FPSLREB Decisions

Complaint before the Board

1 On December 19, 2012, the Public Service Alliance of Canada (“the complainant”) filed a complaint against the Treasury Board (Canada School of Public Service) (“the respondent”) under paragraph 190(1)(b) of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (“the Act”).

2 The complainant stated that during the collective bargaining process leading to the collective agreement entered into between the parties on March 1, 2011, the complainant made it clear to the respondent that reaching an agreement was contingent upon finding a solution to a problem of indeterminate status for employees of the Language Teaching Sub-Group (ED-LAT) of the Education and Library Science group. The complainant stated that it obtained a commitment from the respondent that the respondent would increase the number of indeterminate language teachers at the Canada School of Public Service (“the School”). The complainant stated that the respondent failed to follow through on the commitment, which is the basis for the complaint before me.

3 The respondent raised an objection to my jurisdiction on the basis that the complaint was statute barred as it was filed outside the mandatory 90-day period prescribed by subsection 190(2) of the Act.

4 On April 15, 2013, I ordered that the hearing days scheduled for May 21 to 24, 2013, would be used to hear arguments on the timeliness objection.

II. Summary of the evidence

5 The parties submitted an agreed statement of facts.

6 Each party called two witnesses. The respondent called Celine Larabie and Darshan Singh; the complainant called Robert Kingston and Erick Martel.

7 On June 7, 1999, the complainant was certified by the Public Service Labour Relations Board’s (“the Board”) predecessor, the Public Service Staff Relations Board, as the bargaining agent for certain employees in the Education and Library Science Group.

8 The School provided language training to public servants. This was carried out through a number of different delivery tools. The School employed language teachers who were part of the ED-LAT group.

9 Between September 21, 2010 and October 4, 2010, exploratory collective bargaining meetings were held between the complainant and respondent outside the regular collective bargaining schedule with a view to reaching a new collective agreement before the expiry of the collective agreement in place on June 30, 2011.

10 The complainant communicated to the respondent during bargaining that reaching an agreement was contingent on finding a resolution to the issue of indeterminate employee status at the School with respect to employees of the ED-LAT group.

11 Bargaining concluded on October 4, 2010. A tentative agreement was reached. News of the tentative agreement was communicated by the complainant to the members of the Education and Library Science bargaining unit by memo dated October 12, 2010, which stated as follows:

…

In addition to the above noted [sic] wage increases, PSAC secured a commitment from the employer to create 12 new indeterminate teacher positions at the Canada School of Public Service (Asticou Centre).

…

12 The commitment by the respondent about the ED-LAT positions was confirmed by the School in a letter to the complainant dated December 1, 2010. It states, at its second paragraph, as follows:

The School agrees to launch, by the end of the 2010-11 Fiscal Year, a national competition (ED-LAT-01) open to all School employees (including regions) for the purpose of increasing the number of indeterminate language teachers in the NCR from its current level of 13 to up to 25.

13 The new collective agreement was signed on March 1, 2011, expiring June 30, 2014.

14 A selection process was initiated by the School, process 11-CES-PO-IA-AB-50414, for the position of Second Language Teacher, classified at the ED-LAT-01 group and level. The job advertisement stated that the anticipated number of positions that could be staffed with the advertised process was 12. The closing date for the process was March 29, 2011.

15 In January 2012, a decision was announced that direct delivery of language training by the School would cease on March 31, 2012 as part of cost cutting by the federal government. This would eliminate the teaching positions in existence at the School, and there was also no longer a need to hire the 12 new indeterminate ED-LAT-01 language teachers (“the decision”).

16 On January 10 or January 11, 2012, before the public announcement of the decision, representatives from the School, including Steven McLaughlin, Alain Dorion, Mr. Singh and Chantale Cousineau-Mahoney, met with John Gordon, the national president of the complainant, to advise him of the decision before its public announcement. The speaking points to be covered at the meeting with Mr. Gordon were identified by Mr. Singh as being drafted by him and were marked as Exhibit R-1, Tab 1.

17 Mr. Gordon was advised that the announcement of the decision was forthcoming in the upcoming days and that it would affect a total of 61 indeterminate employees and 107 term employees. He was further advised that the decision included the termination of the staffing exercise for the 12 new indeterminate ED-LAT-01 language teacher positions.

18 Mr. Gordon did not testify.

19 Either the same day as the meeting with Mr. Gordon, or the next day, Messrs. McLaughlin, Dorion and Singh (all in person) and Ms. Larabie (by phone) met with Mr. Kingston, National President of the Agriculture Union, a component of the complainant and the bargaining agent for the ED-LAT group.

20 Mr. Singh testified that Mr. Kingston was advised at the meeting of the decision. According to Mr. Singh, this discussion also included advising Mr. Kingston that the staffing exercise for the 12 new indeterminate ED-LAT-01 language teacher positions was being terminated. Exhibit E-1, Tab 2, contains the speaking points Mr. Singh identified that he prepared for the meeting with Mr. Kingston.

21 Mr. Kingston testified that he recalled the meeting he had with the representatives of the School but not the specifics.

22 At a meeting on or about January 13, 2012, the employees of the School were advised of the decision, which included the cancellation of the staffing exercise for the 12 ED-LAT-01 language teacher positions. Employees were given a package of information, which included a document called “FAQs for Affected Employees,” which was dated January 13, 2012 and was marked as Exhibit R-2.

23 On January 18, 2012, at 09:21, candidates in the 11-CES-PO-IA-AB-50414 competition for the ED-LAT-01 language teacher positions were sent an email (Exhibit R-1, Tab 3) from Stephanie Campbell, which stated as follows:

…

Further to your application in the above-noted selection process, this is to inform you that, due to administrative reasons, this process has been cancelled.

Should you require additional information, do not hesitate to contact Patricia Pereira at 819-934-8321 or by email at patricia.pereira@csps-efpc.gc.ca.

Thank you for your interest in the Canada School of Public Service.

…

24 Mr. Martel, who also testified on behalf of the complainant, was an employee at the School and held a union position at the complainant. He confirmed in his evidence that he was in attendance at the meeting on or about January 13, 2012 and that he received a copy of Exhibit R-1, Tab 3, and Exhibit R-2.

25 Both Mr. Martel and Ms. Larabie recall meeting in January 2012 at the time the decision was being announced.

26 They both recall Mr. Martel advising Ms. Larabie that the bargaining agent would be pursuing the matter of the cancellation of the staffing process for the ED-LAT-01 language teacher positions.

27 Mr. Kingston stated that his first recollection of learning that the staffing process for the 12 ED-LAT-01 positions had been cancelled was via an email dated January 18, 2012 (Exhibit R-3) that he received from Robert Wilson, an employee at the School and a bargaining agent local president. Mr. Wilson emailed Mr. Kingston upon receiving Ms. Campbell’s email of January 18, 2012. In his email to Mr. Kingston, Mr. Wilson stated as follows:

This is astonishing, and I believe the grounds for a grievance based on a letter of understanding contained in the last round of negotiations. Treasury Board agreed to create 12 indeterminate LAT 1 positions from those who have term status.

Even if these 12 will be laid off as of March 31, they will gain rights under the Workforce Adjustment Appendix in the collective agreement.

28 Exhibit R-1, Tab 4, is a form letter sent by the Agriculture Union, dated in error as March 19, 2011, and signed by Mr. Kingston, to departments and agencies, and it states as follows:

As you are probably aware, the Canada School of Public Service (CSPS) will abandon its in-house language training services as of March 31, 2012. As a result, just under 200 employees will lose their jobs. Most of these women and men are highly-qualified and experienced second language teachers.

As much as we, who represent employees of the CSPS, disagree with this decision, it does offer federal Departments and Agencies an opportunity to employ these teachers directly thereby continuing to provide your employees with the excellence in official-language training expected from the CSPS.

…

Departments and Agencies now have a window to recruit these language teachers – on either an indeterminate or term basis – for their own organization’s benefit. The CSPS teachers are among the very best in their profession. Beyond their evident competence, they offer firsthand experience as public service workers and an intimate knowledge of the culture and workings of the federal government as well as sound knowledge of official languages requirements. These facts are well known to human resources and official languages staff throughout the federal public service, including, likely, those in your own organization.

Where language training services were once provided by CSPS, Departments and Agencies will now be forced to seek second-language training services from outside firms or contractors…

…

29 Mr. Singh identified the letter, dated in error, of March 19, 2011 (Exhibit R-1, Tab 4) and that he was aware that it had been sent to a number of government departments, as he was copied on the letter, had seen the distribution list, and had received calls from departments about the School’s teachers. He further stated that he had been asked by the Agriculture Union to have his name used as the contact person in the letter, to which he agreed.

30 On September 20, 2012, Guy McKenzie, Deputy Minister/President of the School, wrote to Mr. Kingston. The letter is found at Exhibit C-1, Tab 2. It was received by Mr. Kingston on September 26, 2012, and stated as follows:

The purpose of this correspondence is to follow up on the item you raised at our last National Labour Management Consultation Committee in which you voiced a concern regarding our decision not to pursue with the staffing of the 12 ED-LAT positions.

Upon reviewing the content of the confirmed agreement, which I’ve attached for your review, and given the current context of the Public Service, I believe the Canada School of Public Service did make a decision that was in the best interest of the Public Service of Canada. I also believe that we have in fact met the intent of the agreement in that we did start our staffing process as agreed. Unfortunately given certain circumstances we were not able to complete it before the implementation of the decision to cease language training and other Government budget cuts, which, as you know, has an impact on services provided. We also did advise our union colleagues of decisions regarding the language training program.

I appreciate your input and comments at this forum and I am committed to continued meaningful discussions with all of our bargaining agents.

31 Exhibit R-1, Tab 6, is a copy of the draft minutes of the National Labour-Management Consultation Committee (“LMCC”) Meeting of March 21, 2012 (“the LMCC minutes”). In attendance at that meeting were Messrs. Singh, Kingston and Martel and Ms. Larabie, all of whom testified before me.

32 At the second page, under the heading “3. Language School Decision,” it states as follows:

Mr. McKenzie advised that the school was proceeding with the decision to cease direct delivery of language training in the Public Service.

He informed the committee that currently 66 indeterminate employees are affected. He also advised that we are working collaboratively with client Departments to discuss career opportunities for language teachers. To date, one employee has been offered employment with one department and others are being considered by various other departments.

…

Mr. Kingston stated that in regards to the 12 ED-LAT positions that were to have been staffed indeterminately, the Agriculture Union wanted the CSPS decision to cancel this process in writing and that they advised they will be pursuing the matter, linking the issue with collective bargaining.

Action Item 3 – Confirmation in writing of our decision to end the process of staffing 12 new indeterminate ED-LAT-01 positions, to the Agriculture Union, c/o Mr. Bob Kingston.

33 At the hearing before me, the evidence about the meaning of “Action Item 3” was in dispute.Mr. Kingston stated that the reason the LMCC minutes were still marked as draft was that he never approved them; the section dealing with the “Language School Decision” and the action item arising from it was not an accurate reflection of what was agreed to. According to Mr. Kingston, while the issue of the 12 ED-LAT-01 language teacher positions was discussed at the LMCC meeting, the action item was supposed to reflect that the matter was to be referred back to the Treasury Board to confirm that the commitment that had been made at the bargaining table was not going to be honoured. This is not what is stated in the LMCC minutes.

34 Mr. Singh testified that he was at the meeting and that he was asked to review the LMCC minutes. He stated that the LMCC minutes under the heading “3. Language School Decision,” accurately reflect what was conveyed by the management side about the decision and the cancellation of the 11-CES-PO-IA-AB-50414 process for the ED-LAT-01 positions. He stated that it was made perfectly clear that the decision was not open for discussion. Mr. Singh also testified that the letter of September 20, 2012 was to complete the action item agreed to at the LMCC meeting of March 21, 2012 and as reflected in the LMCC minutes by sending the letter to Mr. Kingston confirming what had already been communicated.

35 While Mr. Martel was also at the LMCC meeting of March 21, 2012, he did not offer any opinion on the meaning of Action Item 3.

36 Ms. Larabie, who was also at the LMCC meeting of March 21, 2012, did not recall the discussion surrounding the staffing of the 12 ED-LAT-01 language teacher positions or Action Item 3.

37 Mr. Singh testified that at the LMCC meeting of March 21, 2012, Mr. Kingston made reference to bad faith bargaining. Mr. Kingston stated that he did not make this reference.

38 The complaint is signed and dated December 19, 2012 and was sent via facsimile that same day to the Board, exactly 90 days after Exhibit C-1, Tab 2, Mr. McKenzie’s letter of September 20, 2012.   

III. Summary of the arguments

A. For the respondent

39 The respondent argued that the complaint is untimely, and as such, the Board is without jurisdiction to hear it.

40 The complainant relied on paragraph 190(1)(b) of the Act, which states that the Board must examine and inquire into any complaint that either an employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith) of the Act. Subsection 190(2) of the Act states that a complaint made under subsection 190(1) of the Act must be made not later than 90 days after the date on which the complainant knew, or in the Board’s opinion, ought to have known, of the action or circumstances giving rise to the complaint. The complaint was filed on December 19, 2012. The complainant alleges a breach of section 106 of the Act, the duty to bargain in good faith.

41 The test as set out by the Federal Court of Appeal in Boshra v. Canadian Association of Professional Employees, 2011 FCA 98, is to first define the complaint and then to decide when the complainant knew or ought to have known of the action or circumstance that gave rise to it.

42 As also set out by the Federal Court of Appeal in Boshra, pleadings and supporting documentation can be examined to determine the essence of the complaint. A review of the actual complaint discloses that the essence of the complaint is found at paragraphs 10 and 11 of the complaint dated December 19, 2012, which state as follows:

10. The PSAC states that the employer has failed to follow through on a commitment made during bargaining to increase the number of indeterminate language teachers at the Canada School of Public Service. This commitment was a deal-breaker [sic] for the PSAC. Had the commitment not been achieved, the PSAC would not have entered into a collective agreement with the employer at that time.
11. In this circumstance, it is the PSAC’s positions that it is appropriate and necessary for the Board to consider whether the failure of the employer to honour their commitment is illegal, contrary to public policy, or an indication of bad faith in accordance with section 106 of the PSLRA.

43 The respondent submitted that the commitment made is reflected in the letter of the School’s vice-president to the complainant dated December 1, 2010, which states in part as follows:

…

The School agrees to launch, by the end of the 2010-11 Fiscal Year, a national competition (ED-LAT-01) open to all School employees (including regions) for the purpose of increasing the number of indeterminate language teachers in the NCR from its current level of 13 to up to 25.

…

44 There is no dispute that the process was commenced or that it was cancelled. There was no commitment to completing the process.

45 However, it is clear that Mr. Wilson, a member of the complainant’s local executive at the School, was aware that the staffing process was cancelled as early as January 18, 2012, as he caused an email to be sent to Mr. Kingston and other members of the complainant, including other executives, complaining about its cancellation and suggesting that this action by the School was a breach of the understanding reached at the last round of collective bargaining and was grounds for a grievance.

46 According to the respondent, the essence of the complaint is the cancellation of the ED-LAT staffing process. The case law is clear and states that the time frame for filing the complaint was within 90 days of when the complainant knew or ought to have known of the circumstances giving rise to the complaint. The respondent stated that the 90-day period began to run when the decision to cancel the staffing process was communicated to the complainant.

47 The respondent stated that the complainant was informed of the cancellation of the process when senior executives from the School met with the complainant’s national vice-president, Mr. Gordon, early in January 2012. Shortly after meeting with Mr. Gordon, either later that day or on the next day, senior executives of the School met with Mr. Kingston and informed him of the cancellation. Indeed, a meeting was held at the school, at which time all employees were advised of the cancellation of the staffing process and were given a document entitled “FAQs For Affected Employees,” dated January 13, 2012, which also spoke about the cancellation of the staffing process.

48 The respondent argued that if the dates in January were not sufficient to trigger the 90-day time frame, it is clear that two events in March 2012 indicate that the complainant then knew or ought to have known of the circumstances giving rise to the complaint. The first was a letter sent on March 19, 2012 by Mr. Kingston addressed to either the heads or deputy heads of 52 government departments or agencies, and the second was the National LMCC meeting that took place on March 21, 2012.

49 The subject matter of the March 19, 2012 letter sent by Mr. Kingston was to inform the recipients that the School was ending its in-house language training services as of March 31, 2012 and that just under 200 employees, most of whom were second language teachers, would lose their jobs. The letter was an invitation to departments and agencies to recruit these employees. The LMCC discussed the work force adjustment process as well as the cancellation of the staffing process, and the complainant was made fully aware that the decision to cancel the staffing process was not going to be revisited.

50 The respondent argued that the complaint was clearly outside the 90-day time limit prescribed by the Act and, as such, should be dismissed as the Board is without jurisdiction.

51 The respondent also relied on Boshra v. Canadian Association of Professional Employees, 2012 PSLRB 106, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-TCA Canada), Local 2182 v. Treasury Board (Department of Fisheries and Oceans), 2013 PSLRB 42 (“CAW-TCA Canada”), Dumont et al. v. Department of Social Development, 2008 PSLRB 15, England v. Taylor et al., 2011 PSLRB 129, Éthier v. Correctional Service of Canada and Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, 2010 PSLRB 7, and Laroque v. Professional Institute of the Public Service of Canada, 2010 PSLRB 77.

B. For the complainant

52 The complaint is based on a commitment made by the respondent during bargaining, which was that the respondent would create 12 new indeterminate language teacher positions at the School.

53 The complainant agreed that the time frame for filing a complaint is set by subsection 190(2) of the Act and that for the Board to have jurisdiction, the complaint had to be filed no later than 90 days after the day on which the complainant knew or ought to have known of the action or circumstance giving rise to the complaint.

54 The complainant also agreed with the reasoning in Boshra that the process to be followed by the Board is two-step, involving first defining what the complaint is about,  and second, addressing when it was that the complainant knew or ought (in the Board’s opinion) to have known of the action or circumstances that gave rise to the complaint.

55 The complainant stated that it was aware that direct delivery of language training was going to cease and did confirm that it was made aware of the cancellation of the staffing process for the 12 ED-LAT-01 language teacher positions in early 2012. However, this was not the triggering event that led to the filing of the complaint. The complainant stated that it was the confirmation by the respondent in a letter dated September 20, 2012 that the respondent felt it had complied with the commitment it had made that was the triggering event.

56 The complainant stated that the draft minutes of the LMCC meeting of March 21, 2012 were inaccurate and did not reflect what was actually discussed at that meeting. Action Item 3, which referred to written confirmation to the complainant, was inaccurately reflected in the draft minutes. There is no evidence that before the September 20, 2012 letter there was ever any confirmation by the respondent that it believed it had complied with the commitment made during negotiations. The letter of September 20, 2012 is the basis for the complaint.

57 The complainant also relies on the Federal Court of Appeal decision in Boshra, as well as the Boshra decision by the Board, and the CAW-TCA Canada.

C. Respondent’s reply

58 The test under subsection 190(2) of the Act is not when a particular individual knew or ought to have known of the source of the complaint but when the complainant knew or ought to have known of it. The complainant is the bargaining agent, and in this regard, several of its members knew as early as January 2012. In addition to Mr. Gordon, Messrs. Wilson and Martel, who worked at the School, were aware of the decision and that no positions were going to be staffed because the positions no longer existed.

IV. Reasons

59 Paragraph 190(1)(b) of the Act states as follows:

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

…

(b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith) …

60 Subsection 190(2) of the Act states as follows:

190. (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

61 The test to determine if the complaint is timely is summed up accurately in CAW-TCA Canada, in which the Board states as follows at paragraph 35:

… The Federal Court of Appeal, at paragraph 40 of Boshra, clearly identified the process for determining when the clock begins to run for complaints made under section 190 of the Act. In its words, when assessing whether a complaint was filed within the 90-day time limit, the Board “… had to define ‘the complaint’, and to decide when [the complainant] knew or ought to have known of the action or circumstances that gave rise to it.”

62 The essence of the complaint is found at paragraphs 10 and 11 of the complaint filed on December 19, 2012, as follows:

10. The PSAC states that the employer has failed to follow through on a commitment made during the bargaining to increase the number of indeterminate language teachers at the Canada School of Public Service.  This commitment was a deal-breaker for the PSAC.  Had the commitment not been achieved, the PSAC would not have entered into a collective agreement with the employer at that time.
11. In this circumstance, it is the PSAC’s position that it is appropriate and necessary for the Board to consider whether the failure of the employer to honour their commitment is illegal, contrary to public policy, or an indication of bad faith in accordance with section 106 of the PSLRA.

63 The parties disagreed with respect to the exact commitment made during bargaining. The evidence before me was quite limited. On one hand, the respondent stated that the commitment was set out in a letter sent by the vice-president of the School, Donna Achimov, dated December 1, 2010, in which she states as follows at paragraph 2:

The School agrees to launch, by the end of the 2010-11 Fiscal Year, a national competition (ED-LAT-01) open to all School employees (including regions) for the purpose of increasing the number of indeterminate language teachers in the NCR from its current level of 13 to up to 25.

64 The complainant submitted that the commitment made by the respondent during bargaining upon which it relied is more appropriately reflected in a memo dated October 12, 2010 sent by the complainant to members of the Education and Library Science Bargaining Unit (EB), which stated as follows:

…

In addition to the above noted [sic] wage increases, PSAC secured a commitment from the employer to create 12 new indeterminate teacher positions at the Canada School of Public Service (Asticou Centre).

…

65 For the purposes of this decision on the respondent’s objection to my jurisdiction, I am prepared to accept that the commitment was more than just to run a competition for 12 new ED-LAT-01 language teacher positions; it was to staff the positions.

66 The position of the complainant is that the complaint is timely and that the Board has jurisdiction because the determining event was the receipt of the letter dated September 20, 2012 from Mr. McKenzie, Deputy Minister/President of the School, sent to Mr. Kingston and received by him on September 26, 2012, which stated as follows:

…

Upon reviewing the content of the confirmed agreement … I also believe that we have in fact met the intent of the agreement in that we did start our staffing process as agreed. Unfortunately given certain circumstances we were not able to complete it before the implementation of the decision to cease language training and other Government budget cuts …

…

67 The complainant’s argument that the complaint is timely is based on the allegation by Mr. Kingston that he was waiting for written confirmation from the Treasury Board that the respondent had met the intent of its commitment. It is also the complainant’s position that the commitment made during bargaining was to create 12 new indeterminate second language teaching positions at the ED-LAT-01 group and level at the School, which led to the breach of the respondent’s duty to bargain in good faith by failing to honour this commitment. Mr. McKenzie’s letter of September 20, 2012 does not state that the respondent believed that it met that specific commitment; it merely states that it believed that it met the intent of the agreement and that it did so by starting the staffing process.

68 Mr. Kingston testified and the complainant argued that the letter of September 20, 2012 was the triggering event and that Mr. Kingston was waiting specifically for this letter to confirm that the respondent would not honour the commitment to staff 12 new ED-LAT-01 positions. Mr. Kingston stated in his evidence and the complainant argued that this was what was actually stated at the LMCC meeting on March 21, 2012. If this was the case, and the complainant actually was going to rely on the September 20, 2012 letter, I would think that the letter would actually have come from the Treasury Board as Mr. Kingston had stated, and the letter would have stated what Mr. Kingston said it would state, which is that the respondent was not going to hire 12 new ED-LAT-01 teachers. This is not what the letter states.

69 The letter of September 20, 2012 actually states less than what was already told to the representatives of the complainant by the representatives of the School in January 2012, what was already told to the employees of the School in January 2012, what was told to any candidates in the ED-LAT-01 competition via email on January 18, 2012, and, most importantly, what Mr. Kingston actually wrote in his letter of March 19, 2012.

70 The evidence is clear that the respondent made the complainant aware as of early January 2012 that it was ceasing second language teaching at the School as of March 31, 2012. This decision was made clear to the president of the complainant, Mr. Gordon, on or about January 10 or 11, 2012. Representatives of the School also met with Mr. Kingston either the same day as they met with Mr. Gordon or within a day or two of that meeting. Mr. Kingston is National President of the Agriculture Union, the bargaining agent for the language teachers at the School who occupy the ED-LAT positions. While Mr. Kingston did not recall the specifics of that meeting, he did recall that a meeting did take place. Mr. Singh testified that at the meeting with Mr. Kingston, he and the other representatives from the School made it clear to him that not only were they ceasing all language training and that all teaching positions would be lost, but also that they would not follow through with the staffing of the 12 new ED-LAT-01 language teacher positions.

71 If there was any doubt about the respondent’s intentions after these two meetings, that doubt should have been eliminated when Mr. Kingston received the email from Mr. Wilson, who was not only a candidate in the competition for one of the 12 new ED-LAT-01 language teacher positions but was also a bargaining agent local president. In his email to Mr. Kingston, on January 18, 2012, Mr. Wilson, who had just been told the competition process for the 12 ED-LAT-01 language teacher positions had been cancelled, wrote that “this is astonishing” and that “… a grievance [should be] based on the letter of understanding contained in the … negotiations… the Treasury Board agreed to create 12 indeterminate LAT 1 positions …” There was certainly no doubt of Mr. Wilson’s understanding.

72 In addition, Mr. Martel, another member of the complainant, confirmed that he was aware as of January 2012 that the School was no longer going to provide second language training, the existing teaching positions were being eliminated and the ED-LAT-01 competition was being cancelled. In addition, Mr. Martel testified that he told Ms. Larabie that the component (the Agriculture Union) would be considering what it could do about the action of the School.

73 There is no doubt that representatives of the School told senior members of the complainant, namely, Mr. Gordon and Mr. Kingston, that not only were they not going to staff 12 new indeterminate ED-LAT-01 language teacher positions, but also that they were also getting rid of the existing language teacher positions, because the School was getting out of the business of teaching second languages.

74 Subsection 190(2) of the Act requires a complainant to make a complaint not later than 90 days after the date on which the complainant knew or ought to have known of the action or circumstances giving rise to the complaint. The circumstances giving rise to the complaint arose out of the commitment to create 12 new ED-LAT-01 positions at the School. The alleged breach of the commitment arose out of the failure of the respondent to follow through on the commitment. There is no doubt that as of January 18, 2012, the complainant knew not only that the respondent was cancelling the competition for the 12 new ED-LAT-01 positions, but also that it was stopping all language training at the School, where the 12 new ED-LAT-01 positions were to have been created. If there is no language training being offered by the School, and the existing teachers are losing their jobs at the School, and the School has cancelled the process to hire new teachers, there is no doubt that the commitment was not going to be honoured. These facts were incontrovertible, and the complainant knew this was the case in January 2012.

75 If there was any doubt about the facts that gave rise to the complaint, that doubt was certainly not there in March 2012. Mr. Kingston, as president of the bargaining agent for those teachers who were losing their jobs, and for those teachers who would have been hired into the 12 new ED-LAT-01 positions, wrote to the heads of federal departments and agencies (according to Mr. Singh, 51 letters were sent), in which Mr. Kingston confirmed that the School was ceasing its second language training and that the skilled teachers were going to be out of work.

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

V. Order

77 The complaint is untimely, and as such, I am without jurisdiction.

78 The complaint is dismissed.

September 24, 2013.

John G. Jaworski,
a panel of the Public Service
Labour Relations Board