FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Nadine Alibay (“the grievor”) held a unionized management position at the EC-07 group and level in the Department of Employment and Social Development (“the deputy head” or “the employer”), which was called the Department of Human Resources and Skills Development at the relevant time. She worked in the federal public service for close to 10 years. On April 18, 2012, Ms. Alibay grieved the employer’s decision to terminate her because of her inability to return to work. In her grievance, Ms. Alibay also alleged that the employer’s actions were discriminatory.

2 The employer dismissed the grievance at the final level of the internal grievance process on May 30, 2012. On June 1, 2012, Ms. Alibay, with the support of the Canadian Association of Professional Employees (“the union”), referred her grievance to adjudication, using the notice of reference to adjudication for grievances dealing with a termination, demotion, suspension or financial penalty. In the notice, she stated that the grievance was being referred to adjudication under subparagraph 209(1)(c)(i) of the Public Service Labour Relations Act (PSLRA), which reads as follows:

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

…

(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 ….

3 The grievance was expected to be heard from February 12 to 15, 2013, at the same time as three other grievances that Ms. Alibay and the union referred to adjudication. The hearing was cancelled because the parties signed an agreement on February 11, 2013 that settled this grievance and Ms. Alibay’s other three grievances.

4 On July 22, 2013, the union requested that the Public Service Labour Relations Board (“the Board”) close this grievance file and the three other files and informed the Board that it was withdrawing from the grievances. Therefore, the Board closed the three other grievances files since they dealt with the interpretation and application of the collective agreement and, in the case of such grievances, subsection 209(1) of the PSLRA prevents a public servant from proceeding to adjudication without union support. The Board also contacted Ms. Alibay to determine her intentions for this grievance. On August 7, 2013, Ms. Alibay told the Board that she wished to pursue her grievance. The Board wrote to her on August 13, 2013, to inform her that her grievance would be scheduled for a hearing. On August 27, 2013, the employer wrote to the Board to challenge the adjudicator’s jurisdiction to hear the grievance, since it had been settled through mediation on February 11, 2013.

5 In accordance with my instructions, the Board informed Ms. Alibay in writing on September 24, 2013, and February 3, 2014 that this hearing would not deal with the grievance on its merits. Instead, the purpose of the hearing was to determine whether on February 11, 2013, the parties reached a final and binding agreement and, if so, whether the agreement was complied with.

6 The February 11, 2013, agreement, signed by Ms. Alibay, the union and the employer, included the following provisions:

[Translation]

…

As the full and final resolution of any past, present or future disputes about or related to the grievances with Public Service Labour Relations Board file numbers 566-02-6939, 566-02-6940, 566-02-7090 and 566-02-7240 (“the grievances”), the parties agree as follows:

…

b.  By signing this agreement, the employee confirms that she voluntarily participated in the mediation process and read, fully understood and accepted the terms of this agreement;

c.   In consideration of the terms of this agreement, the employee agrees and acknowledges that this agreement constitutes a full and final resolution of all claims that the employee may make, now or in the future, against Her Majesty the Queen in right of Canada and her employees, agents and servants arising out of the employee’s employment with the employer, and the employee agrees not to initiate any proceeding with respect to that employment;

THE PARTIES AGREE AS FOLLOWS:

…

1.3 The employer shall write to the Dental Care Plan Board of Management of the National Joint Council and the Federal Public Service Health Care Plan Administration Authority to inform them that Ms. Alibay has been reinstated to her position retroactively to her termination date. The letter shall be issued no later than two weeks after this agreement is signed.

…

6.  The grievances that led to this mediation and any other complaint by the employee against the employer are hereby withdrawn. The employee and the union shall inform the Public Service Labour Relations Board that the grievances have been withdrawn 60 working days after the date of approval by the deputy minister.

7.  The employer shall remove from the employee’s file the three letters of termination for incapacity dated March 1, 2012, March 2, 2012, and April 10, 2012, and destroy them. The employer shall provide Lionel Saurette and the employee with written confirmation that the letters have been removed and destroyed.

…

[Emphasis in the original]

7 The February 11, 2013, agreement was amended in March 2013 to postpone by three weeks the implementation of certain provisions not cited above. The employer signed the amendment on March 7, 2013, and Ms. Alibay signed it on March 28, 2013.

8 Several parts of the February 11, 2013, agreement were not cited at paragraph 6 because the agreement is confidential. I cited only those parts required to deal with the issues before me. Except for the part cited above, at the hearing, the employer requested that the copies of the agreement submitted to me be sealed. It referred me to the clause of the agreement that provides that its content is confidential between the parties and that it may not be disclosed except for implementation purposes. I accept the request to seal the copies of the agreement that were submitted to me. The PSLRA sets out a number of procedures to promote voluntary dispute resolution. The confidentiality terms of mediation agreements contribute greatly to voluntary dispute resolution. Without those terms, it would be much harder to reach voluntary settlements. The advantages of maintaining the confidentiality of an agreement to the extent possible far outweigh the adverse effects of not maintaining it. Therefore, I ordered that Board staff seal the copies of the agreement that were submitted to me.

II. Summary of the evidence and arguments

A. For Ms. Alibay

9 Ms. Alibay alleged that the document that she signed on February 11, 2013, suggests that an agreement had been reached; however, she in fact strongly disagreed with the agreement’s contents. Instead, to her, it is an agreement between the employer and the union that she was compelled to sign based on incomplete and incorrect information.

10 Ms. Alibay testified that earlier, the union and the employer held a number of discussions about the agreement without giving her a chance to express her opinion. In addition, she stated that she was excluded from most of the union-employer discussions during the mediation on February 11, 2013. She stated that she never had an opportunity to discuss the text of the agreement. The union allegedly told her to remain silent. Ultimately, she was confronted with the final text, which the union urged her to sign, or else she would lose everything and would have no recourse. During the mediation, Ms. Alibay did not know that she could pursue this grievance on her own if the union withdrew its support. Therefore, she signed the agreement under duress, in fear of losing everything.

11 Ms. Alibay requested that I cancel the February 11, 2013, agreement on the grounds that it was invalid, since she had been forced to sign it when she did not have all the information required to make an informed decision. Specifically, the union allegedly did not inform her that she could pursue the grievance herself. Had she had that information, she would not have signed the agreement. Ms. Alibay also stated that her health was poor at that time and that the union put a great deal of pressure on her.

12 Ms. Alibay stated that she learned only in July 2013 that she could have pursued the grievance on her own, without the union’s support. During the hearing, I told her that she could have sought a remedy against her union if she believed that it failed to fulfill its duty of representation within the meaning of the PSLRA. She said that she was surprised to learn that such remedies exist.

13 Ms. Alibay stated that she was unfamiliar with the content of the Work Force Adjustment Directive (WFAD) during the mediation on February 11, 2013, because she had been on sick leave for an extended period. After consulting the agreement, she believed that she had not been offered the options in the WFAD and that she had been denied the benefits of the WFAD. During the hearing, I explained to Ms. Alibay that my role was not to determine whether the employer complied with the WFAD or whether the union negotiated the best agreement possible but instead was to establish whether an agreement had been reached on February 11, 2013, and whether it had been respected.

14 Continuing to maintain her position that the February 11, 2013, agreement should be annulled because she did not freely consent to it, Ms. Alibay argued that the employer failed to comply with two clauses in the agreement, namely, the clause about letters the employer was to send to the insurance providers and the clause about three letters in the employee’s file that the employer was to destroy.

15 In clause 1.3 of the agreement, the employer agreed to write to the Dental Care Plan Board of Management and the Public Service Health Care Plan Administration Authority within two weeks of February 11, 2013, to inform them that Ms. Alibay had been reinstated to her position retroactively to her termination date, namely, May 19, 2012. Ms. Alibay stated that the employer sent the two letters on February 27, 2013, two days after the two-week deadline. Ms. Alibay described a number of problems that she experienced with the Public Service Health Care Plan, which refused to reimburse her a number of expenses, totalling thousands of dollars. On May 27, 2013, a plan representative finally notified the employer, which then informed Ms. Alibay that her insurance coverage had been reinstated. However, documents that Ms. Alibay submitted show that her insurance coverage ended on May 31, 2013. At the time of the hearing, Ms. Alibay was still experiencing problems obtaining a number of reimbursements from the insurance. However, she did not present any evidence establishing a link between those issues and the employer being two days late writing to the insurance plan. In addition, she did not provide proof of any problems obtaining reimbursements from the dental plan.

16 Ms. Alibay also alleged that the employer failed to comply with clause 7 of the agreement, in which it agreed to remove three termination letters from her file, dated March 1, March 2 and April 10, 2012, and destroy them. The employer also agreed to confirm with the union and Ms. Alibay that the letters were removed and destroyed. Ms. Alibay believed that the employer completely failed to observe the intent of that clause. She expected to receive a confirmation letter from the assistant deputy minister who signed the three termination letters. Instead, she received an email from the labour relations advisor assigned to her grievance file.

17 Ms. Alibay also discussed and filed documents about the disciplinary nature of her grievance, a disagreement she had with the union about disability insurance, complaints she submitted to the union about the quality and nature of the representation it provided, and personal explanations she was required to provide about her health status and her outstanding commitment to work. I will not refer to the evidence received in those respects, since it is of no help with the decision that I have to make about the February 11, 2013, agreement.

18 Ms. Alibay referred me to Amos v. Canada (Attorney General), 2011 FCA 38.

B. For the employer

19 The employer maintained that the February 11, 2013, agreement was final and binding for the parties. It ended their dispute since it was final. No one forced Ms. Alibay to sign the agreement. If she disagreed with the representation and advice received from her union, she should have sought a remedy against the union, not the employer.

20 Ms. Alibay should have known in advance that the WFAD would be discussed during the mediation on February 11, 2013. She could not claim now that she was unaware of its content.

21 The employer acknowledged that it sent the two letters referred to in clause 1.3 two days late. However, it did not believe that it failed to comply with the agreement, since the two-day delay made no difference, given that the purpose of the letters was to reinstate insurance coverage retroactively to April 2012.

22 The employer stated that it complied with clause 7 of the agreement, which does not refer to any specific form of written communication and does not specify the person to sign it. The employer fulfilled its obligations. It submitted in evidence an email that a labour relations advisor sent to Ms. Alibay on May 9, 2013, informing her that the three letters from 2012 had been removed from her file and destroyed.

23 The employer referred me to Amos and to Chaudhary v. Deputy Head (Department of Health), 2013 PSLRB 160.

III. Reasons

24 The Federal Court of Appeal established in Amos that an adjudicator has jurisdiction under the PSLRA to determine whether a settlement agreement is final and binding, whether a party has complied with it, and, if not, the remedy in the circumstances.

25 Ms. Alibay claimed that the agreement is invalid because she did not agree to it voluntarily. She stated that instead, she was forced to sign it. I disagree with her. She indeed convinced me that she was not aware of many things on February 11, 2013. She did not know that if no agreement were reached, she could pursue the grievance herself. In addition, she did not know that she could file a complaint against her union. Finally, she was unfamiliar with the WFAD contents and the options it provided to employees. I find it unfortunate that maybe the union did not take the time to explain Ms. Alibay’s rights to her properly; nevertheless, I do not find that she was forced to sign the agreement. Additionally, nothing in the evidence adduced led me to believe that the union misled Ms. Alibay. The fact that she did not pursue her grievance on her own resulted instead from her lack of understanding of her rights and recourse.

26 Ms. Alibay should have been familiar with the WFAD. She worked in the public service for close to 10 years. The WFAD was an integral part of her collective agreement. She can blame no one for not reading the part of her collective agreement that provides a form of job security or, at the very least, protection in the event of a labour surplus. Ms. Alibay should also have been familiar with the PSLRA. On June 1, 2012, she signed the reference to adjudication form for her grievance and indicated that the referral was being made under subparagraph 209(1)(c)(i) of the PSLRA. In so doing, she should have known that the purpose and nature of her grievance did not require union support for her to proceed. Merely reading and examining the adjacent provisions of the PSLRA would have been enough for her to learn that she could have proceeded alone, refused to sign the agreement of February 11, 2013, and pursued her grievance adjudication on its merits.

27 In summary, I disagree with Ms. Alibay’s argument that the February 11, 2013, agreement is not final and binding on the grounds that she was forced to sign it. She signed it voluntarily. She did not properly assess the risks of not signing the agreement because she was unfamiliar with the applicable PSLRA provisions. Ignorance of the PSLRA or rights under a collective agreement is not an excuse (see, on that subject, Allard et al. v. Treasury Board (Canada Employment and Immigration Commission), PSSRB File Nos. 166-02-6012 to 6039 (19791115), and Safire v. Treasury Board (Department of Veterans Affairs), 2013 PSLRB 97). Everyone is expected to know the law.

28 For transparency, the union could definitely have explained to Ms. Alibay in detail her rights under the PSLRA and the WFAD, including her right to pursue her grievance alone and her right to file an unfair labour practice complaint, which it appears the union did not do. Obviously, I cannot blame the employer, which is the respondent to this grievance. Instead, this is an issue involving Ms. Alibay’s relationship with her union, which is not a party to the grievance between Ms. Alibay and her employer.

29 Ms. Alibay also raised the fact that her health was poor in February 2013. However, she made no submission or argument to show that that prevented her from understanding the events taking place or the agreement that she signed on February 11, 2013. Instead, her argument was about her lack of knowledge of the PSLRA and the WFAD.

30 The very wording of the February 11, 2013, agreement makes it clear that it binds the parties that signed it, namely, the employer and Ms. Alibay, and that it is final and binding with respect to the grievances with which it deals, including the grievance before me. I base that finding on the fact that the parties signed the agreement and that it contains the following:

[Translation]

• As the full and final resolution of any past, present or future disputes about or related to the grievances with Public Service Labour Relations Board file numbers 566-02-6939, 566-02-6940, 566-02-7090 and 566-02-7240 (“the grievances”), the parties agree as follows:
• By signing this agreement, the employee confirms that she participated voluntarily in the mediation process and read, fully understood and accepted the terms of this agreement;
• In consideration of the terms of this agreement, the employee agrees and acknowledges that this agreement constitutes a full and final resolution of all claims that the employee may make, now or in the future, against Her Majesty the Queen in right of Canada and her employees, agents and servants arising out of the employee’s employment with the employer, and the employee agrees not to initiate any proceeding with respect to that employment;

[Emphasis in the original]

31 Ms. Alibay alleged that two of the agreement’s provisions were not complied with. First, the employer was late sending a letter to the dental plan and another letter to the Public Service Health Care Plan. Second, the assistant deputy minister did not write to Ms. Alibay to inform her that the termination letters dated March and April 2012 had been destroyed; instead, a labour relations advisor did, by email. I will consider whether those events constitute a breach of the February 11, 2013 agreement.

32 Under the agreement, the employer should have written to the dental plan and the Public Service Health Care Plan within two weeks of the agreement, that is, no later than February 25, 2013, to inform them that Ms. Alibay was reinstated to her position retroactively to her termination date in 2012, so that she would be covered under both plans retroactively to that date. The employer fulfilled its obligation on February 27, 2013, two days late. As set out in the agreement, coverage under both insurance plans was reinstated retroactively to the termination date in 2012. The evidence showed that Ms. Alibay was not harmed as a result of the minor delay. Ms. Alibay appears to have experienced problems with the Public Service Health Care Plan, but those problems had nothing to do with the two-day delay. Therefore, I find that the employer complied with the spirit of that provision of the agreement.

33 My finding on that last point is comparable to that in Bouchard v. Lahaie et al., 2013 PSLRB 143. At paragraph 40 of that decision, the Board wrote the following:

[40] I do not consider a one-week delay in payment so fundamental to respecting the memorandum of agreement between the parties in the circumstances that it requires some redress. In the absence of bad faith by the respondents or prejudice to the complainant, I find that such a delay is a minor defect in the implementation of the memorandum of agreement. On that point, I fully agree with the adjudicator’s following comments in Zeswick v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 8, at para 49:

[49] … To transpose this into a fundamental breach of the Agreement would place a standard of perfection on parties when they set about to implement settlement agreements. Timeliness in labour relations is important, but a standard of perfection is not necessary to give force to an the [sic] agreement itself and nor is it desirable to impose this standard on parties who are, after all, attempting to resolve problems with a minimum of time and cost.

34 As for Ms. Alibay’s final allegation, a simple reading of the wording of clause 7 in the February 11, 2013, agreement shows that the employer carried out the agreement it signed. It removed the letters of March 1, March 2 and April 10, 2012, from Ms. Alibay’s file and destroyed them and then informed Ms. Alibay once it was done. The employer presented in evidence the email sent to Ms. Alibay on May 9, 2013, informing her that the letters had been removed from her file and destroyed. Therefore, the agreement was respected. Nothing in it specified the form of the written communication or the name of the person to sign it. Undoubtedly, it would have been preferable and more respectful to Ms. Alibay for the form of the written communication and the person signing it to be the same as for the original letters that that agreement provision dealt with. Nonetheless, the agreement was complied with, since it provided no detail on this issue.

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

IV. Order

36 I order the file closed.

March 10, 2014.

PSLRB Translation

Renaud Paquet,
adjudicator