FPSLREB Decisions

Individual grievance referred to adjudication

1 Luc Fournier (“the grievor”) is a correctional officer, classified CO-02, at the Edmonton Institution of the Correctional Service of Canada (“the employer”), in Edmonton, Alberta. He filed a grievance on January 8, 2010, in which he asserted that the employer had conducted a second investigation into an incident for which he was disciplined with a financial penalty of two-day’s pay in October 2000 and that the second investigation overruled the findings of the first disciplinary investigation, conducted in 2000. The grievor alleges that he should have been given a copy of the report from the second investigation. As corrective action, he seeks to have the two-day financial penalty overturned and to be reimbursed his lost wages, with interest.

2 The employer responded to the grievance at the second and final levels of the grievance process, as the grievor waived a hearing at the first level. At the second level, the employer denied the grievance on the ground that it was untimely since it was about a suspension imposed in 2000. At the final level the employer again cited timeliness as one of the reasons to dismiss the grievance, noting that it was untimely both in its presentation and in its transmittal to the third level of the grievance process.

3 Despite relying on timeliness as the basis for rejecting the grievance, the employer also replied to the grievor’s allegation that a second investigation report had been produced by stating that only one investigation had been conducted and that only one report had been produced.

4 The employer also noted that the grievor had already grieved the financial penalty on October 6, 2000. That grievance was referred to adjudication but was withdrawn before a hearing was scheduled. Instead of pursuing the grievance against the financial penalty at adjudication, the grievor filed a judicial review application in the Federal Court against the final-level grievance response. The judicial review application was denied, and further appeals were unsuccessful. Given those facts, the employer took the position in its response to this grievance that the grievor had already exhausted all legal recourse available for the discipline imposed on October 6, 2000 and that he could not grieve the same issue again.

5 The grievor referred this grievance to adjudication on September 2, 2010, under paragraph 209(1)(b) of the Public Service Labour Relations Act (PSLRA).

Objection to jurisdiction

6 On October 1, 2010, the employer filed an objection to the jurisdiction of the Public Service Labour Relations Board (PSLRB) to adjudicate the grievance on the grounds that the grievance was untimely, that the penalty had already been grieved and that the first grievance had been abandoned before adjudication. The employer also argued that the grievance was not adjudicable under paragraph 209(1)(b) of the PSLRA.

7 On October 21, 2010, the grievor responded that the evidence would demonstrate that he had submitted his grievance in a timely manner. He also stated that he could not respond to the allegation that the grievance was not adjudicable under paragraph 209(1)(b) of the PSLRA.

8 In a letter to the PSLRB on November 5, 2010, the employer reiterated its position that the grievor was asking it to adjudicate a financial penalty that had been imposed over a decade earlier and that had already been the subject of a grievance that had been referred to the former Public Service Staff Relations Board (the predecessor of this Board) and then withdrawn from adjudication before being heard.

9 On December 8, 2010, the parties were advised of my determination that the objection to jurisdiction could be decided on the basis of written submissions and the documents already on file.

10 In written submissions filed January 4, 2011, the employer summarized the relevant facts of this grievance and provided supporting documents. In particular, the employer stated that the grievor received a financial penalty of two-day’s pay on October 6, 2000, for harassing a co-worker and for pushing a chair into a desk with such force that the co-worker was injured. The grievor grieved the penalty. That grievance was denied at the final level of the grievance process on October 17, 2001. It was referred to adjudication on May 14, 2002. It was withdrawn from adjudication on November 12, 2002. The grievor then pursued an application for judicial review of the employer’s final-level response. That application was denied on September 17, 2003 (Fournier v. Canada (Solicitor General), 2003 FC 1079). Subsequent attempts to appeal the decision to the Federal Court of Appeal and to the Supreme Court of Canada were also denied (Fournier v. Canada (Solicitor General), [2004] F.C.J. No. 2186 (C.A.) (QL) and [2004] S.C.C.A. No. 507 (S.C.) (QL).

11 The employer submitted that the grievor made a number of attempts to have the investigation into the offence reopened in the belief that evidence existed that would demonstrate that he was not responsible for the severity of the injury to his co-worker. The employer responded by stating that the severity of the injury was never the issue. Rather, the grievor was disciplined because of his behaviour toward his co-worker.

12 According to the employer, this grievance arose because of the grievor’s persistent belief that he was not responsible for the severity of the injury to his co-worker. At the heart of this grievance is a letter written on behalf of the employer by Department of Justice Counsel Stacey Dej on September 26, 2008, in response to a request made by the grievor through his lawyer to re-examine the discipline of October 6, 2000. The employer asserted that the grievor is mistaken in his belief that Ms. Dej’s letter confirms that the employer changed the rationale for the discipline because of a subsequent disciplinary investigation.

13 The employer argued that this grievance is not adjudicable because it is untimely, both in its presentation and in its transmission to the third level of the grievance process. It argued that this grievance seeks to overturn a disciplinary penalty that was imposed in 2000 and that even the grievor’s claim that new evidence exists dates back to 2003. The letter from Ms. Dej, mentioned in the grievance, was dated September 26, 2008. According to the employer, the grievor knew the facts giving rise to this grievance at least seven years before filing it. Furthermore, once filed, the grievance was not transmitted to the third level within the time limits set out in the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN; expiry date: May 31, 2010. The employer also argued that the grievor does not have grounds to receive an extension of time to file a grievance.

14 In addition to being untimely, the employer also submitted that the grievance is not adjudicable because of the operation of the doctrine of res judicata, which prevents a party from litigating an issue that has already been decided. Acknowledging that the doctrine of res judicata has not been rigidly applied by labour arbitrators and adjudicators, the employer argued that, in the circumstances of this case, the doctrine should be applied because the grievor filed and then withdrew his original grievance against the discipline and then pursued the issue by way of a judicial review application in the Federal Court. Given those circumstances, the employer argued that the grievor has exhausted all legal recourse open to him.

15 Finally, the employer argued that this grievance is not adjudicable because the grievor did not present his grievance at all levels of the grievance process in a timely fashion, as required by subsection 209(1) of the PSLRA.

16 In submissions filed with the PSLRB on February 22, 2011, the grievor addressed the question of timeliness by requesting an extension of the time limit to file his grievance. He argued that the discovery of new evidence as to the severity of the injury to his co-worker proved that he was not responsible for seriously injuring his co-worker and that, in response to that evidence, the employer changed the grounds for discipline. Given the new facts, he submitted that he should be granted the opportunity to reopen his case.

17 The grievor also argued that the employer had waived the right to object that the transmittal of the grievance to the third level was untimely because it responded to the grievance at that level.  By doing so, the employer clearly demonstrated that it was not prejudiced by the late transmittal.

18 The grievor also argued that the doctrine of res judicata does not apply and that an arbitration board or adjudicator is free to decide differently if a previous decision is manifestly wrong. Furthermore, applying the principles of fairness and equity supports dismissing the employer’s objection to jurisdiction, particularly in a case in which a grievor has discovered new evidence that proves that the employer’s ground for discipline was unfounded.

Reasons

19 This grievance, although filed on January 8, 2010, is about a financial penalty imposed on October 6, 2000. Although the grievor framed the grievance as a claim that he should have received a copy of an alleged new disciplinary report following a second investigation into the original offence, the corrective action sought makes it abundantly clear that the grievor’s purpose is to overturn the discipline imposed on October 6, 2000. Furthermore, the grievor’s written submissions confirm that he is challenging the October 2000 discipline on the ground that there is new evidence.

20 The grievor grieved the disciplinary action of October 6, 2000. The final-level response was issued on October 17, 2001, and the grievance was referred to adjudication on May 14, 2002. The grievance was withdrawn from adjudication on November 12, 2002. The grievor then filed an application for judicial review of the final-level response, which was dismissed on September 17, 2003.

21 The withdrawal of a grievance from adjudication is a unilateral and irrevocable act. Once a grievance is withdrawn from adjudication, both the PSLRB and any designated adjudicator lose jurisdiction, and the grievance is terminated (see Canada (Attorney General) v. Lebreux, [1994] F.C.J. No. 1711 (QL), and Maiangowi v. Treasury Board (Department of Health), 2008 PSLRB 6). The PSLRB is not obligated to inquire into the reasons for the withdrawal; nor is it required to agree to the discontinuance.

22 Once withdrawn from adjudication, a grievance cannot be revived; nor can another grievance about the same matter be filed. As stated, as follows, in C.U.P.E., Local 207 v. City of Sudbury (1965), 15 L.A.C. 403 at 403 and 404:

… The authorities are legion that a board of arbitration has no jurisdiction to consider or, alternatively, that the grievor and his or her union representatives are barred and estopped from processing a grievance which is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled, or determined by a board of arbitration. Some of these cases proceed on the basis of estoppel and others on the principle of res judicata, but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no jurisdiction to entertain such a second grievance (see Re United Electrical Workers, Local 525, and Ferranti-Packard Electric Ltd. (1962), 12 L.A.C. 216, and Re United Steelworkers, Local 2251 and Algoma Steel Corp. Ltd. (1964), 14 L.A.C. 315). There is also substantial authority to support the proposition that an arbitration board has no jurisdiction to determine a grievance which, though not identical in wording and form to a former grievance lodged by the same grievor, is identical in substance (see U.A.W., Local 456 and Mueller, Ltd. (1961), 12 L.A.C. 131(noted only)and Re U. A. W. , Local 1285, and American Motors (Canada) Ltd. (1964) 14 L.A.C. 422)…

23 Although arbitrators have expressed different opinions over the years as to the reasons for the non-arbitrability of a grievance identical to one already settled, decided or withdrawn, the fundamental principle described in C.U.P.E., Local 207 has been adopted and affirmed in recent cases (see, for example, Re Cuddy Food Products and United Food and Commercial Workers International Union, Locals 175 & 633 (2003), 121 L.A.C. (4th) 56, and Apex Metals Inc. v. Canadian Auto Workers, Local 1524 (1997), 64 L.A.C. (4th) 289.)

24 In my view, regardless of whether the principle is ascribed to the operation of estoppel or res judicata, its effect is critical. The objective of the grievance process is the final resolution of disputes. That objective cannot be achieved if a matter is litigated and relitigated, a settled grievance is refiled or a withdrawn grievance is revived. In labour relations, the parties have an ongoing relationship that necessitates predictability and finality in the grievance process for effective decision-making. There can be no certainty to the process without finality.

25 The grievor based this grievance on his assertion that there is new evidence that would exonerate him. I think it important to note that, because he withdrew the original grievance from adjudication before it was ever heard, no evidence was ever presented. In any case, the discovery of new evidence after a file has been closed or a decision rendered does not provide the basis for reopening the file, for all the reasons given stated earlier in this decision.

26 The grievor’s grievance deals with the same subject-matter and asks for the same remedy as the grievance that he withdrew in November 2002. Given those facts, and based on the principles articulated in the cited cases, I find that I do not have jurisdiction to hear this grievance.

27 It must also be noted that, after the grievor withdrew his grievance, he filed a judicial review application against the decision made at the final level of the grievance process. That judicial review application was heard and decided (see Fournier v. Canada (Solicitor General). While I acknowledge that not all adjudicators feel bound to follow the principle of res judicata, I believe that the Federal Court’s decision in this matter resolves the dispute between the parties and that the principle of res judicata applies.

28 The employer also filed an objection to jurisdiction about the timeliness of the grievance. In response to that objection, the grievor requested that the PSLRB extend the time to file his grievance. I think that there is absolutely no doubt that the grievance is untimely on several levels. The grievance, filed in 2010, concerns a disciplinary penalty that was imposed in 2000. The grievance alleges that new information justifies its filing. That information was available to the grievor in September 2008, almost a year-and-a-half before the grievance was filed. Given this fact, there is simply no way to find that the grievance was timely. If timeliness were the only jurisdictional issue in this grievance, an application to extend the time-limits might, on the right facts, solve the problem. However, because I have found that I do not have jurisdiction to hear this grievance for other reasons, the request to extend the time-limit is moot.

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

Order

30 The objection to jurisdiction is upheld and the grievance is dismissed.

May 4, 2011.

Kate Rogers,
adjudicator