved without receiving testimony, I may order that an oral hearing be held.

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

VI. Order

99 I declare that I have no jurisdiction to hear the first grievance and order PSLRB File No. 566-02-1930 closed.

100 The parties will be contacted about the schedule for written submissions concerning an adjudicator’s jurisdiction to consider the second grievance (PSLRB File No. 566-02-2868).

February 26, 2010.

Dan Butler,
adjudicator