FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Zabia Chamberlain (“the grievor”) filed a grievance on December 3, 2008, to which she attached a lengthy document detailing the nature of her allegations. On February 19, 2009, the acting assistant deputy minister of the Department of Human Resources and Skills Development (“the employer”) denied the grievance at the final level of the grievance process.

2 I rendered a preliminary decision as to jurisdiction in which I dismissed the grievance (see Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2010 PSLRB 130). I also found limited jurisdiction respecting four complaints filed by the grievor pursuant to the Canada Labour Code, R.S.C. 1985, c. L-2 (CLC). These complaints have been the subject matters of extended hearings.

II. Federal Court ruling

3 The grievor sought judicial review of my decision, and on August 31, 2012, the Federal Court rendered its decision (Chamberlain v. Attorney General of Canada, 2012 FC 1027 (“Chamberlain FC”)).

4 The Federal Court reviewed the decision first on the basis of whether it was reasonable and second on the basis it did not address issues surrounding the grievor’s allegations that her rights under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA), had been violated.

5 The Federal Court adopted the reasons of the Federal Court of Appeal in its review of my decision, which concluded the allegations of violations of procedural fairness were not substantiated (Chamberlain v. Attorney General of Canada, 2012 FCA 44, at para 22). The grievor also sought judicial review of my decision respecting my findings pursuant to the CLC.

6 The Federal Court concluded that my decision that the grievor had not established disciplinary action was reasonable. However, because the Court’s order quashed my decision for other reasons, I will repeat the findings and reasons and confirm my conclusion that the grievance does not disclose disciplinary action, and thus, I do not have the jurisdiction to delve into the allegations of the grievor.

7 As for the allegations of human rights issues, the Federal Court in Chamberlain FC remitted the matter back to me by stating the following:

...

[12] As concerns the second ground raised by Ms. Chamberlain – related to her human rights claims – Ms. Chamberlain’s grievance raises a claim that the employer failed to accommodate her in breach of the Canadian Human Rights Act, RSC, 1985, c H-6 [CHRA] and also raises a claim she has been discriminated against in violation of the CHRA. Although these claims are not clearly stated, Ms. Chamberlain does allege in her grievance that she was a victim of discrimination and that the employer failed to facilitate her return to work. She also mentions the CHRA. The Adjudicator did not consider the adjudicability of the alleged violations of the CHRA in his decision and thus, as is more fully discussed below, committed a reviewable error. It may well be that Ms. Chamberlain’s human rights are inadjudicable, but this matter was not addressed by the Adjudicator and should have been. I have accordingly determined that the Adjudicator’s order dismissing Ms. Chamberlain’s grievance must be set aside and the matter be remitted back to him (if he is available or to another PSLRB adjudicator if he is not) to determine whether or not Ms. Chamberlain’s claim of an alleged breach of the CHRA is adjudicable under the PSLRA. As the standard of review of an Adjudicator’s determination of arbitrability is reasonableness, it is for the Adjudicator – not this Court – to make this determination.

...

8 It is important to note that during the original hearing neither party addressed the issue of the claim that the employer failed to accommodate the grievor, in breach of the CHRA, and whether such a claim is adjudicable. It is for that reason I did not turn my mind to the argument.

III. Procedure

9 It is useful to review the procedure followed in this matter.

10 On September 10, 2012, after the rendering of the Federal Court decision, the hearing of the CLC complaints resumed. The parties consented to deal with the issues raised by the Federal Court by way of written argument. Both parties agreed there was no need for evidence as the issue was purely legal. It was also agreed that, as the employer raised the issue of my jurisdiction, it should file the initial brief.

11 On November 13, 2012, counsel for the employer authored a letter with attachments, which was received by the Public Service Labour Relations Board (“the Board”).

12 The grievor was granted an extension of time to file her response. On January 25, 2013, she submitted her written submission.

13 The employer filed its rebuttal on February 25, 2013.

14 On February 28, 2013, the grievor asked to respond to the employer’s response by providing further evidence. The Board responded as follows:

...

Firstly, based on the instructions of Mr. Filliter, the submissions have been sent to the CHRC along with the decision of Justice Gleason. Secondly, and perhaps more importantly, the filing of the [sic] Ms. Engmann’s rebuttal submissions completed the written submissions process – as noted in my letter to the parties of February 27, 2013.

That said, on rare occasions there are situations when a party is granted the opportunity to respond to a final rebuttal. Accordingly, if you wish Mr. Filliter to consider this request, you must identify, in point form only, every issue you want to address. In this regard, Mr. Filliter noted you made reference to statements made by you on February 6, 2013. Upon a review of his notes he has concluded these statements only dealt with confirmation that you were making no allegations of acts of reprisal against counsel for the employer and this deals with your CLC complaints. Mr. Filliter doubts this is relevant in any way to the issue of whether or not he has jurisdiction to hear the merits of your grievance.

...

[Emphasis in the original]

15 The grievor presented a document to the Board on April 17, 2013. Although it fit on one page, it was in small font and not in point form as requested.

16 I determined, after receiving consent from the parties, that it would be advisable to obtain input from the Canadian Human Rights Commission (“the CHRC”). On March 27, 2013, it filed a submission.

17 The parties were allowed to provide input with respect to the CHRC’s submissions. On April 24, 2013, the employer provided its submission, and on April 25, 2013, the grievor filed her submission.

18 In any event, after an exchange of submissions and after considering the positions of the parties, I concluded it was not appropriate to allow the introduction of further evidence by the grievor. On May 2, 2013, the Board advised the parties that I had denied the grievor’s request.

19 In coming to this conclusion, I was swayed by the legal principles espoused in Eli Lilly Canada Inc. v. Apotex Inc., 2006 FC 953, which recognized such a request as an exceptional step.

20 Furthermore, I reviewed what purported to be a one-page point-form list supplied by the grievor and concluded none of the listed items fell within the “new” or “unanticipated” issues that have in the past been considered by adjudicators and courts as appropriate reasons for allowing such replies (see Chopra et al. v. Treasury Board (Department of Health), 2011 PSLRB 99, and Basic v. Canadian Association of Professional Employees, 2012 PSLRB 120).

21 In my view, the grievor’s request was, on its face, simply a request to “... clarify the record, respond to attacks on credibility, or respond to the mischaracterization of evidence or submissions”; it was therefore inappropriate and would have resulted in further delays (Chopra).

IV. Relevant facts

22 Although not entirely relevant, to put this decision into context, it is important to review some of the findings of fact I made in my original decision.

23 The grievor is a long-time employee. Her substantive position is in the Strategic Policy and Research Branch (SPR) of the employer. She is classified at the ES-07 group and level. At the time of the grievance, she was not represented by a bargaining agent, and her terms and conditions of employment were not covered by a collective agreement.

24 In 2006, the grievor was placed in an acting position at the EX-01 group and level in the Skills and Employment Branch (SEB) under the supervision of an individual whom I will refer to as “JA.” An EX-01 position is a higher classification than an ES-07 position.

25 Between June 2007 and April 2008, the grievor was supervised by JA at the SEB. The grievor described his management style as aggressive. She testified as a result she had suffered “injured health, harassment and human rights risks.”

26 The grievor drafted an email on April 22, 2008, to Karen Jackson, Senior Assistant Deputy Minister.

27 Ms. Jackson responded the same day and suggested that a meeting would be the preferred way to discuss the contents of the email.

28 The grievor responded to Ms. Jackson’s email on April 30, 2008. She advised Ms. Jackson she was not comfortable attending a meeting. She also made several requests, including having her supervisor’s management style dealt with, being granted 20 days of either compensatory or other special circumstances leave, being granted 10 days of French language training, and permanent appointment to an EX-01 position.

29 The grievor and Ms. Jackson exchanged a number of emails; on May 25, 2008, the grievor referred to her email of April 22, 2008, and restated a portion of it, as follows:

...

I request immediate action from SEB and SPR for my safe and risk-free placement apart from the AEM directorate and from [JA] in a way that inflicts on me no further pain, suffering or loss, and in a way that does not deprive me of the opportunity to continue to serve this department in the capable, productive and respectful way that I have been serving.

30 Ms. Jackson responded by a letter dated May 28, 2008. Ms. Jackson alluded to the fact the grievor had not agreed to mediation and advised she would conduct an investigation into the grievor’s allegations.

31 On May 30, 2008, the grievor again emailed Ms. Jackson. The grievor indicated although she appreciated the offer of a one-week management leave followed by a two-week French training leave, she had been advised by her physician to go on sick leave. The grievor indicated she would return to her home branch, the SPR.

32 In response to Ms. Jackson’s decision to conduct an investigation, the grievor sent an email on June 5, 2008, which outlined in point form a number of allegations concerning the behaviour of her supervisor at the SEB.

33 After conducting the investigation, Ms. Jackson released her findings in writing to the grievor on July 4, 2008. Without going into detail, it is clear Ms. Jackson’s findings concluded the grievor’s supervisor at the SEB had not conducted himself properly. In fact, Ms. Jackson concluded she would take corrective action.

34 As was evidenced by a series of emails, it was obvious Ms. Jackson’s report was not well received by the grievor. The grievor, in three lengthy emails, requested clarification or action. On August 1, 2008, the grievor sent Ms. Jackson an eight-page email. On August 6, 2008, she sent a two-page email and a further three-page email. On August 12, 2008, the grievor sent yet another three-page email. In each email, the grievor either took issue with Ms. Jackson’s conclusions or raised other concerns.

35 Those emails resulted in yet another email exchange between Ms. Jackson and the grievor in mid-August 2008. On August 13, 2008, Ms. Jackson responded to the concerns raised by the grievor on August 6 and 12, 2008. The grievor sent an email in which she accepted a correction to her medical leave starting June 2, 2008, requested French language training from September 22 to October 3 and requested a new work location.

36 Ms. Jackson responded on September 4, 2008, by email and confirmed the grievor’s acting assignment as an EX-01 in the SEB would end on October 6, 2008. Additionally, she authorized leave from June 6 to October 6, 2008 as other paid leave. The grievor then sent a four-page email to Ms. Jackson on September 8, 2008 in which she revisited many of the issues raised in her previous emails. However, the grievor also raised some issues with respect to new office arrangements on the fourth floor of her office building, as proposed by Ms. Jackson.

37 After the email exchange between Ms. Jackson and the grievor in September 2008, the grievor emailed her supervisor in the SPR (Mr. Bertrand), explaining in general terms the circumstances of her return to work. Mr. Bertrand responded and indicated her office was going to be on the third floor and not on the fourth. The grievor did not accept the placement of her office on the third floor, and on September 22, 2008, she proposed she be placed on the second floor.

38 Ms. Jackson and the grievor exchanged emails again in late September 2008. It was clear the grievor was no longer working in the SEB, and she was to be reintegrated into the SPR. The grievor took issue with Ms. Jackson’s response on September 29, 2008. In a three-page email reply, the grievor claimed her complaints had not been handled properly and further asked that a more formal process be put in place to resolve her concerns.

39 In early October 2008, Ms. Jackson and the grievor began yet another exchange of emails. The exchange was initiated by another invitation from Ms. Jackson for a face-to-face meeting. The grievor responded by suggesting an “... external 3rd party mediation process through the PSLRB.” That email contained an allegation by the grievor the posting of the job in which she had been acting for almost two years was “... a hostile wilful act of malice or a wholly disregardful [sic] act of public disrespect for me.”

40 The grievor’s acting assignment concluded on October 6, 2008. After her leave, she was to return to her substantive position in the SPR. Between October 2 and 10, 2008, the grievor exchanged more emails with her substantive supervisor, Mr. Bertrand, about the location of her office. The grievor expressed concerns about some of the proposals. Mr. Bertrand responded by suggesting a “... gradual re-integration into the workplace.” Additionally, Mr. Bertrand indicated that he would “... continue the search for a suitable workstation in line with your needs.”

41  On October 9, 2008, the grievor requested her leave (special circumstances) be extended until December 12, 2008. The grievor’s doctor explained the grievor’s absence in a number of notes. In each note, the doctor stated the grievor would likely be able to return to work, initially on November 3, 2008, and then on January 5, 2009.

42 On December 3, 2008, the grievor filed a grievance under section 208 of the Public Service Labour Relations Act (“the PSLRA”). I attach the grievance in its entirety as Appendix A. The grievance alleged many things, including the treatment received from her supervisor, Ms. Jackson’s investigation, the investigation report’s contents, a disregard for health and safety, and the employer’s failure to accommodate her as a woman and a member of a visible minority.

43 On February 19, 2009, the grievance was denied at the final level. I have attached the final-level response as Appendix B.

44 On March 11, 2009, the grievor referred the grievance to adjudication pursuant to paragraph 209(1)(b) of the PSLRA. I have attached the referral as Appendix C, but it is useful to quote from her covering letter:

The first principal feature of my grievance charges ... was the disrespectful, harsh and non-procedural treatment of me in the harassment investigation process, investigation reports and in the months preceding and following the July 2008 report’s finding of poor, inappropriate physical space behaviour, aggressive and questionable treatment and harmful harassment...

The second principal feature of my grievance charges was the overall struggle I faced in overcoming barriers imposed on me in my place of employment. [She outlines her alleged exclusion from competing for promotional opportunities and other alleged workplace events.]

...

The third principal feature of my charges was the overall delay in accommodating a safe and respectful placement of me physically apart from the poor environment and harassing manager. [She alleges that she made the request in April 2008 to be removed from her manager and alleges that the persistent use of her email address for work matters into November 2008 caused her worry and anguish, among other allegations.]

...

[Sic throughout]

[Emphasis in the original]

45 As noted, the employer raised a preliminary objection as to my jurisdiction on January 11, 2010, which was argued July 26 to 30, 2010. My decision was rendered on December 13, 2010, and I upheld the employer’s argument. My finding was there was no disciplinary action taken against the grievor.

46 As such, I concluded I did not have jurisdiction to deal with the grievance pursuant to paragraph 209(1)(b) of the PSLRA. This portion of my decision was determined reasonable by the Federal Court in Chamberlain FC.

V. Positions of the parties

A. For the employer

47 The employer submitted that as the grievance was referred to adjudication under paragraph 209(1)(b) of the PSLRA, it must fall within the parameters of this paragraph. The employer noted employees who allege violations of the CHRA that do not fall within the parameters of subsection 209(1) are at liberty to pursue them with the CHRC.

48 The employer acknowledged subsection 208(1) of the PSLRA allows an employee to present a grievance on virtually any matter affecting his or her employment. Counsel for the employer noted there were some limitations on this right, including matters for which there is redress in or under an Act of Parliament other than the CHRA.

49 The employer submitted that until 2005 there was a lack of clarity respecting an employee’s ability to present a grievance alleging a violation of the CHRA, even though most collective agreements incorporated “anti-discrimination” clauses. Counsel for the employer argued section 91 of the Public Service Staff Relations Act (PSSRA) was interpreted to preclude grievances alleging violations of the CHRA as that Act was considered to provide another “administrative procedure for redress.”

50 According to the employer, after April 2005, the limitation was removed.

51 However, counsel for the employer pointed out section 209 of the PSLRA restricts the referral of grievances to adjudication. The employer submitted that for an adjudicator to assume jurisdiction over a grievance, it must relate to a matter capable of both being grieved (section 208 of the PSLRA) and being referred to adjudication (section 209 of the PSLRA).

52 As for the harassment grievances, the employer contended that for employees represented by a bargaining agent, such grievances are most often tied to an alleged violation of a collective agreement and are therefore referable to adjudication under paragraph 209(1)(a) of the PSLRA. However, in this case, the grievor was not represented by a bargaining agent and was not a party to a collective agreement. For her harassment grievance to be referred to adjudication, it must be inextricably linked to an action of the employer that is otherwise adjudicable under section 209 of the PSLRA.

53 The employer argued that the powers of an adjudicator pursuant to subsection 226(1) of the PSLRA are only in relation to matters that are adjudicable in the first place.

54 Counsel for the employer then distinguished the fact situations in Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68; Lovell and Panula v. Canada Revenue Agency, 2010 PSLRB 91; and Wong v. Deputy Head (Canadian Security Intelligence Agency), 2010 PSLRB 18.

55 The employer argued that if I were to decide paragraphs 226(1)(g) and (h) of the PSLRA provided a “free-standing” reference to adjudication, the impact would be to effectively bar federal government employees from recourse pursuant to the CHRA. The employer argued this was not the intent of Parliament as, had it been, the language would have been clear.

56 The employer argued the cases of Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (“Parry Sound”), and Canada (House of Commons) v. Vaid, 2005 SCC 30, are distinguishable and of little assistance in my consideration of this issue.

B. For the grievor

57 The grievor categorized her grievance as raising a number of “disciplinary & demoting policy-procedural breaches” and denied it was a “harassment grievance” or a “free standing human rights grievance.”

58 The grievor argued the issue before me is whether I possess the “... jurisdiction to hear & adjudicate my human rights claims & the discriminatory actions by the employer that I raised.” She made reference to paragraphs 3 and 5 of Chamberlain FC.

59 The grievor submitted 11 points, which she argued established that I had jurisdiction to “... adjudicate the human-rights abuses & employer-discriminatory actions that I suffer & extend-back to 2007 & 2008 and raised in my Grievance & March 2009 referral-letter. [sic throughout]” I will attempt to summarize the 11 points, but because of the confusing nature of the submission, I have attached the entire brief as Appendix D.

60 In summary, the 11 points raised are as follows:

1. “The human rights violations & employer-discriminatory actions of 2007 to late-2008 & early-2009 were & are causes of the procedural-sham, failure/refusal-to-accommodate, discipline, disguised-discipline, health-impact-injury, financial-penalty & demoting loss-of-career.” According to the grievor, had these not occurred, the grievance would not have been filed. This is the “factual matrix” referred to in “Amos 2011 FCA 38.”
2. “It is imperative to consider the facts & wording of the Public Service Labour Relations Act (PSLRA) and related statutes: Canandian [sic] Human Rights Act (CHRA), Canada Labour Code (CLC), Canada Occupational Health and Safety Regulations (COHSR), Employment Equity Act (EEA) and the Financial Administration Act. ”The grievor argues there are no restrictions to the jurisdiction of an adjudicator of the Board when “... human rights & discriminatory actions ... are raised through the PSLRA ss. 209 or 223.” The grievor further argues section 226 of the PSLRA refers to “any matter referred to adjudication,” and the fact is, she did refer her grievance to adjudication.
3. The grievor argues that as paragraph 226(1)(g) of the PSLRA provides the adjudicator with powers to interpret and apply the CHRA, I therefore have the jurisdiction to entertain her grievance.
4. The grievor refers to section “396” [sic] of the CHRA and suggested this confirms that I have jurisdiction.
5. “A public Servant with excluded-status or non-union-membership or who is at the executive or acting-executive level is not barred from protection of the CHRA and related policies & statutes. [sic throughout]” The grievor makes specific reference in this portion of her submission to the Canadian Charter of Rights and Freedoms, the Treasury Board’s Policy on Harassment Prevention and Resolution, the Values and Ethics Code for the Public Sector and the Treasury Board’s Employment Equity Policy.
6. The grievor refers again to subsection 226(1) of the PSLRA and the powers provided to adjudicators. She argues that although the “... collective agreement of the substantive EC-08 position does prohibit discrimination ... those prohibitions do not cause conflict in the PSLRB’s application of the CHRA ...” and other pieces of legislation. She then enters into a lengthy dissertation on her view of the evidence I heard during the hearing of the CLC complaints, which complaints were subject of a decision which is not in issue here.
7. The grievor referred to my original decision in this matter as well as that of the Federal Court to suggest she did refer the grievance to adjudication and there was no question as to what she raised, which included “... loss of EX salary & career, policy & procedural breaches, non-transparency, retaliation, discipline, recklessness, discrimination, accommodation-failure, human-rights violations and other financial-penalties. [sic throughout]”
8. She argues the human rights abuses were disciplinary and were and are acts of reprisal. She refers to various cases, including “Tench v. National Defence OHSTC-09-001,” “Snyder 2010,” “Carswell 2009,” “Labranche 2010 PSLRB 65,” and “Birkett 2007 FC 428 (paragraphs 38-41).” In her view, these cases stand for the proposition that subsection 226(1) of the PSLRA gives power to the adjudicator to deal with all employment-related matters.
9. She rebuts the position of the employer. Her contention is that Gibson and Lovell and Panula are of assistance and appear to suggest section 226 of the PSLRA provides me the necessary jurisdiction to entertain arguments with respect to her grievance.
10. In this paragraph, the grievor takes issue with whether my original decision, in which I determined there was no misconduct, was correct. In support of her contention, she raises Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83.
11. The grievor argues there was jurisdiction to “... adjudicate the discrimination & human-rights-abuses [sic] raised.” The grievor refers me to LaBranche v. Treasury Board (Department of Foreign Affairs and International Trade), 2010 PSLRB 65; Giroux v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 102; and Kelly v. Treasury Board (Department of Transport), 2010 PSLRB 80.

[Emphasis in the original throughout the 11 points]

[Sic in the quotations throughout]

C. For the CHRC

61 The CHRC provided the factual basis for its submission.

62 The CHRC confirmed its view that subsection 226(1) of the PSLRA grants powers to adjudicators only in relation to matters properly referred to adjudication under subsection 209(1) of the PSLRA. The CHRC specifically noted that the grievance should “... only be adjudicable under the PSLRA if its underlying factual context fits within the categories listed in s. 209(1).”

63 The CHRC then distinguished the cases mentioned by the Federal Court in Chamberlain FC. I note the distinctions of the CHRC are similar to those raised by the employer.

64 In the concluding pages, the CHRC addressed some issues of a practical nature that were of little assistance in addressing the legal issue but certainly were helpful in considering the impact of any decision I would make.

VI. Reasons

A. Issues

65 There is only one issue I need to consider: Do I have jurisdiction to consider the grievance solely on the basis of the fact the grievor raised allegations of a violation of the CHRA?

B. Jurisdiction

1. The grievance

66 The grievance was filed by the grievor pursuant to paragraph 209(1)(b) of the PSLRA. My authority is therefore found in paragraph 209(1)(b) of the PSLRA, which reads 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

...

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

67 The law is clear: a grievor cannot alter his or her grievance when referring it to adjudication (Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.)).

68 As noted in my original decision, I indicated I was not convinced that the grievor was subjected to disciplinary action or that she had suffered a financial penalty. My opinion remains unaltered, and given the ruling of the Federal Court, I do not need to repeat my findings.

2. Do allegations of a violation of the CHRA provide jurisdiction to an adjudicator?

69 First of all, I will deal with the grievor’s 11 arguments.

1. It is probably true the grievance would not have been filed had the grievor not thought she had been treated poorly by the employer. But in my view, this is irrelevant to my consideration of the matter before me. The act of filing a grievance does not in and of itself grant jurisdiction to an adjudicator. The scheme of the PSLRA determines the adjudicability, not the filing of the grievance.
2. I do not accept the wording of legislation other than the CHRA and the PSLRA are of assistance to me in the consideration of the matter before me. The issue I must decide is whether subsection 226(1) of the PSLRA provides me the jurisdiction to entertain the grievance of the grievor, given the fact it does raise allegations of human rights violations.
3. For reasons articulated later in this decision, I do not accept the contention of the grievor paragraph 226(1)(g) of the PSLRA provides me with the jurisdiction to adjudicate the issues raised in her grievance.
4. For reasons articulated later in this decision, I do not accept the contention of the grievor paragraph 226(1)(g) of the PSLRA provides me with the jurisdiction to adjudicate the issues raised in her grievance.
5. While I agree with the contention of the grievor that all employees have the protection of the CHRA, I do not accept there is any relevance to the position of the grievor I should also consider the Canadian Charter of Rights and Freedoms, the Treasury Board’s Policy on Harassment Prevention and Resolution, the Value and Ethics Code of the Public Sector, and the Treasury Board’s Employment Equity Policy in order to determine my jurisdiction as the only relevant statue is the PSLRA.
6. Despite the grievor’s arguments, the evidence adduced during the conduct of the CLC hearings is of no relevance to me. For the grievor to present this during her argument was in contravention of the instructions I gave with her consent that I would rely on the evidence I had before me in July 2010, which was set forth in my initial ruling.
7. For the most part, I accept the grievor’s categorization of her grievance claiming “... loss of EX salary & career, policy & procedural breaches, non-transparency, retaliation, discipline, recklessness, discrimination, accommodation-failure, human-rights violations and other financial-penalties. [sic throughout]” However, this is not of any assistance in my deliberations over whether I have jurisdiction to hear her grievance in the absence of a finding there has been disciplinary action pursuant to paragraph 209(1)(b) of the PSLRA.
8. I disagree for the reasons set forth later with the grievor’s contention subsection 226(1) of the PSLRA gives an adjudicator the power to deal with all employment-related matters. As for her contention that the “... human-rights [sic] abuses were disciplinary and were and are acts of reprisals,” I have already decided the issues of alleged discipline and disguised discipline in my initial decision. In accordance with the instructions in Chamberlain FC, I am not to reconsider my ruling given that it was found by the Court to meet the test of reasonableness. The reference by the grievor to the cases, she cited on this issue, were of little assistance to me in my consideration of the matter before me.
9. For reasons that are found later in this decision, I do not accept the position of the grievor respecting Gibson and Lovell and Panula.
10. I made a determination in my original decision, which was upheld by the Federal Court, which was there was no evidence of misconduct on the part of the grievor that would have resulted in discipline. The case of Tipple is therefore of no use to me in this deliberation.
11. Again, for the reasons set forth later, I do not accept the position of the grievor. The cases referred to me on this issue were of little assistance in my consideration of this matter.

70 I also note the grievor filed with her submission a copy of the transcript of the Federal Court proceeding in Chamberlain FC. As this was new evidence and contravened my order there be no further evidence, I ignored it.

71 As will be seen later, I am of the view the rights of public sector employees under sections 208 and 209 of the PSLRA consist of the right to grieve (section 208), which is distinct from the right to have the grievance adjudicated by an adjudicator (section 209).

72 In this case, the grievor is an unrepresented employee. That adds a level of complexity to the matters before me.

73 In paragraph 72 of Chamberlain FC, the Federal Court suggests as follows:

...it is arguable that the PSLRA may also provide for a right to adjudicate a claim based on an alleged violation of the CHRA that arises independently from a breach of a provision in the collective agreement. As counsel for the respondent conceded during argument of this application, the case law has not definitively foreclosed such a possibility.

74 The ability of unrepresented employees to refer grievances to adjudication under the PSLRA was discussed by C. Rootham in Labour and Employment Law in the Federal Public Service, Irwin Law Inc., 2007, at 300. He stated as follows:

...

[u]nrepresented employees have no ability to refer harassment grievances to adjudication because they are not covered by a collective agreement, unless the harassment happens to take the form of a disciplinary penalty that is adjudicable (because it results in dismissal, suspension, or a financial penalty). Therefore, if they are not satisfied with the result of a grievance, they must proceed directly by way of an application for judicial review. These reviews are by no means chimerical: the Federal Court has been understandably vigilant in reviewing cases involving allegations of harassment. Both adjudicators and final level grievance decision-makers must diligently review all of the evidence...

75 This decision will determine whether the PSLRA provides a right to an employee to refer a grievance alleging a violation of the CHRA arising independently of a collective agreement. Is a grievance adjudicable on the sole basis it alleges a violation of the CHRA and in the absence of a factual determination that would give rise to adjudication pursuant to paragraph 209(1)(b) of the PSLRA?

76 To put this issue into its historical perspective, the state of the law under the former PSSRA was clear. Under that statute, bargaining unit employees who had filed grievances on matters that would normally be adjudicable (disciplinary suspensions and the denial of marriage leave for example), were denied redress before the Public Service Staff Relations Board (the predecessor of this Board) simply by virtue of the fact that they had identified some form of discrimination as an issue in their grievance. This was so despite the fact that their collective agreements contained express anti-discrimination clauses (see, for example, Audate v. Treasury Board (Veteran’s Affairs Canada), PSSRB File No. 166‐2‐27755 (19990520); Lowther v. Treasury Board (Solicitor General Canada-Correctional Service), 2004 PSSRB 89; Cherrier v. Treasury Board (Solicitor General Canada-Correctional Service), 2003 PSSRB 37; and Lundin v. Canada Customs and Revenue Agency, 2004 PSSRB 167).

77 The Federal Court’s decision in Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 was a clear expression of this limitation on the rights of public servants. In that case, the Attorney General sought judicial review of an adjudicator’s decision that the grievor was entitled to marriage leave for a same sex union. It argued that the Board was without jurisdiction on this issue (despite the fact that it had not raised the jurisdictional argument at adjudication). The basis of their position was that the CHRC constituted “another administrative procedure for redress” under the PSSRA. The Federal Court examined the legislative schemes of the PSSRA and the CHRA. The Court held that grievors have “only a qualified right to present a grievance at each of the levels specified in the statutory process” and that the existence of “another administrative procedure for redress” was one such limitation. Therefore, the Court found, the grievor’s avenue for recourse was the CHRC and he was precluded from accessing the adjudication system by virtue of the fact that he had raised the issue of discrimination in an otherwise adjudicable grievance.

78 This issue was in fact flagged by the Advisory Committee on Labour Management Relations in the Federal Public Service (also known as the Fryer Committee) in its first report, entitled “Identifying the Issues.” The first report described the events that led to the then current state of labour-management relations in the public service and at pages 14 and 15, it addresses the issue of redress mechanisms under the PSSRA and states the following:

The PSSRA provides redress mechanisms for what would be called in the private sector “rights arbitration”. There are, however, significant differences between the mechanisms provided under the PSSRA and other rights arbitration mechanisms.

The PSSRA creates a statutory grievance procedure with a limited right to third party determination for all employees, whether unionized or not, concerning any aspect of their employment relationship...

There are only two limitations on these grievances... The second is that the grievance must be something “in respect of which no administrative procedure for redress is provided in or under an Act of Parliament.” Recently, this section has been held to disallow grievances based on “no discrimination” clauses in collective agreements on the grounds that the Canadian Human Rights Act provides an administrative procedure for redress.

79 The footnote to this section of the report also notes that this limitation was a recent interpretation of the PSSRA. In earlier cases, the Board had assumed jurisdiction over such cases, in part because it had held the complaints procedure under the CHRA was so lengthy and cumbersome that it could not be considered an alternate form of redress. It also noted that the Boutilier decision was presently the subject of an application for leave to the Supreme Court of Canada, which we now know was denied.

80 I find that it was this mischief that the changes to the PSLRA were meant to address. The changes to the PSLRA regarding the issue of human rights were meant to end that type of bifurcation of processes. The changes were not, however, meant to create an entirely new category of adjudicable grievances quite separate and apart from section 209.

81 At paragraph 73 of Chamberlain FC, the Federal Court notes subsection 208(2) of the PSLRA contemplates grievances being filed alleging violations of the CHRA and subsection 209(1) purports to limit types of human rights claims that may be referred to adjudication.

82 Then, at paragraphs 74 and 75 of the decision, the Federal Court refers to paragraphs 226(1)(g) and (h) of the PSLRA and suggests that those paragraphs may provide an adjudicator the power to interpret and apply the CHRA. With great respect, I must disagree.

83 In my view, subsection 226(1) of the PSLRA applies only to an adjudicator appointed to hear and determine grievances that have first been found adjudicable under subsection 209(1) of the PSLRA. These powers, which include the ability to interpret and apply the CHRA, are available to the adjudicator only when the matters referred to adjudication are contemplated in subsection 209(1) of the PSLRA. This means subsection 209(1) is a threshold determination before the exercise of powers pursuant to subsection 226(1).

84 As noted earlier, subsection 226(1) of the PSLRA, in my view, is limited to matters properly before the adjudicator in the first place. It reads in part as follows:

226. (1) An adjudicator may, in relation to any matter referred to adjudication,

...

(g) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any;

(h) give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act ...

[Emphasis added]

85 I am of the view there is no jurisdiction solely based on the words of subsection 226(1) of the PSLRA. The words “to any matter referred to adjudication” must mean something. I am of the belief they mean for an adjudicator to apply subsection 226(1) of the PSLRA there must be a matter that can properly referred under subsection 209(1) of the PSLRA.

86 Subsection 226(1) of the PSLRA does grant broad power to adjudicators with respect to the CHRA but only with respect to grievances or matters referred to adjudication under subsection 209(1) of the PSLRA.

87 In other words, the condition precedent for an adjudicator to consider a remedy under subsection 226(1) of the PSLRA requires him or her to first conclude the matter was referred to adjudication under subsection 209(1) of the PSLRA.

88 In this case, the grievor referred the grievance to adjudication under paragraph 209(1)(b) of the PSLRA, which, under the circumstances of this case, was the only applicable provision of that subsection. In my preliminary decision, I determined the grievor had not established a prima facie case that disciplinary action had been taken by the employer against her, a finding determined to be reasonable by the Federal Court in Chamberlain FC.

89 In paragraph 76 of Chamberlain FC, the Federal Court refers to Parry Sound. This is a casein the private sector in which the Supreme Court of Canada concluded an arbitrator was correct to assume jurisdiction to consider a grievance alleging termination of a probationary employee on the basis of claims of human rights violations. The private-sector scheme was not at all the same as the adjudication scheme contemplated by the PSLRA. The latter clearly defines and limits the matters that can be referred to adjudication.

90 The Federal Court compared the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (OLRA), with paragraph 226(1)(g) of the PSLRA. It was noted there were important policy considerations that militated in favour of granting labour arbitrators and adjudicators jurisdiction over unionized employees’ human rights claims.

91 However, this case must be considered in its proper context of the regime pursuant to the PSLRA. As noted in Parry Sound, the “... primary substantive question to be answered [was] whether the substantive rights and objectives of the Human Rights Code [were] incorporated into a collective agreement over which the Board [had] jurisdiction.”The OLRA in force at the relevant time provided as follows:

...

48. (12) An arbitrator or the chair of an arbitration board, as the case may be, has power,

(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement ...

...

92 The majority of the Supreme Court reasoned as follows:

...

46 The appellant’s primary submission is that an arbitrator has the power to interpret and apply human rights and other employment-related statutes if, and only if, it already has been determined that the arbitrator has jurisdiction over the subject matter of the grievance. According to the appellant, an arbitrator’s primary source of jurisdiction is s. 48(1), which states that each collective agreement shall provide for final and binding settlement by arbitration of a difference arising out of that agreement. Section 48(12)(j), on the other hand, sets out the powers that an arbitrator possesses once it already has been determined that a grievance is arbitrable. On this view, the power to interpret and apply other statutes is merely one among nine other incidental powers that an arbitrator may exercise for the purpose of resolving a difference over which she or he already has jurisdiction.

47 To a certain extent, I would agree. Indeed, the structure of s. 48 does seem to suggest that an arbitrator is intended to interpret and apply human rights and other employment-related statutes for the purpose of resolving a dispute that is arbitrable. This understanding of s. 48(12)(j) is consistent with the language of its predecessor, s. 45(8)3 of the Labour Relations Act, R.S.O. 1990, c. L.2, which provided as follows:

45. ...

(8) An arbitrator or arbitration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers:

...

3. To interpret and apply the requirements of human rights and other employment-related statutes, despite any conflict between those requirements and the terms of the collective agreement. [Emphasis in the original (shown by double underline)]

The inclusion of the phrase “for that purpose” provides support for the proposition that the legislature envisioned that a dispute must be arbitrable before an arbitrator obtains the power to interpret and apply human rights and other employment-related statutes.

...

[Emphasis added]

93 I am of the view subsection 226(1) of the PSLRA must be interpreted contextually, having regard to the particular facts of each case. An interpretation of subsection 226(1) of the PSLRA that would grant adjudicators the power to interpret and apply provisions of the CHRA, even if there is no grievance referable pursuant to subsection 209(1) of the PSLRA, would have the effect of barring federal employees from resorting to recourses under the CHRA (with the exception of pay equity issues).

94 More directly, such an interpretation would have the effect of “reading in” a basis for a referral to adjudication that is not present in subsection 209(1) of the PSLRA.

95 In my view, both results could not have been intended by Parliament without clear language.

96 I am of the view the dictum of the minority of the Supreme Court, in its dissent in Parry Sound, commenting as follows on paragraph 48(12)(j), is of import:

...

[96] ... I believe that this provision, coming as it does at the end of a long list of uncontroversial arbitrator’s powers (the power to compel document production, the power to fix dates for hearings, the power to summon witnesses, the power to administer oaths, the power to accept oral or written evidence, etc.), does no more than confirm the rule from McLeod... To read into this innocuous provision the extraordinary power to take jurisdiction of any claim based on statute ... is a subversion of the legislative intent...

...

[Emphasis added]

97 I agree with Parry Sound as well as with Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, that there are important policy considerations that militate towards providing arbitrators and adjudicators jurisdiction to deal with the issues in their entirety, including human rights claims.

98 However, as an administrative tribunal with authority defined by legislation, there has to be an allegation falling within any statutory limitations that exist. This would be the “essential character” test. In this case, paragraph 209(1)(b) of the PSLRA is the limitation. There must be the basis of an allegation of “... a disciplinary action resulting in termination, demotion, suspension or financial penalty.”

99 In other words, first, the dispute must be inextricably linked to the original grievance, and the grievance must fall under subsection 209(1) of the PSLRA (Amos v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 74).

100 In my original finding, I concluded no basis of an allegation of discipline existed. Consequently, I determined I lacked jurisdiction to hear the grievance, as there was no disciplinary action as contemplated by paragraph 209(1)(b) of the PSLRA. Had I concluded there was a prima facie case of discipline, I agree my jurisdiction would have extended to include allegations of human rights violations.

101 In paragraph 77 of Chamberlain FC, the Federal Court referred to Vaid.

102 In Vaid, the Supreme Court determined the Board had the power to adjudicate the human rights claims of a terminated parliamentary employee. This was pursuant to the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp.) (PESRA). The Federal Court in Chamberlain FC concluded the provisions of the PESRA and the PSLRA were similar in that there are limitations to the issues that can be referred to adjudication.

103 The Vaid decision is distinguishable on its facts. Additionally, the legislative provisions applicable to parliamentary employees pursuant to the PESRA have their own peculiarities. The PESRA defines the types of matters that may be referred to adjudication in broader language than the PSLRA. Subsection 63(1) of the PESRA provides as follows:

63. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

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

(b) disciplinary action against the employee resulting in suspension or a financial penalty,

(c) the termination of employment of the employee, other than rejection on probation in respect of an initial appointment,

(d) demotion of the employee,

(e) where the employee has been denied an appointment, the employer’s evaluation of the skill, fitness and ability of the employee with respect to the employee’s qualification for the appointment, or

(f) subject to subsection 5(3), the employer’s classification of the employee,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may refer the grievance to adjudication.

104 The position of the grievor in Vaid was a chauffeur which had been designated bilingual imperative. This meant that he was no longer able to work in that position since he lacked the necessary French language skills. In addition to complaining about harassment and racial discrimination, he also complained about the alleged refusal of continued employment, all of which potentially brought him within the PESRA.

105 The Supreme Court first concluded that the provisions of the CHRA applied to parliamentary employees. It then considered whether Mr. Vaid was obliged to seek relief under the PESRA rather than the CHRA.

106 In my view, the Supreme Court’s decision was not meant to have a general and blanket application. The decision instructs that each case must be decided on its own particular facts and in light of its own statutory scheme. Thus, in Vaid, the Court examined the particular facts of the case and concluded as follows:

...

[98] In this case ... we are dealing with a single employee who says he was wrongfully dismissed against a background of alleged discrimination and harassment. A different dispute may involve different considerations that may lead to a complaint properly falling under the jurisdiction of the Canadian Human Rights Commission. But that is not this case.

...

107 In my opinion, the following comments from Vaid are instructive:

...

90 I have concluded, as stated, that the Canadian Human Rights Act anti-discrimination norms are applicable to parliamentary employees. The remaining question is whether the investigatory and adjudicatory Canadian Human Rights Act procedures also apply as the respondents contend, or whether the respondent Vaid is obliged to seek relief under PESRA.

91 The Court has in a number of cases been required to examine competing legislative schemes to determine which of the potential adjudicative bodies is intended by the legislature to resolve a dispute. Mr. Vaid’s claim of workplace discrimination and harassment could potentially fall under both PESRA and the Canadian Human Rights Act. The allegation of jurisdiction in such circumstances is a familiar administrative law problem, even in the context of human rights tribunals ...

92 In the Morin case, the Chief Justice said, at para. 14:

... the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.

93 The fact that the respondent Vaid claims violations of his human rights does not automatically steer the case to the Canadian Human Rights Commission because “one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute” ...

94 In this case, the complaint against the House of Commons alleges dismissal and discrimination. The “facts giving rise to the dispute”, as set out in the complaint, make only one explicit reference to the respondent Vaid’s ethnic origin, namely that “[the Speaker] initiated a conversation about the caste system in India. He pressed me to tell him into which caste I had been born” (appellants’ record, at p. 247). Other than that, the respondent Vaid relates a number of events in the course of his employment which, on the face of it, allege demeaning or unreasonable treatment inconsistent with the alleged terms of employment. The respondent Vaid takes the view that this behaviour was motivated by racial prejudice... There is nothing here, in my respectful opinion, to lift these complaints out of their specific employment context.

95 ... PESRA permits employees who complain of discrimination to file a grievance and to obtain substantive relief. I do not suggest that all potential claims to relief under the Canadian Human Rights Act would be barred by s. 2 of PESRA ...

...

[Emphasis added]

108 In the case before me, I have determined, and it has been upheld on judicial review, that the grievor did not establish there were disciplinary actions taken against her; thus, I lacked jurisdiction. In my view, following the instructive comments in Vaid, I determined I did not have exclusive jurisdiction to deal with the grievance. Therefore, this is a case that in my view is “steered” to the CHRC.

109 In the CHRC’s submission, it was acknowledged that a process is available.

110 In paragraph 79 of Chamberlain FC, the Federal Court referred to a decision of mine (Gibson) to suggest paragraph 226(1)(g) may grant jurisdiction to an adjudicator.

111 It is important to understand the context of this decision. Gibson was a grievance of a represented employee about the non-extension of a specified term of employment pursuant to the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (PSEA). The employer’s objection to jurisdiction was based on the application of section 58 of the PSEA.

112 In assuming jurisdiction over the grievance, I stated as follows in Gibson,at paragraphs 10 to 12:

[10] ...

Having considered the preliminary objection advanced by the employer in this matter, and having reviewed more fully the cases provided to me by both sides and the very competent arguments advanced by both representatives, I am of the view that I do have jurisdiction in this matter to hear evidence and arguments on the merits.

Although I will fully articulate my reasons for this conclusion when I render my decision, I think that it is appropriate to indicate that subsection 226(1)(g) of the [new Act] was important in my deliberations. In coming to this conclusion I want also to point out that the grievance itself refers to article 43 of the collective agreement and in the first level reply the employer indicates that the non-renewal of the term of employment was not only for budgetary reasons but also for issues relating to performance and attendance.

Accordingly, I wish to hear evidence that ties in the allegations of discrimination to the reasons for non-renewal enunciated by the employer in the first-level reply. Failure to do so may be fatal to the grievance. However, I will hear arguments on this if need be...

[11] Having had the benefit of further reflection, it is my continued view that an adjudicator has jurisdiction to inquire into the allegation in this grievance. Where an individual whose specified term of employment has not been renewed alleges that it was as a result of a discriminatory practice in contravention of the CHRA, an adjudicator has authority to inquire further into the matter...

[12] In addition to the jurisdiction of an adjudicator specified in section 209 of the new Act, which echoes section 92 of the former Act, Parliament, in its wisdom, included a new provision granting further “powers” to adjudicators. Paragraph 226(1)(g) of the new Act indicates that an adjudicator has the power to interpret and apply the CHRA. This newly enunciated power is linked to article 43 of the collective agreement prohibiting discrimination.

[Emphasis added]

113 That case does not stand for the proposition that an adjudicator can assume jurisdiction based on subsection 226(1) of the PSLRA alone. There must first be a matter referred to adjudication for the powers of this section to apply. In Gibson, the matter could have been referred to adjudication pursuant to paragraph 209(1)(b) or based on an alleged violation of the collective agreement.

114 In paragraph 80 of Chamberlain FC, the Federal Court referred to another Board decision (Lovell and Panula).

115 It is important to contextualize that case. The objection in Lovell and Panula was based on the fact that the terminations were allegedly non-disciplinary and made under the Canada Revenue Agency Act, S.C. 1999, c. 17, and there existed another administrative avenue for redress, albeit internal.

116 It cannot be forgotten they were terminations for non-disciplinary reasons, which would have been adjudicable under paragraph 209(1)(c) of the PSLRA. The adjudicator made the following findings in Lovell and Panula:

...

17 Each grievor filed a grievance alleging that the non-disciplinary termination of their employment was a breach of the no-discrimination provision of the collective agreement and a breach of their rights under the CHRA.

18 There is no dispute that an adjudicator does not usually have jurisdiction over non-disciplinary terminations of employment by the CRA. However, the question here is whether an adjudicator has jurisdiction over grievances that relate essentially to an alleged breach of the collective agreement and alleged discrimination contrary to the CHRA. For the reasons set out in the following paragraphs, I have concluded that an adjudicator does have jurisdiction over the grievances.

...

20 The first step in determining the jurisdiction of an adjudicator is to examine the statute. Paragraph 209(1)(a) of the PSLRA clearly states that a grievance related to the application of a provision of a collective agreement can be referred to adjudication. The only limitation on such a referral is that the grievor must obtain the approval of his or her bargaining agent: subsection 209(2). Both grievors have clearly stated in their grievances that they are grieving a matter related to a provision of in [sic] their collective agreement. I agree with Souaker v. Canadian Nuclear Safety Commission, 2009 PSLRB 145, which decided that the no-discrimination clause in a collective agreement grants substantive rights to employees and that it can be used as the basis for a grievance. As stated at paragraph 126 of Souaker, “[t]he legislator certainly did not intend for a violation of the collective agreement to escape review by an adjudicator.” Accordingly, I find that an adjudicator has jurisdiction over grievances alleging a breach of the no-discrimination clause of the collective agreement.

...

24 The question then arises as to the scope of the jurisdiction of an adjudicator in these grievances, given that they relate to non-disciplinary actions by the employer. Souaker, at paragraph 129, was addressing a rejection on probation and noted that an adjudicator’s jurisdiction was limited to determining whether the rejection on probation was made in a discriminatory manner. Given that the terminations of employment in the present grievances relate to lengthy leaves of absence for illness, it is likely that the discrimination allegations will touch on the merits of the terminations of employment. An adjudicator will have jurisdiction to examine whether the terminations of employment was [sic] as a result of the alleged discriminatory conduct.

...

[Emphasis added]

117 I agree with counsel for the employer that Gibson and Lovell and Panula do not stand for the proposition an allegation of discrimination, which is independent of a collective agreement, is adjudicable under subsection 209(1) of the PSLRA.

118 In paragraph 81 of Chamberlain FC, the Federal Court referred to Wong. In essence, it described the approach of the adjudicator in that case as in conflict with Gibson and Lovell and Panula. Given my findings, whether or not I agree with this categorization as correct is irrelevant; I accept the statements in Wong as good law.

119 Ms. Wong’s grievance alleged that harassment and discrimination were factors in the employer’s decision not to renew her term position. After considering the arguments, the adjudicator upheld the preliminary objection that he had no jurisdiction over the grievance. In commenting on Gibson, the adjudicator stated as follows:

...

41 With great respect to the adjudicator in the Gibson decision, I must concur with the respondent’s argument that a grievance must be properly referred to adjudication under subsection 209(1) of the Act before the adjudicator acquires the authority to interpret and apply the CHRA; see, for example, Wong v. Canada Revenue Agency, 2006 PSLRB 133, at paragraph 35. In my view, the authority given to an adjudicator under paragraph 226(1)(g) is not a means by which any situation involving an allegation of discrimination prohibited by the CHRA becomes his or hers to decide. The authority may be exercised only for subject matter that comes within one or more of the enumerated paragraphs of subsection 209(1). Thus, in the Gibson decision, the adjudicator may arguably have had jurisdiction to consider the grievance as a matter involving discrimination because the grievance on its face concerned a matter of collective agreement interpretation under paragraph 209(1)(a) — an alleged violation of the no-discrimination article of the applicable collective agreement — but not because of the grant of authority to interpret the CHRA under paragraph 226(1)(g). In the case before me, I have found no basis to identify the subject matter of the grievance as a disciplinary termination under paragraph 209(1)(b). The fact that the grievor alleges that the respondent discriminated against her in bringing her employment to an end contrary to the CHRA does not alter that finding nor independently found my jurisdiction.

...

[Emphasis in the original]

120 The allegations of harassment in Wong are very similar to those raised by the grievor in the present matter.

121 I conclude that had Parliament desired to have all disputes involving employment matters and allegations of discrimination decided by reference to adjudication pursuant to subsection 209(1) of the PSLRA, clear language was required. In other words, if it were the desire of Parliament to have any employee covered by the PSLRA adjudicate his or her rights under the CHRA (a piece of legislation that has been given quasi-constitutional status) before an adjudicator appointed pursuant to the PSLRA, regardless of whether these rights are otherwise adjudicable pursuant to subsection 209(1) of the PSLRA, the language would have to be clear and unambiguous.

122 I can say it no better than counsel for the CHRC, who stated as follows and with which I agree:

Section 209(1) of the PSLRA expresses Parliament’s intent that only some individual grievances can be referred for adjudication. Read in context, s. 226(1) of the PSLRA does not expand the list of adjudicable disputes. Instead, it describes the powers that an adjudicator may exercise, when considering a matter that has properly been referred for adjudication.

In practical terms, where an employee alleges discrimination in a factual context that falls within s. 209(1), the claim could be pursued either by way of adjudication under the PSLRA, or by way of a human rights complaint under the Canadian Human Rights Act (the “CHRA”). In other words, there is concurrent jurisdiction. However, in such circumstances, the Commission has exercised its discretion under s. 41(1)(b) of the CHRA to require that the employee proceed first before an adjudicator, who would have the authority under s. 226(1) of the PSLRA to apply the CHRA and award certain remedies thereunder.

Where an employee files a grievance that included human rights allegations, but arises in a factual context that does not fall within s. 209(1), the PSLRA does not give the adjudicator jurisdiction to hear the grievance. However, this does not leave the employee without access to independent adjudication. In such circumstances, the employee may file a human rights complaint with the Commission, to be processed under the CHRA.

123 For the reasons noted earlier and in my earlier decision, I am of the view I have no jurisdiction to hear the grievance.

124 First of all, as noted in my earlier decision there were no disciplinary actions taken by the employer. As such, this grievance does not fall within paragraph 209(1)(b) of the PSLRA, under which it was referred.

125 Furthermore, for the reasons noted earlier, I am of the view I have no jurisdiction to hear this grievance or indeed any grievance if it stands only on allegations of violations of the CHRA.

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

VII. Order

127 I order the file closed.

September 23, 2013.

George Filliter,
adjudicator

by EMAIL and Hand delivery to PSLRB January 24 2013 copy to Respondent-counsel

From: Zabia Chamberlain, XXX-XXX-XXXX
email:  XXXXXXXXXXXXXX     XXXXXXXXXXXXXXXXXXX

Dear Ms.Woodstock, PSLRB

I submit this present document to the PSLRB, further to PSLRB letter of October 24, 2012, Decision 2012 FC 1027, the Respondent’s submission of November 13, 2012, PSLRB’s acknowledgement-letter of November 15, 2012 and PSLRB-letter January 21, 2013.  My submission today references jurisprudence listed on the last page of this present-document and includes appendices A and B.

My grievance filed & referred to Adjudication raised a number of disciplinary & demoting policy-procedural breaches – giving no basis for classifying it as either a “harassment-grievance”as claimed in Respondent-submission page5 para.5 or a “free-standing human-rights grievance” as claimed in their page7 para.2,  page10 para.2 & page12 para.2 .  As such, I ask the Adjudicator to read the full-text of my grievance, my referral-letter March 11 2009,  my response January 28 2010 – along with today’s reply-submission today.

Though Respondent-submission, on page 1 November 13^th superimposed inaccurate issues, the correct issues that parties are required to address are those set out in the PSLRB letter October 24^th and in the FC decision page 46, paragraphs 3 and 5 – chiefly: whether the Adjudicator possesses jurisdiction to hear & adjudicate my human rights claims & the discriminatory actions by the employer that I raised. 

I submit the following points 1 to 11 which demonstrate that,  contrary to respondent-Submission November 2012,PSLRB has jurisdiction to adjudicate the human-rights abuses & employer-discriminatory actions that I suffer & extend-back to 2007 & 2008 and raised in my Grievance & March 2009 referral-letter.

1. I submit that human-rights-violations & employer-discriminatory-actions 2007 to late-2008 & early-2009 were & are causes of the procedural-sham, failure/refusal-to-accommodate, discipline, disguised-discipline, health-impact-injury,  financial-penalty & demoting loss-of-career.

a. if these abuses & discrimination had not occurred 2007- 2008  or  if they had been corrected during 2008 to 2009, there would have never been a grievance referred to adjudication.

b. this as a foremost issue to be considered.  Amos 2011 FCA 38, also raised by the respondent, states that the “factual matrix of a case is a determinative factor in assessing a decision-maker’s jurisdiction”.

2. it is imperative to consider the facts & wording of the Public Service Labour Relations Act (PSLRA) and related statutes: Canandian Human Rights Act (CHRA), Canada Labour Code (CLC), Canada Occupational Health and Safety Regulations (COHSR), Employment Equity Act (EEA) and the Financial Administration Act (FAA).   I submit that, contrary to the respondent’s November 13^th suggestion, there is no restriction to PSLRB’s jurisdiction on human rights & discriminatory actions that are raised through PSLRA ss. 209 or 223.

a.  s.223, including all its sub-sections, is administrative in nature and contains no wording & no restriction that blocks PSLRB’s jurisdiction to hear discriminatory-actions of an employer.  

b.  s.209 does not block PSLRB jurisdiction to hear discriminatory-actions & human-rights violations that are or cause procedural-sham, discipline, disguised-discipline and/or financial-penalty.

I submit that PSLRA ss.226(1) specifically states: “An Adjudicator may, in relation to any matter referred to adjudication:”.   This legislated power relates to any matter referred to adjudication. The wording of & power granted by s.226 does notrestrict PSLRB jurisdiction to hear discriminatory-actions.  

c.  s.226 contains no wording that prevents an Adjudicator from hearing the human-rights violations & discriminatory-actions that are raised in a grievance that is then referred to adjudication. 

d. decision 2010 PSLRB 130 at para.98 confirms in writingⁱ: “...the grievance referred to adjudication...”,  and Respondent-submission November 2012 page 3 also writes “referred her grievance to adjudication”.

e. further, TBS-Employer wrote letters to PSLRB June 18 & October 30 2009 stating expressly: “...a matter that should be addressed trhough the grievance process. Such a grievance is already before the Board...”

I submit that my grievance, heard at the final-level by the ADM of the Department on January 22 2009, dismissed by the ADM on February 19 2009 and then referred to adjudication by myself on March 11 2009,  was properly referred to adjudication within the parameters of both PSLRA ss.223 & 209.1(b). please see toady’s App A

3. PSLRA ss.226.(1)(g) provides that Adjudicator may in relation to any matter referred to adjudication:  interpret and apply the CHRA and any other act of Parliament relating to employment matters...whether or not
there is a conflict between the Act being interpreted and applied and the collective agreement, if any.

a. my grievance raises matters that do violate Acts of Parliament that relate to employment-matters, notably the CHRA, CLC, FAA & EEA

b. further, PSLRA ss.226.(1)(h) provides that the Adjudicator may in relation to any matter referredto adjudication: give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the CHRA.

4. I submit that contrary to the respondent’s suggestion on their page 10 3^rd paragraph that Parliament did not intend to bar federal government employees from filing human rights complaints with the CHRC,the CHRA’s s.396 clarifies its alignment with PSLRA ss.226.(1)(g) & 226.(1)(h). 

a. legislated language of CHRA s.396 specifically sets out PSLRB responsibilities in the PSLRA,ⁱⁱ imposing mutual obligation on public Servants & PSLRB to address CHRA abuses at the labour Board.  

b. what is more, upon receipt of my referral to adjudication & the required PSLRB-form-24 in March 2009, the CHRC commission wrote to the PSLRB declining intentions to make submissions on this grievance. 
c. further, as I submitted January 28 2010and very-consistent with the ruling in Lovell and Panula  para.21ⁱⁱⁱ the grievance was accepted, heard & declined at the final-level without employer-disputing any rights to present & refer the grievance.  please see full content of today’s App A

in addition, the TBS-employer wrote to PSLRB twice June & October 2009 with their position that my grievance was the correct avensue of recourse & that my grievance was already before the PSLRB.

5. A public Servant with excluded-status or non-union-membership or who is at the executive or acting-executive level is not barred from protection of the CHRA and related policies & statutes.  The mandate & purpose of the CHRA, as stated by the CHRC, is to protect all people that lawfully present in Canada or legally entitled to return to Canada against discrimination by federally-regulated employers & service providers.^iv] 

a. CHRA’s protection of all persons subject-to federal-jurisdiction against discrimination & harassment also supports & enforces the Canadian Charter of Rights and Freedom – notably ss.7, 12, 15, 26, 27, 28

b. further, all public servants are protected by the federal TBS Policy on Harassment Prevention^v

• a policy that prohibits all workplace-harassment, including harassment on CHRA discriminatory-grounds
• a policy that expressly responds to the workplace-violence provisions of the COHSR prescribed for the CLC.
• a policy that is a legislated requirement under the FAA s.11

c. all public-servants are also protected by the federal public sector Code on Values and Ethics^vi

• a policy which prohibits harassment, and requires respect for dignity, fairness, transparency & integrity.
• a policy that fulfills legislated requirement (PSDPA s.5)

d. all public servants are protected by the federal TBS Policy on Employment Equity^vii

• a policy that fulfills legislated requirements of both the EEA and the FAA
• a policy aimed at ensuring that no person is denied employment opportunities or benefits for reasons unrelated to proven-ability
• a policy that requires a supportive work environment, including the use of existing measures, special programs and harassment-prohibition.  

6. PSLRA s.226.(1)(g)  provides authority for any matter referred to adjudication to:  interpret and apply the
CHRA and any other act of Parliament relating to employment matters...whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any.

a. while the collective agreement of the substantive EC-08 position does prohibit discrimination, sexual-harassment & workplace-Safety violations, those prohibitions do not cause conflict in the PSLRB’s application of either the CHRA, the CLC, the EEA and the FAA. 

if there were any conflict with the collective-aggreement, such conflict would be offset by the TBS Directive on Terms and Conditions of Employment s.6.8.2 which provides A person acting in an executive position remains subject to the non-remunerative provisions of the relevant collective agreement or terms and conditions of employment governing his or her substantive level...^viii

b. what is more,  to best of my recollection & records, the Adjudicator verbally indicated July 2010 that there is nothing nefarious on the part of CAPE, employer-Witness Johnson verbally indicated January 2013 that the administrative oversight in identifying my position-box but not my name as Exlucded should not be attributed to me, and CAPE themselves wrote Spring 2010 confirming their good-faith position in considering & reviewing my matters Summer-Fall 2008 nd in declining representation November 2008. see also PSLRB exhibits 39, 98, 111, 112

c. further, though I was in an excluded-status for well over 3 years from 2006 to mid-2009,  I remained, as all public servants, subject to the non-discrimination, non-harassment & non-sexual-harassment provisions of the CLC, the CHRC and the TBS policies on Harassment, Values, Ethics & Employmnet Equity

• themselves all legislated policy-requirements enacted by Parliament, which bring them into the jurisdiction of PSLRA s.226.1(g). see point 5. above

Again, consistent with Amos 2011 FCA 38: the “factual matrix of a case is a determinative factor in assessing a decision-maker’s jurisdiction”, it is imperative to consider the facts of the case & the facts of the legislation & legislated-policies bearing on the case.  

d. PSLRB testimony of Employer-representatives J.Laviolette, D.Trepannier, S.Bertrand, S.Johnson confirm that there was never any search for accommodation in a new position & location – not even during the April 2008 to Spring 2009 period of time when a new position & location could have easily been arranged in any of that
Department’s several buildings, sub-departments & regions, prior to the onset in 2009 & 2010 of further reprisal & aggression^ix see PSLRB exhibits, including exhibits 31, 36, 40, 41, 45, 48, 50, 51, 59 (page 2 of Affidavit), 60, 63, 65, 66, 77, 87, 93.

though K.Jackson wrote May 28 2008 she would respond to my requests of April 30 2008,  her emails of findings & confirmations of aggressive-harassment July-August 2008 provided no response to accommodation-requests. 

the Physician’s testimony & letters, my testimony, Mr.Dean’s & Ms.Borysewicz’s testimony, PSLRB exhibits of photographs and my lengthy-emails confirm the desperate & traumatic pleading I undertook with ADMs August to October 2008 for procedural help, return to work & accommodation. please also see PSLRB exhibits 5, 7,  57, 58, 59, 60

PSLRB exhibits & testimony of myself, Ms.Borysewicz, Mr.Vermaeten confirm that direct-work requests were sent to me daily throughout the Summer to December 2008 period of time, some from the aggressor or copying the aggressor, and all for work of the EX position with the aggressor

this fact is extreme violation of the Duty to Accommodate and extreme violationon grounds of health & gender (my health which the Employer was already apprised of in Summer-Fall 2008) – and it was really very very frightening for me.  Given my own & my Doctors’ written-concerns & requests up to Spring-Summer 2009, that this terrible-reckless-act continued well into late-Summer 2009 ^x compounds the human-Rigths abuse. 

e. the Respondent themselves, in their submission November 2012 pages2, 7, 8, 9, 12, 13, 14, 15, repeatedly emphasizes the necessity of contextual interpretation & application of the facts of a case.    
f. in fact, the case-law relied upon by the Respondent  uphold the PSLRB’s own website-guidelines – which indicate the common practice of hearing both jurisdiction & merit.  

7. in reply to respondent-Submission page 3 their curt & inaccurate summary of my March 11 2009 referral-letter and page 6 last paragraph,  I submit that it is undisputed by the PSLRB decision, the FC and the Respondent that my grievance was referred to adjudication.   While lack of health & legal-help have been barriers to me questioning some of the Federal Court’s reasoning & analysis,there can be no dispute over what I raised in my grievance & myMarch 2009 referral-letter.

a. Respondent’s oral-submissions to Federal Court May 16, 2012 do not dispute what I raised s– in fact respondent defines the determinative documents that are the Grievance-parameters:  see App B page20
App B is Federal-Court transcript-excerpts of Respondent-verbal-submissions May 16 2012

the grievance December 2008,  the January 22, 2009 grievance-hearing, the March 11, 2009 reference to adjudication, my January 28, 2010 response, and their January 2010 objection-letter. 

b. it is imperative that the full-wording of the issues raised December 2008 to March 2009 be closely considered, along with all the documents set-out by the Respondent as forming the grievance parameters. 

it is indisputable that my Grievance & referral-letter March 11 2009 raised loss of EX salary & career, policy & procedural breaches, non-transparency, retaliation, discipline, recklessness, discrimination, accommodation-failure, human-rights violations and other financial-penalties (leave-wastage & legal-fees).  

It is indisputable that I continued to raise & face these penaltiessee complaint-75^xi –  up to devastating receipt of an ROE March 2010, up to many desperate pleas to Employer-PSLRB throughout 2010 for corrections, up to learning in mid-November 2010 that a witness sitting a dozen-feet from me was “warned” as far back as Fall 2007 to not talk about violent-abuse she was witnessing - warned by a DG who in Fall 2010 worked for F.Vermaeten who at that time was the boss of F.Fedyk/S.Johnson who had issued the ROE and who was also boss of the original-aggressor.

c. the PSLRB decision itself set-out issues that I raised

in para.68 “The grievor contended...that as a result the employer imposed disguised discipline on her.”

in para.69 “The grievor submitted that her acting assignment in the EX-01 position expired on October 6, 2008 and that, because it was not extended or otherwise offered to her permanently, the employer imposed a financial penalty on her because she had exercised her right to refuse to work earlier that year. When asked, the grievor pointed me to paragraphs 5 and 7 of her grievance details (see Exhibit 3, Tab A-1) as proof that she alleged discipline in her grievance.”

in para.70 “The grievor noted that, in paragraph 5 of her grievance details she stated that the employer made the decision of “... choosing not to proactively accommodate my EX salary which had been continuous for nearly 30 months and choosing to not engage or even contact me.” The grievor submitted that this statement was an allegation of disguised discipline.”

in para.71 “Further, the grievor noted that paragraph 7 of her grievance details states as follows:”

in para.72 “The grievor’s position was that, the paragraph alleged that she had received disguised discipline and a financial penalty.”

in para.28 “I concluded that the grievor herself was able to establish that her leave was retroactively granted...

in para.88 ”I asked her to specifically identify the portions of the grievance that allege disciplinary action or a financial penalty. She identified paragraphs 5 and 7 of the grievance details and I have set out the pertinent provisions of those paragraphs in paragraphs 70 and 71 of this decision.”

in para.89 ”...The paragraphs, and in fact the grievance itself submit that the grievor should continue to be paid at the EX-01 level...”

in para.90 “On September 30, 2008, as the grievor acknowledged in paragraph 7 of her grievance details, her position was posted as available, she decided not to apply. Although the grievor alleged in her grievance that she was “excluded from job advertisements,”

in para.80 “Specifically, the grievor argued that the employer acknowledged that she had been subjected to workplace aggression and that it had failed to respond (she referred me to Exhibit 3, Tab B-2, and to Exhibit 19). In her submission, the grievor stated that the employer’s efforts to relocate her within the building did not address her concerns. She further submitted that the “Reintegration Plan”, finalized on September 30, 2009 (see Exhibit 13, Tab 14), was not a plan of accommodation and that it should have been offered in spring 2008. The grievor considered the failure to provide it in a timely way as both a penalty and disguised discipline.”

d. the Federal Court (FC)^xii itself does not dispute issues that I raised

in para.54 that employer actions were disciplinary, that I suffered a financial loss in no longer receiving EX-01 salary, in being required to utilise sick leave credits and in incurring legal expenses caused by failure to correct the situation, that verbal threats made by aggressor were the equivalent of verbal reprimands and  disciplinary.

in para.69 that the grievance alleged accommodation-failure and discrimination, based on disability, sex and being a member of a visible minority, and it also claimed compensation for pain and suffering and for wilful and reckless breaches.   

in para.1 that I raised excessive workload and being subjected to ongoing aggression including physically intimidating, profane and sexually inappropriate harassment.

8. regarding jurisdiction, to ensure that the factual matrix of the present-issue is properly examined,  it is essential that the documents put forth – by the respondent themselves as the parameters for the grievance – be
closely read & considered:my grievance 2008, lawyer-representations February 2009, my referral-letter March 11 2009,
TBS-letter to PSLRB January 11, 2010 &  my January 28 2010 required-submission to PSLRB. please see App A today, which include key grievance “parameter”documents.

a. human-rights abuses & employer-discriminatory-actions 2007- -2008 were & are disciplinary and were & are causes for the grievance & its referral to adjudication

b. human-rights abuses & discrimination 2007- -2008 were & are causes of reprsisals-suffered: disguised-discipline, procedural-sham, demotion from EX level & career and other resulting financial-penalties. 

c. my grievance raised employer-breaches & discriminatory-actions under a number of enacted-policies, including the COHSR & the CLC. It is important to consider the case of Tench^xiii of January
2009 also referenced in Snyder^xiv - a case rendered prior to ADM final-Grievance-reply February 2009 & referral-letter March 11 2009 & prior to TBS-letter June 18 2009 – case-law I submitted to PSLRB July 2010. 

in Snyder it is clarified that  danger, upon review of s. 122.1 purpose of Code, of duty s 125(1)(z.16) (workplace violence), of “danger” definition in s. 122(1) and definition of “condition”, includes any situation while at work can affect employee’s functioning or existence, including acts of harassment  such as  racial discrimination directed at employee, when consequences of these acts affect the mental health of employee. 

Snyder further clarifies that no prescribed words or forms needed for raising reasonable cause to fear, reasonable belief of danger, reasonable notice and refusal, that that there must be nexus between raising safety and belief of danger (and conditions of hazard such as violence, harassment) in order to exercise rights under the CLC and to have protection of the CLC, and that in the absence of a Safety Officer’s ruling of no-danger/no-hazard, a worker is within their rights to convey fear, refusal and inability to return.

d.  various case-law I have submitted for my matters rules & clarifies that refusal & failure to protect-against & to follow-up-on violence, harassment and harassment on grounds– ie. sexual-harassment and grounds of health, gender, social-family-status & ethnicity – are reprisals– and these case-rulings rely on the common-law & reasoning established at the Supreme Court of Canada (SCC).

in Labranche 2010 PLSRB 65 principal ruling reasons of PSLRB include that the employer’s liability depends on its knowledge of the offensive conduct and the extent of its response; that when the employer did know of the offensive conduct, in the steps taken to address it, its subsequent actions must not compound the discrimination; that the Supreme Court established very clearly the liability of employers for all acts of their employees “in the course of employment” and explained that the employer’s liability under the CHRA is purely statutory and that it serves a purpose similar to that of vicarious liability in tort by placing an organizational responsibility on the employer to take effective remedial action to remove the undesirable conditions. 

e.  Grounds of gender& sexual harassment and discrimination are clarified in both Federal Court & SCC rulings - and emphasized both in Birkett 2007 FC 428 paras.38-41 and by CHRC October 2012^xv:

that sexual harassment is an abuse of power and a demeaning practice that attacks victims’ dignity, work environments and work-chances;  sexual harassment must be unwelcome; it encompasses a broad range of conduct including sexist remarks and unwanted forms of physical contact;  that it must be considered in light of prevailing norms; it requires an element of persistence or repetition

that sexual harassment is both a form of gender-discrimination and its own prohibited ground, and that the workplace-hazard of sexual-harassment is prohibited by both the CHRA and the CLC.

Jurisdiction on human-rights issues requires consideration of both the issues raised in all grievance “parameter” documents and all enacted-legislated policies on employment-matters that bear on the grievance-issues raised.  see points 3, 4, 5, 6, 7 above

f. PSLRA  ss.226.1(g), 209(1)(b) & 228(2) do not restrict latitude, power & authority – in fact  s.228(2) gives power to make decisions upon considering the grievance, and s.226.1(g) specifically gives power for applying all Acts of Parliament on “employment-matters”

ie Acts that legislate policies on Human Rights, Harassment, workplace-Safety, Employmnet Equity, Values & Ethics – ie enactments that were discriminatingly-breached in my case.

• policies & enactments of Parliament that are essential to the contextual & factual application & interpretation that is much-emphasized throughout the Respondent’s submission.

9. Respondent-submission emphasizes a contextual & factual application & interpretation approach, and the PSLRB’s own websidte-guidelines indicate the normal-practice of hearing both jurisdiction & merits, but it is much-confirmed in both Respondent’s Court-Memoranda & the PSLRB-decision that “jurisdiction” was the issue dealt-with in the hearing-week July 26-30 2010.  

a.in its paras.12, 13, 21 the PSLRB  writes: 12 The employer had raised a preliminary objection to my jurisdiction at an early stage in the process...I ruled that the preliminary jurisdictional arguments would be considered at the commencement of the hearing ...13 I also ruled, after listening to the arguments of both
parties about my jurisdiction, that I would decide whether I would commence the hearing on the merits... In fact, the jurisdiction arguments lasted for the entire week,...21 At the conclusion of the fifth day... I asked if she felt that she had received a full and fair hearing on the issue of jurisdiction. She confirmed that she had.^xvi

b. but, as with 2012 FC 1027,  human-rights & discriminatory abuses in 2007- 2008 were overlooked in PSLRB “jurisdictional” decision.  The case-law Gibson^xvii para.11 is useful:   “...an adjudicator has jurisdiction to inquire into the allegation in this grievance.  Where an individual whose specified term of
employment has not been renewed alleges that it was as a result of a discriminatory practice in contravention of the CHRA, an adjudicator has authority to inquire further into the matter...”

c. the case Lovell and Panula,^xviii paras.18, 20, 24 is also very useful for acceptance of jurisdiction: 18...the question here is whether an adjudicator has jurisdiction over grievances that relate essentially to an alleged breach of the collective agreement and alleged discrimination contrary to the CHRA.  For the reasons set out...I have concluded that an adjudicator does have jurisdiction...20...”the legislator certainly did not intend for a
violation of the collective agreement to escape review by an adjudicator”...24...Given that the terminations of employment relate to...illness, it is likely that the discrimination allegations will touch on the merits of the terminations of employment. An adjudicator will have jurisdiction to examine whether the terminations of employment was as a result of the alleged discriminatory conduct”

d. Respondent-submission November 2012 page 9 point out that the FC relied on “employment-matters in the federal public service ought not to be needlessly bifurcated”.  FC writes^xix:  72...the respondent conceded...the case-law has not definitively foreclosed such a possibility...73 In this regard, subsection 208(2) of the PSLRA contemplates grievances being filed that allege violations of the CHRA ...74...section 210 of the PSLRA contemplates that grievances alleging violations of the CHRA may be referred to adjudication ...226(1)(g) of the PSLRA moreover provides adjudicators with the power to “interpret and apply the CHRA and any Act of parliament relating to employment matters...whether or not there is a conflict between the Act being interpreted and applied and the collective agreement if any”...77...the Court found that Mr.Vaid’s complaint that he was laid off due to ethnicity, in violation of the CHRA, adjudicable by the PSLRB...78 These decisions are very much in keeping with the direction in which modern labour law has progressed, which has been to extend the jurisdiction of labour tribunals to hear all workplace disputes.  Thus claims that arise directly or inferentially from an alleged breach of a collective agreement must be determined by a labour tribunal and not by the courts (see...the multitude of other cases that have applied Weber). 79...Certain cases of the PSLRB suggest such jurisdiction does exist”.  

e. PSLRB was clear in Lovell and Panula^xx in accepting jurisdiction based on its own statute PSLRA and in a manner beyond just the collective-agreement:  20 The first step in determining the jurisdiction of an adjudicator is to examine the statute. ... I agree with Souaker...which decided that the no-discrimination clause in a collective agreement grants substantive rights to employees and that it can be used as the basis for a grievance. As stated at paragraph 126 of Souaker, “[t]he legislator certainly did not intend for a violation of the collective agreement to escape review by an adjudicator.” ...21 The intention of Parliament to give an adjudicator jurisdiction over human rights complaints is also clear....In passing, I note that the employer
accepted receipt of the grievances and that it replied at the final level of the grievance process without disputing that the grievors had a right to present grievances. The PSLRA also gives an adjudicator the jurisdiction to interpret and apply the CHRA and to give relief under that Act...  22 Further, it is clear from the statutory provisions that it was not intended that employment matters in the federal public service be needlessly bifurcated. 23...I have determined that an adjudicator has jurisdiction over the claim of a breach of the CHRA in the grievances at hand.  24 The question then arises as to the scope of the jurisdiction of an adjudicator in these grievances, given that they relate to non-disciplinary actions by the employer. Souaker, at paragraph 129, was addressing a rejection on probation and noted that an adjudicator’s jurisdiction was
limited to determining whether the rejection on probation was made in a discriminatory manner. Given that the terminations of employment in the present grievances relate to lengthy leaves of absence for illness, it is likely that the discrimination allegations will touch on the merits of the terminations of employment. An adjudicator will have jurisdiction to examine whether the terminations of employment was as a result of the alleged discriminatory conduct.

10. regarding various Respondent-submissions of the premise that I undertook no misconduct and so therefore I was not disciplined, employer-representatives themselves have invalidated this premise – clearly showing me their view of my misconduct for well over 5 years.

a. even up to the Federal Court hearing May 2012, and even in September 2012-January 2013 PSLRB hearings and since Fall 2007, I have been and felt & suffered reprimand, discipline, blame for misconduct:

• for work-matters through profane, assaultive, violent ways in 2007 to Spring 2008, on weekly basis. 
• even 2 days & profanely-so in the 2^nd-week April 2008,for not being responsive to sexually-harassing persistent-demands for “hearts-to-hearts” from distasteful aggressor. PSLRB exhibit 58 & Marked-for-Identification 3 Apr 23 2009
• with urgent work-related demands & meeting-requests from ADMs superior to the aggressor as far back as Fall 2007 to even the day before I left the building.
• by my Employer with a discriminating excessive workload– a workload which exhibits & witness-testimony show was reduced to 2/3 by Fall 2008 and to 1/3 by Spring 2009. 
• in-writing May 28 2008 by K.Jackson for finding it impossible to mediate face-to-face with an unstoppable-aggressor – in the same letter that indicated her forthcoming response to my original requests of April 30 2008
  
  • and this after I had already reported to 3 Executives, in-person, in-writing & in 7 meetings, profane, assuaultive aggression, heavy-work, inability to fend-off verbal & unstoppable, physical contact including sexually-improper harassment regardless of overt-intention^xxi see also PSLRB exhibits 20, 55, 56
• on work-matter with open-disrespect in a room full of peers & superiors May 28 2008 by an aggressor, who was aware of the complaint against him.
• in-writing July 2008 for not following aggressor’s direction, for not fulfilling human-resource duties and reprimanded for asking the proven-aggressor too-much to curb his behaviour
  
  • which means I was reprimanded for asking an unstoppable aggressor to not touch me, not stand close against my chair, not speak inappropriately or profanely to me, not rub my shoulders – all sexually-improper forms of harassment.
• in August 2008, a proven aggressor disciplinedme by charging 4-months of my sick-leave– in case-law this action is akin to suspension, withholding-remuneration and financial-penalty
  
  • continued disregard for the traumatic impact of this August 2008 disciplinary-penalty–a proven-aggressor allowed by a reckless-Employer to charge my benefits – is extreme-violation on grounds of health & gender.
  • this act of disciplinary-penalty in August 2008 was also the direct-cause of the CSST writing to HRSDC-labour February 2009 and the direct-cause of HRSDC/Labour & other officials writing & requesting that I sign Federal Employees as “third-party”
• though K.Jackson’s August 13 2008 email reconfirmed the proven-aggression as TBS Harassment,I felt blame for asking for her help and I suffered her refusal to respond, as she had indicated she would,to the original accommodation-requests of April 30 2008.  
• in writing August-October 2008 by K.Jackson & M.Dingwall for emailing them with pleas for their help with my transition & accommodation– though the projection made by the Physician in Summer-earlyFall 2008 was that I return to work with a transfer.  see PSLRB exhibit 4 tab A
• discriminatingly-so by the posting of the collective EX competition Fall 2008 run by the proven aggressor.
• for requesting that the Department schedule a French-test for me Fall 2008
• for blackberry-charges that I did not incur.
• in-writing May 12 2009 & August 12 2009 for expecting procedural-OHS treatment of the Assaultive-form requested of me.
• in May 2009 for not accepting the disabling of my work-email-account- though I made it clear that I was trying to apply for other positions & that I had long put an out-of-office on my work-emails,
• July 24 2009 for not reporting to work and for not following the principle of “work-now grieve-later”.
• July 24 2009 for not being on approved-leave- though my requests for special-leave & accommodation of new position had already been submitted into the paperless-leave-system.
• August 2009 for new-accommodation-requests that were“extravagant in the extreme”
• aggressively-frighteningly-so September2009 that there is a point of no return and that I am out of my mind if I think they will sell me to another department. please see PSLRB exhibits 60, 87
• in Fall 2009 with a plan of discipline & demotion, and held in a threatening-reprimanding status ofcontinuous leave-non-approval-status from May 2009 to January 2010.
• February to April 2010 by DG.Cyr & TBS-Counsel for not signing “third-party” form LAB 1081.
• on May 16 2012 as well as on July 30 2010 for not applying for a collective competition run by the proven-aggressor– despite Respondent’s reference to my October 2008 email to K.Jackson/M.Dingwall in their Memoruanda-Factum to the Courts & despite PSLRB-decision reference to this same-email in para.47. see today’s App B page 74
• on May 16 2012 for my original request 2008 for EX-continuance – blamed by employer-Counsel as if the requests were my feeling of entitlement & beyond he point of undue-hardship. see today’s App B.
• September 12, 2012 for open-discussion of distasteful-behaviours of a proven-aggressor, who according to Employer/Counsel(s)to best of my written recordsis both “not here to defend himself” and a “third party to the federal-employer” – and this despite the 1^st-request in my original-requests April 30 2008.
• in January 2013 PLSRB-hearings, thatmy requests in 2009 for a  meeting to include a femaleDG & for phone-communication with a female SPR-director were “annoying” &“putting up roadblocks”.

b. decision 2012 FC 1027 writes at paras.56, 57: 56 Determination of whether an act is disciplinary is a fact-driven inquiry and may involve consideration of matters such as the nature of the employee’s conduct that gave rise to the action in question, the nature of the action taken by the employer, the employer’s stated intent and the impact of the action on the employee. Where the employee’s behaviour is culpable or where the employer’s intent is to correct or punish misconduct, an action generally will be viewed as disciplinary...57 Some situations are obviously disciplinary; these would include, for example, situations where the employer overtly imposes a sanction (like a suspension or termination) in response to an employee’s misconduct. Others are more nuanced and require assessment of the foregoing factors to determine whether the employer’s intent actually was to discipline the employee even though it may assert it had no such motive. Justice Barnes explained the requisite inquiry in the following terms in Frazee at paragraphs ­­21-25 :

...The question to be asked is whether the employer intended to impose discipline and whether its impugned decision was likely to be relied upon in the imposition of future discipline [...] It is accepted, nonetheless, that how the employer chooses to characterize its decision cannot be by itself a determinative factor. The concept of disguised discipline is a well known and a necessary controlling consideration which allows an adjudicator to look behind the employer's stated motivation to determine what was actually intended. Thus in Gaw ... the employer's attempt to justify the employee's suspension from work as being necessary to facilitate an investigation was rejected in the face of compelling evidence that the employer's actual motivation was disciplinary [...] The problem of disguised discipline can also be addressed by examining the effects of the employer's action on the employee. Where the impact of the employer's decision is significantly disproportionate to the administrative rationale being served, the decision may be viewed as disciplinary [...] However, that threshold will not be reached where the employer's action is seen to be a reasonable response (but not necessarily the best response) to honestly held operational considerations. Other considerations for defining discipline in the employment context include the impact of the decision upon the employee's career prospects, whether the subject incident or the employer's view of it could be seen to involve culpable or corrigible behaviour by the employee, whether the decision taken was intended to be corrective and whether the employer's action had an immediate adverse effect on the employee [...]

c. the respondent has made much reference to Wong 2010 PSLRB 18 – a parallel which itself gives-effect of abuse on grounds of gender & Visible Minority-status – since there are no other comparisons.  Ms.Wong’s 
grievance-charges are clearly listed in decision 2010 PSLRB 18 –  her charges give no claim or allegation of discipline^xxii. Whereas in my matters, PSLRB & FC decisions together  themselves write in detail of discipline, disguised-discipline & financial-penalty that I raised. see point 7c. and7d. above. 

d. while lack of health & legal-help have been barriers to me questioning some of the Federal Court’s reasoning, I submit that there is no doubt over the relevance of PSLRB cases Robitaille, Gill, Hanna and Thibault^xxiii to the matters I referred to adjudication. While these grievors were accused of more overt-misconduct, the applicability of the reasoning & legal-tests established in these PSLRB cases is valid. 

e. my raising of reprisals reprimand, discipline, discrimination, financial penalty was acknowledged in PSLRB & FC decisions. point 7c., 7d. above, and my grievance-charges & requests and my March 2009 referral-letter carry no less meaning today –

the employer’s treatment of me showed me that my misconductin the first instance in 2007-2008 was my qualified EX & language-status and my proven-abilities & knowledge worthy only of exploitation; that my misconduct was my skin-colour, family-status, ethnicity & gender worthy only of 2^nd-class treatment, violence, heavy-overwork & sexual-harassment. 

the employer will find no evidence from 2007-2008 that would show equal-manner of respectful, fair, equitable & safe treatment of me by Employer-managers to counter this claim – and no record exists that refutes the aggression-proven, employer-acknowledged & witnessed, some of which was repeated incidences of distasteful sexually-improper-harassment. 

–and case-law & PSLRA-authority give jurisdiction to examine underlying & counterfactual circumstances 

my misconduct was made more intolerable by my pleas for protection & accommodaton April-May 2008 and my inability to mediate face-to-face with an aggressor to give him a  “learning-experience”. 

by the time of my grievance December 2008 and referral-letter March 11 2009,  my misconduct was also my health, trauma, fear & anguish and my grievance. 

– there is jurisdiction to examine the counterfactual circumstance to disprove me: e.g.  there was authority  for an ADM-response to Lawyer-email of February 2009 with corrections of my matters, with EX or acting-EX reintegrating in a sub-department elsewhere outside or within the Region; so why was there no ADM-response

despite 2009’s 3^rd EX-qualification & renewed-language,  by Summer-Fall 2009, my misconduct was also my many pleas for a new position & location,even through a funded-loan & even in a sub-department elsewhere, making me worthy only of more reprisal & more gender-discrimination.

Employer lead-delegate was quite clear in Fall 2009 on my misconduct: I was out of my mind if I thought they would sell me to another department;  my requests were extravagant in the extreme – and I was worthy only of a more forceful approach. 

I refer to case Tipple 2010 PSLRB 83 as I did in hearing with Mr.Filliter Summer 2012 paras.326- -328 and 323 one might even wonder how Mr. Tipple would have been treated had Mr. Marshall not considered him as “one of his boys”. I was not one of the boys – I was a woman deeply afraid & ashamed and traumatized suffering sevvere devastated  privacy & digniity– and now suffernig the horrific impact of more gender-discrimination that was compounding health & ethnicity discrimination and that was really destroying me.

the labour-Relations Manager D.Trepannier was clear in his PSLRB-testimony September 2011: to him my PSLRB submissions & my correspondence with HR was just repetition. Employer-witness/Johnson was clear in his testimony January 2013 :  my requests for meeting with a female DG & for phone-communication with a female SPR-director were “annoying” & “putting up roadblocks”.   Counsel was clear May 2012 on my misconduct: 2008 requests for EX-continuance was my feeling of entitlement. see App B

f. reasoning in 2012 FC 1027 is useful for concepts of misconduct & discipline: determining disciplinary-action is a fact-driven inquiry requiring consideration of such factors as the impact on me and the action’s effect on future reprisal, requiring the adjudicator to look behind the employer’s motiviation, to look at disproportionality of administrative-rationale to the impact on me.   Further, Frazee 2007 FC 1176 paras23-25, 36-37 discuss & analyze disguised discipline with compelling reasoning “ostensibly innocent administrative intent being overwhelmed by punitive actions so disproportionate, unnecessary or ill-conceived.”

11.  there is jurisdiction to adjudicate the discrimination & human-rights-abuses raised...  Similar to discipline & reprisal, discriminationis upheld repeatedly in case-law as requiring significant consideration of the alleged-action’s impact on the individual. 

it is upheld in Labranche 2010 PLSRB 65 para 112-116, notably: Once the grievor has established a prima facie or apparent case of discrimination, the burden of proof then shifts to the respondent, in this case the employer, to provide a reasonable explanation ...it is not necessary that the discriminatory behaviour be the sole reason for the actions taken...since the intent to discriminate is irrelevant to the determination of discrimination.^xxiv

it is upheld in Giroux 2008 PSLRB 102: There is no evidence that would excuse the employer from its duty to accommodate in this case...An employer is obliged to exhaust all reasonable avenues to accommodate, and that was not done...The grievor was injured while at work...the employer owed a duty to accommodate that disability, the employer failed in that duty...rather than dealing with grievor’s workplace stress and its causes, Employer placed her on involuntary leave, the Employer “seemed to be punishing her for being injured”, and the grievor was discriminated against, harassed and coerced on prohibited ground.^xxv

the ruling-reasons in 2010 PLSRB 65 highlight the significance of Employer’s refusal to accommodate health need,  employer did not accommodate medical condition created by workplace harassment, and that as the grievor became disabled from discriminating harassment suffered in workplace, it follows that the employer had obligation to accommodate;  that failure to accommodate to the point of undue hardship includes not attempting to find suitable employment after it is made known to Employer the deep affect of the harassment inflicted, and that granting brief administrative leave and sick leave, providing taxi chits and suggesting EAP assistance is not accommodation;  that the law is well settled that an employer must accommodate a disabled employee unless doing so would result in undue hardship, that the employer is now required to look beyond the employee’s own position and must broaden the scope of its search for accommodation, and that it is unequivocal that the employer must tender evidence of undue hardship to succeed in its defence that it could not accommodate the employee; that the employer’s liability depends on its knowledge of the offensive conduct and the extent of its response; that when the employer did know of the offensive conduct, in the steps taken to address it, its subsequent actions must not compound the discrimination; that the Supreme Court established very clearly the liability of employers for all acts of their employees “in the course of employment” and explained that the employer’s liability under the CHRA is purely statutory and that it serves a purpose similar to that of vicarious liability in tort by placing an organizational responsibility on the employer to take effective remedial action to remove the undesirable conditions;  that employer violated...CHRA by not seeking to accommodate disability caused by discrimination, interference, harassment and a poisoned workplace. 

it is upheld in Kelly 2010 PSLRB 80 that efforts undertaken by the employer to market the grievor fall short of what is required in their duty to accommodate, which is accommodation to the point of undue hardship;  that the grievor accepted all assistance offered by the employer and made serious job searches and that while the employer did provide the grievor with counselling, conducted assessments on the work that could be performed, made efforts to market and belatedly paid for the training expenses that the grievor occurred despite the employer’s refusal of support, the employer did not accommodate to the point of undue hardship; that after grievor suffered psychological trauma due to hearing on coast-guard radio just 30 minutes after the tragic accident of colleague, that employer failed in its duty to accommodate the grievor by not taking sufficient steps to find him alternate employment, thereby forcing him utilize both sick leave and annual leave credits, and that employer should bear the cost of his being at home without work;  and that  grievor is to be reimbursed the sick leave and annual leave credits that he was required to use up to beginning his new position.   

the ruling-reasons in 2008 PSLRB 102 highlight the significance of why did the department limit their search for alternate work to only 10 positions,  No mention was made of why the grievor was not considered for more senior-level acting opportunities such as she was performing at the time of the 1999 injury,  Employer’s search for alternate work was a great deal less than exhaustive.  In fulfilling its duty to accommodate up to the point of undue hardship, Treasury Board the Employer was required to conduct a diligent search.   The employer is required to exhaust all reasonable avenues to accommodate...grievor is deprived of a 31-year career as a result of workplace injury,  Employer placed her on involuntary leave, that the Employer “seemed to be punishing her for being injured”, and that the grievor was discriminated against, harassed and coerced on prohibited ground. 

a. respondent has not provided a reasonable or real explanation for 2007- -2008’s human-rights-abuses, discriminatory-actions and for failure to accommodate in the first-instance in a timely way – despite that my April 30 2008 requests are much-referenced in all respondent-Court-Memoranda & also referenced in PSLRB-decision.

reckless-violation of the Legal Duty to Accommodate and contravention of the rulings in Labranche ie the employer’s liability depends on its knowledge of the offensive conduct and the extent of its response;  that when the
employer did know of the offensive conduct, in the steps taken to address it, its subsequent actions must not compound the discrimination; ...organizational responsibility on the employer to take effective remedial action to remove the undesirable conditions is seen clearly in

frightening direct-work-emails daily up to internal grievance, 

proven-distasteful aggressor running a collective competitionthat resulted in 7 appointments over 2 large branches, 

K.Jackson’s harassment-proving correspondence July-August 2008 – notably that her investigation was done under TBS Harassment Policy, that her report was intended to mitigate workload issues (ie not my safety or accommodation), that the matter is dealt with and closed, and

the trauma of a proven-aggressor being recklessly-allowed August 2008 to punish me by charging 4-months of paid-remuneration.

b. while lack of health & legal-help have been barriers to me questioning some of the FC’s reasoning & analysis,there is applicability & relevance of case-reasoning & legal-tests in Robitaille, Gill, Hanna and Thibault. I felt & suffered the effects of employer-view of my corrigibility – and Federal Court rulings, even the Respondent’s November 2012 submission call for a fact-driven inquiry.

c. further, there is jurisdiction & applicability of cases brought under PSLRA 209.1(a) such as Labranche, Kelly, Giroux.  It is clear-from & seen-in my submissions above in my points 5. and 6 that applicability of such cases can not be excluded from the common-case-law;  and as seen in FC’s reasoning: the progression of modern labour extends jurisdiction for labour-boards to hear all workplace disputes, including claims that arise from CHRA-breaches and/or inferentially from collective-agreement-breach. 

In conclusion, based on all submissions today – in above points 1 to 11 –PSLRB has jurisdiction to adjudicate human-rights charges&employer-discriminatory actions that extend-back to 2007&2008 and raised in grievance-parameter documents.  Points 1 to 11 show that the contextual & factual circumstances of the matters-raised, of the case-law, of the authority given in the PSLRA, and of the legislated-enactments of workplace-policies on “employment-matters” all together uphold jurisdiction. 

Finally, I do not dispute Respondent’s suggestion –that if intervention is deemed appropriate by the PSLRB – the entity with interest could be the CHRC.  However, I raise that consistent with CHRA s.396 CHRC wrote Spring 2009 as with many PSLRB cases on human-rights I have seen declining intervention and that CHRC spoke publicly October 2012 weblink provided on PSLRB jurisdiction & authorities under the CLC and CHRA.

Sincerely,

Zabia Chamberlain

Today: - copy of all to Respondent by Email
- jurisprudence, policies, Case-law are listed below
- appendices A and  B also provided as documentary-Evidence

Jurisprudence List : 1- -25  Cases and Documents referenced

ⁱ Chamberlain 2010 PSLRB 130

ⁱⁱ see http://laws-lois.justice.gc.ca/eng/acts/P-33.3/FullText.html

ⁱⁱⁱ Lovell and Panula 2010 PSLRB 91

^iv For mandate of the CHRA please see http://www.chrc-ccdp.ca/discrimination/federally_regulated-eng.aspx

^v see PSLRB-exhibit 32 for TBS Harassment Policy on record and also http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=26041&section=text

^vi TBS Values and Ethics Code http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=25049&section=text

^vii TBS Employment Equity Policy http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12543&section=text

^viii Directive on Terms & Conditions of Employment http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=15772&section=text

^ix I refer to complaint 560-02-75 filed February 15 2011, which I was allwed to use as a refernce tool in speaking in PSLRB hearings-continuation

^x see 560-02-75 on record at PSRLB and Respondent

^xi see 560-02-75 on record at PSLRB and Respondent

^xii Chamberlain 2012 FC 1027

^xiii Tench v. National Defence OHSTC-09-001

^xiv Snyder 2010, Carswell 2009

^xv Birkett 2007 FC 428 and  CHRC October 2012 http://www.chrc-ccdp.ca/media_room/speeches-eng.aspx?id=709

^xvi Chamberlain 2010 PSLRB 130

^xvii Gibson 2008 PSLRB 68

^xviii Lovell and Panula 2010 PSLRB 91

^xix Chamberlain 2012 FC 1027

^xx Lovell and Panula 2010 PSLRB 91

^xxi see complaint 560-02-75

^xxii Wong 2010 PSLRB 18

^xxiii See Robitaille 2010 PSLRB 70 analysis, reasons and decisions at para 289–321, 340, 345, 346 including para. 346 3^rd bullet on organizational climate. 

see Gill 2009 PSLRB 19 para152, 160, 163, 168-170,

see Thibault 1996 PSSRB 166-2-26613 decision reasons on page 10-18 notably pages 11, 12, 15, 17,

see Hanna 2009 PSLRB 94  which ruled that financial penalty+discipline must be raised during internal grievance process up to date of reference to adjudication.

^xxiv Labranche 2010 PLSRB 65 please refer to paragraphs 112-116, 154, 158-161, 161 and 166, 168-171, and 177-182, including reasons for decision and including the importance and relevance of subsequent events at paragraphs 162-174

^xxv see Giroux 2008 PSLRB 102, paragraphs 138, 140-147, 152-153, 156, 157, 161 and 163-169 reasons and decisions

see also Kelly 2010 PLSRB 65 please refer to paragraphs 103-111, 115, 117, 118 and 121, including reasons for decision