FPSLREB Decisions

I. Individual grievance referred to adjudication

1 On July 23, 2010, counsel on behalf of Susan McMullen (“the grievor”) wrote to the Commissioner of the Canada Revenue Agency (“CRA” or “the employer” or “the Agency”), enclosing a grievance dated July 20, 2010 grieving the final report on his client’s claim of harassment, which was sent to her on June 30, 2010.

2 The letter outlined the nature of the grievance in part in the following terms:

…

I am writing to grieve the Final Report of Harassment of my client, Ms. Susan McMullen … by former Assistant Commissioner, George Arsenijevic as well as the conduct of the investigation.

…

3 Ms. McMullen grieves the conduct of the investigation and the final report, “including but not limited to the description, investigation, analysis, conclusions, decisions and disposition” of the harassment complaint of July 28, 2008, wherein she alleged that Messrs. Cloutier and Bouchard separately and collectively harassed her. The following represents a portion of the corrective action requested:

• That a complete and comprehensive investigation be conducted by an independent third party of the allegations of the complainant; statements of the respondents and witnesses; evidence; methodology, analysis and conclusions of the investigator; the conclusions of the Assistant Commissioner; and the disposition of the Harassment Complaint by the assistant Commissioner;
• That additional or supplementary evidence be gathered, evaluated and included in the investigation;
• That a complete and comprehensive investigation be conducted by an independent third party with regard to alleged deliberate delays by the employer and alleged pervasive and significant bias on the part of the investigator;

…

4 There followed some 20 additional claims for corrective action requested due to the serious harm done to Ms. McMullen in terms of health, reputation, career and finances.

5 The reply to this grievance was made by Cheryl-Ann Fraser, the Assistant Commissioner, Human Resources Branch of the Canada Revenue Agency on June 1, 2011. The grievance was denied. The reply read in part as follows:

This is in response to your grievance, in which you grieve the manner in which your three harassment complaints filed July 28, 2008, and the recommendations and decisions made in the three Final Reports of Harassment written by Duff Friesen; all of which were dated April 30, 2010.

…

Further to my review, I am satisfied that management responded diligently to your allegations of harassment and had them investigated by a reputable outside firm who specialize [sic] in the investigation of harassment complaints. Furthermore, I am satisfied that the decision of Mr. Arsenijevic was reasonable in the circumstances and within his authority as the responsible officer identified under the Canada Revenue Agency Policy on the Prevention of Harassment in the Workplace for the Assessment and Benefits Services Branch.

…

6 The grievance was referred to adjudication on August 4, 2011 under paragraph 209(1)(b) of the Public Service Labour Relations Act, which covers disciplinary action resulting in termination, demotion, suspension or financial penalty, and subparagraph 209(1)(c)(ii), which covers the deployment of an employee in the core public administration under the Public Service Employment Act without the employee’s consent where consent is required.

7 In response to a request for clarification from the Public Service Labour Relations Board (“the Board”) dated August 18, 2011, on September 20, 2011, counsel for the grievor wrote to the Board, providing additional detailing of Ms. McMullen’s paragraph 209(1)(b) grievance as follows:

Without reason, notice or consent, the employer removed Ms. McMullen from her position in May 2008 and announced to her staff and later to her that she was going to work on a project. In fact, we obtained and provided the employer with evidence that no such position even existed. The deployment of Ms. McMullen required her consent and this was neither sought nor given. In addition, the removal of Ms. McMullen from her management position resulted in financial penalties that included reductions of her salary, the denial of proper retroactive collective agreement pay increases, the loss of entitlement to performance pay of up to 5%, and diminished her Pension contribution and sick leave, and vacation credits. It should be noted that Ms. McMullen’s management exclusion was removed without notice to her and that such removal was applied retroactively, resulting in revised salary, revisions to her T4 slips, that the employer failed to explain, and reassessments of her income tax returns. Furthermore, the employer has failed/refused its responsibility to complete an appropriate performance assessment for Ms. McMullen for the period April 1, 2007-March 31, 2008, effectively denying her performance pay of up to 5%, to which she was eligible for that period. Finally, the employer’s failure/refusal to accommodate Ms. McMullen between January and July 2010 resulted in the loss of 30% of her salary for this period and the loss of sufficient rehabilitation time, which resulted in further financial loss during the period October and November 2010.

Thank you for considering this additional clarification as to why the actions of CRA resulted in disciplinary action, or more correctly, “disguised discipline”.

8 On October 19, 2011, the Director, Collective Bargaining, Interpretation and Recourse, Workplace Relations and Compensation Directorate, Human Resources Branch of the CRA wrote to the Board, stating, in part, as follows:

The Employer respectfully submits that the Public Service Labour Relations Board (PSLRB) does not have jurisdiction to hear and decide this matter under section 209, for the reasons expressed in the following paragraphs.

First, Section 209 of the PSLRA recognizes that in the case of a separate employer, only disciplinary action resulting in termination of employment, suspension or a financial penalty may be referred to adjudication. On form 21, the grievor indicated that the matter is referred under the provision of section 209(1)(b), dealing with disciplinary action resulting in termination, demotion, suspension or financial penalty. Disciplinary action was never imposed on the grievor.

Second, the Canada Revenue Agency (CRA) is not part of the core public administration and does not fall under the purview of the Public Service Employment Act. CRA is a separate employer and as such, the grievor cannot refer her grievance to the PSLRB under the provisions of 209(1)(c)(ii).

9 On November 2, 2011, counsel for the grievor responded to the jurisdictional objection as follows:

1. That disciplinary action resulting in termination, demotion, suspension or financial penalty was not imposed on Ms. McMullen;
2. That the employer does not fall under the purview of the Public Service Labour Relations Act; and
3. That reference was made in my letter of September 20, 2011, to s. 209(1)(b), (i)(ii) and the employer states that such section does not exist.

Regarding issue 1, I would reiterate the facts. On May 28, 2008, Ms. McMullen was stripped of her position by Directors Clement Bouchard and Michel Cloutier. Subsequently, the CRA refused/failed to, complete an accurate and unbiased evaluation of my client’s performance for the 2007-2008 cycle and to pay her the related performance bonus to which she is entitled. Further financial penalties followed; the removal of her management exclusion, rendering her ineligible for further performance pay and requiring her to pay union dues; reduction of her pay on December 22, 2008; requirement that she pass through ten pay increment levels in a category that has only 9 levels; further reduction of her pay by virtue of the application of an arbitrary CRA policy involving the refusal to accord her retroactive pay increases based on her salary immediately preceding the increase; and failure to return her to an excluded position for the first three months following her return to the workplace in July 2010; and the CRA’s refusal/failure to accommodate resulting in the loss of 30% of her salary from January-July 2010 and additional financial losses in October and November 2010 resulting from insufficient rehabilitation time.

With all due respect to CRA officials, the action of stripping my client of her position was disguised discipline. I would emphasize that they do not contest that the action took place, and it is from this action that the financial penalties - and much else that harmed my client-flowed. In spite of the evidence and conclusions of the CRA-hired investigator that the actions of Directors Bouchard and Cloutier in stripping Ms. McMullen of her position constituted harassment, including threats and abuse of managerial authority, the CRA “determined” that she had not been harassed. The CRA’s own Human Resources expert witness testified that the action of stripping her of her position could not have been any part of performance management because neither Directors Bouchard and Cloutier nor any other CRA official could produce a shred of evidence in support of such a claim. The uncontested fact is that my client was stripped of her position. She not only suffered multiple financial penalties and losses as a result, but was also informed by Directors Bouchard and Cloutier at the beginning of the May 28, 2008, meeting that she was in a “level 2 disciplinary hearing”. Accordingly, the conclusion is inescapable that disciplinary action was imposed on Ms. McMullen and that, therefore, section 209(1)(b) applies…

10 On November 15, 2011, the CRA’s Director of Collective Bargaining replied in part as follows:

…it is the Employer’s position that the administrative decision to remove Ms. McMullen from her position was not a disciplinary action. The Employer has the right to manage the workplace, which includes allocating resources, establishing performance expectations and determining its requirements with respect to human resources.

11 On November 22, 2011, counsel for the grievor responded to CRA’s position that Ms. McMullen was not subjected to disciplinary action. He stated in part as follows:

As a detailed brief of Ms. McMullen’s evidence has been in the hands of CRA for in excess of a year that contains numerous evidentiary references supporting the punitive actions of her former superiors, it is inconceivable that they would continue to blindly assert this position.

For now I have simply attached pages 104 to 110 of the Investigation Report, which specifically addresses the issues before you. The investigator concluded that the policies and procedures were not followed by Ms. McMullen’s superiors. Investigator Friesen specifically states in the final sentence of the second last paragraph at page 108 of his report that the actions of Messrs. Cloutier and Bouchard took on a “punitive quality”.

12 On November 25, 2011, the Board referred the matter to an adjudicator for hearing.

13 On August 27, 2012, counsel for the employer wrote to the Board, advising of the employer’s objection to jurisdiction based on the Burchill principle. That principle fundamentally provides that the grievor may not refer a new or different grievance to adjudication and that it is only the grievance as presented which may be referred to adjudication.

14 At the commencement of the hearing on December 17, 2012, counsel for the employer outlined the objection to jurisdiction to hear this reference based on the Burchill principle. In addition, counsel asserted that the grievance was out of time, and thus, I was without jurisdiction to hear the reference on this basis as well.

15 After hearing the opening positions of both parties, counsel called the grievor as a witness in an effort to establish my jurisdiction to hear this reference on the basis that the grievor was the object of disciplinary action.

II. Summary of the evidence

A. Susan McMullen

16 Ms. McMullen has been working for the federal government for 23 years. For the last 20 years, she has been employed by the Canada Revenue Agency at its headquarters in the Assessment and Benefit Services Branch.

17 In particular, she worked in compliance programs related to policy and legislation. She had worked in district taxation offices in collections as well as in tax centres.

18 In June 2002, she was appointed to the position of Manager, Legislation and Partnership Liaison, Assessment and Benefit Services Branch. The mandate of this legislative policy branch was to request and interpret legal opinions.

19 She was asked to relate what happened to her on May 28, 2008. She testified that she had been absent from the workplace prior to May 28 as a result of illness. She notified her office that she would come in at noon on May 28 and try and work one half day.

20 Sometime after she arrived at work, Mr. Bouchard, her new director, came into her office and closed the door. Ms. McMullen said she was ill and wanted to go home.

21 Mr. Bouchard said he wanted her there at the end of the day to meet with him and Mr. Cloutier, her former director. It was not optional.

22 A meeting took place at approximately three o’clock. Present were Mr. Bouchard, Mr. Cloutier and Ms. McMullen. The meeting took place behind closed doors.

23 Ms. McMullen testified that Mr. Cloutier announced that she was in a level-two disciplinary hearing. She stated that she had received no notice that she was being summoned to a disciplinary hearing.

24 She was asked whether she understood what a level-two disciplinary hearing was. She answered, “No.” She testified that Mr. Cloutier aggressively told her that she could look it up when the meeting was finished.

25 Mr. Cloutier began to criticize the way she managed her staff.

26 Ms. McMullen repeated that she was ill. She then asked for a representative. She was advised that Mr. Cloutier’s administrative assistant could act as her representative. Ms. McMullen requested that she be represented by another manager, a peer. She was advised that the other manager had already gone home.

27 Mr. Cloutier made a number of accusations, including a complaint that she had grilled an employee in a performance meeting. Ms. McMullen denied the accusation.

28 It was also alleged that some employees had complained about her to their union.

29 She testified that the directors were not following a script; nor was she presented with any written complaints. There was just a verbal exchange.

30 Mr. Cloutier told her that he was doing the talking. He said that she was not going to be the manager of the legislative section any longer.

31 She stated that, if she was going to be reassigned, she would prefer an operational section as opposed to going on a special assignment.

32 The directors described to her a job that would involve reviewing and providing feedback on business requirements and solution designs for the human resource, finance and administration branches on an upgrade of the Agency’s SAP. She stated during the course of the testimony that this job, to her knowledge, involved only a few days per month.

33 She then asked the directors what she was going to be doing. They answered whatever “the hell” they told her to do.

34 They then discussed the provincial prison project, but this was part of her responsibilities that she had just been stripped of. At the end of the meeting, it was clear to her that she no longer had a job.

35 She testified that, subsequent to the meeting her health was broken. She testified that she had suffered a long road of abuse at the hands of Mr. Cloutier, culminating in the meeting of May 28, 2008. She filed an official complaint with Mr. George Rabinovitch, the assistant deputy minister. She included in her complaint incidents that had occurred several years prior to as well as the events of May 28, 2008. She stated that she made it clear that the meeting was a disciplinary hearing.

36 In the complaint filed with the assistant deputy minister, Ms. McMullen made a number of allegations. The complaint was not filed with the Board; however, all of the allegations are recited in the report of Mr. Arsenijevic to Ms. McMullen, dated June 30, 2010, following the conclusion of the Agency’s investigation, which report was filed in evidence before me.

37 The allegation that is arguably relevant to the determination of this jurisdictional issue and which is found in Exhibit 1, tab 34 reads as follows:

That during a meeting in your office on May 28, 2008, Mr. Bouchard harassed you by improperly refusing you permission to leave the office when you were ill, and telling you that you had to stay at the office to attend a meeting later that afternoon with Mr. Cloutier and himself. That Mr. Cloutier and Mr. Bouchard before and on May 28, 2008 violated your rights and the CRA’s Harassment and Discipline Policy and Code of Ethics and Conduct and harassed you by: fabricating and conducting a “level 2 disciplinary hearing” on May 28, 2008; deliberately hiding the purpose of the above meeting; and denying your rights to know what you were being accused of, and providing you an opportunity to prepare a response and to be accompanied by a person of your choice; by using the fabricated “hearing” as a vehicle to bully you; verbally berate and psychologically intimidate you; by making unjust and unfounded accusations regarding your management of your Section; and threatening you with suspension.; and by denying your right to the presumption of innocence and being treated with respect and dignity; and taking away your responsibilities as a Manager without just cause.

[Emphasis added]

38 Mr. Arsenijevic responded to Ms. McMullen on August 12, 2008, acknowledging receipt of her harassment complaint, advising her of the process to be followed, and confirming that her complaint met the criteria of admissibility stated in the Agency’s guidelines, including being timely. In addition, Mr. Arsenijevic advised her that, in order to resolve the complaint promptly, he would be asking a private firm to proceed with an investigation and that she would be kept informed of every step in the process. He reminded her that she must refrain from discussing the complaint with anyone who did not have a need to know and that any information or documentation relating to the complaint was to be considered confidential and must not be divulged to other parties.

39 Ms. McMullen testified that, at the time she made the complaint, she was not at work. She stated that she could not go back to work, as she had no job to return to. She was ill and ultimately went on disability.

40 In August 2008, she was asked by human resources to reformat her complaint and split the allegations into three separate sections, one section dealing with the allegations against one director, one section dealing with the allegations against the other director and the third section dealing with the allegations made jointly against both directors. She expected the investigation to take place fairly quickly thereafter.

41 In February 2009, she was contacted by Mr. Duff Friesen, of Quintet Consulting, the investigator retained by the Agency to investigate the complaint.

42 As he had not at that point been provided with the necessary documents from the Agency, he did not schedule meetings at that time.

43 Ultimately, meetings were set up, and Mr. Friesen conducted interviews with Ms. McMullen as well as the other persons identified in the complaint and independent witnesses.

44 Mr. Friesen prepared a report of his investigation for the CRA, which was provided to Ms. McMullen on June 30, 2010 by Mr. Arsenijevic, together with a separate report prepared by the Canada Revenue Agency under the signature of Mr. Arsenijevic.

45 Mr. Friesen, in his final report, (Exhibit 2, Tab 6) concluded in part as follows at pages 104-110:

The evidence does not provide a basis to conclude that Mr. Cloutier or Mr. Bouchard fabricated a “level 2 disciplinary hearing”. There was nothing fabricated about the meeting. Mr. Cloutier organized the meeting for the purposes of confronting Ms. McMullen about the message of May 20, 2008 which he took to be insubordination, and discussing with her his concerns about her behavior and performance, and to inform her of his decision to remove her from the position of Manager of LPS. He met her to do that in person at the first opportunity.

…

The evidence shows that Mr. Cloutier decided within hours or days of receiving Ms. McMullen’s message of May 20, 2008 that he considered this to be insubordination and this was a factor, but not the only factor, in his decision, also made at that time, to remove her from the position of Manager of LPS and to give her an assignment as BPD’s representative on the MG User Group…

…

Mr. Cloutier and Mr. Bouchard knew or should have known that it was improper for them to summon Ms. McMullen to a meeting to tell her she would be no longer be the manager of LPS without first following the principles and procedures of either the Discipline Policy or the Management Guide – Poor Performance…

…

The allegation of harassment by Mr. Cloutier and Mr. Bouchard is founded, based on their having abused their managerial authority by summoning her to the meeting in Mr. Cloutier’s office on the afternoon of May 28, 2008 for the purpose of taking away her managerial responsibilities without giving her advance notice of the true nature and purpose of the meeting.

…

The action of taking away a person’s managerial responsibilities is not inherently punitive. It is the kind of action that could be characterized as administrative action to address performance issues. However, in this case the action was taken without any previous performance meetings in which this possibility was discussed. This was unfair because it was done without providing Ms. McMullen an opportunity to explain her point of view before the decision was made or to respond to Mr. Cloutier’s concerns, and it was done without regard for her right to give or refuse her consent. Also, it was done in a meeting in which Mr. Cloutier told Ms. McMullen that he took her message of May 20, 2008 to be insubordination. These features gave the action a punitive quality.

…

In conclusion, the allegation of harassment by Mr. Cloutier is founded, based on his having acted arbitrarily during the meeting of May 28, 2008 by taking away Ms. McMullen’s managerial responsibilities without her consent and without having followed the procedures required before doing so, and having threatened her by stating in the context of that meeting that her actions could be considered to be insubordination.

The allegation of harassment by Mr. Bouchard is founded, based on his participation in convening the meeting of May 28, 2008 without ensuring compliance with the procedural requirements, and attending the meeting in a role supporting Mr. Cloutier, knowing the action Mr. Cloutier intended to take. The conclusion is mitigated by the fact that the meeting was planned and conducted by Mr. Cloutier, and Mr. Bouchard’s role in the meeting was not active, and his one intervention in the meeting was to support Ms. McMullen’s statements that she had called his office to say that she was sick and would not report to work.

…

46 The Agency rejected the findings and conclusions recited above from the investigator’s report.

47 Mr. Arsenijevic, in his report to the grievor, in response to the allegations in the complaint stated (Exhibit 1, tab 34):

Findings of Investigation 1 and 2: The allegations that Mr. Bouchard harassed you by refusing you permission to leave the office when you were ill, and telling you that you must stay at the office to attend a meeting with Mr. Cloutier and himself is not supported by adequate evidence. The allegations that both Mr. Cloutier and Mr. Bouchard harassed you by deliberately hiding the purpose of the above meeting of May 28, 2008, by fabricating a “level 2 disciplinary hearing” for the purposes of bullying you; verbally berating and psychologically intimidating you; making unjust and unfounded accusations regarding your management of your Section; threatening you with suspension; and denying your right to the presumption of innocence and being treated with respect and dignity is not supported by adequate evidence.

…

Conclusion: Allegations noted above are deemed to be unfounded with the exception of one allegation, i.e. specifically, the manner in which the meeting of May 28, 2008 was convened. In regards to the meeting, the evidence shows, on a balance of probabilities, that Mr. Cloutier and Mr. Bouchard maintained a respectful demeanour during the meeting, and that Mr. Cloutier was exercising his managerial rights and expressing his concerns about your performance and behavior not meeting his expectations. Mr. Cloutier, as the lead manager, and Mr. Bouchard, as a participating manager, shared the responsibility to ensure that the appropriate principles and procedures as stipulated in both CRA’s Discipline Policy or the Management Guide-Poor Performance, were followed. However, they did not do so and therefore, this allegation is founded.

48 With respect to corrective action, Mr. Arsenijevic stated (Exhibit 1, tab 34):

…

I do acknowledge, however, that in the matter of the meeting of May 28, 2008, between yourself and Messrs. Cloutier and Bouchard, proper administrative procedures were not followed with respect to advising you of the intent and outcome of this meeting. In that regard, I will ensure that corrective action is taken as appropriate. Mr. Cloutier and Mr. Bouchard are being advised of my conclusion via separate cover.

…

49 Mr. Arsenijevic concluded his report as follows: “Under the Public Service Labour Relations Act, you have the right to grieve this decision within 25 days of receipt of this letter.”

50 Ms. McMullen testified that Mr. Cloutier had retired in 2009 and that Mr. Bouchard had been promoted after she received the letter in June 2010.

51 She stated she then filed her grievance on July 23, 2010, grieving the final report of harassment by former assistant commissioner George Arsenijevic as well as the conduct of the investigation.

52 A grievance hearing took place on October 25, 2010.

53 On June 1, 2011, she received the final-level grievance response from the employer, denying the grievance.

54 During cross-examination, Ms. McMullen acknowledged that there were face-to-face meetings with the investigator, Mr. Friesen.

55 Prior to the final investigation report, she was provided with a preliminary report and asked to make comments.

56 She acknowledged that she took issue with the slow progress of the investigation.

57 She acknowledged that she had no issue with and was comfortable with an investigation into her allegations.

58 It was suggested to her that no one ever stopped her from filing a grievance in 2008. She answered that she was an unrepresented managerial employee with no one to advise her. No one suggested that she should pursue some other route.

59 She confirmed that, prior to going on sick leave and prior to May 2008; her position was that of an MG-06 Manager of the Benefits Program, which position was excluded, as it was the first level of the grievance process. It was suggested to her that she knew what a grievance was. She replied that she never had to deal with the grievance process during her career.

60 She stated that she went on medical leave after May 28, 2008 and subsequently applied for long-term disability.

61 She returned to the workplace on July 20, 2010 after her physician certified that she was able to return to work. The documentary evidence indicates that the Agency returned her to an interim assignment in the Business Returns Directorate involving special project work with no supervisory responsibilities with compensation at the MG-06 level. This assignment/position was not excluded from collective bargaining, and her terms and conditions of employment were subject to the collective agreement between the Agency and the Public Service Alliance of Canada.

62 She stated that, because of her absence, she did not actually work on the project to which she was assigned on May 28, 2008 but confirmed that she had seen inter-company emails indicating the work involved only a few hours per month.

63 She stated that, by virtue of her job being stripped from her and no longer being an excluded manager, she was no longer eligible for performance pay. She was not paid performance pay for the fiscal year 2007-2008 nor any year thereafter. It was suggested to her that the payment of performance pay was discretionary and that the employee must meet the goals and objectives established under the plan.

64 In her complaint filed with the Assistant Commissioner, the allegations which are recited in the report dated June 30, 2010 (Exhibit 2, Tab 6) also include the following allegation:

That Mr. Cloutier and Mr. Bouchard violated your rights under CRA’s Employee Performance Management Policy and Performance Pay Guidelines for 2008 and harassed you by:

- refusing to complete your performance assessment within 90 days following the end of the 2007-2008 cycle;

- denying your rights to recourse by refusing to complete your assessment;

- refusing to discuss the performance assessment eventually prepared and refusing to provide you with the rationale for changes made to the completed performance assessment; and

- by denying you the opportunity to be considered for performance pay by refusing to finalize your performance assessment.

65 The parties did not file with the Board the investigation report and conclusions of Mr. Friesen, with respect to this allegation.

66 The June 30 report of the Agency, signed by Mr. Arsenijevic, recites the Agency’s findings and conclusions on this allegation as follows:

In the matter of the allegation of improper handling of your performance assessment for 2007/2008, refusing to complete your performance assessment and providing feedback to you improperly assessing your performance; the evidence shows that you and Mr. Cloutier have different perspectives of some events, and different appreciation of the significance of some events. However, Mr. Cloutier had the right and the responsibility to revise the assessment documents to reflect his perceptions and appreciation of the significance of events and your performance and behaviour. There is a substantial body of evidence in this report showing that Mr. Cloutier had a reasonable basis for making the statements he included in the assessment documents, and the evidence does not show that he or Mr. Bouchard acted dishonestly or with an absence of good faith or in disregard of your rights.

Conclusion: the allegations that Mr. Cloutier and Mr. Bouchard harassed you by refusing to complete your assessment before the deadline, by denying your rights to recourse and the opportunity to be considered for performance pay by refusing to complete your assessment; by improperly preparing your assessment documents and refusing to complete your assessment and provide you with a copy, are all deemed to be unfounded.

[Sic throughout]

67 Ms. McMullen stated that, in addition to not being entitled to performance pay, her salary was negatively affected, she exhausted her sick leave, she needed to buy back pension entitlements and suffered out-of-pocket medical expenses more particularly described in her grievance.

68 She asserted that she grieved all of the circumstances and issues involved in the stripping of her position, including discipline.

69 She asserted that she had not been guilty of any misconduct.

70 She acknowledged requesting a copy of the CRA’s disciplinary policy in January 2009. It was pointed out to her that an employee can grieve a disciplinary action under the policy. Ms. McMullen did not recall reading that provision and stated that she was already in the middle of the process and as far as she was concerned had covered all of the issues, including discipline, in her complaint.

71 She was referred to the grievance hearing that occurred in October 2010. It was suggested to her that there was no reference to disciplinary action in the headings in the table of contents of her presentation. She replied that the summary referred only to a number of examples, and there were many examples of abuse.

72 She acknowledged that there was nothing in the material that indicated she was suspended.

73 She was asked a number of questions about the grievance hearing. She indicated that the focus of the meeting was on the steps the Agency should take to make her whole. There was insufficient time for her to address the allegations she had made in the complaint; however, Mr. McMahon, her counsel, did so at a high level. She was asked whether anyone told her not to report to work the next day following the meeting of May 28, 2008. She answered that it did not mean that she had a job to report to.

B. Sylvie Bolduc

74 Ms. Sylvie Bolduc is an Assistant Director of Corporate Labour Relations at the Canada Revenue Agency. She attended the grievance hearing on October 25, 2010 and took notes. Present for the Agency was Ms. Cheryl-Ann Fraser.

75 She testified that, if she had to summarize what occurred during the meeting, it related to a grievance concerning the investigation and processing of a harassment complaint. She stated that the word “discipline” did not come up during the course of the meeting. She testified that not all MG-06s are excluded from bargaining units and that, in her opinion, changes to an MG-06 manager position does not constitute discipline. She stated that Ms. McMullen did not file a disciplinary grievance.

76 Where there is a harassment complaint filed, it is the Assistant Commissioner that makes the final determination on the merits of the complaint. If a person is not satisfied with the decision of the Commissioner, he/she can go to the Federal Court.

77 In cross-examination, she acknowledged that she had not reviewed the investigation report or the brief prepared by the grievor. She had no understanding of what had happened at the May 28, 2008 meeting. She was just asked to take notes and only recorded information that she felt was important.

78 She was asked that, if someone was to be moved administratively from their position, whether their consent is required. She answered, “Yes.”

79 In re-examination, she qualified her answer saying that consent is not always required, that there can be exceptions, such as in a harassment situation and there is a need to remove a person from a hostile work environment, or where there is an urgent operational requirement to change the way work is organized.

III. Summary of the arguments

A. Argument of the employer

80 The employer argues that the grievance filed by Ms. McMullen as well as her submissions during the grievance hearing process dealt with various complaints related to alleged harassment in the workplace and perceived shortcomings about the conduct of the subsequent harassment investigation. It is not open for the grievor to now attempt to reconfigure her grievance by alleging that it was a disciplinary grievance to bring it before an adjudicator of the Board. It would be an abuse of process and contrary to the intent of the PSLRA to allow the grievor to present a different case from that contained in the grievance or as presented during the grievance process. The Burchill principle fundamentally provides that a grievor may not refer a new or different grievance to adjudication and that it is only the grievance as presented, which may be referred to adjudication. Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), at para 110.

81 Whether or not the events of May 28, 2008 constitute discipline, the situation is still problematic because the grievance is out of time. Section 68 of the Public Service Labour Relations Board Regulations provides that a grievor may present an individual grievance at the first level of the individual grievance process no later than 35 days after the date the alleged disciplinary action was taken. The alleged disciplinary incident occurred on May 28, 2008, and the grievance was filed in July 2010.

82 Similarly, the Coallier principle limits a claim for redress to the period 25 days prior to the filing date of the grievance.

83 As a consequence of the events of the meeting on May 28, 2008, Ms. McMullen was not terminated, suspended nor demoted. She remained an MG-06.

84 The purported removal of her managerial duties was administrative. It is the prerogative of the Director General to assign duties. That authority is grounded in paragraph 30(1)(d) of the Canada Revenue Agency Act, which grants the Agency authority over all matters relating to human resource management.

85 Under paragraph 209(1)(b) of the PSLRA, it is only grievances related to disciplinary action resulting in termination, demotion, suspension or financial penalty that are adjudicable.

86 In Hanna v. Deputy Head (Department of Indian Affairs and Northern Development), 2009 PSLRB 94, the adjudicator had to consider whether the denial of an employee’s claim for reimbursement of legal expenses under the Treasury Board of Canada Secretariat’s Policy on Indemnification of Legal Assistance for Crown Servants was adjudicable on the basis that it was disciplinary action resulting in a financial penalty. In determining that she did not have jurisdiction, the adjudicator stated: “… to be adjudicable under paragraph 209(1)(b) of the Act, a financial penalty must be the result of and be directly tied to a disciplinary action. If a financial penalty is not the result of a disciplinary action, it cannot be adjudicated under paragraph 209(1)(b).”

87 The Frazee case, Canada (Attorney General) v. Frazee, 2007 FC 1176, summarizes the principles for determining whether an employer’s conduct constitutes discipline. The Federal Court refers to the extract from Brown and Beatty, Canadian Labour Arbitration, 4th edition, at para 7:4210:

…

In deciding whether an employee has been disciplined or not, arbitrators look at both the purpose and effect of the employer’s action. The essential characteristic of disciplinary action is an intention to correct bad behaviour on an employee’s part by punishing the employee in some way. An employer’s assurance that it did not intend its action to be disciplinary often, but not always, settles the question.

Where an employee’s behaviour is not culpable and/or the employer’s purpose is not to punish, whatever action is taken will generally be characterized as non-disciplinary…

A disciplinary sanction must at least have the potential to prejudicially affect an employee’s situation, although immediate economic loss is not required. Suspensions with pay, which have the essential objective of correcting unacceptable behaviour, for example, would still be regarded as disciplinary even though they do not sanction the employee financially.

…

88 The Court stated the authorities confirm that not every action taken by the employer that adversely affects an employee amounts to discipline. While an employee may well feel aggrieved by decisions that negatively impact on the terms of employment, the vast majority of such workplace adjustments are purely administrative in nature and are not intended to be a form of punishment.

89 On the facts of this case, there was no disciplinary letter placed on Ms. McMullen’s file. One must look at the paperwork to determine whether or not the employer intended to discipline the employee. Ms. McMullen testified that she did not engage in misconduct.

90 A financial loss does not equate to a financial penalty. She was placed in a new position at the same group and level. Losses attributable to performance pay should not be considered a financial penalty because the awarding of performance pay is discretionary.

91 Counsel argued in addition that constructive dismissal is a private-sector concept and that, in the federal public service, an employee is limited in the matters that may be referred to adjudication, referring to the decision in Johnston v. Treasury Board (Canada Border Services Agency), 2009 PSLRB 53.

B. Agument of the grievor

92 Ms. McMullen lost her job by the actions of Mr. Cloutier and Mr. Bouchard during the meeting on May 28, 2008. They told her at the beginning of the meeting that what they were doing to her was disciplinary in nature.

93 She was ill and, not being a labour relations expert, was confused with her situation. She complained to Mr. Arsenijevic, who said he would take control of the process and conduct an investigation and would get to the bottom of it.

94 He appointed an investigator that only added to the time from the date of the incident to the date of the grievance; nevertheless, when the Agency’s final report was provided to her, rejecting the conclusions of the investigator and providing no effective remedy, she was diligent and filed her grievance expeditiously.

95 There was no assertion that Cheryl-Ann Fraser read the report of Mr. Friesen. Had she had read the report, and in particular pages 104 to 110, it would have been clear that the investigator concluded that Ms. McMullen clearly lost her job and the circumstances surrounding that loss.

96 Ms. Bolduc’s testimony was not particularly helpful, as she could not advise us what happened in May 2008.

97 Ms. McMullen’s specific financial losses were her performance pay of $5320, representing 5% of her June 30, 2008 salary, together with interest, performance pay for 2009-2011, etc.

IV. Reasons

A. The grievor has referred to adjudication a different grievance than that presented during the grievance process, offending the Burchill principle 

98 In support of its preliminary objection on the issue of the subject matter of the grievance and its adjudicability, the employer has referred to the Burchill decision. Indeed, both parties agreed with the principles found in Burchill, but they differ with respect to its application to the facts in the present case.

99 In Burchill v. Treasury Board (Anti-Inflation Board), PSSRB File No. 166-02-5298 (19790927), the grievor, a term employee with the AIB who had been laid off, sought to refer to adjudication a grievance in which he had alleged that he had been wrongfully dismissed because his status as an indeterminate employee had not been recognized and he had not been granted the benefit of the special legislative provisions, which applied to indeterminate employees in the winding down of the AIB. However, when the grievor referred his grievance to adjudication, he appended a statement alleging that the grievance fell within the category of disciplinary action resulting in discharge. Adjudicator Frankel, at page 35, stated that the preliminary question was:

… whether Mr. Burchill’s grievance, making every allowance for the imprecision and ambiguity of its form, is one that can be referred to adjudication … Mr. Burchill filed a grievance against the impending termination of his employment. He claimed that during the period of his employment at the AIB he had retained his indeterminate employee status and was therefore entitled to the special Treasury Board provisions for indeterminate employees. Since these special provisions were not being applied to him, he alleged that the layoff “constitutes wrongful dismissal” … It was only … when Burchill submitted his “Notice of Reference to Adjudication”, that he appended a statement alleging that the “grievance falls within the category of disciplinary action resulting in discharge …”

[Emphasis in the original]

100 Adjudicator Frankel set out to determine whether the grievor had in fact been disciplined. After six days of hearing, he decided that he was without jurisdiction, as the grievor had not convinced him that he had in fact been the subject of disguised disciplinary action.

101 The grievor sought judicial review of the decision before the Federal Court of Appeal, and it was at this level that the Court observed that the grievor had only asserted the contention that he was an indeterminate employee and therefore entitled to the benefit of special legislative provisions. His grievance, as written, alleged a breach of statutory provisions, which allegation was entirely separate and distinct from an allegation of discipline and was therefore not properly referable to adjudication. The Court found that it was not possible to refer an entirely new or different grievance to adjudication.

102 The Court’s decision was consistent with labour relations principles. The grievance and grievance process exist in order to permit the parties to express their particular “grievances” and to expose each of their arguments on the subject. By the time that the grievance has been referred to adjudication, no party should be surprised by arguments raised by the other. In effect, Burchill prohibits an employee from transforming a grievance from one type into a wholly other type of grievance, as doing so would surprise the other side, deprive them of their right to properly consider the issues and render the grievance process useless.

103 It is correct that, on a strict reading of the grievance, it grieves the harassment report itself, the process by which it was conducted and its conclusions. It does not allege that the report or the investigation were disciplinary. Indeed, the word “discipline” is nowhere to be found in the text of the grievance. However, the wording of the grievance is not the only element to be taken into account in deciding whether or not the grievance is adjudicable. Instead, I must look at the entire context of the situation at hand, including, as Adjudicator Frankel noted, the imprecision and ambiguity of the language of the grievance. The decision in Burchill was not a narrow technical decision that evaluated only the wording of the grievance in issue. Instead, the decision is based on broad policy principles, which are rooted in fairness.

104 The incident of May 28, 2008 was apparently precipitated by an email, which the grievor sent, which email the employer considered to be an act of insubordination on her part. Combined with other factors which caused the employer concern, including complaints to their union by employees supervised by the grievor, the employer admitted that it convened her to a “level II disciplinary hearing,” giving her the right to be “represented” by the administrative assistant of the individual who was conducting the disciplinary hearing. Clearly, the context which precipitated events was disciplinary in nature, and such an allegation, made at that time, would hardly have surprised the employer.

105 Following the clearly disciplinary meeting, the grievor filed her complaint with the employer and stated in her testimony that she had made it clear in doing so that she considered the May 28 meeting to be a disciplinary one. While the complaint itself was not entered into evidence, the contents of that complaint are nonetheless set out in Mr. Arsenijevic’s letter accompanying Mr. Friesen’s report, which was filed before me as an exhibit, and I have found the wording of the complaint to be relevant to my consideration. As I have set out at page 8 of this decision, the complaint as summarized by the employer itself refers to a violation of the CRA “Harassment and Discipline Policy,” refers to the meeting being a “level II disciplinary hearing,” refers to “accusations” being made against her, to her right to be accompanied by a representative, to threats of suspension having been made and to her position as a manager having been taken away “without just cause.” Based on the employer’s own recounting of her complaint, it is clear that the disciplinary context of the grievor’s allegations were laid bare to the employer. In reading her complaint, the employer easily understood what it was that she contested, and part of her dissatisfaction clearly related to the disciplinary aspect of the meeting.

106 Finally, the Friesen report itself concluded partially in the grievor’s favour and found not only that she had been harassed by management but also that the conduct of management had a disciplinary subtext to it. The report refers to insubordination and to violation by management of the discipline policy and states that the actions of the employer had a “punitive quality.” Following the report’s release, the grievor filed her grievance. The grievance as written relates back to her harassment complaint. However, the grievance, like the complaint which preceded it, clearly refers to the entire situation at hand, including the disciplinary aspect.

107 The most cogent explanation of what occurred is the following: the grievor was initially self-represented and was not aware of her rights as an excluded employee. She perhaps inadvertently chose the complaint route, choosing to allege in the face of what appear to be harassment-type allegations against her that the employer’s conduct was unfair harassment for a variety of reasons, disciplinary ones included. She had no idea that she had the right to grieve, and in fact, the notion of grieving probably occurred to her only when she read the employer’s statement in the cover letter to the investigation report telling her that she had the right to grieve the results of the report. 

108 It seems to be at this point in the events that the grievor raised the issue of discipline. This is not surprising, given the content of the report and the reference in it to management’s treatment of her being tainted by a disciplinary aspect, combined with management’s letter to her. The fact that the grievor was unaware of her rights and initially used the improper process in order to contest what she views as discipline is irrelevant to my determination on the Burchill principle. Indeed, the grievor’s tardy pursuit of her right to grieve does not go to the adjudicability of her grievance but to its timeliness, an issue that I will address later on in this decision.

109 In deciding whether or not the grievance is adjudicable, it is my task to decide whether or not the grievance that the grievor wishes to present to me is a new or different grievance than the one presented during the grievance process. The test of adjudicability in these cases is whether the employer, during the grievance process, knew what the grievance was about and had an opportunity to address the issue. Neither party should be surprised at the adjudication stage by the subject matter of a grievance. I must determine whether the question submitted to me by the grievor is one that she submitted for determination during the grievance process. Traditionally, the adjudicability of such grievances is determined by such factors as the context of the situation, the wording of the grievance, evidence of what was said during the grievance hearings and by a review of the employer’s response in any reply to the grievance.

110 As I have already stated, the situation at hand began with a meeting that was clearly disciplinary in nature. The grievor then filed a complaint in which she contested the entire context of the situation, including the disciplinary aspect. The employer then issued its investigation report, which clearly found that the employer had acted in a disciplinary context. Finally, Mr. Arsenijevic’s report to the grievor clearly makes mention of aspects of the situation as raised by the grievor that are disciplinary. He refers to the grievor’s allegation that the meeting was in fact a “level II disciplinary hearing” and to her allegation that she was threatened by suspension and denied the right to prove her innocence. 

111 I conclude that the case at hand is very close to that decided by Adjudicator Galipeauin Gingras v. Treasury Board (Citizenship and Immigration Canada), 2002 PSSRB 46:

…

[19] The adjudicability of this grievance is brought into question by the employer. The employer objects to the jurisdiction of an adjudicator to hear this matter on two grounds: firstly, that on its face the grievance is not adjudicable because it does not allege “disciplinary action resulting in a financial penalty” and secondly, because, according to the employer, the decision to recall the grievor was an administrative decision and not “disciplinary action resulting in a financial penalty.”

[20] This preliminary decision deals with the first ground. I will deal with the second ground once the hearing resumes after the issuance of the present decision.

[21] I am of the view that in the drafting of this particular grievance, the words used and not used do not constitute an obstacle to its adjudicability for the reasons that follow.

[22] The grievor did not have the benefit of a lawyer or his bargaining agent’s advice when he drafted his grievance and therefore within limits should be given a certain degree of latitude.

[23] Although he has not qualified the employer's action to recall him from his posting in Manila as “disciplinary”, he has clearly set out the object of his grievance, that is, the recall from his posting. He has, if not explicitly at least implicitly, suggested that he viewed his recall as “disciplinary” by stating that the employer's reason for recalling him was for misconduct on his part (« pour raison présumée d'inconduite »). It can at the very least be inferred from these words that he viewed the decision as “disciplinary”.

[24] The words “financial penalty” were not used but counsel for both parties agree that both parties knew and understood at the time of the recall that since the recall was to Ottawa, the recall would result in the loss of the foreign service premium (as a result of the application of the collective agreement).

[25] Inasmuch as both parties knew that the grievor was losing the foreign service premium as a direct consequence of his being recalled to Ottawa, and inasmuch as it is clear, following the Massip decision (supra), that the loss of this premium is a financial penalty, it is not fatal to the adjudicability of this grievance that the words “financial penalty” were not used.

[26] I am satisfied that, from the day it received the grievance, the employer understood the nature of the grievance; that is, that the grievor was asking the employer to set aside its decision to recall him to Ottawa, one of the consequences of which was to bring about the loss of the foreign service premium. Therefore, throughout the internal grievance procedure the employer understood the nature of the grievor’s claim, it had the opportunity to turn its mind to the grievor’s concerns and, in short, it was not caught by surprise nor prejudiced in any way.

…

112 I have also read Adjudicator Galipeau’s decision in Thibault v. Treasury Board (Solicitor General of Canada - Correctional Service), PSSRB File No. 166-02-26613 (19960909), with interest, and note the following extracts:

…

The grievor clearly states in his grievance that he is opposing the Employer’s decision … to remove him from his acting position. Furthermore, a reading of the remedial action requested clearly shows that the grievor wishes to return to the position he occupied before that decision was made, and to be reimbursed for the attendant losses in salary. The Employer’s response to the grievance leaves no doubt that the latter understands perfectly well what decision is in dispute and what redress is being sought … I, therefore, feel it is not without reason that the grievor believed himself to be the subject of disciplinary action, even though he did not use the term “disciplinary measure” in his grievance. It is also manifest that the Employer has neither been taken off guard nor suffered any prejudice because of the fact that the grievor neglected to use the phrase “disciplinary measure resulting in a financial penalty” … The grievance is sufficiently clear for the Employer to understand that the grievor is contesting the merits of the decision and the veracity of the grounds cited by the Employer. Furthermore, the evidence presented by the Employer … confirmed that at no time has the latter been in the dark as to the decision being disputed or the redress being sought. Neither did the Employer present any evidence that the omission of the magic words “disciplinary measure resulting in a financial penalty” from the grievance had caused it any prejudice … Lastly, regardless of the term applied to the Employer’s decision, the consequence was the same: the Employer knew that the employee wished to have the decision overturned, and to be reimbursed for the losses he had incurred.

Given the Employer’s objection, in hindsight it would probably have been preferable for the grievor to qualify the decision with the words “disciplinary measure resulting in a financial penalty” in the detail of grievance [sic]. However, I do not believe this omission is fatal.

What matters, in actual fact, is that form not prevail over substance…

…

113 I conclude on the evidence that the original complaint and its subsequent iteration as a grievance raised the issue of camouflaged discipline and that the reference to adjudication was not an attempt to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance relating to discipline. The employer has in no way been caught off guard by any of the allegations or arguments raised by the grievor. Indeed, all of the issues and allegations had already been raised by her long ago, and the parties had debated the entire situation during both the investigation and grievance process. In my view, the grievance in context alleges camouflaged disciplinary action, and the referral to adjudication under paragraph 209(1)(b) does not offend the Burchill principle.

B. Timeliness

114 Subsection 68(1) of the Public Service Labour Relations Board Regulations states as follows:

68. (1) A grievor may present an individual grievance at the first level of the individual grievance process no later than 35 days after the earlier of the day on which the grievor received notification and the day on which the grievor had knowledge of the alleged violation or misinterpretation or any occurrence or matter affecting the grievor’s terms and conditions of employment.

115 Also of relevance is section 95 of the Regulations. Subsection 95(1) provides as follows:

95. (1) A party may, no later than 30 days after being provided with a copy of the notice of the reference to adjudication,

(a) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the presentation of a grievance at a level of the grievance process has not been met; or

(b) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the reference to adjudication has not been met.

116 The incident giving rise to the grievance occurred on May 28, 2008. On July 28, 2008, the grievor filed a complaint with the Assistant Commissioner of the Agency, which the Agency deemed to be timely under its procedures. The Agency appointed an independent investigator to investigate the grievor’s allegations. The firm reported to the Agency on April 30, 2010 with its conclusions and recommendations. The Agency wrote to the complainant on June 30, 2010 advising her of the Agency’s conclusions and enclosing the report of the investigator. In the letter, the Agency advised Ms. McMullen that, under the Public Service Labour Relations Act, she had the right to grieve this decision within 25 days of receipt of this letter. On July 23, 2010, the grievor filed a grievance concerning the final report of the Agency. The grievance was denied by the Agency during the grievance procedure, and the grievance was referred to adjudication on August 20, 2010.

117 The Agency raised the objection to timeliness for the first time at the outset of the hearing on December 17, 2012, arguing that section 68 of the Public Service Labour Relations Board Regulations provides that a grievor must present a grievance within 35 days after the date the alleged disciplinary action was taken and that the grievance was some two years out of time, and consequently, I was without jurisdiction to hear the referral.

118 At first blush, the objection to timeliness appears to have some merit; however, on the evidence before me, the employer did not raise any issue of timeliness during the grievance procedure nor when the grievance was referred to adjudication. The issue was first raised at the commencement of the hearing on December 17, 2012, some 2 1/2 years after the grievance had been filed. Section 95 of the Public Service Labour Relations Board Regulations requires a party to raise an objection on the basis of timeliness within 30 days after having been provided with a copy of the notice of referral to adjudication. The present grievance was referred to adjudication on August 20, 2010, and the employer raised its objection only in December 2012. The employer has not complied with the requirements of the Regulations on the issue of timeliness, and I therefore dismiss its objection on this issue.

119 The employer has raised the issue of the application of the Coallier decision to the present circumstances. I find that it is premature to decide this issue at this time. Given my disposition of this preliminary issue and in the event that the employer is not able to establish just cause for the imposition of discipline, this issue may become relevant to the appropriate remedy.

C. The purported removal of the grievor’s duties was administrative rather than disciplinary

120 In order to establish an adjudicator's jurisdiction, the grievor has the burden of proving that she has been the object of “disciplinary action resulting in … financial penalty” as contemplated by paragraph 209(1)(b) of the Public Service Labour Relations Act. As the employer argued, the Frazee decision, drawing on extracts from Brown & Beatty, summarized the principles for determining whether an employer’s conduct constitutes discipline:

…

In deciding whether an employee has been disciplined or not, arbitrators look at both the purpose and effect of the employer’s action. The essential characteristic of disciplinary action is an intention to correct bad behaviour on the employee’s part by punishing the employee in some way…

…

121 The employer, in outlining the grievor’s culpable behaviour in the context of what it described as a “level II disciplinary hearing” and in removing the grievor from her position and assigning her to a project that required only a few hours a month without supervisory responsibilities, clearly intended to both correct and punish her in some way. Mr. Friesen apparently came to the same conclusion in his report. He stated that, while the removal of an employee’s managerial responsibilities could be characterized as administrative action taken to address performance issues, in the circumstances of this case, the action taken had a “punitive quality.” 

122 The employer argued that the decision to remove the grievor was purely administrative in nature; yet, the evidence disclosed that the Agency’s policies and procedures dealing with such administrative matters were not followed. The grievor was not given any warning of her supposed performance failures, and Mr. Arsenijevic admitted that the CRA’s policy, entitled “Management Guide - Poor Performance” had not been followed. Also, no direct evidence was provided to show that the grievor’s removal was required in response to a harassment situation or in response to an urgent need to change the way that the work is organized, which two situations Ms. Bolduc identified as being exceptions to dispensing with consent in administratively moving an employee. In contrast, the grievor was called to a “level II disciplinary meeting” to discuss, at least in part, a supposed act of insubordination on her part; she was provided with the right to representation, and in the end, she was removed from her position and placed in one that, on the evidence before me, does not amount to a position at all. I therefore find that the actions of the employer included a disciplinary intent. 

123 Paragraph 209(1)(b) of the PSLRA provides that I have jurisdiction over grievances alleging disciplinary action resulting in financial penalty. The employer argues that any financial fallout related to performance pay was not a financial penalty, as the payment of performance pay is discretionary. While the payment of performance pay may be discretionary, its loss to an employee may still be disciplinary, depending on the employer’s intention in acting as it did.

124 The employer is correct, however, in arguing that the case law clearly states that a financial loss does not necessarily equate to a financial penalty. The grievor was denied her performance pay for 2007-2008. She complained that Mr. Cloutier and Mr. Bouchard refused to complete the performance assessment in a timely manner, and ultimately made changes to the assessment without discussing the changes with her or providing a rationale for the changes. The employer asserted that Mr. Cloutier had the right to revise the assessment documents to reflect his perceptions and appreciation of events and the grievor’s performance and behaviour. On a balance of probabilities, I conclude that the withholding of her performance pay for 2007 to 2008 was inextricably linked to and motivated by the grievors alleged misconduct that also led to the loss of her position.

125 The grievor also lost her performance pay prospectively and, as a result of her new assignment, was required to pay union dues, as she was no longer a managerial employee, although she did retain her same classification level. While the prospective financial losses she suffered were not “imposed” by the employer in the same way in which management “imposes” suspensions or terminations as a reaction to improper conduct, the losses she suffered were nonetheless the result of the disciplinary action taken against her. If the employer takes disciplinary action against an employee, whether that action is open or disguised, which action “results,” to use the words of the Act, in a financial penalty on the employee, that action is adjudicable.

126 In the present case, management’s disciplinary treatment of the grievor resulted in a financial loss to her. It is not open to the employer to discipline an employee by imposing a penalty that renders the measure non-adjudicable, with the exception of a written or oral reprimand. Such reprimands were considered to be so minor that removal of recourse rights was acceptable. However, all other forms of disciplinary measures were included in paragraph 209(1)(b) of the Act as being adjudicable. It is not open to the employer to circumvent the provisions of the Act by imposing a disguised disciplinary measure against the employee while at the same time withdrawing any recourse rights they may have by not directly imposing a financial penalty but allowing such a penalty to occur through some other mechanism. I note that Adjudicator Galipeau referred to this issue in Thibault when she wrote:

…

I therefore conclude that Gérald Thibault has indeed been the subject of disciplinary action, which his Employer chose to describe as an “administrative decision …” in the hope of preventing this decision from being brought before an adjudicator and possibly reversed …

…

… the Employer’s description … seems like an attempt to prevent it from being critically examined by an impartial third party — in this case, an adjudicator.

In so doing, the Employer tried to deprive the employee of his right … to file a grievance against disciplinary action and have this grievance referred to adjudication. It is my opinion that the legislator’s intention . . . was to allow employees to protect themselves against unjustified disciplinary measures, whether taken openly or under the guise of terms such as “administrative measures”. In both cases, it falls to the adjudicator to determine the true nature of the decision. It is not unreasonable to think that the protection granted by the legislator extends to cases in which an employer has used subterfuge, or those in which the latter, for reasons known only to itself, is not frank about the disciplinary nature of a decision.

…

127 I therefore find, in accordance with the evidence and jurisprudence, that the removal of the grievor from her position was a disciplinary measure, which resulted in a financial penalty for her.

D. Dagenais/Mentuck test

128 Lastly, during the course of the hearing, the employer requested that the investigation report, tabled as an exhibit, be sealed in order to protect the identities of third parties, in accordance with the Privacy Act. The grievor’s counsel did not oppose the request. However, any sealing order must meet the test set out by the Supreme Court of Canada, also known colloquially as the Dagenais/Mentuck test. Further, the open court principle prevails over interests set out in the Privacy Act. I find that the employer has failed to convince me that there is any serious risk to an important interest that requires the exceptional step of sealing the document in question with respect to any of the parties or witnesses named in this decision. The grievor and the employer’s witnesses had the ability to defend themselves against anything contained in the report. Counsel did not elaborate on her request or identify portions of the report which would be problematic, although I did understand that the interest that counsel sought to protect was only of a personal nature. She did not identify the individuals whom she sought to protect. As stated by Adjudicator Rogers in Basic v. Canadian Association of Professional Employees, 2012 PSLRB 120, such a request to seal should be refused, as the interest that the employer seeks to protect is privacy, which interest does not outweigh the public interest in open and accessible hearings.

129 I have concluded that the investigation report will, until the hearing of this grievance on its merits, be redacted to remove the names of any third parties who were not part of this grievance and who did not yet have the chance to testify in their defence. The issue will then be revisited by the parties before me at the hearing on the merits.

130 Accordingly, I conclude that Ms. Mullen’s grievance relates to disciplinary action resulting in a financial penalty and that I have jurisdiction to hear the grievance on its merits.

131 As outlined earlier in paragraph 8 of this decision, the employer raised what it termed was a preliminary objection to jurisdiction when it wrote to the Board to advise that the grievance was not adjudicable as the removal of the grievor’s duties was administrative in nature rather than disciplinary. This jurisdictional objection is inevitably and inextricably tied to the merits of the case. However, at the hearing, counsel for the employer only addressed the issue of whether or not the employer acted with disciplinary intent, and did not venture into the territory of whether or not management’s disciplinary intent and actions were warranted. I have, after hearing and now considering all of the testamentary and documentary evidence submitted, concluded that the grievor was the object of disciplinary action resulting in financial penalty, for the reasons outlined above. However, whether or not such action was warranted on management’s part has yet to be addressed and a hearing on this issue will be scheduled.

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

V. Order

133 This reference to adjudication is to be scheduled to be heard on the merits.

June 3, 2013.

David Olsen,
adjudicator