FPSLREB Decisions

Introduction

1 Elizabeth Cannon (“the complainant”), filed a complaint against Janice Charette, Helene Gosselin, Phil Jensen and Monte Solberg alleging that they were in violation of the Public Service Labour Relations Board Regulations by not responding to her many grievances. At the time the complaint was filed, the respondents, Mses. Charette and Gosselin and Mr. Jensen were employed by the Department of Human Resources and Skills Development Canada (HRSDC) and the Honourable Monte Solberg was the Minister responsible for the HRSDC. None of the respondents participated in the matter that is the subject of this complaint; the HRSDC responded to the complaint on their behalf. At the hearing in this matter, the HRSDC appeared in lieu of the named respondents and was represented by Treasury Board as the employer. Accordingly, this matter has been indexed to reflect this change of respondent to the complaint as the HRSDC.

2 The complaint was originally scheduled for a three-day hearing, however, with the assistance of another Board Member, the matter was resolved by way of a Memorandum of Settlement negotiated on April 1, 2009. In the Memorandum of Settlement, the complainant agreed to immediately withdraw, desist and/or waive her request for the determination of her complaint.

3 As the complainant did not withdraw her complaint, the registry of the Public Service Labour Relations Board (“the Board”) wrote to the complainant on September 14, 2009, requesting an update of the status of the matter. On September 1, 2009, the complainant responded by advising the Board that the HRSDC had not upheld the settlement agreement and requested to be heard by the Board.

4 On October 1, 2009, Jeff Laviolette, Senior Employer Representation Officer of the Treasury Board Secretariat, on behalf of the HRSDC, replied to the complainant’s submissions stating that, although it had not met the timelines in the Memorandum of Settlement, it had complied with all the terms of the agreement. On October 18, 2009, the complainant responded to the HRSDC, restating her position.

5 On November 20, 2009, the Federal Court issued a decision, which potentially had an impact on the complainant’s request that the Board revisit the Memorandum of Settlement: Canada (Attorney General) v. Amos, 2009 FC 1181. On December 2, 2009, the respondent raised an objection to the Board’s jurisdiction in light of the Amos decision. As a result, the Board requested that the parties provide submissions to two questions regarding the Board’s jurisdiction to reopen the hearing as follows:

1.  How does the decision of the Federal Court in Amos which dealt with the settlement of a grievance, apply to this complaint? In other words, is there a distinction to be made between a settlement reached as part of a complaint under Part 1 of the Public Service Labour Relations Act (PSLRA) and a settlement reached as part of a grievance referred to adjudication under Part 2 of the PSLRA?
2. Alternately, is the complainant’s proper recourse a request to incorporate the settlement of the complaint in a Board order along with a request to file the Board’s order in the Federal Court under section 52 of the PSLRA?

6 The respondent replied to the questions on January 8, 2010 and the complainant replied on January 27, 2010.

7 After reviewing the parties’ submissions on the questions, the undersigned Board Member decided that a hearing was necessary to deal with the jurisdictional issue.

8 A hearing was held on July 21, 2010, that was limited to oral submissions.

9 In brief, the complainant argued that the respondent had provided her with false information on which she relied in consenting to settle her complaint. In other words, the settlement was void ab initio because it was obtained under false pretences, the circumstances of which she learned after the Memorandum of Settlement was signed, that is, the respondent had not respected the implied confidentiality of a settlement agreement, a reclassification of the position had occurred before she entered into a Memorandum of Settlement and the matters she complained of had only escalated. The complainant argued that the respondent had acted unethically and in bad faith. The complainant stated that she was not in a position to exercise recourse before the Federal Court because of the costs involved and because she had no legal representation.

10 The respondent replied that, while the timelines had not been complied with, it had respected each of the terms of the Memorandum of Settlement. Given that the Memorandum of Settlement required communication with a large number of employees, it could not be implied that the Memorandum of Settlement would be kept confidential. The respondent argued that the information subsequently obtained by the complainant did not affect the content or validity of a Memorandum of Settlement, and the issue of whether the respondent acted in bad faith was of no consequence, since the complainant could not define how she may have been harmed by any of the HRSDC’s actions. The complainant was not arguing that the Memorandum of Settlement was unconscionable or that she had signed it under duress, criteria that have been set forth in the case law. The respondent argued that I had no jurisdiction to hear this matter.

11 At the hearing, I ruled orally that after hearing the parties’ arguments, the complainant had not raised any issues that would allow the Board to review the Memorandum of Settlement. The respondent’s failure to respect the implied confidentiality of a settlement agreement, the fact that a reclassification of the position had allegedly occurred before she entered into a Memorandum of Settlement and the subject matter of her complaint having escalated did not make the agreement unscrupulous or fraudulent.

12 I explained to the complainant the ruling of the Federal Court in Amos which held that the Board had no jurisdiction to review a settlement entered into by the parties. This is what the Court stated in regard of section 226(2) of the PSLRA:

Rather, the signing of a MOA [Memorandum of Agreement] evidences the intention of the parties to the effect that they have agreed to abandon the procedure under section 209 of the PSLRA and thus depart from adjudication by taking the path of resolving their dispute through the MOA. The Applicant and the Respondent are presumed to have signed the MOA in good faith. The parties’ dispute was brought to an end by the MOA and hence, the Adjudicator’s jurisdiction ceased to exist.

13 Should a litigant be unsatisfied with the outcome of such a grievance, his or her recourse lies before the Federal Court, not before a Board Member. This is what the Federal Court stated in this regard:

The Adjudicator thus erred when he concluded he had jurisdiction to consider the dispute over the MOA in the case at bar. However, the grievor is not without recourse, as he may file a grievance related to the MOA under section 208 of the PSLRA and, if he is not satisfied with the outcome of the grievance at the final level, he can make application to this Court for judicial review of that decision.

14 I further clarified that Amos had been decided with regard to Part 2 of Public Service Labour Relations Act (PSLRA) whereas the instant complaint was filed under Part I of the PSLRA. As Amos is currently the subject of an appeal, the decision of the Federal Court is not yet definitive as to whether its conclusions apply only to grievances under Part 2 or whether they apply equally to complaints under Part 1. For the complainant’s benefit, I explained the timelines and her status for filing a grievance challenging the employer’s implementation of the Memorandum of Settlement. I dismissed the complaint at the hearing.

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

Order

16 The complaint is dismissed.

17 PSLRB File No. 561-02-152 is ordered closed.

September 10, 2010.

Michele A. Pineau,
Vice-Chairperson