FPSLREB Decisions

Heard at Ottawa, Ontario,
August 29 to 31, 2016.

REASONS FOR DECISION

I. Individual grievance referred to adjudication and application before the Board

1        Ekarina Santawirya (“the grievor”) grieved that based on her disability, the Canada Border Services Agency (CBSA or “the respondent”) violated article 16 of the collective agreement between the Treasury Board and the Canadian Association of Professional Employees (CAPE) for the Economics and Social Science Services Group, with an expiry date of June 21, 2014 (“the EC collective agreement”). She also grieved that the respondent violated clause 39.03(11) (which refers to the National Joint Council’s “Work Force Adjustment Directive” (WFAD)) of that agreement based on her disability, the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA),and again article 16 by failing to comply with its duty to accommodate her.

2        The grievance was presented to the respondent on February 12, 2015. The CBSA did not respond. The bargaining agent transmitted it through all levels of the grievance process and on June 4, 2015, referred it to adjudication.

3        On July 10, 2015, the Treasury Board raised a number of preliminary objections with respect to the reference to adjudication, as follows:

• The pith and substance of the grievance concerns a staffing process, over which an adjudicator does not have jurisdiction.
• The grievance is not properly before the Public Service Labour Relations and Employment Board (PSLREB or “the Board”) because the grievor was not an employee when it was filed.
• An adjudicator does not have jurisdiction as another administrative procedure for redress provided under another Act of Parliament was available to the grievor, namely, the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA).
• In the alternative, the grievance was filed outside the time limit prescribed in the EC collective agreement, and the Board should not exercise its discretion to extend the time limit.

4        Hearings were held to address the preliminary issues.

5        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent changing the names of the Public Service Labour Relations and Employment Board, the Public Service Labour Relations and Employment Board Act, the Public Service Labour Relations Act and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act (“the Act”) and the Federal Public Sector Labour Relations Regulations (“the Regulations”).

II. Summary of the facts

6        The parties entered into an agreed statement of facts. They agreed that they could supplement the statement with viva voce evidence.

7        The respondent called Monique Poivre, a manager of human resources at the CBSA, as a witness. The grievor testified on her own behalf.

8        This summary incorporates information from the agreed statement of facts and the exhibits appended to it as well as the evidence of Ms. Poivre and the grievor.

9        The grievor was employed at Industry Canada as a research assistant (subsequently as a data analyst) starting on August 31, 2000. Her position, which was classified EC-01, fell within a bargaining unit represented by the CAPE. As such, she was subject to the EC collective agreement.

10        On April 11, 2012, Industry Canada informed the grievor that she was an “affected employee” in the context of the federal government’s financial restraint measures. As such, pursuant to the WFAD, she was to be considered for redeployment to vacant positions at her group and level for which she might qualify within her department. This process was to continue until the end of May 2012.

11        On June 26, 2012, the grievor was informed by letter that since it could not be predicted that future employment would be available for her in the core public administration, she was declared to have “opting status” pursuant to the WFAD. She had to select one of three options, which were outlined in Annex A of the letter.

12        On October 24, 2012, the grievor elected “Option A”, meaning that she would continue to work in her current position for a 12-month period, during which she would have “surplus priority” status while she attempted to secure a reasonable job offer. This meant that during that period, pursuant to s. 5 of the Public Service Employment Regulations (SOR/2005-334; PSER) and in accordance with s. 40 of the PSEA, she was entitled to be appointed as a priority to another position in the core public administration if she demonstrated that she met the essential qualifications.

13        If she were unable to find such a position, at the end of that period, the grievor was to be laid off in accordance with s. 64(1) of the PSEA. Then, in accordance with s. 41(4) of the PSEA and s. 11 of the PSER, she was to benefit from an additional 12-month period during which she would maintain priority status while being on layoff.

14        The grievor did not receive a reasonable job offer during her initial 12-month surplus priority status period. By letter dated September 19, 2013, she was informed that she would be laid off effective October 25, 2013. Therefore, she would be on “lay-off priority” until October 24, 2014.

15        In or about mid-September 2014, the CBSA advertised an appointment process for security officer, regional security officer, and personnel security screening analyst positions classified AS-01. The advertisement indicated that three positions were anticipated to be staffed through this process, one indeterminately and two determinately for a one-year period. The advertisement also indicated that the process would be used to establish a pool of qualified candidates for future similar positions. The closing date for applications was October 3, 2014.

16        A number of essential and asset qualifications were listed in the advertisement for the AS-01 positions at the CBSA. However, pursuant to the WFAD, the grievor had to demonstrate only that she met the essential qualifications to benefit from a priority in appointment. The advertisement also indicated that candidates had to demonstrate how they met the essential qualifications directly in their cover letters.

17        Ms. Poivre explained that the appointment process was open to persons employed with Public Safety Canada working in the National Capital Region, the CBSA, the Canadian Security Intelligence Service, the Correctional Service of Canada, the Parole Board of Canada, and the Royal Canadian Mounted Police or persons employed in the Department of National Defence working in the National Capital Region and members of the Canadian Forces with a home posting within the National Capital Region.

18        The grievor was not an employee within the area of selection; however, because she had priority status on account of her layoff status, the area of selection criteria did not come into play, and she was eligible to apply.

19        Ms. Poivre’s group works with managers in CBSA (clients) and helps them assess whether applicants meet the criteria for appointments to positions. These positions were advertised through an electronic process internal to the public service at the time called “Publiservice”, which is now called “jobs.gc.ca”. Interested persons could apply online.

20        The positions were posted on September 15, 2014, and the appointment process was open for a period of two weeks with a closing date of October 3, 2014. During that period, the CBSA received over 130 applications. However, Ms. Poivre acknowledged that she could not say if anyone other than the grievor had priority status.

21        The “Job Opportunity Advertisement” (JOA), after setting out the position information and the area of selection and closing date, sets out at page 3 the essential qualifications for the positions.

22        The direction to candidates states: “Applicants must clearly demonstrate on their application that they meet all the following essential criteria and are within the area of selection. Failure to do so may result in the rejection of your application.”

23        The essential qualifications for the positions include the following:

• secondary school diploma;
• recent and significant experience drafting and preparing various types of written documents and reports;
• recent and significant experience planning and coordinating administrative services and activities in an office setting;
• recent and significant experience operating a personal computer using MS office Outlook, Word, Excel and PowerPoint and
• experience providing advice and guidance and liaising with clients and individuals at various levels of management.

24        “Recent and significant experience” is defined as the depth and breadth of experience normally associated with the full-time performance of duties for a minimum period of six months within the last three years.

25        Candidates were required to demonstrate on their applications that they met a number of asset qualifications.

26        The JOA lists the operational requirements for the positions and the conditions of employment.

27        Each candidate was required to identify his or her substantive group and level and employment status on the candidate’s résumé or application form and to ensure that his or her personal record identifier was included.

28        Ms. Poivre stated that the assessment tools used to determine whether a candidate met the essential qualifications for a position were screening, a written examination, and reference checks.

29        Notes at pages 4 and 5 of the JOA state as follows:

Candidates must clearly demonstrate IN THEIR COVER LETTER how they meet the education AND experience criteria listed in the essential qualifications. Candidates must use the experience criteria as a header and then write one or two paragraphs for each demonstrating how they meet them with concrete examples. Please note that it is not sufficient to only state that the qualification is met or to provide a listing of current or past responsibilities.

FAILURE TO PROVIDE THE COVER LETTER WITH THE REQUESTED INFORMATION MAY RESULT IN YOUR APPLICATION BEING REJECTED.

Resumes will only be used as a secondary source to validate the information described in the cover letter.

30        The JOA then states that no receipts will be sent for the applications and that persons are entitled to participate in the appointment process in the official language of their choice. It also lists provisions for leave or absences during the selection process.

31        The advertisement concludes as follows: “If you require accommodation at any stage of the process: Please advise the Human Resources Assistant responsible for this process as soon as possible...”

32        Ms. Poivre stated that the note at page 4 of the JOA that required candidates to set out in their cover letter how they met the essential qualifications for the position was important and that it applied to all applicants. She stated that often résumés are 12 to 14 pages long, which is why the CBSA requests that the information be set out in the cover letter.

33        The grievor testified that on or about September 15, 2014, someone sent her information concerning the appointment process. As a laid-off public servant, she hoped to be selected and hoped that the CBSA would give her a chance to continue serving Canada, as a security officer.

34        On September 23, 2013, the grievor emailed Catherine Power, the manager of the CBSA’s Professional Integrity Program, and indicated that she wished to be considered for the indeterminate security officer (AS-01) position. She attached her curriculum vitae and a cover letter.

35        Ms. Poivre identified a transmission letter, a cover letter, and a résumé dated September 23, 2014, from the grievor that her client had given to her. The transmission letter referred to the selection process number and stated in part as follows:

...

I wish to be considered for indeterminate Security Officer (AS-01) position. Please find the attach CV and covering letter.

Please note my priority lay-off (PSC) WFA ended in October 15, 2014. My home Department Industry Canada will give me two years of training provided is indeterminate

...

[Sic throughout]

36        In the introduction to the grievor’s résumé, where she set out her personal information, she identified herself as a person with a disability.

37        Ms. Poivre testified that in her opinion, the cover letter related recent experience with respect to computers while the advertised position was in security.

38        On October 2, 2014, Robert Laskowski, an administrative assistant with the CBSA, emailed the grievor, stating in part as follows:

...

Thank you for getting in touch with us regarding this process.

We will gladly consider you for the indeterminate Security Officer (AS-01) position.

As per the job advertisement, can you please clearly demonstrate IN THE COVER LETTER how you meet the education AND experience criteria listed in the essential qualifications and any asset qualifications that you may have. You must use the experience criteria as a header and then write one or two paragraphs for each demonstrating how you meet them with concrete examples. Please note that it is not sufficient to only state that the qualification is met or to provide a listing of current or past responsibilities.

...

39        On October 3, 2014, Alan Azar, a senior security analyst, emailed Ms. Santawirya and stated that they had received her initial cover letter and résumé for the AS-01 security officer position. The email stated in part as follows:

...

If you are still interested, as requested in Roberts email, please send a revised Cover Letter identifying how you clearly you meet the education and experience criteria listed in the essential qualifications and any asset qualifications that you may have.

Please let me know if you are still interested in this AES-01 Security Officer position, and if you would like to part in a written exam.

...

[Sic throughout]

40        She was advised to resubmit her cover letter to Mr. Azar.

41        Ms. Poivre stated that the reason the CBSA did not just screen her out for failing to comply with the direction that she set out how she met the education and experience criteria in the cover letter was that she had priority status. The CBSA took her status seriously and wanted to give her a chance to apply for the position. At that time, the appointment process was still open.

42        Ms. Poivre stated that to the best of her knowledge, Mr. Azar did not hear back from the grievor.

43        In cross-examination, the grievor was asked whether she agreed that she had read the instructions on pages 4 and 5 of the poster requiring candidates to set out in their cover letters how they met the essential qualifications. She hesitated and said that she was not sure she agreed and then acknowledged that she had read them. She then stated that when she sent the application on September 23, 2014, she did not know whether she could apply for the positions.

44        The grievor testified that she does not have a computer. To communicate by email, she is permitted to use the computers at the Nepean Centrepointe branch of the Ottawa Public Library in Ottawa, Ontario, after other customers have finished.

45        The grievor suffers from a mobility disability and relies upon Para Transpo for transportation. Para Transpo provides public transportation in Ottawa for those unable to take conventional transit. If she wishes to use the library’s computers, she must book Para Transpo two days in advance.

46        She stated that the reason she did not respond to the October 2 email was that she had to prepare for an upcoming eye surgery on October 8, 2014. Following the surgery, she suffered headaches and impaired vision.

47        On October 14, 2014, Kim MacDonald, acting human resources advisor, emailed the grievor, stating in part as follows:

...

We regret to inform you that your application will not be given further consideration, as you did not provide a cover letter to the assessment board to evaluate your qualifications. We consider that you are no longer interested in participating in the above-mentioned appointment process. This is to confirm your withdrawal from this process.

...

48         On October 15, 2014, the grievor received an automated email from the Public Service Commission (PSC) referring her to a selection process for a security officer position at the CBSA. The email stated in part as follows:

...

You have been referred by the Public Service Commission to the above mentioned position.

For information on the requirements of the position, please refer to the statement of merit criteria (SOMC) below. Because you benefit from a priority entitlement, you only need to meet the essential qualifications and conditions of employment outlined in this SOMC; you do not need to meet the asset qualifications, operational requirements or organizational needs.

If you believe that you meet the essential qualifications and conditions of employment for this position:

1. Respond to the hiring organization in writing within 5 working days. It is important to respect this time frame so that the position can be filled in a timely manner.

If you cannot provide the requested information within the time frame stipulated above, you must advise the organization as soon as possible of your interest and indicate by what date you will be able to respond.

...

If you do not wish to be considered for the position, you must provide an explanation in writing to the hiring organization below within the same time frame.

...

49        On October 16, 2014, the grievor forwarded the PSC’s email to Cari McRae, a human resources assistant at the CBSA. Ms. McRae advised her that the email referred to the same position and added the following: “...Since you self-referred, Kim added your name to the PSC’s system and the system generated this email in reference to your self-referral. It is all the same referral”.

50        On October 16, 2014, the grievor contacted Ms. MacDonald by telephone. She informed her that she had had eye surgery on October 8, 2014, that she uses Para Transpo, and that she uses and relies on the computers at a library. Ms. MacDonald advised her that the CBSA would reconsider her application for the security officer position if she provided her with a modified cover letter by Monday, October 20, 2014, at 9:00 a.m., as well as a medical certificate with respect to the eye surgery.

51        On October 17, 2014, Ms. MacDonald emailed the grievor, stating in part as follows:

...

As per our discussion, please provide a copy of your cover letter and a medical certificate not later than Monday October 20, 2014 at 9:00am if you still want to be considered for the AS-01 opportunity.

If you have any questions do not hesitate to contact me.

...

52        Ms. Poivre explained that she was involved by this stage. A specific date and time was inserted into the letter because if a complaint was filed and no end date and time had been specified, it could be used against the CBSA. The specific time and date were inserted to protect the interests of the department.

53        The grievor testified that she called her doctor’s office and advised it that she needed a medical certificate confirming her eye surgery. It advised her that it would do its best. She went there on October 22, 2014. Her doctor was not present. The office advised her that it could not send the letter at that time but that it would send one. The medical certificate dated October 21, 2014, and addressed to Ms. Poivre was faxed to her on November 3, 2014.

54        The grievor went to the library on several occasions between October 16 and 19, 2014, to prepare a modified cover letter. It was a difficult process because of the issues with her vision. She testified that she did try to send the modified cover letter on October 19, 2014. However, the CBSA did not receive it at that time.

55        On October 20, 2014, at 12:53 p.m., the grievor emailed Ms. MacDonald, stating: “Attach please find the cover letter, Just letting you know the formatting is not perfect from the library” [sic throughout].

56        On October 21, 2014, at 1:45 p.m., Ms. MacDonald emailed the grievor, advising her in part as follows:

Unfortunately, we cannot consider your application as you have not provided the information requested by Monday October 20, 2014 at 9:00am.

1. A proof  that you have sent your cover letter to my attention before Monday, October 20, 2014 at 9:00am.
2. A copy of you medical certificate
3. A copy of your accommodation file

Consequently, you will not be considered further in this selection process.

[Sic throughout]

57        On October 21, 2014, the grievor spoke on the phone with Ms. Poivre, who indicated to the grievor that if she could prove that she had sent the required information before 9:00 a.m. on October 20, 2014, her application would be considered.

58        On October 23, 2014, the CBSA received an email from Verna Preston, the coordinator of the Nepean Centrepointe library branch. It states that the grievor is 100% certain that she sent an email to Ms. Power at the end of the day on Sunday, October 19, 2014. The library closes at 5:00 p.m. The email concludes by stating that “... there may have been an issue with the library server at the end of the day. We have been unable to determine the exact problem with the server at this time.”

59        On October 22, 2014, the CBSA received information about the grievor’s health from Dr. Anil Jain. It was about her mobility and other issues.

60        As noted, on November 3, 2014, the CBSA received a fax from the office of Dr. Kevin D. Smith, with a copy of a note dated October 21, 2014, addressed to Ms. Poivre and stating that the grievor underwent eye surgery on October 8, 2014.

61        Ms. Poivre stated that by November 3, 2014, the grievor was no longer a public servant as her priority status had ended on October 24, 2014. She was not satisfied that the grievor had proved that she had sent the covering letter on October 19, 2014. In her view, the letter she had received from the library did not constitute proof. If problems had arisen with the computers, then confirmation from the library’s information technology branch might have constituted sufficient proof.

62        She was asked why the deadline was set at 9:00 a.m. and not at the end of business. She said that she did not receive any pushback with respect to the deadline.

63        Ms. Poivre commented on the PSC’s email to the grievor. She stated that the way the priority system works is that every time positions are posted, a requirement arises to obtain clearance from the PSC, which has a responsibility to ensure that a means exists for priority persons to be assessed against the posted criteria for qualifying for vacant positions.

64        The grievor self-referred to this appointment process. When a person self-refers, departments input that information into the PSC’s priority system. That input in turn generates an email from the PSC.

65        Ms. Poivre was asked whether she agreed that the PSC had invited the grievor to apply for the position. She stated that the letter stated that the PSC had referred her to the position. She stated that under the WFAD, if the PSC refers a person with layoff priority to a position, then the person is expected to apply to the position.

66        She agreed that the letter dated Wednesday, October 15, 2014, stated that the grievor was required to respond within five working days, which would have been October 22, 2014. She stated that the grievor was in fact given an extension until October 20 at 9:00 a.m. In re-examination, she stated that because the grievor had self-referred, she had until October 3, 2014, to submit her initial application to the CBSA for the positions, in accordance with the JOA poster. Then the CBSA gave her until October 20 at 9:00 a.m. to submit her modified cover letter and medical information.

67        On or shortly before November 10, 2014, the grievor contacted the PSC for advice with respect to her allegation that the CBSA refused to consider her application for the security officer position. She stated that the PSC told her to contact her bargaining agent representative, which she did. In addition to other advice, she was advised to contact the Canadian Human Rights Commission (CHRC).

68        On November 10, the grievor wrote to her bargaining agent representatives, advising them that the PSC had written to her about her surplus status and layoff, as follows:

The Public Service Commission is responsible for administering priority entitlements under the Public Service Employment Act (PSEA) and the Public Service Employment Regulations (PSER), however, the Work Force Adjustment Directive (WFAD) is negotiated by the Unions and the Employer within the context of collective bargaining. I would therefore suggest any concerns you have regarding the surplus/lay-off provisions of the WFAD be directed to the HR Advisor of your Home Organization and/or with your Union Representative.

69        The grievor requested that the bargaining agent provide her with information about a priority layoff.

70        On November 10, 2014, the grievor wrote to Ms. Poivre, stating as follows: “In response to your comment that my top priority ended on October 24, 2014, I would just like to clarify that submission for this selection process was done prior to this date therefore I do not see any issues with me being able to apply for this job.”

71        Ms. Poivre replied the same date, stating as follows:

As indicated previously, we initially received your information after the deadline and when we finally received everything - your priority status had ended - we verified with the Public Service Commission (PSC) priority division and they confirmed this with us.

72        The grievor replied on November 15, 2014, stating as follows:

I cannot agree with this as I, with proof from the library, sent the covering letter on the afternoon of October 19, 2014 when you required this information by 9:00 a.m. on October 20 therefore sent [sic] on time. Also this date is BEFORE October 24 when my priority status ended.

As for what my doctor’s office faxed to you, it was also before October 24. On October 22 they sent an accommodation needs letter and eye surgery letter on October 23. The eye surgery letter would have been sent also on the 22^nd but they had a power outage. All of this was received by you before my deadline of October 24. I did not receive any confirmation from you of receipt of these medical documents, therefore I resent them on November 3 as I discovered that when they were first sent to you on October 22 & 23 that the spelling of your last name was incorrect. Nonetheless you did receive it BEFORE my priority status deadline of October 24, 2014 originally. It simply does not make sense as all documents were faxed andor e-mailed “before” any deadline.

When may I speak with you to further discuss this unresolved issue!

[Sic throughout]

73        On November 19, 2014, the grievor emailed Ms. Poivre, providing information she had received from her bargaining agent on her rights, including information from the PSC and a reference to provisions in the WFAD. She concluded by stating that she hoped it would help determine if she could be appointed to the AS-01 position at the CBSA as a self-referral priority laid-off person with or without retraining.

74        On November 20, 2014, Ms. Poivre replied, confirming that as the grievor’s priority entitlement had expired, she was no longer part of the area of selection, which was confirmed with the PSC and meant that she was not being considered any further.

75        On November 24, 2014, Ms. Poivre emailed the grievor. She acknowledged receiving the email from the Ottawa Public Library of October 23, 2014, as well as the medical information sent on October 22 and November 3, 2014. The letter concluded as follows:

We contacted the PSC and discuss the situation with them and they indicated that we did not have to consider you any further. They provided us with priority clearance in order to proceed with the process.

As I indicated to you previously, as your priority entitlement had expired you were no longer part of the area of selection (which we confirmed with the PSC). Which mean that you are not being considered any further.

[Sic throughout]

76        Ms. Poivre did not receive anything further from the grievor after that.

77        She testified that she did not provide a further extension to the grievor to file her amended cover letter because in her view, at some point, there has to be a limit. That is why she involved the PSC. Ms. Poivre acknowledged that there was no specific reason she did not give the grievor four more hours to submit her cover letter. She stated that the clients wanted to get on with scheduling written examinations. Had she wanted to extend the four hours, she would have had to seek the authority of her supervisor, Daniel LeBlanc.

78        Ms. Poivre stated that she did not know whether the modified cover letter that the CBSA received from the grievor on October 20, 2014, was ever assessed. She stated that she would have to go back to her clients for that information. However, based on the fact that it was late, the grievor was not considered any further in the process.

79        She stated that any time there is a notification of appointment or proposal of appointment (NAPA) or a notification that an acting appointment (NAA) has been made, the persons who applied for the position can file a complaint with the Board under the provisions of the PSEA.

80        Six NAPAs and four NAAs had been posted from this appointment process as of the hearing date. The pool was to be open until 2017. Ms. Poivre was not aware that the grievor had filed a complaint under the PSEA.

81        On December 10, 2014, following her bargaining agent’s advice, the grievor contacted the CHRC. On December 30, 2014, the CHRC confirmed in writing that she intended to pursue allegations that her employer had discriminated against her on the ground of disability by treating her in an adverse and differential manner and by pursuing a discriminatory policy or practice, contrary to ss. 7 and 10 of the CHRA.

82        The CHRC also advised her that under s. 41(1)(a) of the CHRA, it might refuse to deal with her complaint unless she exhausted the grievance process. The CHRC advised her that she needed to file a grievance under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA)before it would act on her case. Jean- Stéphen Piché, the vice-president of human resources at the CBSA, was copied on this letter.

83        The grievor sent a copy of the CHRC’s letter to Lionel Saurette, a labour relations officer at the CAPE. She understood that she had one year in which to file a grievance relating to alleged violations of the CHRA.

84        In cross-examination, she was asked whether she had filed a grievance with the National Joint Council. The grievor was not aware of whether one had been filed.

85        The CAPE prepared a grievance form, which named “CBSA and Industry Canada and Treasury Board” as the department or agency concerned. The grievance was signed by the grievor and on the CAPE’s behalf by Mr. Saurette on January 23, 2015. On January 26, 2015, the CAPE sent it by messenger to Industry Canada, indicating in the cover letter that the CBSA was involved.

86        The grievance states as follows:

I grieve the Employer violated Article 16 of the EC collective agreement based on my disability. I grieve the Employer violated Article 39.03(11) WorkForce Adjustment Directive of the EC collective agreement based on my disability. I grieve the Employer violated the Canadian Human Rights Act. I grieve the Employer violated its duty to accommodate me which is a violation of the Canadian Human Rights Act and Article 16 of the collective agreement.

87        As corrective action, the grievor sought the following:

That I receive a declaration that Articles 16 and 39 of the EC collective agreement were violated; a declaration that the Canadian Human Rights Act was violated; a declaration that the Employer failed to accommodate me contrary to section 7 and 15 of the Act and the collective agreement. That I be reintegrated in an EC-01 position effective September 23, 2014 with full pay and benefits; that an accommodation plan be implemented to address my needs as a person with a disability; that the retraining provisions of the WorkForce Adjustment Directive and all related provisions thereto apply to me; that I receive compensation for all on-going losses in wages, benefits (including reinstatement in benefit plans), costs and expenses incurred by me as a result of the Employer’s violation together with interest thereon pursuant to section 53 of the Act; damages for pain and suffering experienced by me as a result of the Employer’s violation pursuant to subsections 53 (2) and (3) of the Act; I be made whole; and any further compensation and corrective measures that the Public Service Labour Relations Board may deem appropriate.

88        On February 6, 2015, the Director of Labour Management Relations and Compensation Services at Industry Canada responded to Mr. Saurette by a letter that read in part as follows:

This is further to your letter of January 26, 2015, regarding the individual grievance presentation of Ms. Ekarina Santawirya dated January 23, 2015. In accordance with the National Joint Council Workforce Adjustment (WFA) Directive, should Ms. Santawirya feel aggrieved by a decision taken by another department or organization with respect to the lay-off priority provisions of the WFA Directive, she may grieve directly to the departmental liaison officer of that department or organization. Consequently, the grievance as submitted cannot be accepted by Industry Canada.

It is further noted that Ms. Santawirya’s effective date of lay-off was October 25, 2013, and her lay-off priority ended on October 24, 2014, and as a result, the grievance cannot be accepted for reasons of timeliness as well.

89        On February 12, 2015, Mr. Saurette sent the grievance to Marc Thibodeau, the director general of the CBSA’s labour relations and compensation directorate.

90        On February 27, 2015, following a telephone discussion earlier that day with Andrea Chase, the CBSA’s senior labour relations advisor, Mr. Saurette emailed her, stating that the CAPE and the grievor considered that the grievance had been properly filed on February 12, 2015, and that the CBSA had to respond to it. He also stated that the grievance would be transmitted to the second level of the grievance process if the CBSA did not deal with it by March 2, 2015.

91        On March 4, 2015, Mr. Saurette emailed Ms. Chase and enclosed a copy of the second-level transmittal form. He requested that it be forwarded to the local officer in charge to complete. Mr. Saurette advised her that the bargaining agent considered that the grievance had been properly presented at the first level of the grievance process and that it was now being properly presented at the second level. He advised that if he did not receive confirmation that the CBSA would deal with the grievance, the bargaining agentwould keep it moving through the process.

92        On March 24, 2015, Mr. Saurette emailed Ms. Chase and enclosed a copy of the third-level transmittal form. He requested that it be transmitted to the local officer in charge to complete. He advised her that the bargaining agent considered that the grievance had been properly presented at the first and second levels of the grievance process and that it was now being properly presented at the third level.

93        On April 14, 2015, Mr. Saurette emailed Ms. Chase and enclosed a copy of the fourth-level transmittal form. He again requested that the form be forwarded to the local officer in charge to complete, and he advised her that the bargaining agent considered that the grievance had been properly presented at all levels of the grievance process.

94        On April 15, 2015, Ms. Chase emailed Mr. Saurette and requested that he resend his email to her director, Shannon Ross.

95        On April 20, 2015, Mr. Saurette emailed Ms. Ross and enclosed a copy of the fourth-level transmittal form. He requested that it be forwarded to the local officer in charge to complete and advised Ms. Ross that the bargaining agent considered that the grievance had been properly presented at the first through fourth levels of the grievance process.

96        On June 4, 2015, the CAPE referred the grievance to adjudication before the PSLREB by sending it the reference to adjudication. That same day, it filed a notice to the CHRC with respect to the grievance.

97        On June 10, 2015, the Board wrote to the parties to acknowledge receiving the reference to adjudication, and sent a copy of that reference to the Treasury Board.

98        By letter dated July 10, 2015, the Treasury Board raised a number of objections with respect to the reference to adjudication. It submitted that although the grievance states that the respondent violated article 16 (no discrimination) and clause 39.03(11) (the WFAD) of the EC collective agreement, its pith and substance concerns a staffing process.

99        The respondent also argued that the grievor’s surplus priority status ended on October 24, 2014, and that after that, she was no longer an employee of the public service. It submitted that the grievance, which was filed on January 23, 2015, was not properly before the Board because the grievor was not an employee when it was filed.

100        The respondent also argued that the Board does not have jurisdiction as an employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any other Act of Parliament. It argued that the PSEA has an administrative procedure for redress for individuals who take part in staffing processes.

101        In the alternative, the respondent argued that the grievance was filed outside the time limit prescribed in the EC collective agreement by some 32 days.

102        On August 25, 2016, the Board advised the parties that the request for an extension of time (PSLREB File No. 568-02-356) and the grievance (PSLREB File No. 566-02-11222) had been joined for the purpose of the hearing and that the hearing scheduled to proceed on August 29 to 31, 2016, would address the preliminary issues as requested by the parties, namely, timeliness, employment status, and the appropriate avenue of redress. The parties were advised that if the grievance proceeded to a hearing on the merits, it would be scheduled separately, in the future.

III. Issues to be determined

103        The respondent raised the following five jurisdictional issues:

1. Was the grievance filed within the time limit? If not, should the Board exercise its discretion to extend the time limit?
2. Is the grievor an employee as defined by the PSLRA and the PSEA?
3. Is another administrative procedure for redress provided under another Act of Parliament?
4. Is the pith and substance of the grievance a staffing process over which an adjudicator does not have jurisdiction?
5. Subsequent to the hearing, on September 23, 2016, the respondent raised an additional objection in writing, arguing that the collective agreement under which the grievance was filed was between the CAPE and the Treasury Board with respect to a position the grievor had held at Industry Canada. She was seeking an AS-01 position, which was covered under a different collective agreement that was not grieved under and was represented by a different bargaining agent, the Public Service Alliance of Canada (PSAC).

IV. Summary of the submissions, and decisions and reasons

A. Was the grievance filed within the time limit? If not, should the Board exercise its discretion to extend the time limit?

1. Submissions of the respondent

104        The respondent argued that the grievance should be dismissed summarily because the grievance was filed more than 25 days after the date on which the grievor was notified orally or in writing or on which she first became aware of the action or circumstances giving rise to the grievance, in contravention of clause 40.12 of the collective agreement.

105        The grievance is untimely. On October 2 or 3, 2014, the grievor knew that her cover letter was not sufficient. On October 14, 2014, Ms. MacDonald’s email informed her that the application would not be considered further.

106        She was granted an extension until October 20, 2014, at 9:00 a.m. to submit a revised cover letter. On October 21, 2014, she was informed that she had not met the requirements for granting an extension.

107        On November 24, 2014, she again was advised that the respondent was not prepared to change its mind.

108        Based on any of these dates, the grievance is out of time.

109        The grievor contacted her bargaining agent representative on November 10, 2014. Calculating the time limit from that date, she filed her grievance three to four months late.

110        On January 26, 2015, the grievance was submitted to Industry Canada. It was submitted to the CBSA only on February 12, 2015. Clearly, it was not submitted within the 25 days provided in the collective agreement.

111        The respondent submitted that the grievor should not be granted an extension of time to submit the grievance. There is no evidence that she exercised due diligence, and the respondent would be prejudiced if the time for presenting the grievance were extended.

112        The reason for the delay was that the bargaining agent advised the grievor to file a complaint before the CHRC. Based on the case law, this is not a compelling reason to extend the time limit.

113        In Brenner v. National Energy Board, file 2011-15, in the context of whether an adjudicator should extend the time limits for presenting a grievance concerning a termination of employment for reasons other than discipline, Adjudicator Paul Love stated the following at paragraph 127:

Good labour relations rests in the parties honouring the terms of a collective agreement and being able to put disputes to rest in a timely manner. Time limits are provided in agreements for a reason. In my view there is not a compelling balance in favour of hearing the merits.

114        In Callegaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 110, the Public Service Labour Relations Board (“the former Board”) considered a case in which a bargaining agent was responsible for missing certain deadlines by some 14 months as a grievance was transmitted late to the final level of the grievance process. When considering whether to extend the time limits, the former Board stated as follows at paragraphs 19 and 20:

[19] The applicant did not convince me that she had a clear, cogent and compelling reason to explain the 14-month delay referring her grievances to adjudication. In fact, the delay is entirely attributable to the union and to the fact that the applicant did not inquire into what was happening with her grievances. Had she been more diligent, she would have realized at some point that the grievances had not been referred to adjudication. The union’s omission, negligence or mistake is not a cogent or compelling reason for extending the time. No jurisprudence was submitted to support such proposition. The applicant or her union were not prevented from referring the grievances to adjudication. They were simply negligent, and they did not do it within the legal time frame. In that respect, the applicant and her union cannot be considered as two separate entities as implied by the applicant’s argument that she should not “pay” for her union’s omissions.

[20] If the delay is not justified by clear, cogent and compelling reasons, the other factors are of little relevance....

115        In Chow v. Treasury Board (Public Health Agency of Canada), 2015 PSLREB 81 at para. 24, in the context of an application to extend time limits, while reviewing its jurisprudence, the Board stated as follows: “The former Board, in Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2008 PSLRB 31 at para 13, determined that requests to extend timelines should be allowed sparingly ...”.

116        In Copp v. Treasury Board (Department of Foreign Affairs and International Trade), 2013 PSLRB 33 at paras. 27 to 29, again in the context of an application for an extension of time, although she had transmitted her grievances late to adjudication, the applicant argued that she had been in no way negligent and that she should not be penalized for an administrative error by the bargaining agent. The former Board stated as follows:

[27] The applicant did not convince me that she had a clear, cogent and compelling reason to explain the 80-day delay referring her grievance to adjudication. In fact, the delay is entirely attributable to an administrative error of the union. Neither the applicant nor her union were prevented from referring the grievances to adjudication. They simply did not do it within the legal timeframe.

[28] The applicant referred me to Thompson. Ms. Thompson grieved her termination of employment more than three months after the time to file a grievance had expired. She stated that the union had filed the grievance on time but that it had stayed on the desk of the respondent’s representative for four months before being processed. The Chairperson did not believe the applicant on that point and found the grievance untimely. He granted the application for an extension of time on the basis that, even if the union were negligent, Ms. Thompson could not be faulted. He stated that the injustice to her of refusing the application outweighed any prejudice that the respondent might suffer for allowing the grievance to be heard. Finally, he stated that fairness dictated that the applicant not be penalized for the union’s inaction of not filing the grievance on time.

[29] I disagree with the decision in Thompson. That decision was written more than five years ago in a jurisprudential context that might not have been as clear as it is now. Since then, it has been decided often that a union’s omissions, negligence or mistakes are not cogent and compelling reasons for extending time. In my opinion, as I stated in Callegaro, “... the applicant and her union cannot be considered as two separate entities...” In that context, the errors of the union are the errors of the applicant.

117        The length of the delay in this case was two to three months. On October 21, 2014, the grievor knew that she would not be considered in the appointment process. She did not even call her bargaining agent representative until November 20, 2014. She only inquired with the CHRC a month after that. After receiving its response on November 30, 2014, another month passed before the bargaining agent sent the grievance to the CBSA.

118        In Professional Institute of the Public Service of Canada v. Treasury Board, 2014 PSLREB 4, the former Board extended the time limits for presenting a policy grievance. It concluded that on the facts, the bargaining agent in that case had established clear, cogent, and compelling reasons for the delay and that it had exercised due diligence in attempting to correct its error once aware of it.

119        In that case, the delay was less than one week. That is what due diligence looks like. In this case, it was two to three months.

120        One of the criteria outlined in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, for granting an extension of time is the chance of success of the grievance. If the grievance proceeds on its merits on the basis that the respondent’s actions contravened the no-discrimination provisions of the collective agreement or the CHRA, then it must be noted that the grievor did not request accommodation from the respondent. The evidence indicated that after her operation, her eyes watered for three hours. Nevertheless, an extension of some 20 hours was granted for her to file a revised cover letter.

121        The fact that the grievor did not have a computer at home, that she was required to use a library’s computer, and that the computer system might have failed on October 19 is not a ground under the CHRA.

122        The grievor stated that she saw the instructions to include in her cover letter a summary of how she met the essential qualifications for the position. She did not follow them. All she had to do was copy the qualifications from her résumé and paste them into the cover letter. Even when she was given a second chance, she still did not follow the instructions.

123        Granting an extension of time would prejudice the respondent, which had to deal with over 130 applicants to the selection process.

2. Submissions of the bargaining agent

124        Clause 40.03 of the collective agreement provides that when determining the time within which any action is to be taken in the grievance process, only workdays are to be included in the calculation.

125        The grievor’s argument is threefold, as follows:

1. The respondent was precluded from objecting to the timeliness of the grievance’s presentation as it failed to comply with s. 95 of the Public Service Labour Relations Regulations (SOR/2005-79; PSLRR).
2. The grievance is timely. The collective agreement should be interpreted consistently with the CHRA, which provides a one-year deadline to file a complaint under it.
3. If the grievance is untimely, the Board should grant an extension of time to present it in accordance with the factors set out in Schenkman.

a. The respondent failed to comply with s. 95 of the PSLRR

126        Subsections 95(1) and (2) of the PSLRR provide as follows:

95 (1) A party may, no later than 30 days after being provided with a copy of the notice of the reference to adjudication,

1. raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the presentation of a grievance at a level of the grievance process has not been met; or
2. raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the reference to adjudication has not been met.

(2) The objection referred to in paragraph (1)(a) may be raised only if the grievance was rejected at the level at which the time limit was not met and at all subsequent levels of the grievance process for that reason.

127        In McWilliams v. Treasury Board (Correctional Service of Canada),2007 PSLRB 58, the employer objected to the jurisdiction of the adjudicator to hear three grievances dated December 1, 2006, which challenged an action of the employer that had effect beginning in June 1996, or over a decade earlier, on the basis of timeliness.

128        The bargaining agent in that case declined to make submissions on the issues of timeliness and jurisdiction and did not apply to relieve the grievors in that case of their obligation to file grievances within the time limits stipulated in the relevant collective agreement.

129        The adjudicator in that case questioned whether he was entitled to rule on his jurisdiction to hear the grievances on this basis alone. He concluded that he was not, stating that s. 95 of the Public Service Labour Relations Board Regulations (“the Regulations”, which are now the PSLRR) established procedural requirements for when a party seeks to raise a timeliness issue in relation to a grievance. He reasoned as follows at paragraph 16:

[16] In my view, an adjudicator may rule on a jurisdictional objection related to timeliness only if the objecting party has met the requirements of section 95 of the Regulations. Although neither party has raised the application of section 95 in the circumstances of these three references to adjudication, I believe that I am under a positive obligation to do so proprio motu. Not to inquire into compliance with section 95 of the Regulations would be to fail to give an important element of the legal framework for considering grievances its appropriate application and weight. Key requirements stated in section 95 are mandatory, not discretionary. Therefore, I turn here to consider the employer’s compliance with section 95 on the face of the record before me.

130        Having reviewed the record, the adjudicator concluded at paragraph 23 that given his finding that the employer’s first-level response did not reject the grievances as untimely, he had to rule that the employer had not met the threshold condition expressed in s. 95(2) of the Regulations.

131        In the alternative, he found that on the facts, the employer did not file with the former Board a third-level response to the grievances. He concluded that either there was no response or the employer had breached its fulfilling requirements under s. 96 of the Regulations. He stated the following at paragraph 24: “In either case, the employer ... has not met its obligation under subsection 95(2) of the Regulations to establish that it continued to reject the grievances ‘... at all subsequent levels of the grievance process....’” He accepted jurisdiction to consider the grievances.

132        In Shandera v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 21, the adjudicator in that case dismissed the employer’s objection with respect to the timeliness of three grievances because it did not reject them on that basis at all lower levels of the grievance process, relying on s. 95(2) of the PSLRR and applying the decision in McWilliams. The adjudicator stated as follows at paragraphs 33 and 34:

[33] Under subsection 72(1) of the Regulations, the grievor should have received a first-level response within 20 days after the respondent received these grievances. The respondent did not respond at all at the first level. A failure by a decision maker in the grievance procedure to reply is construed as a decision rejecting the grievance (see McWilliams v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 58. at para 22 and 23). This “non-reply” rejection, as described in McWilliams, means that the respondent’s first response did not reject the grievances as untimely.

[34] Besides, even if it had been established that the grievor consented to waiving a first-level response, the fact that the respondent did not file a final-level response within the 20-day period following the transmittal and its reception of the four grievances (2, 3, 4 and 5) also constitutes a “non-reply” rejection of the grievances, which again means that they were not rejected as untimely. It does not matter if the final-level responses, which were issued weeks and months later, asserted that the grievances were filed late. Subsection 95(2) of the Regulations is clear. The respondent’s responses at every level must have rejected the grievances for the reason of timeliness for it to raise the issue as an objection. Having failed to, it was barred from raising the objection (see McWilliams at para 24).

133        To the same effect, see Cawley v. Treasury Board (Department of Fisheries and Oceans), 2013 PSLRB 135. In that case, the grievor waited nine months to file a grievance. The employer did not raise a timeliness issue when it replied to the grievance at any level of the grievance process; nor did it raise it within 30 days after being informed that the grievance had been referred to adjudication. The employer argued that it was not necessary to raise the timeliness objection since it had already raised the issue of the grievor’s standing to file a grievance.

134        The adjudicator in that case concluded that the employer had waived its right to raise a timeliness objection as it had not complied with s. 95(2) of the Regulations.

135        In this case, the grievance was submitted to Industry Canada on January 26, 2015. On February 6, 2015, it replied, stating that it was not prepared to accept the grievance, noting that if the grievor felt aggrieved by a decision made by another department or organization with respect to the layoff priority provisions of the WFAD, she could grieve directly to that department or organization.

136         In addition, Industry Canada stated that the grievance could not be accepted for reasons of timeliness.

137        On February 12, 2015, the bargaining agent presented the grievances to the CBSA’s director general of its labour relations and compensation directorate.

138        On February 27, in an email, the bargaining agent advised the CBSA that the grievance had been properly filed on February 12, 2015. The email stated that the CBSA had to respond to the grievance in accordance with the provisions of the EC collective agreement and the PSLRA. It noted that the deadline to reply at the first level had expired on February 26. The bargaining agent advised that if the CBSA would not agree to deal with the grievance at the first level, the bargaining agent would transmit it to the second level. The bargaining agent requested a response by March 2, 2015. There was no response from the CBSA.

139        On March 4, 2015, the grievance was transmitted to the CBSA at the second level. There was no response from the CBSA.

140        On March 24, 2015, the grievance was transmitted to the CBSA at the third level. There was no response from the CBSA.

141        On April 20, 2015 as requested by Ms. Chase of the CBSA, the grievance was transmitted to Ms. Ross at the fourth level. There was no response from the CBSA.

142        On June 4, 2015, the grievance was referred to adjudication before the PSLREB.

143        On June 10, 2015, the PSLREB wrote to the parties, acknowledging its receipt of the notice of reference to adjudication. The letter directed the respondent to file with the Board within 30 days of receiving the letter a copy of the decision that was made with respect to the grievance at each level of the grievance process. The respondent provided no response.

144        The respondent did not comply with s. 95(2) of the PSLRR as it did not reject the grievance as untimely at all levels of the grievance process and did not meet the threshold condition expressed in that subsection. The respondent waived its right to raise the timeliness objection.

145        In the alternative, the grievance is timely. The collective agreement should be interpreted consistently with the CHRA, which provides a one-year time limit in which to file a complaint.

146        In Nadeau v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 82 at para. 152, the adjudicator stated as follows: “Although the collective agreement is the fruit of an agreement between the union and the employer, its clauses cannot contravene the CHRA’s requirements.”

147        A no-discrimination clause in a collective agreement must be interpreted in light of the CHRA.

148        The grievance alleged that the CHRA was contravened. Subsection 226(2) of the PSLRA confers on adjudicators power over any matter referred to adjudication to interpret and apply the CHRA and any other Act of Parliament relating to employment matters, other than the provisions of the CHRA that are related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any.

149        Paragraph 41(1)(e) of the CHRA provides as follows:

41 (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

...

(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

150        In Stringer v. Treasury Board (Department of National Defence) and Deputy Head (Department of National Defence), 2011 PSLRB 33, the adjudicator set out the authority to consider the provisions of the CHRA.

151        In that case, the grievor was employed in a term position. The employer terminated his employment four days before he would have reached three years of continuous employment, at which time he could have been “rolled over” to indeterminate status. He grieved that decision and grieved that the employer had discriminated against him and failed to accommodate him.

152        The employer argued that there were no more live issues between the parties other than the termination issue. The adjudicator disagreed, referring to the wording of the grievance that alleged that the grievor had been discriminated against before the termination, and stated as follows at paragraphs 77 and 78:

[77] According to clause 18.10 of the collective agreement, an employee may present a grievance no later than 25 days after the date on which he or she becomes aware of the action or circumstances giving rise to the grievance. The grievance was filed within 25 days after the grievor was informed that he would be terminated. For him, it was the last incident of alleged discrimination. Even if most of the incidents of alleged discrimination occurred before those 25 days, those incidents can be examined because the alleged discrimination could be considered continuous. The concept of a continuous grievance applies. Otherwise, it would be equivalent to say to the grievor that he should have grieved every incident of alleged discrimination within 25 days of its occurrence. What matters is that the grievor grieved within 25 days of the last incident in which he felt discriminated against.

[78] That interpretation is coherent with the CHRA, which I have to interpret in parallel with the collective agreement. The CHRA does not provide clear periods in which to file a complaint. However, under paragraph 41(1)(e), the CHRC can refuse a complaint filed more than one year after the last violation of the CHRA. The wording of that paragraph also implies that complaints are considered continuous and that they may include several incidents that occurred over time....

153        Although the facts in Stringer are not really on point, that case is the authority to consider the provisions of the CHRA in the circumstances of this case to apply the more permissive deadline of one year to file a grievance.

154        In the alternative, an extension of time should be granted for filing the grievance in the interests of fairness pursuant to s. 61 of the PSLRR.

b. The Schenkman criteria

155        The Board’s discretion to grant an extension of time is open textured and must consider the grievor’s circumstances. According to Schenkman, at para. 75, the Board must refer to the following five criteria when a grievance’s timeliness is challenged:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the due diligence of the grievor;
• balancing the injustice to the employee against the prejudice to the employer in granting an extension; and
• the chance of success of the grievance.

156        These criteria are not necessarily assigned equal weight, and an assessment of them must be contextual and fact specific (see Sonmor v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 20 at para. 19). Each factor will be assessed in turn.

i. Clear, cogent, and compelling reasons for the delay

157        The grievor suffered from health issues and limited mobility during and after her layoff. She had limited access to a computer. Following the CBSA’s denial on October 21, 2014, she maintained contact in the belief that it would accommodate her disability. She visited her physician so that she could provide relevant medical information.

158        When it became clear that accommodation would not be granted, she sought recourse from the CHRC. Her claim was denied because she was told she had to first resort to the PSLRA’s grievance process. A grievance was subsequently filed with her former employer, Industry Canada. When it became clear that a claim against the CBSA was appropriate, a grievance was filed promptly afterwards. The CBSA submitted that among other things, her grievance is untimely.

159        The grievor’s pursuit of both formal and informal dispute resolution mechanisms led to a delay filing this grievance. Her health and mobility issues caused her difficulties throughout the process. For the reasons stated earlier, the bargaining agent’s position is that the grievor has clear, cogent, and compelling reasons for the delay.

ii. Length of the delay

160        The respondent stated in its submissions that the grievance was filed approximately 32 days outside the collective agreement deadline, which was by no means an egregious delay. Extensions have been granted for delays of 4 months (see Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59), 6 months (see Richard v. Canada Revenue Agency, 2005 PSLRB 180), 7 months (see Prior v. Canada Revenue Agency, 2014 PSLRB 96), and 19 months (see International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board, 2013 PSLRB 144).

161        The length of the delay should be assessed in light of the prejudice, if any, suffered by the respondent.

iii. Due diligence of the grievor

162        The grievor pursued this matter vigorously both before and after the layoff period. Following the CBSA’s denial of October 21, 2014, she continued to seek alternatives. When her attempts proved fruitless, she erroneously filed a complaint to the CHRC, which led to a further grievance with Industry Canada and the current grievance against the CBSA. At all times, the grievor demonstrated that she was invested in her claim and that she was willing to pursue all avenues she deemed appropriate.

iv. Balancing injustice to the grievor against prejudice to the CBSA

163        The CBSA was aware of the grievor’s accommodation request during the October 2014 selection process. It received further notice of her human rights claim in December 2014. A grievance was eventually filed over one month after the collective agreement deadline. In light of the circumstances, the respondent would suffer no real or perceived prejudice in this case.

164        The grievor had been trying to advance her claim from a library computer. Her long period of unemployment was followed by continuing conflict with her potential respondent and interactions with the CHRC. Her disability has had an impact on her work prospects and continues to cause her difficulty. She seeks a just resolution to this process and wishes to have her day in court. The bargaining agent’s position is that the grievor would undergo a demonstrable injustice should a time extension not be granted.

v. Chances of the grievance succeeding

165        This factor should not allow for a premature hearing on the merits, and as a result, it has been given minimal weight (see International Brotherhood of Electrical Workers, Local 2228, at para. 63). Given the minimal accommodation that the grievor sought at the relevant time, together with the retraining entitlement under the WFAD that she was denied, the bargaining agent believes that the grievance has a reasonable chance of success.

3. Respondent’s reply submissions

166        With respect to the argument that the respondent was precluded from objecting to the timeliness of the grievance’s filing as it failed to comply with s. 95 of the PSLRR, the fact that after the first-level response on February 6, 2015, there was no subsequent response, should not result in a finding that the respondent has waived its right to raise the timeliness objection.

167        In Chow v. Treasury Board (Public Health Agency of Canada), 2015 PSLREB 81 at para. 31, a grievance was still found untimely even though the employer had not met the requirements of the regulations.

168        With respect to the human rights issues, no medical evidence was adduced that the grievor’s October 8 eye surgery affected her ability to comply with the October 20 deadline to submit her revised cover letter and résumé. The fact that she was not able to submit the documents until the afternoon of October 20 was due to a computer problem, which did not give rise to a human rights issue.

4. Decision and reasons

169        Clause 40.12 of the collective agreement provides that an employee may present a grievance at the first level of the grievance process no later than the 25^th day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to the grievance.

170        Clause 40.13 provides as follows that an employee may present a grievance at each succeeding level in the grievance process beyond the first level:

(a) where the decision or offer for settlement is not satisfactory to the employee, within ten (10) days after that decision or offer for settlement has been conveyed in writing to the employee by the Employer, or

(b) where the Employer has not conveyed a decision to the employee within the time prescribed in clause 40.14, within twenty (20) days after presenting the grievance at the previous level and within twenty-five (25) days after the grievance was presented at the final level.

171        On October 21, 2014, the grievor was informed that her application would not be considered since she had not met the requirements for granting an extension of time as she had missed the October 20, 2014, 9:00 a.m. deadline to submit a revised cover letter. The grievance was not submitted to Industry Canada until January 26, 2015, and to the CBSA until February 12, 2015. It is clear that the grievance was presented in excess of two months beyond the time limit provided in the collective agreement.

172        The bargaining agent argued that the respondent failed to comply with s. 95 of the PSLRR. Subsections 95(1) and (2) read as follows:

95(1) A party may, no later than 30 days after being provided with a copy of the notice of the reference to adjudication,

(a) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the presentation of a grievance at a level of the grievance process has not been met ...

...

(2) The objection referred to in paragraph(1)(a) may be raised only if the grievance was rejected at the level at which the time limit was not met and at all subsequent levels of the grievance process for that reason.

173        The grievance was submitted to Industry Canada on January 26, 2015. On February 6, 2015, it replied, stating that it was not prepared to accept the grievance and noting that if the grievor felt aggrieved by a decision made by another department or organization with respect to the layoff priority provisions of the WFAD, she could grieve directly to that organization. It stated that the grievance could not be accepted because it was untimely.

174        On February 12, 2015, the bargaining agent presented the grievance to the CBSA, which did not reply to it. The bargaining agent transmitted the grievance through all levels of the grievance process in accordance with the collective agreement. The CBSA did not reply to the grievance at any level.

175        Having reviewed the mandatory language of s. 95(2) of the PSLRR, as well as the jurisprudence referred to by the parties, the fact that the CBSA did not reply to the grievance at any level of the grievance process and accordingly could not raise the timeliness issue with the Board after it was informed that the grievance had been referred to adjudication, I must conclude that the CBSA waived its right to raise a timeliness objection as it did not meet the threshold condition for doing so.

B. Is the grievor an employee as defined by the PSLRA and the PSEA?

1. Submissions of the respondent

176        Subsection 206(1) of the PSLRA provides that for the purposes of grievances under Part 2, “employee” has the meaning that would be assigned by the definition of “employee” in subsection 2(1) if that definition were read without reference to paragraphs (e), (h), and (i) and without reference to the words “except in Part 2”.

177        Subsection 2(1), the definition section, provides that “employee”, except in part 2, means a person employed in the public service.

178        Section 2 of the PSEA states as follows: “‘employee’ means a person employed in that part of the public service to which the Commission has exclusive authority to make appointments ...”.

179        Subsection 29(1) of the PSEA states as follows:

29 (1) Except as provided in this Act, the Commission has the exclusive authority to make appointments, to or from within the public service, of persons for whose appointment there is no authority in or under any other Act of Parliament.

180        Subsection 64(4) provides that an employee ceases to be an employee when he or she is laid off.

181        The grievor’s surplus priority status ended on October 24, 2014. When that occurred, she was no longer an employee of the public service. She filed her grievance on January 23, 2015. It is not properly before the Board because she was not an employee as defined by the PSLRA and the PSEA when it was filed.

182        The respondent submitted that the following jurisprudence supports its position.

183        In Bigdeli-Azari v. Deputy Head (Department of Veterans Affairs), 2011 PSLRB 126, the former Board was required to determine whether the grievor in that case, who worked for the Department of Veterans Affairs as a general attendant and was an on-call employee and whose name was removed from the on-call employee list, which terminated his employment, was an employee within the meaning of the PSLRA for the purpose of filing a grievance against his termination.

184        In determining that he did not have jurisdiction to hear the grievance, the adjudicator concluded that the grievor was not an employee within the meaning of the PSLRA. It was determined that the grievor had never been an employee.

185        In Price v. Attorney General of Canada, 2016 FC 649, the Federal Court preserved the right of former employees to grieve if the matter giving rise to the grievance arose during the course of the individual’s employment. The Court stated as follows at paragraph 24:

...  this Court has interpreted the decision [R. v. Lavoie (1977), [1978] 1 FC 778, [1977] 2 ACWS 81] as preserving the right of former employees to grieve where “the matter giving rise to the grievance arose during the course of the individual’s employment, where the individual was aggrieved as an employee” (Salie v. Canada (Attorney General), 2013 FC 122 at para 61 ...).

186        The respondent submitted that in this case, events that occurred after October 24, 2014, could not be the subject of a grievance.

2. Submissions of the bargaining agent

187        The authorities support a broad interpretation of the PSLRA with respect to employees’ access to the grievance process. Employees who feel aggrieved when the matter grieved arose during the course of their employment have access to the grievance process. It does not matter when the grievance is filed as long as there is a nexus between employment and the grievor when he or she became aggrieved.

188        In Salie v. Canada (Attorney General),2013 FC 122, the Federal Court referred to The Queen v. Lavoie, [1978] 1 F.C. 778 (C.A.), and stated as follows at paragraphs 60 and 61:

[60] ... The Federal Court of Appeal held that “the introductory words of section 90(1) of the Public Service Staff Relations Act [the predecessor to subsection 208(1) of the current PSLRA] must be read as including any person who feels himself to be aggrieved as an ‘employee’”. The Court explained that were it otherwise, “a person who, while an ‘employee’ had a grievance - e.g. in respect of classification or salary - would be deprived of the right to grieve by a termination of employment - e.g. by a lay-off.” According to the Federal Court of Appeal, “[i]t would take very clear words to convince me that this result could have been intended”: at para. 10.

[61] Thus, not only did Lavoie involve what was alleged to have been a disciplinary dismissal, the Court’s comments cited above appear to preserve the right of former employees to grieve where the matter giving rise to the grievance arose during the course of the individuals employment, where the individual was ‘aggrieved as an employee’.

189        The right to grieve a matter that arose during the course of the individual’s employment is not affected by a subsequent layoff.

190        In Cawley, the former Board expressly followed the Federal Court’s decision in Salie and stated at paragraph 43 as follows:

[43] ... The Court stated that very clear words are required to deprive an individual of his or her right to grieve. As Lavoie holds, it could not have been the intent of the legislature to deprive employees or former employees of a right to grieve matters that occurred while they were employees.

191        In the recent decision in Price, the Federal Court of Appeal confirmed the Federal Court’s approach in Salie.

192        The principles are clear. Although the grievance was filed after the grievor lost her priority status, she was aggrieved as an employee. The events in question took place before she lost her priority status. Even though she was on layoff status, she had rights as an employee, and the respondent had obligations to her.

193        The respondent put up barriers preventing the grievor from exercising her rights as an employee.

194        Even though the medical note was faxed to the respondent on November 3, 2014, it addressed her medical condition before the loss of her priority status.

195        In Bigdeli-Azari, the grievor was never an employee and was excluded specifically under the PSLRA as he was not ordinarily required to work more than one third of the normal period of those doing similar work.

3. Decision and reasons

196        In Price, at para. 24, the Federal Court stated as follows:

[24] The Federal Court of Appeal has held that s 90(1) of the former Public Service Staff Relations Act, the predecessor to s 208(1) of the current PSLRA, must be read so as to include any person who feels “aggrieved as an employee” (R v Lavoie (1977), [1978] 1 FC 778 at para. 10, [1977] 2 ACWS 81 (Fed CA) [Lavoie]). Although Lavoie concerned an alleged disciplinary dismissal, this Court has interpreted the decision as preserving the right of former employees to grieve where “the matter giving rise to the grievance arose during the course of the individual’s employment, where the individual was aggrieved as an employee” (Salie v Canada (Attorney General), 2013 FC 122 at para 61 [Salie]).

197        The Court referred to Madam Justice MacTavish’s summary of the leading jurisprudence governing the question of a former employee’s right to grieve in Salie as follows at paragraph 25:

[27] ... Justice Mactavish concluded that the disputes in each of the cases related either to “the rejection of an individual while on probation (in one case, for potentially disciplinary reasons), or related to matters that arose while the individual was still employed in the Public Service”. She observed that “[n]one of the cases involved a dispute that arose long after the individual ceased to be a government employee” (at para 59).      

198        Although the grievance in this case was filed after the grievor lost her priority status on October 24, 2014, I conclude that the material facts in this case giving rise to the grievance occurred before she lost that status and while she was still an employee.

C. Is another administrative procedure for redress provided under another Act of Parliament?

199        Before and at the hearing, the respondent took the position that should the Board decide that the grievor was an employee as defined by the PSLRA and the PSEA, then the Board would be without jurisdiction to hear the grievance as an administrative procedure for redress was provided under another Act of Parliament.

200        Subsection 208(2) of the PSLRA limits as follows matters that may be individually grieved and states:

208 (2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

201        The same limitation is found in clause 40.08 of the EC collective agreement, which deals with presenting grievances.

202        Section 77 of the PSEA prescribes an administrative procedure for redress for individuals who take part in staffing processes.

203        The respondent argued that the administrative procedure for redress available to the grievor was to file a complaint pursuant to s. 77 of the PSEA. As an administrative procedure for redress was provided under the PSEA, the grievor was precluded from presenting a grievance by operation of s. 208(2) of the PSLRA. A number of authorities in support of the argument were referred to at the hearing.

204        Subsequent to the hearing, on September 23, 2016, the respondent advised the Board as follows:

Following discussions with the Public Service Commission, the attached PSST letter decisions in Clancy; Crichton; Abbott; and Agnew have been brought to our attention. The employer therefore, withdraws its objection that an administrative recourse open to the grievor could have included filing a section 77 complaint under the Public Service Employment Act (the PSEA).

205        These decisions stand for the proposition that a complainant who was not in the area of selection but was instead a surplus priority who self-referred to the appointment process has no right to complain under s. 77 of the PSEA. In light of the respondent having withdrawn its objection that an administrative recourse was open to the grievor that could have included filing a s. 77 complaint under the PSEA, I will not include the bargaining agent’s submissions on this issue.

D. Is the pith and substance of the grievance a staffing process over which an adjudicator does not have jurisdiction?

1. For the respondent

206        At the hearing, the respondent argued that as the pith and substance of the grievance is a staffing process, the Board does not have jurisdiction to hear it. In its letter of September 23, 2016, the respondent confirmed that it continued to oppose the Board’s jurisdiction to hear a matter that is essentially about a staffing process and that is against an organization (the CBSA) that was not the grievor’s employer.

207        An adjudicator does not have jurisdiction to hear the grievance because it relates solely to staffing, which cannot be the subject of a reference to adjudication pursuant to the Act. The facts in this matter relate to a staffing dispute, not a dispute over the application of provisions of the collective agreement in the labour relations context. It was Parliament’s intent that the PSEA constitute a complete code with respect to staffing, and it was never Parliament’s intent that the Board have jurisdiction over staffing issues.

208        The exclusive authority over appointments rests with the PSC pursuant to s. 29 of the PSEA. The PSC delegates that authority to deputy heads in the core public administration, not the Treasury Board. As the employer, the Treasury Board has no authority over staffing matters.

209        The fact that there is no administrative recourse for redress for this particular staffing issue does not confer jurisdiction on an adjudicator over this grievance.

2. Submissions of the bargaining agent

210        In response to the submission that the pith and substance of the grievance concerns a staffing process, the bargaining agent submitted that it does not involve a staffing process but human rights, under both the provisions of the collective agreement and the CHRA, as the decision not to accept the grievor’s application created an adverse effect linked to her disability, which was not accommodated. The Board has jurisdiction over these matters.

211        The grievor’s application was not accepted for assessment in the staffing process. She never reached the assessment stage, which would have determined whether she met the essential qualifications of the job. Her cover letter was not assessed. It was not even a matter of her application being screened out because it was received four hours late. The CBSA decided that it would not accept her application.

212        The grievance refers to a violation of article 16 of the EC collective agreement based on her disability; a violation of clause 39.03(11), the WFAD, based on her disability; a violation of the CHRA; and a violation of the duty to accommodate.

213        The grievance does not relate to staffing but instead to the barriers erected to impede the grievor’s access to the staffing process.

214        To illustrate, on October 15, 2014, the PSC sent an automated email to the grievor advising her that it had referred her to the security officer position at the CBSA as a priority referral. She was advised that because of her priority entitlement, she had to meet only the essential qualifications and conditions of employment.

215        If she believed that she met the essential qualifications and conditions of employment, she was to respond to the hiring organization in writing within five working days, and if she could not provide the requested information within that time frame, she had to advise the organization as soon as possible of her interest and indicate by what date she would be able to respond. She was also advised that if she decided not to apply for the position, she had to provide an explanation in writing to the hiring organization within the same time frame.

216        Five working days from October 15, 2014, was October 22, 2014. The CBSA did not follow the direction from the PSC and independently imposed its own deadline of October 20, 2014, at 9:00 a.m. The grievor’s amended covering letter was sent some four hours later. There was no operational reason that the CBSA could not have extended the deadline.

217        In this situation, the CBSA acted as the gatekeeper controlling access to the staffing process. It exercised an authority other than its authority to staff. Not everything that occurs around the staffing process involves staffing per se.

218        The grievor in Haynes v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 85, had applied for a temporary acting position with the CBSA of four months less one day. She had placed first in the selection process and had been informally advised that she would be appointed. However, the CBSA’s regional director decided not to offer her the acting position to prevent situations that could have given rise to an apparent or potential conflict of interest since her common-law spouse was an immigration lawyer.

219        The grievor filed a grievance alleging a contravention of her collective agreement and the CHRA on the basis of discrimination related to family status and filed a complaint with the Public Service Staffing Tribunal (PSST), which concluded that it did not have jurisdiction to hear the complaint because it dealt with an acting appointment of less than four months, which are excluded from the application of the merit principle and from complaints to the PSST.

220        The respondent argued that the adjudicator did not have jurisdiction to hear the grievance because it related to staffing, which could not be the subject of a reference to adjudication pursuant to the PSLRA. The grievor argued that the pith and substance of the grievance related to family status discrimination and not to staffing.

221        The adjudicator dismissed the employer’s objection and determined that he had jurisdiction to hear the grievance as in his view, it related to the no-discrimination clause of the relevant collective agreement.

222        The grievor in Hureau v. Treasury Board (Department of the Environment), 2008 PSLRB 47, applied for an internal job opportunity. He was advised that he had been unsuccessful in the appointment process due to the fact that his present and former supervisors had given adverse references about his character and about his suitability for the position despite the fact that he was otherwise fully qualified.

223        The grievor alleged that the employer breached article 42 of the relevant collective agreement by giving a subjective view of his character. His position was that under that article, the employer could comment only on length of service and principal duties and responsibilities and on the performance of those duties.

224        The employer argued that the grievance pertained to the staffing process and that the former Board did not have jurisdiction under s. 208(2) of the PSLRA.

225        The grievor’s representative argued that the issue did not deal with staffing and that article 42 was standalone, for which the grievor sought to hold the respondent accountable. The article focused very narrowly only on staffing references and not on the staffing process.

226        The adjudicator acknowledged that the jurisprudence clearly established that an adjudicator did not have jurisdiction to hear a case and to decide matters if another administrative procedure was provided by or under any Act of Parliament. However, he stated as follows at paragraph 25 and 26:

[25] However, this does not mean that I accept the objection raised by the employer. On the contrary, I accept the argument from the grievor’s representative that I have jurisdiction to hear the grievance, but only as a possible violation of the collective agreement. Both parties agreed to the collective agreement and to its clause 42.01. It is inconceivable that if a conflict in its interpretation arose that it could not be reviewed by the third party mandated to do so, namely, an adjudicator of the Board.

[26] The employer, in arguing that the grievance is not within the Board’s jurisdiction, points to several of the corrective measures included on the face of the grievance. While I have indicated that I agree with the employer’s argument that these measures may be beyond the jurisdiction of the Board, the grievance itself is not. The grievance concerns the interplay between the actions of the employer in giving references regarding the grievor and the dispositions of article 42. This is entirely within my jurisdiction.

3. Decision and reasons

227        On the facts of this case, as the grievor had self-referred as a surplus priority and was not in the area of selection, she had no right to complain under s. 77 of the PSEA.

228        Accordingly, s. 208(2) of the PSLRA, which limits matters that may be individually grieved, does not apply as no administrative procedure for redress was provided under any Act of Parliament other than the CHRA.

229        These facts are similar to those in Haynes, in which the adjudicator in that case considered an alleged violation of the no-discrimination clause in the relevant collective agreement in a situation in which the employee had no recourse under the PSEA. In that case, the adjudicator reviewed the case law and observed as follows at paragraphs 22 to 25:

22 I agree with the employer that it was Parliament’s intent not to give adjudicators jurisdiction over staffing such that they have the jurisdiction to review appointments for compliance with the PSEA, employer policies, the merit principle or allegations of abuse of authority. In that sense, the employer is correct in pointing out that the PSST is the proper forum for complaints related to staffing. However, that alone does not necessarily mean that an adjudicator loses jurisdiction over a grievance alleging a violation of the collective agreement’s no-discrimination clause in the event that the allegation of discrimination also arises in the context of a staffing action over which the employee has no recourse under the PSEA.

23 The PSST, which has jurisdiction over stand-alone staffing disputes, dismissed the complaint on the basis that acting appointments of less than four months are not subject to the merit principle. There is therefore no question of competing jurisdictions between the Board and the PSST in this case. Further, as there is no recourse to the PSST, its procedures cannot represent “another administrative procedure for redress” in accordance with section 208’s bar on the types of grievances which can be filed with the employer. As the grievor did not have recourse before the PSST, section 208 did not present a bar to the filing of her grievance, and as her grievance was properly filed, she in turn was able to avail herself of section 209 in referring it to adjudication once it had reached the final level of the grievance procedure and not been dealt with to her satisfaction.

24 The employer argued that it was Parliament’s intention that no recourse would be available for employees who wish to contest short-term acting appointments on the basis of discrimination. It does not argue, however, that appointments over which the PSST does have jurisdiction are not reviewable on the basis of a violation of human rights. Indeed, the PSST has issued many decisions in which it has considered arguments of discrimination as part of an allegation of abuse of authority. Surely it cannot have been the intention of Parliament to enforce human rights obligations only in cases of appointments of four months or more, leaving those of shorter duration open to human rights abuses.

25 The employer points to the grievor’s right to have filed a complaint before the CHRC and taken it to the CHRT. Since 2005 and the implementation of the Act, it is clear that adjudicators of the Board have jurisdiction to consider grievances which allege violations of the CHRA. [See]Chamberlain v. Attorney General of Canada, 2012 FC 1027 ....

230        The adjudicator reviewed the relevant jurisprudence and concluded that he had jurisdiction to hear the alleged violations of the collective agreement considering that he was not barred by s. 208(2) of the PSLRA since no other administrative procedure for redress was available to the grievor under any Act of Parliament other than the CHRA.

231        Similarly, in this case, the grievance refers to a violation of article 16 of the EC collective agreement based on the grievor’s disability; a violation of clause 39.03(11), the WFAD; a violation of the CHRA; and a violation of the duty to accommodate.

232        In my view, in conclusion, the Board has jurisdiction to hear this grievance as it relates to the no-discrimination clause of the collective agreement and to the provisions of the WFAD.

E. Whether the dispute is actually between Industry Canada and the CAPE

1. Submissions of the respondent

233        The grievor’s prior employer was Industry Canada, not the CBSA. The CBSA was not her employer. Although she stated that this grievance is a collective agreement dispute and so invokes the application of the PSLRA, the collective agreement she referenced in her grievance form was one with the bargaining agent, the CAPE, which covered her position at Industry Canada, not at the CBSA. Meanwhile, the AS-01 position she sought at the CBSA was covered by a different collective agreement, which was not grieved under, and a different bargaining agent, the PSAC.

234        The respondent maintained that the grievor’s recourse did not fall under the PSLRA or within the PSLREB’s statutory jurisdiction. Even if she could not have pursued a s. 77 complaint under the PSEA, other recourses were available, which might have included the CHRC, for example.

2. Submissions of the bargaining agent

235        The respondent claimed that the PSLREB lacks jurisdiction over the grievance because it was filed against the CBSA, where the grievor has never worked. Indeed, she worked at Industry Canada when she was laid off in October 2013 and her 12-month priority period began.

236        The CBSA is named in the grievance and the referral to adjudication form as an affected department. The grievance is against the Treasury Board. For labour relations purposes, the Treasury Board is the employer in the case of the departments and the other portions of the federal public administration named in Schedules I or IV to the Financial Administration Act (R.S.C., 1985, c. F-11; FAA). The grievor was aggrieved by the actions of the CBSA, which is a portion of the federal public administration named in Schedule IV. For the purposes of filing a grievance, her employer is the Treasury Board.

237        The EC collective agreement, which applied to the grievor when she was laid off, was between the CAPE and the Treasury Board, not between the CAPE and Industry Canada. This collective agreement and the WFAD it refers to contain certain obligations from the Treasury Board to the grievor relative to her surplus priority. When the CBSA’s representatives carried out the acts that are the subject of the grievance, they did so under their delegated authority from the Treasury Board. Therefore, it was proper for the grievor and the bargaining agent to assert that violations occurred of the EC collective agreement, the WFAD it refers to, and the CHRA. The fact that the position for which the grievor applied was covered by a different collective agreement is not relevant since she did not allege a violation of that agreement.

3. Decision and reasons

238        Clause 39.03 of the EC collective agreement states that the directives, policies, or regulations it lists, as amended from time to time by the National Joint Council’s recommendation and that have been approved by the Treasury Board of Canada, form part of this collective agreement. Its subsection 11 states the following:“(11) Workforce Adjustment Directive”.

239        Clause 39.04 of the EC collective agreement states as follows: “Grievances in regard to the above directives, policies or regulations shall be filed in accordance with clause 40.01 of the Article on grievance procedure in this collective agreement.”

240        The applicable provision of the WFAD states as follows:

This Directive applies to represented employees of the core public administration who have the Work Force Adjustment Directive listed as a National Joint Council (NJC) Directive in their collective agreements (see Appendix B, List of bargaining agents subject to this Directive) and for which Treasury Board is the employer (departments and organizations listed in Schedules I and IV to the Financial Administration Act, for which the Public Service Commission (PSC) has the sole authority to appoint).

241        The CAPE is listed in Appendix B of the WFAD. The CBSA is listed in Schedule IV to the FAA.

242        The WFAD sets out its objectives as follows:

It is the policy of the Treasury Board to maximize employment opportunities for indeterminate employees affected by work force adjustment situations, primarily through ensuring that, wherever possible, alternative employment opportunities are provided to them. This should not be construed as the continuation of a specific position or job but rather as continued employment.

...

243        Part I of the WFAD is entitled “Roles and Responsibilities”, and it sets them out for departments or organizations. Section 1.1.1 provides as follows:

1.1.1 Since indeterminate employees who are affected by work force adjustment situations are not themselves responsible for such situations, it is the responsibility of departments or organizations to ensure that affected and surplus employees are treated equitably and given every reasonable opportunity to continue their careers as public service employees.

244        The WFAD sets out obligations and responsibilities of not only home departments, i.e., those departments from which an employee is surplus, but also appointing departments. Section 1.1.30 states as follows:

1.1.30 Departments or organizations, acting as appointing departments or organizations, shall cooperate with the PSC and other departments or organizations in accepting, to the extent possible, affected, surplus and laid-off persons, from other departments or organizations for appointment or retraining.

245        I conclude that the WFAD sets out the obligations of the Treasury Board on behalf of appointing departments or other portions of the federal public administration, in this case the CBSA, which may be grieved under the EC collective agreement.

VI. Conclusion

246        In conclusion, the respondent’s preliminary objections are dismissed for the reasons articulated earlier under the heading for each objection.

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

V. Order

248        The respondent’s preliminary objections are dismissed.

249        The Board will contact the parties to schedule a hearing on the merits of the grievance.

July 18, 2017.