FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Stanley Bahniuk (“the grievor”), an employee of the Canada Revenue Agency (“the employer”), filed a grievance on July 7, 2009, alleging the improper denial of a request for management performance leave (MPL). The grievance was denied at the different levels of the grievance procedure, and the grievor referred it to adjudication in accordance with the paragraph 209(1)(b) of the Public Service Labour Relations Act. His bargaining agent did not agree to represent him at adjudication, which gave rise to a preliminary objection by the employer. It submitted that the grievance in fact involved the interpretation and application of the relevant collective agreement and that, without the approval of the grievor’s bargaining agent, such grievances could not be referred to adjudication, ousting the jurisdiction of the adjudicator. The collective agreement at issue was between theemployer and the Public Service Alliance of Canada for the Program Delivery and Administrative Services Group (expiry date: October 31, 2012 “the collective agreement”).

2 The parties agreed that the preliminary objection could be decided by way of written submissions. Submissions were received on December 22, 2010 and January 20 and 21, 2011. After reviewing them, I sustained the employer’s objection by ruling that I lacked jurisdiction to hear and decide the issue raised in the grievance, i.e., the denial of the MPL. My decision was sent to the PSLRB, who advised the parties of my ruling in a brief email. This decision sets out the reasons for my ruling.

II. The grievance and the employer’s reply

3 The grievance (Exhibit 1) reads as follows:

Details

I grieve my employer’s unreasonable and arbitrary decision to deny me Management Performance leave which in effect is a financial penalty for the cycle ending March 31, 2009 as allowed under Article 54.03(a) of my Collective Agreement (Agreement between Canada Customs and Revenue Agency and the Public Service Alliance of Canada, Program Delivery and Administrative Services).

I believe the rating is the result of continued, long-term discrimination, arbitrary actions and bad faith of Senior Management of the Canada Revenue Agency. In addition I believe Mr. Yestrau was incapable of evaluating my Effective People Management Performance as parameters were not clear to me or him and he in fact gave feedback that my performance was exemplary. I believe these actions of senior management are intentional, punitive, malicious and are a duplication of previous actions imposed by senior management. These actions are in no way intended to address performance deficiencies or effective people management but to punish and harass me on an ongoingbasis.

…

Corrective Action

…

A declaration of Senior Management’s discrimination and bad faith directed towards me.

…

A new Employee Performance Management Report ending March 31, 2009 to be completed, fully identifying my many accomplishments in spite of employer imposed restrictions and challenges that are over and above what my peers are confronted with and are outside of my Job Description. Rating that recognizes the accomplishments.

Performance leave and other entitlements applicable to these circumstances.

…

Legal council [sic] to deal with continued harassment.

…

4 The employer denied the grievance in its written responses at the first and second levels of the grievance procedure (Exhibit 2). Both responses were materially identical. In them, the employer indicated that the grievor “… did not provide any further information to demonstrate that [he] met all the criteria for Management Performance leave.” The employer also wrote the following: “I further wish to advise you [the grievor] that a person can only take a financial penalty to adjudication if it is the result of a disciplinary action (for example, a suspension without pay). In this instance there was no disciplinary action.”

III. The collective agreement

5 The relevant clause of the collective agreement reads as follows:

54.03 Management Performance Leave

(a)      Subject to the conditions established in the Employer’s CRA Performance Guidelines for the Management/Gestion (MG) Group, employees who perform MG duties during the annual review period, shall be eligible to receive up to seventy-five (75) hours of management performance leave for people management based on the annual performance assessment.

(b)      Leave granted under this article shall be subject to operational requirements.

(c)      At the end of any fiscal year, or upon termination of employment at the CRA, all remaining and unused portion of management leave credits will be automatically converted into vacation leave and subject to the provisions of Article 34, Vacation Leave with pay.

IV. The Public Service Labour Relations Act

6 The relevant provisions of the Public Service Labour Relations Act (PSLRA)are the following:

…

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;

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

(ii)  deployment under the Public Service Employment Act without the employee's consent where consent is required; or

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

…

V. Summary of the arguments

A. For the employer

7 The employer advanced two arguments in support of its preliminary objection. First, it submitted the following:

… the grievance is clearly not a matter that falls under s. 209(1)(b) of the Public Service Labour Relations Act (PSLRA). Rather, it is a matter that falls under the provisions of s. 209(1)(a) of the PSLRA. In order to refer this type of grievance to adjudication, the grievor requires the support of his bargaining agent, which he does not have. Accordingly, the Public Service Labour Relations Board (PSLRB) is without jurisdiction to hear this grievance. [From page 1 of the employer’s written submissions, dated December 22, 2010]

8 In support of that position, the employer cited the following authorities: Hanna v. Deputy Head (Department of Indian Affairs and Northern Development),2009PSLRB94; Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112; Rogers v. Canada Revenue Agency, 2010 FCA 116; Bahniuk v. Canada Revenue Agency, 2005 PSLRB 177; Pieters v. Treasury Board (Federal Court of Canada),2001 PSSRB 100; and Lee v. Deputy Head (Canadian Food Inspection Agency),2008PSLRB 5.

9 Second, the employer argued that, “… in the alternative, the grievor's attempt to re-characterise his grievance as a disciplinary matter is contrary to the Burchill principle, and the PSLRB should decline to hear the grievance.” Cited were Hanna; Burchill v. Attorney General of Canada,[1981] 1 F.C. 109 (C.A.); Babiuk et al. v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 51; and Laughlin Walker v. Treasury Board (Department of Fisheries and Oceans), 2010PSLRB62.

B. For the grievor

10 The grievor conceded that part of the grievance was about the application and interpretation of clause 54.03 of the collective agreement and, without the support of the bargaining agent, that part of the grievance could not be referred to adjudication. The allegation that “… Mr. Yestrau was incapable of evaluating my Effective People Management Performance as parameters were not clear to me or him and he in fact gave feedback that my performance was exemplary” (Exhibit 1) fell into this category, according to the grievor.

11 However, the grievor argued that the remainder of the grievance was about a “...disguised disciplinary attempt by the employer …” that fell under paragraph 209(1)(b) of the PSLRA. As such, he submitted that the approval of his bargaining agent was not a precondition for referring that part of the grievance to adjudication. The grievor drew my attention to a harassment complaint that a manager had filed against him that was eventually withdrawn and to a three-day disciplinary suspension that was the subject of another grievance awaiting adjudication. The grievor’s reasoning is set out as follows (from page 2 of his written submission dated January 20, 2011):

… this part of my grievance does not ask for an interpretation or an application of the Performance Leave provisions. If the reference to the conversation with senior manager is removed from the Performance Report [the harassment allegation] than by the Employer's own guidelines I should qualify for performance leave as I exceeded expectations on at least one effective people management skills that I was evaluated on. This part of the grievance deals with a disguised disciplinary measure that represents just one of many attempts to marginalize and demoralize myself and career at Canada Revenue Agency. Certainly if it is founded by the adjudicator that there is no basis for the discipline referred to then there is a strong argument this reference should not be included in the Performance Report. Even if it is founded there was a basis for the disciplinary action then by the Employers own guidelines discipline should be one time and not ongoing. In effect I was disciplined for the same thing twice.  Without pursuing this disguised disciplinary action I would be frustrated from ever correcting the penalty that wasimposed.

[Sic throughout]

12 The grievor raised a second argument based on a change to the wording of the former section 92 when the Public Service Staff Relations Act, R.S., c. P-35 was repealed and replaced by the PSLRA in 2005. The grievor noted that, in the first sentence of subsection 209(1), the last three words were changed from “with respect to” to “is related to.” He submitted on page 4 of his submission dated January 19, 2011 that:

… the change in the wording from "with respect to" to "related to" in the legislation encourages the Board to expand what they can and should be looking at when rendering a decision relating to matters of a disciplinary nature. The Burchill principle was rendered under the old legislation and I believe using that principle and the corresponding jurisprudence based upon that decision in a strict sense does not account for the legislation’s attempt to broaden the scope of what can be presented before the Board. [From page 4 of the grievor’s written submissions]

C. Employer’s reply

13 The employer responded that the crux of the grievance and of the grievor’s evidence “… remains grounded in the denial of Management Performance Leave …” (from page 2 of the employer’s written reply dated January 21, 2011) and thus remains an issue of the interpretation and application of clause 54.03 of the collective agreement. With respect to disguised discipline, the employer submitted that no financial penalty had been imposed within the meaning of paragraph 209(1)(b) of the PSLRA and that no implied or direct discipline had been imposed by the denial of the MPL. Finally, the employer noted that numerous decisions have been rendered under the PSLRA since 2005 and that those decisions, some of which it provided in its original submissions, “… continue to adopt and apply the Burchill principle” (from page 2 of the employer’s written reply).

VI. Reasons

14 After reviewing the submissions and authorities provided by the employer and the grievor, I have concluded that the employer’s preliminary objection with respect to jurisdiction must be sustained. Therefore, I have no jurisdiction to adjudicate the merits of this grievance.

15 In reaching my decision, I have accepted the employer’s submission that the grievance falls under paragraph 209(1)(a) of the PSLRA. For a grievance under that paragraph to be referred to adjudication, the bargaining agent must approve the referral and must provide representation. It is undisputed that neither approval nor representation were provided in this case, and the absence of bargaining agent approval and representation means that a grievance under paragraph 209(1)(a) cannot be referred to adjudication.

16 The essence of the grievor’s position is that only a portion of the grievance is captured by paragraph 209(1)(a) of the PSLRA and that the denial of the MPL was a form of disguised discipline that thus can be referred to adjudication under paragraph 209(1)(b) with or without bargaining agent approval. The grievor alleges in his grievance that bad faith, discrimination and arbitrary decision making on the part of the employer led to the denial of the MPL. In his grievance, the grievor also accuses the employer of having been intentionally punitive and malicious and of having engaged in “… a duplication of previous actions imposed by senior management.” The reference to “duplication” refers to a three-day disciplinary suspension (the subject of another grievance that has yet to be adjudicated) as well as to a rescinded harassment complaint against the grievor.

17 With all due respect to the grievor, I find no basis to conclude that the denial of the MPL was in reality disguised discipline that imposed a financial penalty, which would have made it referable to adjudication under paragraph 209(1)(b) of the PSLRA. That paragraph states that the disciplinary action must have resulted in “...termination, demotion, suspension or financial penalty.” No allegation was made that denying the MPL could be construed as a termination, demotion or suspension. Therefore, the only possible type of discipline that the grievor could claim that he suffered is a financial penalty based on the monetary value of the MPL.

18 The authorities distinguish between a financial penalty and a financial loss and make it clear that they are not synonymous (see Rogers and Chafe et al.). For example, a delayed implementation of a classification change might result in a monetary loss, but that fact alone would not make the loss a disciplinary matter (see Laughlin Walker and Babiuk et al.). I conclude that, even if a financial loss resulted from the MPL denial, it would not make the grievance a disciplinary matter governed by paragraph 209(1)(b). Accepting the grievor’s position would potentially transform all decisions about monetary matters under the collective agreement into discipline issues. Innumerable discretionary decisions of employers under collective agreements have financial implications — approving sick leave, calculating lengths of service, evaluating performances, determining eligibilities for training opportunities, handling reclassification requests, dealing with transfers and promotions, and determining isolation and other allowances, to name but a few.

19 It cannot possibly be the purpose of the collective agreement or the legislation to enable employees to characterize any unwelcome management decision on these matters as discipline simply by claiming the decision had a negative financial impact or alleging that the decision was motivated by bad faith. The way to challenge such decisions is to allege that the discretion exercised by management in the decision-making was unreasonable. Such a challenge might or might not reveal that the decision was unreasonable. But the issue is not discipline but contract application and interpretation. The question is whether the manner in which the decision was made and the factors considered were a reasonable application of the contractual provision at issue. Such matters can be grieved and referred to adjudication (assuming no other contractual or legal impediments) under paragraph209(1)(a) of the PSLRA as long as bargaining agent approval is secured. Indeed, the grievor took precisely that approach in the past. With the approval and representation of his bargaining agent, he grieved and subsequently referred to adjudication a denial of the MPL in 2001 and 2002 (see Bahniuk 2005 PSLRB 177).

20 Translated into the terms of this case, I am satisfied that the real issue in the current grievance is the basis upon which the employer decided not to award the grievor the MPL to which he believed he was entitled. The grievor could contest that denial by directly challenging how the employer made that decision. On its face, the grievance does exactly that. It may well be that the employer’s decision to deny the MPL was affected by the discipline it had imposed on him previously and by the harassment complaint made against him. However, the reasonableness of the factors and process that the employer applied in denying the MPL are questions about the interpretation and application clause 54.03 of the collective agreement. Without the approval of the grievor’s bargaining agent, questions of contract interpretation and application cannot be referred to adjudication. Unfortunately for the grievor, his bargaining agent declined to provide representation and approval with respect to his grievance. Therefore, he is foreclosed from referring to adjudication his allegation that he was improperly denied the MPL.

21 In reaching my conclusion, I rejected the grievor’s claim that the changes made to the wording of section 209 when the PSLRA was enacted in 2005 make pre-2005 authorities inapplicable. Numerous cases since 2005 have distinguished disciplinary grievances under paragraph 209(1)(b) of the PSLRA from contract interpretation and application grievances under paragraph 209(1)(a) (see Laughlin Walker, Chafe et al. and Hanna). Adopting the reasoning from those cases, I see no basis for concluding that the 2005 changes to the wording of section 209 should produce a different outcome.

22 Finally, I note that the grievor filed another grievance challenging the three-day suspension that he alleges played a role in the denial of the MPL. The just cause for that discipline and the question of appropriate remedy (should that grievance be sustained in full or in part) are the proper subject matter for the adjudicator appointed to hear that grievance. Those matters lie outside my jurisdiction in this case.

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

VII. Order

24 The grievance is dismissed.

June 3, 2011.

Allen Ponak,
adjudicator