FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Sean Cavanagh (“the grievor”) is a business valuator, classified AU-03, employed in the business valuation section of the Toronto Centre Tax Services Office of the Canada Revenue Agency (“the employer”). At all relevant times, he was covered by the collective agreement between the employer and the Professional Institute of the Public Service of Canada (“the bargaining agent”) for the AFS group, expiry date: December 21, 2007 (“the collective agreement”).

2 On October 30, 2006, the grievor filed a grievance, alleging a breach of clause 46.01 of the collective agreement. A representative of the bargaining agent signed the grievance form, indicating that approval for the grievance had been given and that an agreement to represent the grievor had been reached. The grievance was heard and denied at the second, third and final levels of the grievance process, and it was referred to adjudication on March 11, 2010. When the grievance was referred to adjudication, the bargaining agent confirmed that it would be representing the grievor at adjudication.

3 The grievance was scheduled to be heard at adjudication with three other grievances between April 11 and 15, 2011. On April 6, 2011, the bargaining agent advised the Public Service Labour Relations Board (“the Board”) that it no longer represented the grievor on any of the matters scheduled to be heard between April 11 and 15, 2011. The bargaining agent asked for an adjournment of the hearing to give the grievor time to prepare his case. Of the grievances scheduled to be heard between April 11 and 15, 2011, only this grievance concerned the interpretation and application of a provision of the collective agreement. On that issue, the bargaining agent stated as follows:

… the Union notes that this is a grievance relating to the interpretation and application of the Collective Agreement, particularly Article 46.01. The Union approved of this grievance and represented Mr. Cavanagh throughout the grievance process and referred the grievance to adjudication. The Union approves Mr. Cavanagh to represent himself at the adjudication of this grievance.

4 As the adjudicator appointed by the Chairperson of the Board to hear this grievance and the others scheduled to be heard between April 11 and 15, 2011, the request for an adjournment was brought to me. I granted it on April 7, 2011. However, without my knowledge or instruction, this grievance file was closed as a result of an administrative error. I did not learn that the file was closed until October 2013, at which point I ordered it reopened. The parties were so advised on October 16, 2013.

5 Although the file was reopened, the fact that the bargaining agent had withdrawn its support of the grievance remained an issue to be resolved before the grievance could be scheduled for adjudication, given subsection 209(2) of the Public Service Labour Relations Act (PSLRA), which provides as follows:

209. (2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

6 On November 6, 2013, I asked the employer, the bargaining agent and the grievor to provide written submissions on whether the grievor could represent himself at adjudication. Specifically, the question that I asked the parties to address was “… whether an employee can represent himself or herself at adjudication on a grievance referred to adjudication under paragraph 209(1)(a) with the approval of the bargaining agent.”

II. Summary of the submissions

A. For the employer

7 Citing King v. Canada (Attorney General), 2012 FC 488, at para 65 and 66; Boivin v. Treasury Board (Canada Border Services Agency), 2009 PSLRB 98, at para 25; Bahniuk v. Canada Revenue Agency, 2011 PSLRB 75, at para 19 and 20; and Yarney v. Deputy Head (Department of Health), 2011 PSLRB 112, at para 103 and 104, the employer argued that subsection 209(2) of the PSLRA prevents a grievor from representing himself or herself at adjudication for a grievance relating to the interpretation or application of a collective agreement.

8 The employer stated that only a bargaining agent can determine which grievances relating to the interpretation or application of a collective agreement can be adjudicated. The employer noted that in Vaughn v. Canada, 2005 SCC 11, the Supreme Court of Canada stated that because the union is a party to the collective agreement at issue, only it can decide whether to pursue a grievance.

9 The employer argued that because this grievance relates to the interpretation or application of the collective agreement, the grievor could proceed only if he were represented by his bargaining agent. Allowing an employee to represent himself or herself at adjudication for a grievance concerning the interpretation or application of a collective agreement would be contrary to the PSLRA.

B. For the bargaining agent

10 Although the bargaining agent originally granted its approval to the grievor to represent himself in this grievance, in its submissions, it took the position that it had made a mistake. On reconsideration of the issue, it stated that the most reasonable interpretation of subsection 209(2) of the PSLRA is that it operates as a bar to an employee representing himself or herself in a grievance related to the interpretation or application of a collective agreement. A bargaining agent cannot give its approval for an employee to self-represent.

11 The bargaining agent argued that there are subtle differences between the French and English versions of subsection 209(2) of the PSLRA and that, in its opinion, the English version is more ambiguous than the French. In particular, the bargaining agent noted that the French version states that a bargaining agent must agree to represent an employee in the adjudication process, but the English version requires only that it give its approval to represent the employee.

12 The bargaining agent also argued that subsection 208(4) of the PSLRA provides more clarity to the interpretation of subsection 209(2) because it provides that an employee may not present a grievance relating to the interpretation or application of a collective agreement unless the employee has the approval and representation of his or her bargaining agent. If an employee must have a bargaining agent’s approval and representation to file a grievance relating to the interpretation or application of a collective agreement, then it would make sense that both requirements are necessary in order to refer a grievance to adjudication.

13 Citing Brown v. Union of Solicitor General Employees and Edmunds, 2013 PSLRB 48, and Yarney, the bargaining agent argued that an employee must have both the approval of his or her bargaining agent to proceed to adjudication and its agreement to represent the employee at adjudication in order to proceed to adjudication. In Yarney, the adjudicator held that when a bargaining agent withdraws its support of a grievance involving the interpretation or application of a collective agreement, the grievance is no longer adjudicable. Similarly, in Boivin, the adjudicator held that a grievance relating to the interpretation or application of the relevant collective agreement was not adjudicable after the grievor’s bargaining agent declined to represent him.

C. For the grievor

14 The grievor argued that subsection 209(2) of the PSLRA does not restrict an employee from self-representation. He stated that the clear meaning of the subsection is simply that an employee must obtain the approval of his or her bargaining agent to have its representation at adjudication at the point of referral but that nothing in the subsection prevents the bargaining agent from opting out of that representation. If a bargaining agent had the power to prevent a grievance from proceeding to adjudication simply by refusing to provide representation, the process could become politicized or biased. He stated that the goal of fair labour relations would not be served by allowing the process to be hijacked in that fashion.

15 The grievor also argued that subsection 209(2) of the PSLRA is a “stand alone” provision that does not relate to any provision of the PSLRA other than paragraph 209(1)(a). He stated that on a plain reading of paragraph 209(1)(a) and subsection 209(2), it is clear that an employee can refer a grievance to adjudication and that it would be perverse to say that the employee’s bargaining agent could prevent the employee from exercising his or her right to refer a grievance to adjudication. He stated that since self-representation is permitted right up to the Supreme Court, it must be assumed that it is also permissible in a labour relations matter.

16 The grievor acknowledged that subsection 208(4) of the PSLRA appears to establish a two-fold requirement that employees have both their bargaining agent’s approval and its representation. However, he stated that since the parties were not asked to address issues arising out of subsection 208(4), any discussion of that subsection was beyond the scope of the discussion at issue. He also stated that any consideration of the nature of his grievance was prejudicial to him. He suggested that fairness and equity required that any internal conflict in the legislation should be resolved without causing harm to him.

17 The grievor also submitted that since the bargaining agent had told him that he could represent himself, it would be unfair to deny him that right. He stated that the bargaining agent’s reversal of its position constituted an unfair labour practice, regardless of whether it was unintentional or deliberate.

III. Reasons

18 On October 30, 2006, the grievor filed a grievance, alleging a breach of a provision of his collective agreement. When the grievance was filed, the bargaining agent approved it and represented the grievor, in compliance with subsection 208(4) of the PSLRA. The grievance was referred to adjudication on March 11, 2010. At that time, the bargaining agent approved its referral to adjudication and confirmed that it would represent the grievor. However, on April 6, 2011, the bargaining agent advised the Board that it was no longer representing the grievor and stated that it “approved” that the grievor would represent himself at adjudication.

19 This decision addresses the question of “… whether an employee can represent himself or herself at adjudication on a grievance referred to adjudication under paragraph 209(1)(a) with the approval of the bargaining agent.” Although, as noted by both the employer and the bargaining agent, a number of earlier Board decisions state that grievances involving the interpretation or application of a collective agreement may not proceed in the absence of a bargaining agent’s approval, whether a bargaining agent can give its permission to a grievor to represent himself or herself on such a grievance appears a novel question. For the reasons that follow, I believe that a bargaining agent must not only approve a grievance involving the interpretation or application of a collective agreement but must also provide representation for such a grievance. Therefore, I do not believe that a bargaining agent can grant an individual grievor the authority to self-represent.

20 Sections 208 and 209 of the PSLRA establish the right of individual employees to file grievances and refer them to adjudication. For ease of reference, those sections provide as follows:

208. (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award; or

(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

(3) Despite subsection (2), an employee may not present an individual grievance in respect of the right to equal pay for work of equal value.

(4) An employee may not present an individual grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies.

(5) An employee who, in respect of any matter, avails himself or herself of a complaint procedure established by a policy of the employer may not present an individual grievance in respect of that matter if the policy expressly provides that an employee who avails himself or herself of the complaint procedure is precluded from presenting an individual grievance under this Act.

(6) An employee may not present an individual grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

(7) For the purposes of subsection (6), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

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

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

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required; or

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

(3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)(d).

21 It is clear from reading section 208 of the PSLRA that individual employees may grieve a wide range of issues arising from the interpretation or application of statutory provisions, employer policies, collective agreements or arbitral awards, or from occurrences that affect their terms and conditions of employment. While the right of individual employees to grieve employment-related issues is subject to a number of limitations, only grievances arising from the interpretation or application of a collective agreement or arbitral award require their bargaining agent’s approval and agreement to represent those employees, as set out in subsection 208(4).

22 Under section 209 of the PSLRA, the subject matter of a grievance that can be referred to adjudication is more limited than the issues that can be the subject of a grievance under section 208. Furthermore, while grievances concerning the interpretation or application of a collective agreement are among those that can be referred to adjudication, subsection 209(2) requires that an employee have the “… approval of his or her bargaining agent to represent him or her in the adjudication proceedings” before such a grievance can be referred to adjudication.

23 The PSLRA does not spell out the reasons for requiring bargaining agent approval and representation for grievances involving a collective agreement. However, those reasons are not difficult to discern. As defined in subsection 2(1), the collective agreement is “… an agreement in writing entered into under Part 1 between the employer and a bargaining agent, containing provisions respecting terms and conditions of employment and related matters.” Individual employees are not parties to a collective agreement; it is negotiated on behalf of all the employees in the bargaining unit by their bargaining agent. Through the process of collective bargaining set out in Part 1 of the PSLRA, only the bargaining agent certified for the bargaining unit can negotiate changes to the collective agreement on behalf of the members of the unit. Furthermore, section 229 provides that an adjudicator cannot render a decision that would “… have the effect of requiring the amendment of a collective agreement or an arbitral award.”

24 Since a bargaining agent represents all the employees in a bargaining unit when it negotiates a collective agreement, of necessity, it must be involved in any grievance that would interpret or apply the agreement, as it must ensure that the interests of the bargaining unit as a whole are represented. In Kwong v. Treasury Board (Immigration and Refugee Board), 2006 PSLRB 116, the adjudicator explained the requirement for bargaining agent approval of collective agreement grievances by noting that it was “… designed to protect the interests of the bargaining agent, as the representative of all employees in the bargaining unit.”

25 As the exclusive representative of all the employees in a bargaining unit and as a party to a collective agreement, a bargaining agent must be free to determine which issues relating to the interpretation and application of the collective agreement it wishes to pursue, subject only to the duty of fair representation. It must also be in control of the presentation of those issues through the grievance process and at adjudication. For those reasons, I believe that not only must the bargaining agent approve the filing of grievances concerning the interpretation and application of the collective agreement and provide representation through the grievance process, it must also approve the referral of such grievances to adjudication and provide representation at adjudication.

26 The PSLRA grants exclusive representation rights to bargaining agents on all matters relating to collective agreements to which they are parties, and I believe that it would be inconsistent with those provisions to allow an individual employee to self-represent for a grievance relating to such a collective agreement. Subsection 209(2) cannot be interpreted as requiring the bargaining agent’s approval and agreement to represent a grievor only at the point of the referral to adjudication. The bargaining agent’s approval and agreement to represent the grievor must continue through the entire process for the grievance to be adjudicable. That is the only way that the interests of all the employees in the bargaining unit for whom the collective agreement was negotiated can be protected.

27 Therefore, I find that this grievance cannot proceed in the absence of the bargaining agent’s representation at adjudication, and the file must be closed.

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

IV. Order

29 The file is ordered closed.

February 21, 2014.

Kate Rogers,
adjudicator