FPSLREB Decisions

Individual grievance referred to adjudication

1  Jane Symes (“the grievor”) is a human resources manager, classified PE-04, with the Department of Citizenship and Immigration (“the employer”) in Halifax, Nova Scotia, who is currently working on assignment. The position that she occupies is not represented by a bargaining agent, and she is not covered by a collective agreement.

2 On July 16, 2010, the grievor filed a grievance alleging harassment and unfair treatment arising from a performance management meeting. That grievance alleges the following:

I grieve improper treatment by management, the basis of which was a discussion initiated by my manager … on April 23rd, 2010. From said discussion and her written follow up, it would seem that a performance management agreement was being established with no previous indications regarding any change in my job performance. As a result of this shocking event and the severe humiliation it has caused, I have been absent from the workplace on medical leave since the incident occurred.

3 The grievor also alleges in her grievance that the employer failed to adequately investigate a harassment complaint that she filed before dismissing it and that the employer’s improper or unfair treatment of her and its failure to investigate properly constitute harassment.

4 The employer heard the grievance at the third level of the grievance process and denied it on September 30, 2010. 

5 On October 22, 2010, the grievor referred the grievance to adjudication under paragraph 209(1)(b) of the Public Service Labour Relations Act (PSLRA). In response to a request from the Public Service Labour Relations Board (PSLRB) registry office, the grievor clarified the nature of the alleged disciplinary action. She stated that the disciplinary penalty that is the subject of the reference to adjudication is her “… early termination from the Public Service resulting in huge personal financial loss.” To explain the disciplinary action that led to the penalty, she made the following statement:

There was no blatant disciplinary action per se; however, following my return to work from a six week absence … I was subjected to a performance management situation with no reason and no discussion but seemingly only through false justification on my director’s part, which clearly seems supported at the ADM level. Though I have provided written justification in contrast to what my director is saying, there have been no questions whatsoever asked of me. This situation led to my absence from the workplace, the filing of an harassment [complaint] against my director and subsequent third level grievance. Hence, I have left my substantive position as HR Manager and proceeded on assignment to which is attached a mandatory retirement date. Both the harassment and [the] grievance were [held to be] unfounded.

…

Objection to jurisdiction

6 On December 2, 2010, the employer objected that an adjudicator does not have jurisdiction to decide the grievance because it is about performance management and personal harassment, which are not adjudicable. Further, as an unrepresented employee, the grievor is not covered by a collective agreement and can refer a grievance to adjudication only under paragraph 209(1)(b) of the PSLRA, which requires that the grievance relate to a disciplinary action resulting in termination, demotion, suspension or financial penalty. The employer noted the grievor’s statement that there was no actual disciplinary action even though the reference to adjudication stated that the grievance related to a termination of employment arising from a forced retirement. The employer also alleged that the grievor was attempting to change the nature of her grievance to make it adjudicable, which is not permissible. The employer requested that the grievance be dismissed without a hearing.

7 On January 18, 2011, the parties were advised of my determination that the objection to jurisdiction could be decided based on the written submissions and the documents already on file.

8 The employer’s written submissions restated and addressed in more detail the grounds outlined in its objection to my jurisdiction. In particular, it noted that, although the grievor alleged that she had been forced to retire, resulting in a huge personal financial loss, she also acknowledged that there had been no actual disciplinary action. The employer submitted that no action had been taken to discipline, demote or terminate the grievor. Given that fact, there is no jurisdiction for an adjudicator to hear the grievance under paragraph 209(1)(b) of the PSLRA.

9 The employer argued that the original grievance had not raised termination. Therefore, the grievor was attempting to change the nature of the grievance. Citing Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), the employer submitted that the failure to raise that issue during the grievance process precluded the grievor from referring that issue to adjudication.

10 The employer also argued that neither performance management nor personal harassment is an adjudicable issue for the grievor. She is an unrepresented employee and cannot refer grievances about terms and conditions of employment to adjudication. The employer also referred to me to the following cases: Lee v. Deputy Head (Canadian Food Inspection Agency), 2008 PSLRB 5; Veilleux v. Treasury Board (Public Service Commission), PSSRB File No. 166-02-11370 (19820729); Bahniuk v. Canada Revenue Agency, 2005 PSLRB 177; and Canada (Attorney General) v. Lâm, 2008 FC 874.

11 The grievor provided detailed submissions on the substance of her grievance but also submitted that placing an employee with exemplary performance evaluations on performance management with no justification is clearly disciplinary. She alleged that the process of performance management resulted in her termination from the public service, causing financial penalty.

Reasons

12 The grievance referred to adjudication by the grievor is lengthy. It alleges improper treatment, performance management and the employer’s failure to handle her harassment complaint properly. It clearly sets out the circumstances that led to the grievor’s feelings of shock and humiliation and her frustration that a decision was made on her harassment complaint without anyone ever speaking with her. But the grievance does not in any fashion allege that the grievor’s employment was terminated for any reason, much less for disciplinary reasons.

13 The employer’s response to the grievance, which was filed and heard only at the third level, is clearly limited to what it understood as the grounds of the grievance, which were improper treatment, performance management and its failure to handle the grievor’s harassment complaint properly. There is no suggestion that the grievor raised allegations of discipline or termination at the grievance hearing and no suggestion that the employer understood discipline or termination to be an issue. In fact, the only reference to the grievor’s termination of employment in the employer’s response to the grievance was a statement of good wishes on the grievor’s planned retirement in April 2011 after more than 35 years of service.

14 The grievor candidly admitted when asked by the PSLRB’s registry office that there was no disciplinary action. Furthermore, it is clear from the documents on the file that the grievor, was, as of February 28, 2011, still employed in her position. The alleged termination of employment is her retirement, planned to take effect on April 15, 2011. Thus, it is not surprising that there was no reference to termination of employment in the grievance.

15 Under the PSLRA, the grievor can refer a grievance to adjudication only if it fits within one of the provisions of subsection 209(1), which provides in part 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

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

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

…

16 The grievor is an unrepresented employee. She is not covered by a collective agreement or arbitral award. Given those facts, the only basis on which she could refer a grievance to adjudication would be one listed under paragraph 209(1)(b) of the PSLRA.

17 I believe that the grievor’s allegation of disciplinary action leading to the termination of her employment arose only on the referral of the grievance to adjudication. She did not make such an allegation in the grievance itself or during the grievance process. In my view, the essential nature of the grievance as presented to the employer differs significantly in substance from the issue that the grievor referred to adjudication. The rule established by the Federal Court of Appeal in Burchill is clear. Grievors cannot raise an issue at adjudication that was not raised during the grievance process. Since the grievor did not raise the issue of a disciplinary termination in her grievance, she cannot allege a disciplinary termination of employment at adjudication to bring her grievance within the jurisdiction of the PSLRB.

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

Order

19 The objection to jurisdiction is upheld.

20 The grievance is denied.

April 1, 2011.

Kate Rogers,
adjudicator