FPSLREB Decisions

I. Individual grievance referred to adjudication

1 On October 29, 2010, Nikolai Mak (“the grievor”) filed a grievance concerning some alleged actions of the National Research Council of Canada (“the employer”).

2 It is useful to set out the grievance and the corrective action requested, as follows:

[Grievance details:] I grieve the decision of Vice-President Dr. Danial Wayner, in his letter dated 28 October 2010, to terminate my employment as Research Officer at the National Research Council.

[Corrective action requested:] I request that the letter of termination dated October 28, 2010 be immediately rescinded from my personal file and that my resignation, as submitted, dated 13 October 2010, and effective 26 October 2010, this being my actual last day of work, be accepted in lieu of.

To be made whole in all respects.

3 This grievance was referred to adjudication on March 28, 2011. The matter was set down for a hearing on March 1 and 2, 2012. On February 13, 2012, counsel for the employer submitted a five–page letter outlining the basis for her objection to my jurisdiction. By letter dated February 20, 2012, counsel for the Professional Institute of the Public Service of Canada (“the union”) responded to the objection.

II. Hearing and facts

4 At the start of the hearing, both parties agreed that I should deal with the preliminary objection raised by the employer before hearing any evidence dealing with the merits of the grievance.

5 Additionally, both parties agreed that, without prejudicing the evidence that might be called on the merits of the matter, the facts as outlined by counsel for the employer in her letter of February 13, 2012 were accurate for the purposes of me considering the arguments about my jurisdiction.

6 The grievor was hired by the employer for a three–year term. He is a specialized engineer and was doing research for the employer.

7 I find that, on October 13, 2010, the grievor tendered his resignation by emailing a representative of the employer. The grievor stated, in part, the following in his email:

After putting together all the facts and recent events including director general’s letter, I decided to resign. NRC’s (employer’s) behaviour has become so heinous and made life so difficult and harmful for health. At this moment with all the real work terms and conditions, I consider myself to have been fired by the employer (the NRC).

The NRC as an employer conducted itself in a manner, which seriously damaged relationship of trust and confidence. The NRC as an employer has indicated to me that it no longer considers itself bound by an essential terms and conditions initially stated. Here are the causes of my resignation. The NRC as an employer demonstrated:

…

These serious breaches cause me to accept that the employment has been terminated.

I believe that two-weeks notice is according to the regulations and should suffice. Please, let me know instruction for the proper termination or if you have different time frame for this. Thank you.

[Sic throughout]

8 The employer responded on the same day. Charles-Antoine Gauthier stated the following:

NRC takes the position that we have not requested you to tender your resignation nor have we made such a request in the past.

We are aware that you have lodged a harassment complaint in the past. The NRC’s harassment procedure was followed in this instance and the results of this were communicated to you.

If you have any further complaints against the NRC, there are other redress mechanisms available to you.

9 On October 26, 2010, the grievor sent another email to the employer, in which he stated as follows:

Two weeks have run out. I did not get instructions or any information from you or anybody else regarding the employment termination procedures during this whole period, even though I requested. The computer’s hardware and related things are left in the office 346 in excellent working conditions. The group secretary Anne and the commissionaire Mike witnessed that. The office keys are left with Anne. The security (buildings entrance) cards are left with Mike. I do not have books to return to the library. Please, send me the record of employment.

…

[Sic throughout]

10 The next day, the employer responded again. It stated as follows:

To date, the NRC has not terminated your employment. Further, no one at the NRC has asked you to resign from your employment at the NRC.

Our employment records show that nobody with the delegated authority has accepted a resignation from you. As such, you are currently an employee of the NRC. If you are not at work, and have not received the proper approval to be absent, you are on unauthorized leave without pay.

The attached letter invites you to a disciplinary hearing with me to be held tomorrow morning at 9:00am and stipulates the consequences should you choose not to attend. This meeting will provide you with an opportunity to relay to me, any information you wish to share regarding the events that have transpired over the last few months of your employment.

11 The grievor did not attend the disciplinary meeting. On October 28, 2010, the employer issued a letter to him terminating his employment for alleged cause.

12 That action led the grievor to file a grievance.

13 The grievance was referred to the final level of the grievance process. On February 15, 2011, the employer responded as follows:

I am writing to provide you with a final level grievance response to your grievance of October 27, 2010 concerning your letter of resignation and your grievance of October 28, 2010 concerning your termination of employment.

I have reviewed carefully, the information presented by you and your union representative, Pierre Ouellet of the Professional Institute of the Public Service of Canada, on December 15, 2010. While maintaining that the basis for termination for cause remains as set out in the letter of October 28, 2010, I have decided to accept your continuing demand to voluntarily resign from the National Research Council with an effective date of October 27, 2010 as requested by you. As a result of this decision, the letter advising you of your termination of employment dated October 28, 2010 is withdrawn.

I also acknowledge that you have an active harassment complaint with the Office of the Harassment Prevention Advisor who will respond to this matter and related allegations.

Consequently, your above-mentioned grievances are allowed and the related corrective action requested in these grievances is granted.

14 I was advised that the grievor had filed three grievances, but the only one before me related to his termination of employment. For that reason, the last paragraph of the final–level response refers to “grievances.”

15 The grievor referred his grievance to adjudication pursuant to paragraph 209(1)(b) of the Public Service Labour Relations Act (“the PSLRA”) on March 28, 2011.

III. Issue

16 The issue before me is whether I have the jurisdiction to consider the grievance.

IV. Summary of the arguments

A. For the employer

17 The employer submitted its objection to my jurisdiction in writing, as noted, on February 13, 2012. The five–page letter clearly enunciated the employer’s position but did not provide legal authority.

18 At the hearing, counsel for the employer summarized the employer’s position. Essentially, the employer submitted that, in the first place, the corrective action requested in the grievance was granted and that, therefore, there is no issue to be adjudicated. In support of this contention, counsel for the employer referred me to Chase v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 9.

19 Additionally, counsel for the employer submitted that, because the grievor continues to take the position that his resignation is valid, I have no jurisdiction to hear this matter. The employer submitted that most such cases are about the legitimacy of the resignation, but in this case, the grievor maintains that the resignation is legitimate. If the grievor were to dispute the legitimacy of the resignation, then the onus would rest with him to prove it. In support of this position, counsel for the employer referred me to Mangat v. Canada Revenue Agency, 2010 PSLRB 86.

20 Even if the resignation, in the grievor’s view, was forced, it is still a resignation. Counsel for the employer pointed to Rinke and Vanderwoude v. Canadian Food Inspection Agency, 2004 PSSRB 143, in support of this submission.

21 Finally, the employer noted that the grievance was referred to adjudication under paragraph 209(1)(b) of the Act. In making this submission, the employer argued that I have no inherent jurisdiction to deal with the harassment allegations mentioned in the letter of resignation dated October 13, 2010. The employer has an internal process to deal with such issues.

22 Thus, given the provision of the Act under which this grievance was referred to adjudication, the employer submitted that there was no financial penalty, and therefore, I have no jurisdiction to hear the merits.

23 Counsel for the employer also noted that the grievor cannot change the grounds of referral at adjudication. In support of this contention, she referred me to Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.).

B. For the grievor

24 Counsel for the union responded in writing to the employer’s preliminary objection. By letter dated February 20, 2012, she clearly articulated her position.

25 During her oral submissions, counsel for the union confirmed that the grievor intended to resign and maintained that he did indeed resign.

26 However, the grievor submitted that the employer’s final-level response did not resolve the issue. In making this statement, the grievor argued that his resignation was tendered because he had no other choice, as he was no longer able to work for the employer. The response left outstanding the allegations of harassment and discrimination.

27 The grievor submitted that, between October 13, 2010, when he tendered his resignation, and February 15, 2011, when the employer finally accepted it, he was in limbo. He was forced to fight to have his resignation accepted. As such, the grievor submitted that I had jurisdiction to consider his grievance, as far as that period is concerned.

28 The grievor submitted that he suffered a financial penalty during the time at issue that amounted to a loss of salary, the costs of renting his apartment and the interest incurred on money that he had to borrow.

V. Analysis

29 Having considered the submissions of both parties, I am of the view that I do not have jurisdiction to hear this grievance for the reasons outlined as follows.

30 Since the grievance was referred to adjudication under paragraph 209(1)(b) of the PSLRA, the grievor alleges that the disciplinary action taken by the employer was unjustified. As corrective action, the grievor asked that the letter of termination be rescinded from his file and that his resignation be accepted. The final-level response to the grievance (as set out at paragraph 13 of this decision) clearly does just that. The employer withdrew the letter of termination and recognized the grievor’s resignation. I therefore find that this grievance is moot.

31 I am of the view that the employer’s actions in this matter were, at best, unusual. In my experience of well over 30 years, I have never encountered a situation in which an employer refused to accept the resignation of an employee, only to turn around and, within days terminate that employee.

32 However, although the fact situation in this case is somewhat bizarre, the grievance was allowed at the final level, and therefore there is no issue before me. In reaching that conclusion, it became clear to me that the grievor’s resignation was retroactively accepted by the employer. For that reason alone, I would conclude that I have no jurisdiction. In support of this conclusion, I am buoyed by the learned words of my colleague in Chase.

33 The grievor maintained throughout the hearing that his resignation was intended to be valid; in his view, it was legitimate. Even were I to accept the proposition that the grievor tendered his resignation under duress, I would still be without jurisdiction (Rinke and Vanderwoude). This conclusion is especially clear, given the fact that the grievor at all times maintained that he intended to resign. At no time did he suggest that he wanted me to rule that the resignation was invalid.

34 Additionally, I am faced with the fact that the grievance was referred to adjudication under paragraph 209(1)(b) of the PSLRA. The jurisprudence of the Federal Court of Appeal is clear that I cannot alter the nature of a grievance (Burchill). To be clear the grievance related to the alleged termination of the grievor. Furthermore, the grievance was referred to adjudication as a challenge to a “disciplinary action resulting in termination, demotion, suspension or financial penalty.”

35 Paragraph 209(1)(b) of the Act states 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

…

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

36 So, even were I to determine that some form of disciplinary action is present that must be reviewed, which I do not, then the grievor must establish that he suffered a financial penalty.

37 The Federal Court of Appeal recently reconfirmed its long-standing interpretation of paragraph 209(1)(b) of the PSLRA in (Rogers v. Canada Revenue Agency, 2010 FCA 116. Specifically, the Court confirmed that there is a distinction between a financial loss and a financial penalty. The Court concluded that an earlier decision (Massip v. Canada (1985), 61 N.R. 114) did not introduce the common law concept of reasonable foreseeability to the determination of a financial penalty. In other words, even if a financial loss is reasonably foreseeable as a result of an action of the employer that, in and of itself, does not make it a financial penalty.

38 Given that conclusion, even were I to determine that the lost wages, rent and interest on money borrowed by the grievor were foreseeable losses, I am not able to conclude that they became financial penalties.

39 However, on a more fundamental level, I am not convinced that the alleged lost wages, rent and interest on money borrowed by the grievor would be considered a financial loss. Had the grievor’s resignation been accepted as of October 27, 2010, two weeks after he tendered his letter of resignation, he would have been without wages and would have had to make arrangements with his landlord, and if required, he would have had to make arrangements to borrow the funds necessary to live. So I ask, where is the loss?

VI. Conclusion

40 I conclude that I do not have the jurisdiction to hear the merits of this grievance.

41 For all the above reasons, I make the following order:

VII. Order

42 The grievance is dismissed.

May 29, 2012.

George Filliter,
adjudicator