FPSLREB Decisions

Reasons for Decision

Introduction

1 On November 28, 2012, the Deputy Minister of Public Works and Government Services Canada (the respondent) raised an objection about the jurisdiction of the Public Service Staffing Tribunal (the Tribunal) to hear the complaint. The respondent submits that, following mediation held on May 23, 2012, it signed a valid and binding settlement agreement with the complainant, James Baker. The withdrawal of the complaint was subject to the respondent’s fulfilling certain terms of the agreement. The respondent is of the view that it fully met its obligations under the agreement.

2 In ruling on the objection while maintaining the confidentiality of the mediation process, only the relevant information relating to the mediation and the agreement is discussed in the decision.

3 For the reasons set out below, the Tribunal allows the respondent’s objection and finds that it does not have jurisdiction to hear this complaint. The Tribunal finds that the parties are subject to a valid and binding agreement that was reached following mediation of the complaint.

Background

4 On January 5, 2012, the complainant filed a complaint of abuse of authority with the Tribunal following the appointment of Hakim Ghoumrassi to a Supply Specialist position at the PG-04 group and level. The complainant alleges that the respondent abused its authority by choosing to use a non-advertised appointment process. He also alleges that the respondent abused its authority in the application of merit, stating that the appointee does not have procurement experience and the merit criteria were tailored for the appointee’s appointment. The complainant makes his allegations pursuant to s. 77(1)(a) and (b) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA).

5 The respondent denies any abuse of authority in this appointment. The respondent submits that the choice of a non‑advertised appointment process was justified and was made in accordance with departmental guidelines. The respondent states that Mr. Ghoumrassi, the appointee, was a management trainee in the leadership development program and had to be appointed or deployed to a position within three months of meeting the program’s requirements. Furthermore, the appointee meets the established essential qualifications and his assessment was conducted in a fair and transparent manner.

6 On November 29, 2012, the Tribunal held a pre‑hearing conference for the hearing scheduled for January 9 and 10, 2013. The respondent asked that the Tribunal first deal with its objection and render a decision on that issue. The complainant submitted that the objection was made too late to be admissible and that the Tribunal was required to hear his complaint on its merits as initially planned.

7 At the pre‑hearing conference, the Tribunal indicated that even if the objection raised the day before was late, it could not hear a complaint if it did not have jurisdiction to do so. The Tribunal decided that the hearing scheduled for January 9, 2013, would deal only with the objection, given its importance. The Tribunal also ruled that it would render a written decision on that issue and that, if the objection was dismissed, it would then proceed with a hearing on the merits.

8 Furthermore, the Tribunal pointed out at the pre‑hearing conference and at the start of the hearing that, although the mediation discussions are confidential and the agreement contains a confidentiality clause, the case law has established that it may be necessary for certain details of the mediation and the agreement to be examined in the context of a hearing for a ruling to be made on an issue regarding jurisdiction to hear the complaint.

9 In such a case, only relevant information about the mediation and the agreement is discussed in order to ensure the confidentiality of the mediation process as much as possible. This practice, which has been upheld in numerous arbitration decisions, applies to complaints made to the Tribunal.

Summary of relevant evidence

10 The Tribunal held a mediation session on May 23, 2012. The mediator in this matter was Laurent Godbout, a Tribunal employee. In accordance with Tribunal practice, the parties first signed the Agreement to Mediate, which provides for the confidentiality of mediation discussions. The mediation ended with a settlement of the complaint, and the Terms of Settlement (the settlement) were signed. The settlement contains a standard confidentiality clause in which the parties agree not to divulge the content of terms of the settlement except for administrative or legal reasons.

11 The Agreement to Mediate and the Terms of Settlement were signed by the complainant and his union representatives at the time, Alex Sauvé and Raymond Saumier. The documents were also signed by Jason Storm and Andrea Krochmalnek, the respondent’s delegate and representative respectively.

12 In the settlement, the respondent agreed as follows at point 1:

Mr. Storm will look for an assignment and/or acting opportunities for Mr. Baker with his contacts between now and July 31, 2012. The groups to be contacted are as follows:

• Meeting of managers;
• Meeting of directors general;
• ABHRAC meeting;
• PPB;-RPB;

A report on his discussions will be provided to Mr. Baker and to the two representatives named above.

[translation]

13 The complainant agreed as follows at point 2:

Upon expiry of the requirement to have discussions with the departmental contacts listed in point 1, Mr. Baker will withdraw the complaint filed on January 5, 2012.

[translation]

14 Mr. Storm testified that he was happy to have reached an agreement and the participants shook hands at the end. He diligently worked to fulfill his obligations following mediation but, after the April 2012 budget, hiring in the Government of Canada became difficult. The section was in a deficit and it was impossible to staff any positions.

15 Mr. Storm explained that he did his best to comply with the settlement, and he described the steps he took with the groups identified in the settlement. He looked for opportunities at meetings with managers and directors general in particular. Only one director mentioned an assignment opportunity, at the CR‑03 level. That could have been an opportunity for the complainant to get his foot in the door in another directorate, but he was not interested. Mr. Storm also stated that he sent out emails and the complainant’s curriculum vitae to other groups identified in the settlement.

16 The complainant went to see Mr. Storm every two or three weeks to ask what was being done and Mr. Storm told him that he was working on it without giving him any details. Mr. Storm explained in his testimony that he preferred talking about this with the complainant in the presence of a human resources advisor and union representatives.

17 On June 22, 2012, Ms. Krochmalnek sent an email to Mr. Sauvé, copying the signatories to the settlement, to say that she was following up on their discussion of June 14, 2012, regarding Mr. Storm’s fulfilment of his undertakings as agreed in the settlement. She stated in that email that the settlement did not stipulate that the respondent would find an assignment or acting appointment for the complainant. She asked that the complainant withdraw his complaint given that Mr. Storm had satisfied the conditions set out in the settlement.

18 The complainant replied to Ms. Krochmalnek’s email on June 22, 2012, copying in the signatories to the settlement. In that email, he reminded her of point 1 of the settlement and of the respondent’s other undertakings. The complainant specified that no evidence had been provided to show that Mr. Storm and Ms. Krochmalnek had fulfilled their obligations under the settlement. He noted that it was therefore more appropriate for Mr. Storm to continue with his efforts in order to obtain positive and tangible results.

19 The complainant subsequently spoke with his union representative, Mr. Sauvé, who told him that he would go with him to meet the respondent’s representatives on June 29, 2012. The complainant explained that, during that meeting, the respondent’s representatives did not produce anything in writing to show that Mr. Storm had in fact fulfilled his obligations under the settlement.

20 The complainant stated that he did not believe that Mr. Storm had done what was required under point 1 because Mr. Storm had not produced a written report of his discussions. The complainant therefore did not withdraw his complaint. In his view, in the public administration, a report is always in writing. The complainant explained that the words “look for” and “seek” mean the same as “find” and that “if a search is conducted, there are results” [translation]. Because the respondent did not find him an acting assignment as expected, the settlement was null and void and no longer binding.

21 In his testimony, Mr. Storm presented another version of the events that occurred at the meeting on June 29, 2012. He stated that a formal report on his actions was presented to the complainant and his representative, Mr. Sauvé. They were shown the emails and other supporting documents and were able to look at them at the meeting. The meeting lasted one hour and no copy of the documents was requested. At the meeting, Mr. Storm explained that the settlement contained no guarantee of a job offer. The complainant’s representative told Mr. Storm that the complainant would consider withdrawing his complaint. Mr. Storm asked for another meeting.

22 The complainant asked Mr. Storm for a letter of recommendation, and Mr. Storm agreed, saying, however, that the letter would come from the complainant’s supervisor. On July 9, 2012, Mr. Storm emailed the complainant to say that he had checked to see whether any acting appointments were available in another directorate. His colleague had informed him that, while an acting appointment was not possible, an assignment would be.

23 On September 20, 2012, Ms. Krochmalnek asked the complainant to confirm his availability for a follow‑up meeting the next day. Mr. Storm explained that he had wanted to resolve the matter before leaving his acting position as Senior Director, Real Property Contracting Directorate. He waited 20 minutes but the complainant did not show up. The complainant explained that he had been on leave and could not attend.

Preliminary matter

Is a mediator assigned to a Tribunal file compellable?

24 At the pre‑hearing conference on November 29, 2012, the complainant asked that the mediator who had presided over the mediation of his complaint be called as a witness.

25 The Tribunal explained that Mr. Godbout is a Tribunal employee and that Tribunal members and employees, including mediators hired as consultants, are not competent or compellable to appear as a witness pursuant to s. 104 of the PSEA. The Tribunal also pointed out that the agreement to mediate dated May 23, 2012, which sets out the terms and conditions of the mediation, is binding upon the parties and states that the mediator cannot be called as a witness in any proceeding.

26 At the pre-hearing conference, the Tribunal ruled that a mediator could not be called as a witness and dismissed the complainant’s request. The Tribunal found that it would not issue a summons for Mr. Godbout to appear.

Issue

27 The Tribunal must determine whether it has jurisdiction to hear this complaint in light of the settlement reached between the parties.

Analysis

28 The complainant acknowledges that he signed the settlement of his own free will and is in no way claiming that he signed it under duress or that there was any lack of consent. The complaint essentially alleges that the settlement was conditional upon the respondent’s fulfilling the terms of the settlement. According to the complainant, the settlement is null and void because the respondent did not fulfill its obligations.

29 According to the respondent, the settlement became valid and binding upon signature. Therefore, the Tribunal can no longer hear the complaint nor does it have jurisdiction to do so. The respondent also submits that the issues relating to the implementation of mediation agreements are still before the Tribunal. The respondent states that labour relations case law, as well as the Federal Court decision in MacDonald v. Canada, 1998 CanLII 8736 (F.C.) and the Federal Court of Appeal decision in Amos v. Canada (Attorney General), 2011 FCA 38, support its position.

30 The Public Service Commission was not represented at the hearing, but it provided written submissions.

31 Section 97 of the PSEA states that the Tribunal may provide mediation in order to resolve a complaint. Section 15 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116, states that the Executive Director of the Tribunal must schedule mediation for a complaint unless the complainant or respondent indicates that they do no wish to participate in mediation.

32 No Tribunal decisions deal with the matter at issue. However, federal public service labour relations case law may be relevant. See Carnegie v. Deputy Minister of Citizenship and Immigration Canada, 2009 PSST 0006, and Howarth v. Deputy Minister of Indian Affairs and Northern Development, 2009 PSST 0011.

33 In MacDonald, the Federal Court found that a settlement agreement entered into willingly constitutes a complete bar to an employee’s efforts to have a grievance heard by the Public Service Staff Relations Board (PSSRB). That principle was upheld in Skandharajah v. Treasury Board (Employment and Immigration Canada), 2000 PSSRB 114. That same principle was also applied in the complaints before the PSSRB in Vogan v. Public Service Alliance of Canada, 2004 PSSRB 159. Note: the Public Service Labour Relations Board (PSLRB) succeeded to the PSSRB in 2005.

34 An employee who files a staffing complaint with the Tribunal and then enters into a binding settlement agreement with the deputy head of the department or agency in question is in the same position as a grievor who enters into a binding settlement agreement with the employer.

35 Similarly to the grievance procedure, the complaint procedure set out in the PSEA is designed to provide complainants and deputy heads with a method for the orderly processing of complaints. The Tribunal’s complaint procedure provides the parties with opportunities at various stages to enter into discussions to resolve the complaint. It follows that, if mediation, discussions or a settlement conference lead to a binding agreement, the parties should not be allowed to break the agreement.

36 The finality of an agreement is very important to the parties; otherwise, they would never know whether, in fact, an agreement has been reached. Likewise, harmonious relations between the parties are an important component of a good labour relations environment. Uncertainty about the finality of settlement agreements in complaints could therefore be harmful to a good labour relations environment.

37 A valid and binding settlement agreement in a complaint constitutes a complete bar to the complainant’s efforts to have the complaint heard by the Tribunal.

38 Neither party denies that they reached an agreement through mediation. The fundamental issue is whether that agreement is conditional or binding. If the agreement is conditional on the respondent’s fulfilling its obligations, and the respondent fails to meet those obligations, the complaint remains before the Tribunal. If the agreement is binding, it is binding on the parties as soon as it is signed and the Tribunal cannot hear the complaint.

39 In MacDonald, at para. 35, the Federal Court established that the objective test for determining whether an agreement is binding is if the person’s words and acts indicate an intention to agree. That approach was applied in subsequent PSLRB case law and also applies to complaints before the Tribunal. The decision in Van de Mosselaer v. Treasury Board (Department of Transport), 2006 PSLRB 59, is particularly helpful in this analysis. Adjudicator Love states the following at paragraph 46:

…Applying an objective test and considering all the facts at the time of the signing of the Memorandum of Agreement, there is no supporting evidence to suggest that this was other than a binding settlement. In my view a binding settlement was reached. There is clarity about the parties, the grievances that were the subject of the settlement, the consideration for the settlement, and the mutual obligations of the parties which required implementation. There is no language in the agreement that suggests that the agreement was an agreement in principle, that the agreement was tentative, or that performance of the mutual obligations in the agreement was optional. In particular, there was no language in the agreement that gave the grievor an option to change her mind or to fail to perform her obligations under the agreement.

40 The Tribunal has reviewed the content of the agreement and nothing in the language of the agreement or in the facts surrounding its signing suggests that it was conditional on anything or that it could be cancelled if a party failed to comply with the terms. The agreement contains no clause that would allow the complainant to end the agreement if the respondent were to fail to comply with the terms agreed to in point 1. The parties clearly came to a final resolution of the complaint upon signing the agreement.

41 Point 2 of the agreement states that the complainant would withdraw his complaint once the respondent had fulfilled its obligations under point 1. Nowhere does it say that the respondent would ensure that the complainant received an appointment, as the complainant now submits. This situation is similar to the one in Carignan v. Treasury Board (Veterans Affairs Canada), 2003 PSSRB 58, in which the grievor claimed that the agreement was temporary, while there was nothing in the agreement to indicate that that was the case. The PSSRB reviewed the content of the agreement and found that it was binding because there were no clauses that indicated that it was temporary or conditional. The same is true in the complaint at issue, that is, there is nothing to indicate that the agreement was conditional.

42 The fact that the complainant signed the agreement is the expression of his obvious intent. That is what is relevant. There is no ambiguity regarding the obligations, which were in no way conditional upon anything. The objective evidence shows that a binding agreement was reached. The complaint was resolved by means of that agreement. Accordingly, the Tribunal finds that the agreement is not conditional and is, in fact, valid and binding.

43 For all these reasons, the Tribunal finds that the binding agreement between the parties constitutes a complete bar to the holding of a hearing on this complaint. The Tribunal is therefore terminating these proceedings and closing the file.

44 As a result, it is unnecessary for the Tribunal to rule on the issue raised by the respondent as to whether the Tribunal has jurisdiction to hear matters relating to the implementation of mediation agreements.

Decision

45 The Tribunal allows the respondent’s objection. The agreement reached by the parties is valid and binding. The complaint has been resolved and the Tribunal is not required to rule on any other issue. These proceedings are therefore terminated and the file closed.

Guy Giguère
Chairperson

Parties of Record

Tribunal File:

2012-0010

Style of Cause:

James Baker and the Deputy Minister of Public Works and Government Services Canada

Hearing:

January 9, 2013
Ottawa, Ontario

Date of Reasons:

March 26, 2013

APPEARANCES:

For the complainant:

James Baker

For the respondent:

Martin Desmeules

For the Public
Service Commission:

Marc Séguin
(written submissions)