FPSLREB Decisions

Heard at Ottawa, Ontario,
February 29, 2016.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        David McKinnon (“the grievor”) was working for the Department of National Defence (“the employer” or “the respondent”) as a cook’s helper in Petawawa, Ontario.

2        On October 21, 2009, the respondent notified the grievor that he was to remain on leave without pay pending a review of his reliability status. He had been on that leave since August 29, 2009.

3        On November 17, 2009, the grievor filed a grievance against the employer’s decision to keep him on leave and requested as relief that he be reinstated with pay and benefits retroactive to August 23, 2009, that he receive full redress, and that he be made whole (“the reliability grievance”).

4        On September 14, 2012, the employer terminated the grievor’s employment, for misconduct. On September 26, 2012, he filed a grievance against the employer’s decision to terminate his employment (“the termination grievance”). As relief, he requested that he be reinstated without loss of pay or benefits and that he be made whole.

5        The grievor is a member of the GS group and is represented by the Public Service Alliance of Canada (PSAC or “the bargaining agent”).

6        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 Board”) to replace the former Public Service Labour Relations Board (“the PSLRB”) 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 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

7        The parties filed an agreed statement of facts (“ASF”) and a joint book of documents.

8        The grievor did not attend the hearing.

9        With respect to the reliability grievance, a grievance hearing was held at the second level on November 30, 2009. The grievor was in attendance and was accompanied by a PSAC representative. The grievance was partially allowed. On December 15, 2009, the grievance was transmitted to the third level; the transmittal form was signed by the grievor. In October of 2010, the respondent provided the grievor with its final-level response upholding the partial allowance of the grievance at the second level. On January 6, 2011, the grievance was referred to adjudication, pursuant to s. 209(1)(b) of the PSLRA, on allegations that the respondent’s actions amounted to disciplinary action resulting in termination, demotion, suspension, or financial penalty.

10        With respect to the termination grievance, it was transmitted immediately to the final level, and the grievance transmittal form was signed the same day as the grievance was signed by both the grievor and his PSAC representative. A final-level response was issued to the grievor on March 11, 2013, denying the grievance. On May 17, 2013, the grievance was referred to adjudication pursuant to s. 209(1)(b) of the PSLRA.

11        In 2009-2010, the grievor resided on Victoria Street in Petawawa.

12        On January 11, 2011, the PSLRB wrote to the parties with respect to the reliability grievance (with a copy going directly to the grievor), which correspondence noted as follows:“It is the responsibility of the grievor to inform the Board of any change in residential address or telephone number.”

13        The grievor’s copy of the January 11, 2011, letter to the parties was returned to the PSLRB, marked by the post office as “moved/unknown”. On January 25, 2011, the PSLRB wrote to the PSAC, advising it that this had occurred.

14        On January 27, 2011, the PSAC advised the PSLRB that the grievor’s address was on Petawawa Boulevard in Petawawa.

15        As of September 26, 2012, the date of the termination grievance, the grievor’s home address was listed as Willard Street in Petawawa. The last known address for the grievor on the Board’s file is the Willard Street address.

16        On May 22, 2013, the PSLRB wrote to the parties with respect to the termination grievance (with a copy going directly to the grievor), which correspondence noted as follows: “It is the responsibility of the grievor to inform the Board of any change in residential address or telephone number.”

17        In the May 22, 2013, correspondence, the PSLRB advised the parties that as the termination grievance involved the loss of employment, it had been tentatively scheduled for a hearing on March 10-14, 2014, in Ottawa, Ontario.

18        On July 3, 2013, the employer wrote to the PSLRB and advised that it was not available to proceed with the termination grievance on March 10-14, 2014.

19        In October of 2013, the reliability grievance was placed on the PSLRB’s tentative schedule for hearing in Ottawa on May 28-29, 2014. On November 5 and 7, 2013, the PSLRB was advised respectively by the PSAC and the employer that the matter should be removed from the May 2014 schedule, and it was.

20        The reliability grievance was placed on the PSLRB’s tentative schedule for hearing in Ottawa during the month of June 2014. On December 11, 2013, the PSAC advised the PSLRB it was not available for this case in June of 2014, and the employer advised the PSLRB that it did not oppose the request to remove the grievance from the June 2014 schedule. The matter was removed from the June 2014 schedule.

21        The reliability grievance was placed on the PSLRB’s tentative schedule for hearing in Ottawa on December 22-23, 2014. On July 17, 2014, the PSLRB was advised by the employer that it was not available for this case in December of 2014, and the PSAC advised the PSLRB that it did not oppose the request to remove the grievance from the December 2014 schedule. The matter was removed from the December 2014 schedule.

22        The reliability grievance was placed on the Board’s tentative schedule for hearing in Ottawa during the month of August 2015. On April 7, 2015, the employer advised the Board that it was not available for this case in August of 2015, and the PSAC advised the Board that it did not oppose the request to remove the grievance from the August 2015 schedule. The matter was removed from the August 2015 schedule; however, the Chairperson of the Board ordered that this matter be given priority scheduling.

23        In August of 2015, the Board consolidated the two grievances to be heard at the same time. Both grievances were scheduled to be heard the week of October 19, 2015, at Ottawa. The Board sent a notice of hearing to the parties on September 14, 2015, which states as follows:

PLEASE NOTE THAT IT IS THE RESPONSIBILITY OF THE PARTIES’ REPRESENTATIVES TO ADVISE THEIR CLIENTS OF THE DATE, TIME AND LOCATION OF THE ABOVE-MENTIONED HEARING.

AND FURTHER TAKE NOTICE that if you fail to attend the hearing or any continuation thereof, the Board may dispose of the matter on the evidence and representations placed at the hearing without further notice to you.

[Emphasis in the original]

24        On September 15, 2015, a PSAC representative emailed the Board and advised it as follows:

…

At the current time, we are unaware of the grievor’s whereabouts.

Letters that have been sent to the addresses that we have on file have been returned unopened and he cannot be reached at any of the telephone numbers that we have on file for him. Needless to say, the grievor has not made contact with us.

We have reason to believe that there are medical issues at play and even if we were able to contact him at this poin t, [sic] we would be not prepared in time for the hearing.

Accordingly, we are requesting that the hearing be postponed.

…

25        On September 15, 2015, via email, counsel for the employer responded to the September 15, 2015, email from the PSAC representative as follows:

…

The Employer does not oppose the Bargaining Agent’s request for a postponement of the above noted hearing in order for it to attempt to locate the Grievor. That said, the Employer notes that both grievances have been awaiting adjudication for a number of years. AS [sic] such, the Employer respectfully requests, should the Board decide to grant the request for a postponement, that this matter be rescheduled promptly in order to allow the parties to achieve an expeditious resolution to the grievances. In addition, should the Bargaining Agent be unable to locate the grievor within a reasonable period of time, it is the Employer’s position that these grievances should then be dismissed for abandonment.

…

26        On September 18, 2015, the PSAC representative wrote back to the Board, via email, as follows:

…

The PSAC is sensitive to the employer’s concerns and its wish to bring some finality to the matter. However, in matters such as this, where there are potential [...] health issues involved, it is necessary always to proceed with great caution. I remind you that like the union, the PSLREB is also bound by the duty to accommodate flowing from the Canadian Human Rights Act.

The employer can argue abandonment at any stage of the proceedings, that is not a matter that concerns the Board. We request that the some time [sic] elapse before the grievance is schedule for hearing in order to allow for the grievor to be located...

…

27        The Board granted the PSAC’s request; the hearing scheduled for the week of October 19, 2015, was postponed, and the parties were advised that the Board ordered that both grievances be placed on the March 2016 schedule. The grievances were scheduled to be heard the week of February 29 to March 4, 2016, at Ottawa.

28        On November 18, 2015, the Board was advised that the PSAC was requesting that the grievances be removed from the March hearing schedule. On November 26, 2015, the Chairperson denied this request.

29        The Board sent out a notice of hearing to the parties on January 13, 2016, which states as follows:

PLEASE NOTE THAT IT IS THE RESPONSIBILITY OF THE PARTIES’ REPRESENTATIVES TO ADVISE THEIR CLIENTS OF THE DATE, TIME AND LOCATION OF THE ABOVE-MENTIONED HEARING.

AND FURTHER TAKE NOTICE that if you fail to attend the hearing or any continuation thereof, the Board may dispose of the matter on the evidence and representations placed at the hearing without further notice to you.

[Emphasis in the original]

30        On January 27, 2016, via email, a representative of the PSAC wrote to the Board and requested that a pre-hearing conference (“PHC”) be held. In the correspondence to the Board, the PSAC representative advised that it was the intention of the PSAC to seek a postponement of the hearing scheduled for the week of February 29, 2016. The PSAC correspondence stated as follows:

…

While it is recognized that these grievances have dragged on, and this is not the first adjournment request, the bargaining agent is in the unenviable position of being unable to track down, or contact the grievor.

…

After repeated attempts to get in contact, including unanswered telephone calls, letters, and reaching out to friends, colleagues, ... we remain unable to speak with the grievor.

…

31        On January 27, 2016, counsel for the employer wrote to the Board, confirming its agreement with the request for a PHC and stating that this was not the first time the PSAC had requested a postponement in an attempt to get in touch with the grievor.

32        A PHC was held on January 29, 2016. During the PHC, the grievor’s PSAC representative advised that it was having difficulty getting in touch with the grievor and requested that the hearing be postponed for three months to permit the PSAC to continue to try to get in touch with the grievor, failing which the PSAC would withdraw the grievances.

33        The grievor’s PSAC representative advised that the last time someone from the PSAC had actually spoken to the grievor, as noted in its file, was on March 12, 2013. Since that time, the PSAC has sent numerous pieces of correspondence to him. In addition, the PSAC has attempted to reach the grievor at the different phone numbers he has provided to it, to no avail. At some of the phone numbers, a message could be left, which the PSAC did; however, it never received a callback. In addition to writing and calling the grievor, the PSAC dispatched a member of the local to the last known address it had on file for the grievor, and that member of the local was advised by the inhabitants that the grievor did not live there; nor did the inhabitants know the grievor.

34        The grievor’s PSAC representative advised that on November 18, 2015, it had sent the notice of hearing to the grievor at the last known address that it had on file and that it had not been returned.

35         The respondent objected to the request for postponement advanced by the PSAC during the PHC, taking the position that there is prejudice to the respondent given that the events that gave rise to the reliability grievance dated back over six years, to 2009, and the termination grievance dated back to 2012. In addition, the employer submitted that many of its witnesses have since retired and do not live in the Ottawa area.

36        I did not grant the postponement request, and the hearing remained scheduled for the week of February 29, 2016.

37        On February 10, 2016, the parties requested a further PHC. A second PHC was held on February 18, 2016. At that time, the PSAC representative confirmed that it still had not had any contact with the grievor. At that time, the parties suggested that the hearing proceed only with the first scheduled day of Monday, February 29, 2016; that the balance of the hearing days that week be postponed; and that the only matter to be dealt with, assuming the grievor did not attend, would be the respondent’s request that the matters be dismissed on the basis of abandonment.

38        I granted the parties’ request, and the hearing days scheduled for March 1 through March 4, 2016, were postponed.

39        On February 25, the PSAC wrote to the Board and requested that the grievor’s name be anonymized from all hearing lists and that his name not be used in the decision.

40        According to the ASF, the last point of contact the grievor had with the PSAC was on March 12, 2013, at which time he advised a labour relations officer (“LRO”) in the PSAC component Union of National Defence Employees (“UNDE”) of his new phone number and that he might be difficult to reach due to a personal situation. The ASF does not disclose what that personal situation was.

41        According to the ASF, the UNDE LRO who last spoke with the grievor in March of 2013 went to the last known address that the PSAC had in its file for the grievor, and no one was at the address. According to the ASF, all phone numbers that the PSAC had on its file for the grievor were called, and none yielded contact from the grievor.

42        At the outset of the hearing on February 29, 2016, an alternative to anonymizing the record was put forward by the PSAC. This alternative was that the material in the Board’s files that mention the health and certain personal circumstances of the grievor be sealed. The employer did not object to this request.

43        When I asked the PSAC if it had any idea about the whereabouts of the grievor, the representative admitted that it had no idea where he was.

III. Summary of the arguments

A. Request to redact the grievor’s name or seal documents

1. For the grievor

44        The PSAC submitted that special circumstances exist, and as such, the grievor’s name should be kept out of the decision. The PSAC referred me to N.J. v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 129 at para. 48, which refers to the Supreme Court of Canada’s “Dagenais/Mentuck”test when deciding whether restrictions should be imposed on the open court principle, as follows:

…

(a) such an order is necessary in order to prevent a serious risk to an important interest … in the context of litigation because reasonable alternative measures will not prevent the risk; and

(b) the salutary effects of the … order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

…

45        The PSAC also referred me to Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2015 PSLREB 29 at paras. 95-99, Bridgen v. Deputy Head (Correctional Service of Canada),2012 PSLRB 92, and Stead v. Deputy Head (Correctional Service of Canada),2012 PSLRB 87.

46        This hearing was only on the abandonment and not on the grievances on their merits. If it had been a matter of hearing the grievances on their merits, then the redaction and sealing requests would not have been advanced.

47        The PSAC provided me with a list of the documents that it believes are in the Board’s files, as well as those submitted as part of the joint book of documents that it submits should be sealed.

B. Abandonment

1. For the respondent

48        The reliability grievance is over 6 years old and was referred to adjudication over 5 years ago; the termination grievance is over 3 years old and was referred to adjudication over 33 months ago.

49        From 2009 through to 2012, the grievor had three different addresses in Petawawa, provided those addresses to the PSAC, and kept in touch with the PSAC. Since March of 2013, the grievor has not been in contact with the PSAC.

50        The grievor has a responsibility to be diligent in pursuing his grievances. The employer submits that the grievor has failed to discharge this onus.

51        The employer submits that the passage of time has prejudiced it.

52        The employer referred me to Fletcher v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 39 at paras. 35 and 36, which states as follows:

35 … It is well recognized in arbitral jurisprudence that an employer has a legitimate interest in the timely resolution of a dispute. The difficulties of presenting effective evidence and the weight of corrective action may both mount with the passage of time… .

36 I believe that there is also a third interest at play in this matter, although perhaps from the background. It is the general public interest in an efficient administration of justice that avoids undue delays, promotes the final resolution of conflict and is respected by the parties. This interest becomes a concern in this case, to the extent that the grievor appears not to have cooperated with the efforts to provide her a hearing and to have disregarded the Chairperson’s notices and instructions. To some extent, a decision to grant a further postponement in this context could be read by others as rewarding behaviour that undermines a well-functioning dispute resolution process.

53        There are two separate grievances at issue with separate witnesses, many of whom do not reside in Ottawa (or the vicinity), and some are now retired. This presents the logistical challenge of having them all present at one time to present evidence.

54        Howitt v. Canadian Food Inspection Agency, 2013 PSLRB 51, was about a fact situation that is similar to this case. At paragraphs 4 through 8, the adjudicator sets out the procedural facts that in that situation are almost identical to this case. The bargaining agent in that case had been unable to communicate with the grievor and had asked for a postponement of the originally scheduled hearing, which postponement was granted to allow the bargaining agent time to get in touch with the grievor. The matter was rescheduled, and once again, the bargaining agent sought a postponement on the grounds that it had been unable to communicate with the grievor. The hearing was not postponed, and at the outset of the hearing, in the absence of the grievor, the bargaining agent again requested that the matter be postponed. The employer objected to the request and moved that the matter be dismissed as having been abandoned. The adjudicator did not grant the postponement request and dismissed the matter. The employer in this case submits that this case is not different from Howitt.

55        The PSAC has inferred that there are some issues that afflict the grievor and that may be the cause of the difficulties that the PSAC has had in communicating with him. There is no evidence of those issues, merely suspicions, and they do not support postponing the matter.

56        The employer referred me to Boulos v. Canada Revenue Agency, 2014 PSLREB 5 at paras. 14 and 15, which states as follows:

[14] The process before this and the former Board is adversarial in nature. The positions of the parties are made either orally at a hearing, or in writing, through written submissions or representations made on particular issues. The process requires that the decision-maker [sic] is able to rely on the representations made by the parties. In this case, the grievor has been representing himself on these grievances before both the PSLRB and the Federal Court since they were first referred to adjudication in 2010. He is entitled to the same respect that any representative appearing before this or the former Board would receive and the submissions and representations that he makes carry the same weight as those made by any representative.

[15] On February 4, 2014, the grievor advised the PSLRB that he would not attend the adjudication hearing scheduled from February 25 to 28, 2014. He repeated that statement on February 11, 2014. In spite of clear warnings to the effect that failing to participate in a scheduled adjudication hearing could result in a decision based on the record or a finding that the grievances had been abandoned, on October 15, 2014, the grievor again advised that he would not attend the adjudication hearing scheduled for October 28 to 31, 2014.

57        While the employer concedes that it has the burden of proof in discipline cases to prove the misconduct, the grievor has the burden of proof to establish that the relief he is requesting should be granted.

58        With respect to the reliability grievance, the employer has objected to the jurisdiction of an adjudicator. In such situations, as set out in Braun v. Deputy Head (Royal Canadian Mounted Police), 2010 PSLRB 63, and Bergey v. Treasury Board (Royal Canadian Mounted Police),2013 PSLRB 80,once the employer has objected to jurisdiction and has demonstrated that a decision was administrative in nature, it is incumbent upon the grievor to establish that the action of the employer was disciplinary in nature. It is difficult to establish facts that would prove on a balance of probabilities that an action is disciplinary if the grievor is not present and not leading any evidence.

59        The employer also referred me to Cardinal v. Deputy Head (Department of Citizenship and Immigration), 2013 PSLRB 137.

60        The employer submits that both grievances be dismissed as abandoned.

2. For the grievor

61        The PSAC opposes the request by the employer to dismiss the grievances on the basis of abandonment and requests that the matter be postponed one further time to allow the PSAC one further opportunity to try to get in touch with the grievor, failing which the adjudicator can dismiss the grievances without a hearing.

62        The PSAC submits that the grievor was facing some challenging life circumstances in 2009 and that at the point of last contact, he advised the UNDE LRO that, due to some personal issues, he might be difficult to reach.

63        The grievor has never indicated a willingness not to proceed to a hearing.

64        The PSAC has six or seven addresses for the grievor and several telephone numbers, all of which have yielded no results in getting hold of the grievor, which speaks to the level of precariousness of the grievor’s situation.

65        The PSAC requests on compassionate grounds that the hearing be postponed.

66        It is unknown if the grievor realizes the risks of not attending the hearing.

67        There are special circumstances, and as such, it is a reasonable alternative to allow a postponement of a further three months.

3. Respondent’s reply

68        All the points made by the PSAC applied equally in October of 2015, when the grievance hearing was postponed at the request of the grievor’s representative, for the same reasons.

IV. Reasons

A. Request to redact the grievor’s name or seal documents

69        The Dagenais/Mentuck test provides guidance for whether restrictions should be placed on the open court principle. As set out in N.J., the test requires the decision maker first to determine if an order limiting the open court principle is necessary in the context of the litigation to prevent a serious risk to an important interest and second to determine whether the salutatory effects of the order would outweigh its deleterious effects on the public’s right to open and accessible adjudication proceedings.

70        The argument of the grievor’s representative for anonymizing the grievor’s name, or in the alternative for sealing documents contained in the Board’s files, is that in the past, the grievor was facing some challenges. The challenges alluded to include undisclosed health issues.

71        No evidence was presented to me that the grievor suffered from any form of health issue. Furthermore, none of the other challenges referred to by the PSAC representative convince me that the test as enunciated in Dagenais/Mentuck has been met.

72        It is these challenges to which the PSAC alludes that it is also using to possibly explain the grievor’s failure to maintain contact with it and why he was not present at the hearing. The PSAC is in a contradictory position of putting forward a request to redact the identity of the grievor because of these alleged challenges that have affected him and at the same time seeking to postpone the hearing on the basis of these same alleged challenges. It states that I should grant the postponement because the grievor could be suffering from these challenges, yet it wants his name kept out of the decision because of these same challenges. 

73        I am not persuaded that the fact that there are some limited references in the materials filed with the Board (as part of normal Board practice), and that may infer that the grievor has had certain challenges in his life, which would justify a departure from the open court principle as defined in the Dagenais/Mentuck test. Accordingly, the request of the bargaining agent to anonymize the grievor’s name is denied.

74        However, having reviewed the exhibits tendered at the hearing in relation to the Board’s Policy on Openness and Privacy, and, bearing in mind that the employer did not object to the request that information pertaining to health and certain personal circumstances be sealed, I am satisfied that it is appropriate to order the documents found at Exhibit E-1 Tab 2 and Tab 3 be sealed. None of the other documents contained in the exhibit will be sealed.

B. Abandonment

75        In Fletcher, Cardinal, and Howitt, the Board’s predecessor, the PSLRB, maintained that it is well recognized in arbitral jurisprudence that an employer has a legitimate interest in the timely resolution of a dispute. The Board has also stated that one of the interests at play in adjudication hearings is the general public interest when considering requests for dismissal on the ground of abandonment. This public interest was characterized at paragraph 36 of Fletcher as follows:

[36] … It is the general public interest in an efficient administration of justice that avoids undue delays, promotes the final resolution of conflict and is respected by the parties. This interest becomes a concern in this case, to the extent that the grievor appears not to have cooperated with the efforts to provide her a hearing and to have disregarded the Chairperson’s notices and instructions. To some extent, a decision to grant a further postponement in this context could be read by others as rewarding behaviour that undermines a well-functioning dispute resolution process.

76        I agree and accept the reasoning of the PSLRB as set out in Fletcher, Cardinal, and Howitt.

77        Grievors have an obligation to pursue their cases with diligence and assist their representatives (if they are represented), be they bargaining agent representatives or legal counsel, in the steps that are necessary to bring their cases to hearing. This obligation includes, at a bare minimum, keeping their representatives informed of their current addresses as well as of a means to communicate with them, be it via email or telephone (smart phone, mobile phone, or old-fashioned landline). This allows their representatives to keep in touch with them to inform them of steps that may be taken for or against them and the potential scheduling of hearings of their cases.

78        The failure of a grievor to keep in touch with his or her representative does not meet the very simple and basic obligation placed upon him to pursue the case with due diligence.

79        The grievor has not been in touch with his representatives for almost three full years. The PSAC has indicated the steps it has taken over an extended period trying to locate the grievor. It has canvassed his friends and former colleagues and has even sent an LRO out to his former home. There is no sign of the grievor. While I am cognizant that the PSAC has a statutory duty to its members and as such must be diligent in its actions, I am not certain what if anything more it is required to do.

80        The comments by the PSAC about the grievor’s health or other life challenges are based on information that is now more than six years old. Without any current evidence that the grievor truly is suffering from a health issue that is preventing him from communicating with his representatives or the Board, the balancing of interests must favour the employer’s concern to bring some finality to these matters, one of which is well over six years old, and the other over three-and-a-half years old.

81        I find that the grievor’s inaction as set out has demonstrated that he has for all intents and purposes abandoned his grievances, and as such, they shall be dismissed.

82        For all of the above reasons, the Board makes the following order:

V. Order

83        The PSAC’s request that the grievor’s name be anonymized is denied.

84        The PSAC’s request that certain documents within the Board’s files be sealed is denied except for those contained at Exhibit E-1 Tab 2 and Tab 3, which are to be sealed.

85        The grievance in file 566-02-5017 is dismissed.

86        The grievance in file 566-02-8556 is dismissed.

April 12, 2016.

John G. Jaworski,
a panel of the Public Service Labour Relations and Employment Board