FPSLREB Decisions

I. Complaint before the Board

1 On March 11, 2009, the Public Service Labour Relations Board (“the Board”) received a complaint under section 190 of the Public Service Labour Relations Act (PSLRA) from Martin Kenneth Rosenthal (“the complainant”). Named in the complaint as respondents were the Public Service Alliance of Canada (PSAC), the Canada Employment and Immigration Union (CEIU), Colleen Fagon, the local CEIU president, and Dale Boulianne, a manager with the Department of Human Resources and Skills Development. The complaint alleged a violation of paragraph 190(1)(g) of the PSLRA, an unfair labour practice within the meaning of section 185. Paragraph 190(1)(g) reads as follows:

190. (1) The Board must examine and inquire into any complaint made to it that

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(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

Section 185 states as follows:

185. In this Division “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

2 The complaint consists of two separate parts. The first deals with the PSAC’s, the CEIU’s and Ms. Fagon’s alleged failure to handle or submit a grievance prepared by the complainant, which is outlined in a letter written by the complainant and added to his complaint. The letter states in part as follows:

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Please add this page to my complaint file. It explains the reasons why I feel that my complaint is properly referred to the PSLRB under Paragraph 190 (1) (g)…

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187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

I believe that Section 187 covers the nature of my complaint in that I am alleging that the respondents acted in a manner that is arbitrary, discriminatory and in bad faith with regards to handling/submitting my grievance in a timely fashion.

…

[Emphasis in the original]

In that portion of the complaint, the complainant requested the following corrective action: “… I would like the grievance to move forward. I was told by Colleen Fagon that she submitted my grievance. I am shocked to find that this was never done…” Included in the complaint was a copy of a grievance dated September 10, 2007, and signed by the complainant. The grievance alleged that he had been terminated from his claims assessor position due to ill health, and he sought two weeks’ pay in lieu of notice for the termination. The complainant alleged that the grievance was never presented to management on his behalf.

3 The second portion of the complaint refers to the actions of Mr. Boulianne and the employer (“the respondents”). The complaint reads in part as follows:

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I was hired as a Claims Assessor (CR 04 range of $ 40,101) at Service Canada – 3085 Glen Erin Drive, Mississauga, on May 14, 2007. I attended the first two weeks of classroom training and did well on the first test. Unfortunately, I became ill during the course and had to take time off (Doctor’s note provided). After returning from an approximate two [sic] week absence, I was offered a new contract (term employment) as a CR 03 Claims Prep Clerk (salary range of $36,194). When I asked why my pay was being downgraded, I was told that Service Canada could not afford the expense of training one individual at a time, but a promise was made that I would be offered Claims Assessor training at the very next training opportunity. To date, I have never been called back for Claims Assessor training although I do have a letter from Dale Boulianne stating that I am in the qualified pool until May, 2009.

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[Emphasis in the original]

The letter written by the complainant and added to his complaint quotes subparagraph “186(1)(a)(iii)” of the PSLRA as follows:

186. (1) Neither the employer nor a person acting in behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall
(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person
(iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2.

[Emphasis in the original]

4 On April 21, 2009, the respondents replied, stating in part as follows:

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It is the Employer’s position that no violation of the Public Service Labour Relations Act (PSLRA) has occurred and that this complaint is without merit. The complaint alleges that 186(1)(a)(iii) of the PSLRA was violated. The complainant, however, will need to clarify that he meant to refer to section 186(2)(a)(iii) of the PSLRA, which stipulates that:

186 (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

(iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or

The employer never received a grievance, therefore [sic] cannot be seen as violating the Act. Accordingly, it is therefore submitted that this complaint should be dismissed without a hearing.

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[Emphasis in the original]

On May 14, 2009, the complainant confirmed that he had intended to refer to subparagraph 186(2)(a)(iii) of the PSLRA as well as to section 187. Additionally, the complainant supplied information that he felt buttressed his claim that he had indeed filed a grievance that was never processed. The complainant also wrote the following: “… My contention is that I was not offered a subsequent position of Claims Assessor in the two years that have elapsed, because I filed a grievance against the employer…”

5 The complaint was then scheduled for a hearing on June 28, 29 and 30, 2010.

6 On April 23, 2010, the respondents wrote as follows:

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The Employer respectfully submits that the Complainant alleges an unfair labour practice on the part of his bargaining agent for allegedly failing to file his grievance with the Employer. Accordingly, it is respectfully submitted that Mr. Dale Boulianne, Manager, Service Canada, be removed as a Respondent to this complaint.

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On April 28, 2010, the complainant replied, stating in part as follows:

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I do not agree with the removal of Mr. Dale Boulianne, Manager, Service Canada, from my complaint…

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In my opinion, Mr. Boulianne was aware of my consistent attempts to determine the progress of my grievance as is evidenced by his email. In addition, I spoke personally with Mr. Boulianne about this grievance on at least one occasion.

It is my conviction that Mr. Boulianne (the Employer) is a key respondent in this complaint. I would like to have the opportunity to question him about his involvement with these events…

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On May 5, 2010, the Board wrote to the parties to propose that “If Mr. Boulianne will attend as a witness, he could then be removed as a respondent …” The employer replied on May 13, 2010, stating that Mr. Boulianne would appear as a witness and asking that he be removed as a respondent. On May 18, 2010, the complainant replied, stating as follows: “In light of [the employer]’s undertaking to have Mr. Boulianne appear as a witness at the hearing, I am in agreement with this proposal. It is my hope that Mr. Boulianne will cooperate fully and freely, when questioned.” On May 25, 2010, the Board wrote to the parties that “In light of the parties’ agreement that Mr. Boulianne will attend the hearing as a witness, the Board has removed Mr. Boulianne from the list of respondents in this matter.”

7 On June 14, 2010, the PSAC advised the Board that a settlement had been reached with respect to the complaint. On June 16, 2010, the complainant wrote to the Board, stating as follows:

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I wish to confirm that I am expecting to enter into an agreement with PSAC, the CEIU and by extension Ms. Fagon. This agreement will not include Mr. Dale Boulianne and my former employer, Service Canada. There are outstanding issues with the employer that still need to be resolved.

On this basis, I wish to proceed with the hearing and will require Mr. Dale Boulianne to attend…

…

[Emphasis in the original]

The hearing scheduled for June 28, 29 and 30, 2010, was postponed.

8 On August 18, 2010, the Board’s Registry wrote to the complainant and to the employer, stating in part as follows: “Further to the postponement of the hearing in June 2010 in the above-noted matter, I have been directed by the Board Member assigned to re-schedule [sic] a hearing to proceed with the complaint against the respondent-employer.” Dates were suggested for a hearing. On September 9, 2010, the employer wrote in part as follows:

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In a letter from the Board, dated May 25, 2010, the parties were advised that the Board had removed Mr. Boulianne from the list of respondents in the above noted matter, which effectively removed the Employer as a party to the Complaint. The parties were further advised in June that the complainant and the remaining respondents had reached a settlement.

Accordingly, the Employer respectfully submits that this matter has been resolved, or at the very least, that the Employer and/or Mr. Boulianne are no longer respondents.

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The complainant replied on September 10, 2010, stating as follows:

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My understanding is that Mr. Boulianne agreed to testify on behalf of the employer. My agreement with PSAC and the CEIU specifically excludes the Employer as there are outstanding matters to be dealt with. For my part, I never notified the Board that the “remaining respondant” [sic] and I had reached a settlement…

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The Board scheduled the matter for May 2, 3 and 4, 2011.

9 On October 13, 2010, the employer wrote to the Board, stating in part as follows:

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It is unclear from the correspondence on this file whether or not Mr. Boulianne is still a respondent, or if he is now a witness for the complainant. If the Board confirms that he is still a respondent to this complaint, the employer will endeavor to confirm his availability…”

The Board replied, confirming the fact that Mr. Boulianne was still a respondent and that the matter would proceed.

10 This decision follows the May 2011 hearing.

II. Preliminary objections of jurisdiction and timeliness

11 At the outset of the hearing, the respondents raised three preliminary objections. The first was the following:

A) Mr. Rosenthal filed a Section 190 complaint alleging a violation of subsection 186(2)(a)(iii) of the PSLRA which states:

186 (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer shall

1. refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

…

3. has made an application or filed a complaint under this Part or presented a grievance under Part 2.

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According to the respondents, the fact that the complainant filed a complaint against the PSAC, the CEIU and Ms. Fagon for failure to file his grievance supports the fact that no grievance existed. If there was no grievance, there is no complaint against the respondents. For that reason, the matter is improperly before the Board.

12 The second objection is as follows:

B) The next issue is timeliness. Section 190(2) states that a complaint must be filed within 90 days of the complainant knowing of the actions which gave rise to the complaint.

The respondents stressed that the complainant alleges that he wrote the grievance in September 2007, yet he filed his complaint in March 2009, well outside the prescribed time limits. The complainant alleged that the complaint was filed as soon as he found out that the grievance was not presented in a timely fashion.

13 The third objection is as follows:

C) The Board is functus officio and it is requested that this issue be dealt with in the body of the decision.

According to the respondents, once the Board removed Mr. Boulianne from the list of respondents the complaint against Mr. Boulianne no longer existed. The respondents relied on the Supreme Court of Canada decision in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at page 861, which states in part as follows:

… As a general rule, once such a tribunal has reached a final decision in respect of the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp, supra.

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14 In reply, the complainant stated that he did not agree with the respondents’ position. He stated that, in his opinion, Mr. Boulianne had been aware that a grievance had been filed. The complainant’s view is buttressed by an email exchange he had with Mr. Boulianne. On May 19, 2008, the complainant emailed Mr. Boulianne, stating in part as follows (Exhibit E-2): “… I filed a grievance on September 10, 2007. The grievance was filed to request 2 weeks pay in lieu of notice when my job was changed last May. Would you know what is happening with my grievance? …” Mr. Boulianne replied on May 19, 2008, stating as follows: “Hi Martin, congratulations on you [sic] new position. I was not the person who responded at first level to your grievance. This process can take quite a long period. So in answer to your question, I do not known [sic] nor have any update…” The complainant stated that he felt that Mr. Boulianne was aware of his grievance. He settled part of his complaint with PSAC, the CEIU and Ms. Fagon because they admitted their wrongdoing. His original complaint named Mr. Boulianne as a respondent, and the related matters were not settled with the respondents.

15 I reserved on all preliminary matters and heard the parties on the merits.

III. Summary of the evidence

16 Mr. Boulianne testified that, for the past seven-and-a-half years, he has been the service manager in the Mississauga office for Employment Insurance Benefits processing. In 2007, he was responsible for hiring a number of claims assessors, classified CR-04. The complainant qualified for claims assessor training.

17 To become a claims assessor, Mr. Boulianne explained that applicants have to successfully complete a three-week training course. Partway through the course, the complainant became ill and could not complete it. When he returned from his illness, he was offered a CR-03 position in claims preparation, which he accepted.

18 Mr. Boulianne was shown a copy of a grievance completed by the complainant and dated September 10, 2007 (Exhibit E-1), and was asked if he had ever seen it before the complainant filed his complaint in 2009. Mr. Boulianne testified that he had not. Furthermore, Mr. Boulianne would not have been the first-level grievance officer had the complainant filed the grievance. Nigel Bond would have been that person.

19 With respect to allegations of discrimination stemming from not hiring the complainant into another CR-04 position, Mr. Boulianne testified that no new hires at the CR-04 level have occurred since the complainant left that position. Furthermore, the complainant’s name has never been referred to Mr. Boulianne from Human Resources’ list of qualified people for any position he was trying to fill.

20 Mr. Boulianne acknowledged that he has hired claims assessors since the complainant left but at the PM-01 group and level because they have different skill sets than the CR-04s.

21 The complainant testified that he was hired as a CR-04 claims assessor and that he commenced his training on May 14, 2007. He completed the first portion but then became ill and was off for two weeks. He provided a medical note for his absence and, upon his return, was offered a lower-level position, which he discussed with his union representative, Ms. Fagon. She said that she would discuss it with Mr. Boulianne. Since it seemed that the discussion never happened, the complainant prepared his grievance and dated it September 10, 2007 (Exhibit E-1).

22 The complainant further testified that, after he returned from his illness, Kathleen Kahn, an acting manager, told him that he would be enrolled in the next claims assessor training. He felt that the employer had an obligation to accommodate him because he had been sick but admitted that he did not raise the issue of the duty to accommodate. He stated that he has not been offered retraining and that Mr. Boulianne was aware of his grievance by virtue of his email reply (Exhibit E-2).

IV. Summary of the arguments

A. For the complainant

23 The complainant argued that the employer acted in bad faith and that, at the very least, he should receive two weeks’ pay in lieu of notice for the termination of his CR-04 position.

B. For the respondents

24 The issue in the complaint is an allegation that the respondents violated subparagraph 186(2)(a)(iii) of the PSLRA. By the complainant’s own evidence, shown in his complaint, a grievance was never filed. In the absence of a grievance, there can be no finding that the respondents violated that subparagraph.

25 Mr. Boulianne has not hired any CR-04s since the complainant left, so no unfair labour practice has been established.

V. Reasons

26 Before dealing with the merits of the case, I should address the preliminary objections raised by the respondents.

27 The complaint alleged a violation of section 190 of the PSLRA, and ultimately subparagraph 186(2)(a)(iii). That subparagraph prohibits the employer, or someone acting on its behalf, among other things, from refusing to employ or from discriminating against a person because that person filed a complaint or a grievance. The respondents’ position was that they could not have taken any prohibited action against the complainant for filing a grievance, because none was filed. Mr. Boulianne’s email (Exhibit E-2) was a direct response to the complainant’s inquiry about the status of his grievance. Whether or not the grievance was actually filed, it is my view that this evidence suggests that the respondents believed that a grievance had been filed. In this case, I do not believe that the complaint could be dismissed because a grievance had not been filed when the employer, or someone acting on its behalf, believed that one had been filed.

28 The respondents also raised an objection to the timeliness of the complaint, stating that it was filed outside of the required 90-day period. The evidence indicated that the complainant prepared a grievance on September 10, 2007, but it appears that it may not have been processed. The complainant emailed Mr. Boulianne on May 19, 2008, inquiring about the status of his grievance. He received a reply that same day. Whether or not the grievance had been processed is, in my view, irrelevant, as the respondents knew, at least from that point, of the complainant’s intention to grieve. The complaint was filed on March 11, 2009. Subsection 190(2) of the PSLRA provides that the complaint may be filed no later than 90 days after the complainant knew, or ought to have known, of the circumstances giving rise to the complaint. The allegation of discrimination in the matter before me is of an ongoing nature. Each day the complainant is not offered training, he could file another complaint. As the 90-day time limit is mandatory, the complaint can only include those events that occurred in the 90 days preceding its filing. Therefore, the complaint would be timely for alleged discrimination that occurred from December 11, 2008, onward.

29 The respondents also objected that the Board was functus officio once the letter of May 25, 2010, was sent to the parties, stating that Mr. Boulianne had been removed from the list of respondents. In support of their position, the respondents relied on Chandler. While it is correct that the letter of May 25, 2010, removed Mr. Boulianne as a respondent, I do not believe that the Board is functus officio in this case.

30 First, the parties understood from the start that part of the complaint refers to the actions of both respondents. The fact of removing Mr. Boulianne as a respondent had no effect on the employer’s status in these proceedings.

31 Second, with regard to the decision to reinstate Mr. Boulianne as a respondent, the Board is the master of its own procedures and subsection 43(1) of the PSLRA provides the Board with the authority to review, rescind or amend any of its orders or decisions. It states as follows:

43. (1) Subject to subsection (2), the Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.

The Board is therefore authorized by statute to revisit its orders or decisions, which complies with Chandler.

32 In my view, the material change in circumstances warranted rescinding the removal of Mr. Boulianne as a respondent. The complainant had agreed to remove Mr. Boulianne as a respondent in light of the employer’s undertaking to have Mr. Boulianne appear as a witness at the hearing. Mr. Boulianne was removed as a respondent based on that agreement. Once the complainant settled the part of his complaint against the PSAC, the CEIU and Ms. Fagon, it became clear that the employer no longer intended to have Mr. Boulianne appear as a witness at the hearing, even if the settlement did not apply to the part of the complaint against the respondents. From that point, the basis on which the complainant had agreed to remove Mr. Boulianne as a respondent no longer existed, and, therefore, the agreement on which the Board had relied on to remove Mr. Boulianne as a respondent no longer existed.

33 I will now turn to the merits of the complaint. In his complaint, the complainant alleges that he has never been called back for claims assessor training, which, he believes, violates subparagraph 186(2)(a)(iii) of the PSLRA. Any complaint alleging a violation of subsection 186(2), as the part of this complaint against the respondents, is subject to the reverse onus provided in subsection 191(3), which states as follows:

191. (3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

By virtue of subsection 191(3) of the PSLRA, the complaint itself is evidence that the respondents discriminated against the complainant, by failing to honour a promise to offer him CR-04 claims assessor training at the first opportunity, based on the belief that he had filed a grievance.

34 Have the respondents discharged their reverse onus by showing that the PSLRA was not violated? For the reasons that follow, I believe that they have.

35 It is not in dispute that the complainant had qualified for a pool of individuals seeking a CR-04 position. The complainant was not able to complete the required three-week training program because of illness, but it was a requirement for a CR-04 claims assessor position. Unfortunately, he could not meet that requirement at that time. When he returned to work, the employer offered him a CR-03 position. He then spoke to his union representative. The advice he received is not known. What is known, however, is that the respondents did not refuse to hire him in a CR-04 position. To the contrary, Mr. Boulianne’s undisputed testimony was that he has not hired any CR-04s since the complainant had to leave the claims assessor training. I find Mr. Boulianne’s undisputed testimony credible.

36 Based on the evidence before me, I find that the respondents did not act in a manner that would have constituted an unfair labour practice. In my view, the evidence showed that the respondents acted in an adequate manner. Therefore, I find that the respondents have discharged their onus of disproving the complaint.

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

VI. Order

38 The preliminary objections of jurisdiction and timeliness are dismissed.

39 The complaint is dismissed.

July 20, 2011.

Joseph W. Potter,
Board Member