FPSLREB Decisions

REASONS FOR DECISION

I. Introduction

1        Catherine Bélair (“the complainant”) worked as an assistant at the constituency office of Member of Parliament Sania Hassainia of the New Democratic Party (NDP) Caucus. On June 27, 2012, Ms. Hassainia notified the complainant that she was being dismissed due to certain allegations that had been made against her. The complainant then filed grievances with the help of her bargaining agent, the United Food and Commercial Workers Union, Local 232 (“the respondent”).

2        On or about December 22, 2015, the complainant filed a complaint under Part 1 of the Parliamentary Employment and Staff Relations Act (R.S.C., 1985, c. 33 (2^nd Supp.); “the Act”), with the Public Service Labour Relations and Employment Board (PSLREB). The complainant alleged that the respondent had demonstrated gross negligence and bad faith in its actions toward her as her representative during the grievance process and that thus, it had failed its duty of fair representation. The PSLREB may handle grievances that deal with the duty of fair representation with respect to persons falling under Part I of the Act (see Beaulne v. Public Service Alliance of Canada, 2009 PSLRB 10 at paras. 265 to 279).

3        Therefore, it must be determined if the complainant is one of those persons for whom the PSLREB has jurisdiction, to rule on this complaint.

II. Background

4        The PSLREB has jurisdiction to rule on this complaint only if the complainant is a person to whom Part I of the Act applies. The relevant provisions of the Act are the following:

…

2 Subject to this Act, this Act applies to and in respect of every person employed by, and applies to and in every respect of,

(a) the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer, office of the Conflict of Interest and Ethics Commissioner or Parliamentary Protective Service, and

(b) a Member of Parliament who, in that capacity, employs that person or has the direction or control of staff employed to provide research or associated services to the caucus members of a political party represented in Parliament,

and, except as provided in this Act, nothing in any other Act of Parliament that provides for matters similar to those provided for under this Act and nothing done thereunder, whether before or after the coming into force of this section, shall apply to or in respect of or have any force or effect in relation to the institutions and persons described in this section.

…

3 In this Part,

…

employer means

…

(b) the House of Commons as represented by such committee or person as the House of Commons by its orders designates for the purposes of this Part ….

…

4(2)[Part I] does not apply to or in respect of

…

(e) the staff of any other individual Member of Parliament …

…

5        The PSLREB gave the parties the opportunity to present written submissions on the issue of its jurisdiction.

6        In a letter dated April 29, 2016, Julien Gratton, counsel for the complainant, argued that Part 1 of the Act applied. He submitted the following:

[Translation]

…

In this case, we feel that Ms. Bélair may be considered a “person employed by … the … House of Commons … or … a Member of Parliament …” because she worked for a caucus, i.e., the NDP Caucus and the House of Commons…

7        In support of his position, Mr. Gratton referred the PSLREB to the following facts:

- according to the collective agreement between the Communications, Energy and Paperworkers Union of Canada, Local 232 (which the respondent later replaced) and the NDP Caucus (“the collective agreement”), the complainant’s employer was the NDP Caucus;

- on July 29, 2011, the complainant received a letter from the House of Commons confirming her employment as an employee in Ms. Hassainia’s office;

- through her position, the complainant benefitted from the Public Service Health Care Plan; and

- on August 7, 2012, the complainant received a letter from the House of Commons instructing her to identify herself as being an employee of the House of Commons in the event she would have to communicate with the Government of Canada Pension Centre.

8        The PSLREB informed the respondent that it had until May 27, 2016, to present its written submissions.

9        On June 9, 2016, the PSLREB received the following response from Jean-Marc Eddie, counsel for the respondent:

[Translation]

… Our client just forwarded us your letter dated May 3, 2016, as well as the written submissions filed by [counsel for the complainant].

… We will review this matter with our client, and we hope to be able to advise you of the Union’s position shortly.

10        However, the respondent never presented its written submissions after that.

III. Analysis

11        Does the PSLREB have jurisdiction to rule on this complaint? To answer that question, the complainant’s employer must be determined.

12        In the letter that sets out the complaint, counsel for the complainant wrote the following:

[Translation]

…

On July 11, 2011, our client was hired by the New Democratic Party (NDP) and the newly elected Member of Parliament, Ms. Sana Hassainia, to fill an assistant position at the Verchères-Les Patriotes constituency office.

…

13        Clause 4.01 of the collective agreement reads as follows:

4.01 The Union and Caucus acknowledge and agree that each MP is the Employer of all his or her employees at both Ottawa and constituency offices …

14        The Board of Internal Economy adopted the Members By-Law (“the By-Law”) under the powers granted to it under s. 52.5 of the Parliament of Canada Act (R.S.C., 1985, c. P-1).

15        Subsections 61(1) and (2) of the By-Law read as follows:

61. (1) A Member is the employer of the employees in the Member’s offices whose salaries are paid from the Member’s Office Budget.

(2) Subject to conditions set by the Board, a Member may:

(a) hire employees for the Member’s Parliamentary office or constituency office;

(b) specify the employees’ titles, duties and hours of work;

(c) subject to the limits set by the Board in accordance with section 16 of the Governance and Administration By-law, fix employees’ remuneration and terms of service; and

(d) terminate the employment of employees.

16        According to the information that the complainant provided, Ms. Hassainia hired her to work in her constituency office. Under the By-Law, the Member of Parliament was the complainant’s employer. Subsection 4(2) of the Act excludes staff of members of Parliament from the operation of Part 1 of the Act. Therefore, the PSLREB must reject this complaint for lack of jurisdiction.

IV. Further submissions

17        James Duggan, counsel for the NDP Caucus, sent a letter to the PSLREB and the complainant. The PSLREB did not consider his submissions because his client was not a party. However, Mr. Duggan referred it to a decision of the Commission des lésions professionnelles (CLP) du Québec, in which it had to determine the employer of a person in a situation similar to that of the complainant (see A et Caucus A, 2015 QCCLP 3110).

18        According to the definitions in s. 3 of the Act, the term “employer” includes the House of Commons. Counsel for the complainant stated that the fact that the complainant received correspondence from the House of Commons proves that it was her employer. In this respect, the PSLREB endorses the CLP’s conclusion that the House of Commons is not the employer of the staff of members of Parliament; rather, it acts as the paymaster and delegated administrator of benefits.

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

V. Order

20        The PSLREB must dismiss this complaint for lack of jurisdiction.

February 1, 2017.

PSLREB Translation