FPSLREB Decisions

On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board ("the new Board") to replace the former Public Service Labour Relations Board ("the former Board") as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) as that Act read immediately before that day.

I. Individual grievance referred to adjudication

1 Paul Alexander ("the grievor") worked as an epidemiologist, classified EC-05, at the Centre for Communicable Diseases and Infection Control, Public Health Agency of Canada (PHAC or "the employer"), at the time he filed the grievance that is the subject of this decision. He was covered by the collective agreement between the Treasury Board and the Canadian Association of Professional Employees ("the union") for the Economics and Social Science Services Group; expiry date: June 21, 2014 ("the collective agreement").

2 On February 7, 2014, the grievor filed a grievance that although on a standard individual grievance form, was four handwritten pages. It stated as follows:

… The culminating event that leads to this grievance of abuse of authority and punishment of me, whether you use the term disguised discipline, punishment, targetting, etc. my argument comes to a head now based on a fitness to work assessment request dated Jan 28^th 2014, yet alluded to prior by the management. This request has no basis and the fitness tool has been used here as a veiled effort to punish and retaliate on me because I have refused to follow their command to report to a toxic and from my view a threatening workplace environment, that I continually requested redressed given the potential to impact my health. The only times I felt well and not anguished and under stress and duress were the times I saw my doctor due to feeling too stressed due to the management failing to resolve the matter I routinely raised. Their response was a demand to report to a situation that was potentially toxic of which I indicated would in the future impact my health and well being. This is discipline and I will show there was no regard for my health or well being and they knew a fitness was not needed. I chose to go on LWOP now so that I would not be terminated but my care giver role is normal.

The facts I wish examined that culminates in the fitness demand Jan 28/2014 and which now has me in a no pay LWOP situation are as follows:

1. I have taken the decision to go on LWOP caregiver 5 yrs anxious that I would be terminated but I am in a position most people are with ill siblings or family or themselves, where you can cope normally if the workplace is normal. It is the stress of the managers failure to resolve the matter yet commanding me to report into a potentially toxic situation after knowing what I had gone through prior and my pleas to save me from exposure again to such. My stress and anguish is due to what the management was doing to abuse me and retaliate for my ATIP request, my failure to comply, my beligerance and being as they see difficult. The fitness has no basis. The fitness to work request is the managers use of labour to medicalize the employee and raise issues of the employee's fitness (me) when the facts speak differently.
2. Cindy Hyson began by denying my request to grieve in Feb 2009 against an abuse by Denise Gravel as my employment began.
3. Cindy Hyson promised routinely that I will never report to Denise Gravel in any manner due to the past hateful act by D. Gravel. All my career decisions were made pre and post DRAP and re-orgs based on C. Hyson's promises.
4. C. Hyson has lied openly by stating the matter did not occur in 2009 that is the basis now for my demand of no reporting to D. Gravel due to potential impacts.

I am claiming an arbitrary and malicious, almost spiteful use of the fitness tool that while it has a basis, is not needed in my matter and is used here as retaliation and punishment.

[Sic throughout]

3 The final page of the grievance was a note directed to the grievor's union that identified collective agreement issues that he wanted either dealt with as part of the grievance or handled separately.

4 As corrective action, the grievor wanted to be reimbursed all the leave without pay that he used since April 2013, except for certified sick leave, on the ground that the leave was taken to avoid having to report to work in a toxic environment. He also wanted certain managers reprimanded and sent on conflict resolution training, harassment, differential treatment training and abuse of authority training. He requested that two of the managers be terminated immediately, that another manager be reprimanded and that all of them be subjected to the same losses that he had incurred. He also wanted retracted the requirement that he provide a fitness-to-work assessment.

5 A two-page, typewritten document dated February 15, 2014, was attached to the grievance and appeared to be a second grievance. Although it was apparently filed with the employer as a separate grievance, it was not referred to adjudication in accordance with the former Board's procedure. The parties were notified by the Registry of the former Board that because the typewritten document had not been properly referred it would not be considered as a separate reference to adjudication. The grievor did not respond or object to that notification and, therefore, that matter does not form part of this decision.

6 The employer denied the grievance at the first level of the grievance process on February 20, 2014. However, in a response at the second level dated March 5, 2014, the employer clarified that the grievor's expected return to the workplace on April 1, 2014, was not dependent upon a fitness-to-work evaluation. It also clarified that when he returned to work, the grievor would not be reporting to the manager that he had complained about in his grievance. In the response to the grievance at the third level of the grievance process, dated April 4, 2014, the employer again clarified that the requirement that the grievor obtain a fitness-to-work evaluation before returning to work from leave had been rescinded.

7 The grievor referred his grievance to adjudication under paragraph 209(1)(b) of the PSLRA on March 18, 2014, before he received the response to the grievance at the final level. He noted on the referral form that the matter concerned constructive dismissal.

8 On May 1, 2014, the employer filed an objection to the jurisdiction of an adjudicator to hear the grievance. By way of background, the employer noted that the grievor had requested a change of reporting relationship in 2013 because he believed reporting to a particular manager would put him in a toxic work environment and would endanger his health. The employer stated that because the grievor had not substantiated his allegation, his request was denied. Between July 2013 and January 2014, the grievor took several periods of paid leave. By January 8, 2014, he had exhausted all his paid leave credits and had requested five years' leave under the leave without pay for the care of immediate family provision in the collective agreement.

9 The employer stated that it had granted the grievor's request for five years' leave without pay but that it had told him that before he returned to work, he would be required to undergo a fitness-to-work evaluation. The employer stated that the decision to require that evaluation was made because of the grievor's behaviour, which included the disorganized structure, inconsistent content, and sometimes threatening and intimidating tone of his written messages, as well as his references to his ill health and his requests for accommodation.

10 Although the employer granted the request for leave without pay, about two weeks after submitting the request, the grievor withdrew it and advised the employer that he wished to return to work. Although he was asked on several occasions to be assessed by his physician, the grievor refused. He was allowed to return to work on April 1, 2014, without a fitness-to-work assessment, although he was advised that information from his doctor would be welcome to ensure that any requested accommodation measures could be implemented without delay.

11 The employer contended that at the time that the grievance was filed, it had taken no disciplinary action resulting in termination, demotion, suspension or financial penalty against the grievor, despite his belief that some of the issues that he raised amounted to disguised discipline. The employer also noted that since the grievor was not represented by his union, he could not raise issues pertaining to the collective agreement. Therefore, the employer took the position that the grievance should be dismissed on the ground that I did not have jurisdiction.

12 On May 21, 2014, the grievor responded to the employer's objection to jurisdiction. He stated that he had been constructively dismissed by the employer's actions and that it had locked him out of the workplace and stopped his pay. He also alleged that the employer "recently" dismissed him, despite his constructive dismissal claim. He stated that the former Board had jurisdiction and that the employer's objection was without merit.

13 It appeared that from the responses to the grievance at the second and final levels of the grievance process, in addition to the facts the employer asserted in its objection to jurisdiction, the employer had withdrawn its request that the grievor undergo a fitness-to-work assessment as a condition for his return to work and that it had done so before the grievance was referred to adjudication. Because the grievor had linked the allegations of constructive dismissal and disguised discipline to the request for a fitness-to-work evaluation, the exact nature of the matter referred to adjudication was unclear. Therefore, I asked the former Board's Registry to request that the grievor provide the particulars of his grievance, along with supporting documentation. In particular, he was asked to provide a copy of the letter of termination if, as he alleged, the employer had terminated his employment.

14 On September 4, 2014, the grievor responded to the request to provide particulars. He asserted that he was constructively dismissed when the employer "locked him out" and stopped his pay because he complained about a reporting relationship that he believed would expose him to harm and harassment. He stated that the employer denied him access to the workplace until he obtained a medical certificate, despite the fact that there was no legal basis for the requirement. He stated that at that time, he had been about to go on a parental leave without pay but that he rescinded the request. He also stated that since then, the employer dismissed him. He contended that adjudication was necessary because there were credibility issues.

15 Despite the fact that the grievor had provided little information additional to the statement of his grievance, in light of the employer's objection to jurisdiction, I determined that before scheduling a hearing on the merits of the grievance, the jurisdictional issue should be resolved. Therefore, under the authority of the former section 41 of the PSLRA, I asked for written submissions on the jurisdiction question. The parties were advised that I might issue a decision based on their submissions and the existing record unless the facts they asserted could not be determined without an oral hearing.

II. Summary of the arguments

A. For the employer

16 The employer submitted that the grievor was not subject to a "… disciplinary action resulting in a termination, demotion, suspension or financial penalty …" as required under paragraph 209(1)(b)of the PSLRA either at the time he filed his grievance or when he referred it to adjudication. From the wording of the grievance, it appears that the grievor considered that the employer's request that he undergo a fitness-to-work evaluation before returning to work from a leave of absence constituted "disguised discipline, punishment, targeting." He further described as disciplinary the employer's alleged demand that he report to a workplace that he believed was toxic. Neither of those allegations constitutes "disciplinary action" as prescribed in paragraph 209(1)(b).

17 The employer stated that the grievor had been absent from the workplace on leave for several periods in 2013. He was on sick leave for most of October and November and all of December 2013. He was still on sick leave in January 2014, and when he exhausted all his sick leave credits on January 7, 2014, he looked into leave without pay but changed his mind on January 20, 2014.

18 Following an exchange of emails between the grievor and his manager that took place between January 20 and 22, 2014, the employer suggested that the grievor see a Health Canada doctor to assess his fitness to work. That request was based on concerns arising from the tone and content of emails from him that referred to his concerns about his working environment and his belief that he was suffering from some form of post-traumatic stress disorder, among other things. On January 22, 2014, the grievor undertook to provide medical certificates for his absences between January 8 and 20, 2014. The employer noted that in the email of January 22, 2014, the grievor referenced the fact that he was not well. The following day, the grievor's manager clarified by email the intent of the request for a fitness-to-work evaluation. She also addressed the grievor's concern about his reporting relationship and noted that the grievor and the supervisor in question had agreed to participate in conflict resolution.

19 On January 28, 2014, the grievor submitted a request for leave without pay for the care of immediate family for a five-year period. The employer agreed to the leave request in a letter on the same day but reiterated its requirement that he undergo a fitness-to-work evaluation, and the reasons for it, before he could return to the workplace following his leave of absence. That letter formed the basis of the grievance.

20 The employer argued that it is clear from the letter that there was no disciplinary intent in the requirement that the grievor undergo a fitness-to-work evaluation. There were legitimate concerns about his health, some of which he himself had raised. The employer also contended that it was standard practice to require a fitness-to-work evaluation after a prolonged absence from the workplace, in accordance with its obligation to ensure a safe workplace and to ensure that it respected any necessary accommodations.

21 Citing Theaker v. Deputy Head (Department of Justice), 2013 PSLRB 163, the employer contended that it had a legitimate business interest for ensuring that the grievor was fit to return to work and that all necessary accommodations had been identified. The employer also noted that the Theaker decision set out the criteria for determining whether a request for a fitness-to-work evaluation constituted disciplinary action.

22 The employer argued that the onus rested on the grievor to establish that discipline occurred. Citing the Theaker decision and Chamberlain v. Treasury Board (Department of Human Resources and Skills Development),2010 PSLRB 130 (upheld in part in Chamberlain v. Attorney General of Canada, 2012 FC 1027, at para 51 to 59); and Canada (Attorney General) v. Frazee, 2007 FC 1176, it argued that the grievor had to establish underlying culpable behaviour and had to prove on the balance of probabilities that the employer intended to discipline him.

23 The employer submitted that the grievor's allegation that he was required to report to a work situation that was potentially toxic also did not meet the requirement under paragraph 209(1)(b) of the PSLRA that he suffer actual disciplinary action resulting in a financial penalty.

24 The employer also contended that the corrective action requested by the grievor could not be implemented. Because his employment was in fact terminated about three-and-a-half months after he filed the grievance in question, his requests that all leave he used after April 2013 be restored to his banks and that all salary from January 9, 2014, onward be paid to him were moot. Similarly, his request that the demand for the fitness-to-work assessment be withdrawn was moot. His request that his former supervisors be disciplined was outside the jurisdiction of an adjudicator under the PSLRA. The employer also noted that the grievor's request that his former supervisors undergo harassment and other training was more appropriate in the context of a collective agreement grievance, which he could not pursue in the absence of support from his union.

B. For the grievor

25 The grievor submitted that the employer's jurisdiction question involved considerations of both fact and law. He stated that the question of whether a constructive dismissal could arise under the PSLRA had yet to be conclusively determined. In the circumstances in which a union refused to represent a grievor, as happened in this case, it should be found that a constructive dismissal has occurred, and the grievor should not be faulted for not filing a timely dismissal grievance.

26 The grievor stated that the question of whether the employer's actions amounted to discipline when it requested the fitness-to-work assessment, as well as his suspension and ultimate dismissal, involve questions of both fact and law and should not be adjudicated in a vacuum.

27 The question of whether the employer received notice of the grievor's intention to grieve his dismissal also involves findings of fact. There is a serious dispute about the facts on that point that requires adjudication.

28 The grievor also included in his written submissions a document entitled "Notice of Motion," in which he requested a full evidentiary hearing to deal with the jurisdiction question and the abuse of process issue that he had raised. He also requested an order curing any procedural irregularities in his assertion of his rights and any other relief that was just and not contrary to the interests of justice and the public.

29 The grievor based his requests in the notice of motion on the grounds that the jurisdiction question could not be decided in a vacuum but required an evidentiary hearing and that the union's failure to support him, when coupled with the unreasonableness and unlawfulness of the employer's conduct up to and following his dismissal, constituted an abuse of process. He stated that he provided the employer with a notice of his intention to grieve his dismissal but that the employer withheld its consent, and the union would not support him. He argued that the issues raised by the grievance called for a high level of procedural fairness.

C. Employer's rebuttal

30 The employer argued that jurisdiction is a threshold issue and that it would be contrary to the intent and objective of the PSLRA to proceed with an oral hearing without first determining whether jurisdiction existed under its provisions.

31 The employer noted that a significant portion of the grievor's submissions concerned allegations relating to his relationship with his union and its refusal to represent him, which are outside the scope of the grievance at issue. It asserted that the email correspondence between the grievor and his union representative, attached to the grievor's submissions, was supportive of its contention that the grievance in question did not relate to discipline.

32 The employer stated that the grievor's references to his dismissal are misleading. The grievance at issue relates to a request that he undergo a fitness-to-work assessment. He was dismissed about three-and-a-half months after the date of his grievance, so his dismissal is not the subject of the grievance under review.

III. Reasons

33 The substance of the grievance before me is an allegation that the employer's request on January 28, 2014, that the grievor undergo a fitness-to-work assessment constituted disguised discipline. The grievor contended that the employer's demand prevented him from returning to work following a leave of absence that he had requested but rescinded and that, therefore, he was on leave without pay. Leaving aside his demands that certain managers be disciplined, terminated or sent on various kinds of training, the corrective action he sought supports the identification of the fitness-to-work assessment as the central issue raised by the grievance.

34 In the second-level response to this and other grievances, dated March 5, 2014, and the third-level response to the same grievances, dated April 4, 2014, the employer confirmed that the grievor's return to work was not dependent upon a fitness-to-work assessment. Additionally, it confirmed a change in the grievor's reporting relationship on his return to work. In the third-level response, the employer stated that it understood that the request for a fitness-to-work assessment had already been rescinded and that a change to the grievor's reporting relationship had been made. Therefore, it considered those portions of his grievances resolved.

35 The grievor referred this grievance to adjudication on March 18, 2014, which was after he had received the employer's second response to it but before the final-level response was issued. In the section of the former Board's "Notice of Reference to Adjudication of an Individual Grievance, Form 21," which identified the PSLRA provision under which the grievance was being referred, the grievor marked paragraph 209(1)(b) and underlined the words "disciplinary" and "financial penalty." In the margin, a handwritten annotation states, "constructive dismissal." Because of the apparent contradiction between the responses to the grievance at the second and third levels and its referral to adjudication, particularly as a matter concerning constructive dismissal, the grievor was asked to provide to the former Board the particulars of his grievance and any supporting documents.

36 The grievor's response to the former Board's request for particulars did not explain the apparent contradiction between the responses to the grievance, which appeared to grant the corrective action he sought in this grievance. Instead, he asserted that he was constructively dismissed because the employer "locked him out" and stopped his pay when he complained about the reporting relationship. He also alleged that the employer denied him access to the workplace until he underwent a fitness-to-work assessment. He stated that a full evidentiary hearing was necessary.

37 The grievor's response to my request for written submissions on the employer's jurisdictional question elicited very little additional information. He reiterated his assertion that he had been constructively dismissed and noted that the question of whether the employer's actions amounted to discipline involved questions of both fact and law, which could not be adjudicated without a hearing.

38 My jurisdiction in this matter is limited to a grievance that is properly referred to adjudication under subsection 209(1) of the PSLRA, which provides in part 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 … .

39 That subsection has been interpreted, going back to Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), as a restriction on the right of a grievor to raise at adjudication substantive issues that were not explicitly or implicitly contained in the grievance. Because my jurisdiction to hear the grievance derives from subsection 209(1) of the PSLRA, I must be certain that the grievance referred to adjudication is substantively the grievance that was presented through the grievance process, regardless of whether an objection was raised that it is not.

40 The doctrine of constructive dismissal is found primarily in the non-unionized private sector. In Hassard v. Treasury Board (Correctional Service of Canada), 2014 PSLRB 32, it was described at para 174 as follows:

174 The doctrine is a creature of the world of common law employment contracts between an individual employee and his or her employer. Such contracts are usually a collection of express [sic] and implied terms. Such contracts can be terminated at will by the employer, the only caveat being that in the absence of cause proper notice (or pay in lieu of notice) must be given. Those contracts most often relate to a particular position with defined tasks, responsibilities and pay. They rarely if ever include terms that permit the employer to unilaterally change them. So, for example, a significant reduction of the duties and responsibilities of an employee could be considered a fundamental breach of the existing contract. Such a breach would entitle the employee to consider himself or herself terminated — that is, constructively dismissed. That in turn would entitle him or her to sue for wrongful dismissal.

41 Leaving aside the question of whether the doctrine of constructive dismissal is applicable in the federal public service, which is considered in Hassard, it is clear that at its core, it concerns an allegation that there has been a termination of employment arising from a fundamental breach of the employment contract.

42 The grievance before me contains no allegation that the grievor's employment was terminated; nor is such an allegation implicit in it. The employer's response at the second level of the grievance process also contained no suggestion that it understood the grievance to involve an allegation that the grievor's employment had been terminated. Furthermore, the employer made it clear that the grievor was free to return to work without any condition that he submit to a fitness-to-work assessment. Given those facts, I find that the allegation of constructive dismissal was raised for the first time in the reference to adjudication and that, therefore, even if the doctrine has relevance in the federal public service, I do not have the jurisdiction to consider it.

43 However, the grievance does allege that the requirement that the grievor submit to a fitness-to-work assessment was disguised discipline. Even though the employer withdrew its requirement for the assessment at the second level of the grievance process, it is possible that there are residual remedial issues that could be the subject of an adjudication hearing, and on that basis, the employer's objection to jurisdiction becomes relevant.

44 The employer contended that its initial demand that the grievor undergo a fitness-to-work assessment was based on its observation of his behaviour and was a valid exercise of its management rights. It was not a disciplinary action but an administrative one. It filed documents as evidence of the reasons for its concern about the grievor's health. I note that the grievor also expressed concerns about his health both in his grievance and in the documents submitted by the employer.

45 The grievor did not present any evidence or argument when invited to provide either particulars or submissions in support of his position beyond the bare assertion that the matter required an oral hearing. He did not contest the version of the facts presented by the employer, and he did not respond to its objection to jurisdiction. The onus was on him to do so.

46 Because the grievor failed to meet his onus, I find that I have an insufficient basis on which to conclude that he was subject to a disciplinary action under paragraph 209(1)(b) of the PSLRA. Therefore, I cannot find that I have jurisdiction to hear the grievance.

47 Both the grievor and the employer referred to a termination of the grievor's employment some months after the grievance before me was filed. That matter is not part of this grievance and must be grieved and referred to adjudication in accordance with the PSLRA and the Public Service Labour Relations Regulations (SOR/2005-79).

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

IV. Order

49 The grievance is dismissed.

July 22, 2015.

Kate Rogers,
adjudicator