FPSLREB Decisions

Individual grievance referred to adjudication

1  On June 24, 2005, Heidi Howitt (“the grievor”) was employed at the EG-02 group and level with the Canadian Food Inspection Agency (“the employer”), in Toronto, Ontario, and filed a grievance that read as follows:

I grieve that the employer has discriminated against me based on the grounds of my physical disability. The employer has failed to fulfill its legal obligation to accommodate me. The employer’s action or lack of is in clear violation of the provisions of my collective agreement, the Canadian Human Rights Act (CHRA) and its own Duty to Accommodate Policy. I rely on any and all relevant provisions of my collective agreement, CHRA and CFIA’s Duty to Accommodate policy.

2 The grievor requested the following corrective action:

…

1) The employer fulfill Duty to Accommodate

2) All salaries, monies, benefits as a result of the employers decision to not accommodate the employee be reimbursed immediately, retroactively to the date of the decision.

3) All sick leave/Annual Leave/Compensatory Leave be returned to me immediately.

4) Employer cease to discriminate against me.

5) That I be assigned to a position that meets the limitations as prescribed by my doctor.

6) The employer meet with me and my union representative to discuss any potential accommodations.

7) Any an all remedies deemed just in the circumstances

8) That I be made whole without prejudice.

[Sic throughout]

3 Unsuccessful at the final level of the grievance process, the grievor’s representative referred the matter to adjudication under the Public Service Labour Relations Act on February 28, 2007.

4 On March 1, 2007, the grievor’s representative wrote to the Public Service Labour Relations Board (“the PSLRB”), advising that, since the grievance raised an issue involving the interpretation of the Canadian Human Rights Act, R.S. 1985, c. H-6, a Form 24 (“Notice to the Canadian Human Rights Commission” (“the CHRC”)) was sent on the grievor’s behalf to the CHRC. On March 19, 2007, the PSLRB received the form.

5 On August 7, 2008, Philippe Dufresne, Director and Senior Counsel, CHRC, advised the PSLRB as follows:

…

In accordance with section 93 of the Public Service Labour Relations Board Regulations, and in light of the information available to it, the Canadian Human Rights Commission hereby notifies that it does not intend on making submissions in this matter.

…

6 At the grievor’s request, mediation was scheduled for February 4 and 5, 2009, in Toronto. On January 27, 2009, the grievor’s representative informed the PSLRB that, despite the best efforts of the Public Service Alliance of Canada (“the bargaining agent”) to communicate with the grievor, it was unable to confirm her availability and thus cancelled the scheduled mediation.

7 On July 16, 2009, the PSLRB sent a formal notice of hearing to the employer and to the grievor’s representative, which was scheduled from August 18 to 20, 2009, in Toronto. The notice included the following:

…

PLEASE NOTE THAT IT IS THE RESPONSIBILITY OF THE PARTIES’ REPRESENTATIVES TO ADVISE THEIR CLIENTS OF THE DATE, TIME AND LOCATION OF THE ABOVE-MENTIONED HEARING.

AND FURTHER TAKE NOTICE that if you fail to attend the hearing or any continuation thereof, the Board may dispose the matter on the evidence and representations placed at the hearing without further notice to you.

…

8 On August 6, 2009, the grievor’s representative requested that the scheduled hearing be adjourned. The employer opposed the request, and both parties jointly requested a pre-hearing conference to address the proposed adjournment.

9 On August 7, 2009, by letter to the PSLRB, counsel for the employer opposed the request for adjournment for the following reasons:

…

As far as the employer has been made aware, the grievor was not in communication with her representative at the Public Service Alliance of Canada (“PSAC”) until this week. Mr. Fisher advises that this week PSAC was able to communicate with the grievor, but he indicates that PSAC continues to be of the view that the grievor will not appear for the hearing scheduled for August 18, 2009.

The grievor appears to have given no explanation for why she will not appear at the hearing, which was scheduled approximately six months ago.   Similarly, no documentation has been presented indicating why she will not be present.

Without such explanation, the employer submits that it would prejudicial to grant an adjournment. The employer has been preparing in good faith for this hearing and has a legitimate interest in having this matter resolved. The events underlying this grievance date back to later 2004 and the employer is seeking closure in this matter.

…

10 On August 10, 2009, a pre-hearing conference was held with the parties. After hearing the parties’ submissions, I decided to grant the bargaining agent’s request for adjournment. The grievor’s representative was to contact the grievor and confirm her attendance for the next scheduled hearing and also was to provide the grievor’s current contact information to the PSLRB. The parties were also informed that a second adjournment for a scheduled hearing would not be granted for a failure by the grievor to respond to her representative. As well, I instructed the PSLRB’s registry to send a copy of the notice of hearing to the grievor by registered mail with the re-scheduled hearing dates.

11 On August 18, 2009, the grievor’s representative provided the PSLRB with the grievor’s email and mailing addresses.

12 On November 23, 2009, the employer was informed by David Langtry of the CHRC that it ruled that the grievor’s CHRC complaint was unfounded, and as a result, the CHRC closed the file.

13 On March 10, 2010, the PSLRB sent a formal notice of hearing to the employer and to the grievor’s representative, informing them that new hearing dates were scheduled for April 12 to 15, 2010, in Toronto. The PSLRB’s registry also sent a notice of hearing to the grievor by registered mail, which she accepted and signed for on March 11, 2010.

14 As usual, the notice of hearing contained the following:

AND FURTHER TAKE NOTICE that if you fail to attend the hearing or any continuation thereof, the Board may dispose the matter on the evidence and representations placed at the hearing without further notice to you.

…

15 On March 25, 2010, by letter, counsel for the employer requested the PSLRB to address a preliminary issue before the grievance hearing scheduled for April 12 to 15, 2010. The letter reads in part as follows:

…

On August 7^th, 2009, I wrote to the Board asking that Ms. Howitt [sic] grievance be dismissed as abandoned. In my letter I advised that there had been an investigation by the Canadian Human Rights Commission into the same allegations made by Ms. Howitt in her grievance, and that the investigator had recommended that the complaint be dismissed.

CFIA is now in receipt of the Commission’s decision to dismiss Ms. Howitt’s complaint. We take the position, based on the Federal Court of Appeal’s decision in Mohammed v. Canada (Treasury Board), [1999] F.C.J. No. 1867, that the Board does not have jurisdiction to address the issue raised in Ms. Howitt’s grievance.

I respectfully request that the Board address the issue of jurisdiction before the hearing by way of teleconference… .

16 On April 1, 2010, the grievor’s representative advised the PSLRB that the bargaining agent’s position was that the PSLRB has jurisdiction to hear the grievance and to call evidence. The grievor’s representative also advised that he was still awaiting confirmation from the grievor that she would attend the hearing.

17 On April 6, 2010, the grievor’s representative sent a letter to the grievor to confirm her attendance for the hearing scheduled for April 12 to 15, 2010. The letter, which was also sent to the counsel for the employer and to the PSLRB, reads in part as follows:

…

Before a hearing, it is imperative that the Union representative meet with the Grievor to discuss and review arguments and evidence.  In short, without your assistance, I am unable to proceed.

If the Union is not in receipt of the confirmation of your attendance at next week’s hearing by Thursday, April 8, 2010, the Union will deem you have abandoned your grievance and will proceed to withdraw your grievance.

[Emphasis in the original]

18 On April 8, 2010, the grievor’s representative emailed the PSLRB, stating that he had not received a response from the grievor and that, without her assistance, he would not be in a position to proceed on April 12, 2010. Therefore, he requested a 30-day postponement. The employer opposed the request.

19 On April 9, 2010, the PSLRB’s registry advised the parties that I would hear submissions on the grievor’s request for a 30-day postponement at the beginning of the hearing scheduled for April 12, 2010.

Reasons

20 At the outset of the hearing, the grievor’s representative confirmed that the grievor was not in attendance. Counsel for the employer was prepared to proceed with the case, and witnesses for the employer were in attendance.

21 At that point, the grievor’s representative confirmed that after repeated unsuccessful attempts to contact the grievor to ascertain her participation and attendance, it was the bargaining agent’s position that the grievor had abandoned her grievance, and as a result, the grievance was withdrawn.

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

Order

23 The grievance is dismissed.

June 8, 2010.

Dan R. Quigley,
adjudicator