FPSLREB Decisions

Referral of an individual grievance to adjudication

1 The Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN ("the bargaining agent") referred the individual grievance of Robert Monkman ("the grievor") to the Public Service Labour Relations and Employment Board (the Board) for adjudication on January 21, 2015.

2 On March 6, 2015, the Treasury Board (the employer) filed a written submission that the Board does not have jurisdiction in this matter. The grievance was referred to the Board under section 209 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2 PSLRA). The employer argues that the wording of section 209 of the PSLRA does not support a reference to adjudication of the grievance.

3 In its written reply on April 13, 2015, the bargaining agent simply stated that it had no further submissions in this matter.

4 I have determined that I can decide this matter based on the parties' written submissions.

Reasons

5 This grievance was referred to the Board under section 209 of PSLRA, which reads 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 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 … .

6 On the Form 20, "Notice of Reference to Adjudication of an Individual Grievance," the bargaining agent wrote that the subject of the grievance is related to "Article 37 of the Collective Agreement and all other relevant provisions, policy and legislation." As the employer noted in its submissions, Article 37 of the applicable collective agreement is the no discrimination clause, which prohibits discrimination based on a number of stated grounds.

7 The bargaining agent provided a copy of the "Grievance Presentation" form and details of this grievance when the Form 20 was submitted to the Board. The grievance concerns a 2014 appointment process for correctional manager positions and the decision not to transfer the grievor's marks from a 2013 appointment process to the 2014 process. As corrective action, the grievor requested that he be put into the 2014 appointment process. The grievance contains no reference whatsoever to an issue of alleged discrimination.  

8 For me to have jurisdiction to hear this grievance under s. 209 of the PSLRA, the issue of discrimination must have been raised during the grievance process. I am not satisfied on the basis of what has been presented by either the bargaining agent or the grievor that an issue of discrimination was raised before the grievance was referred to adjudication. It is telling that, although the bargaining agent referred the grievance, it made no submissions in response to the employer's preliminary objection that I lacked jurisdiction to hear the grievance.

9 I am satisfied that there was nothing in the original grievance concerning an issue of discrimination. Accordingly, I do not have jurisdiction to hear a grievance with respect to any alleged discrimination under article 37 of the collective agreement, and must dismiss the Form 20 grievance. (See Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.), and Shneidman v. Canada (Attorney General), 2007 FCA 192). (See also, e.g., Baranyi v. Deputy Head (Canada Border Services Agency, 2012 PSLRB 55 at paragraph 104.)

10 For all the above reasons, I make the following order:

Order

11 The grievance is dismissed.

May 13, 2015.

Merri Beattie,
a panel of the Public Service Labour Relations and Employment Board