FPSLREB Decisions

Heard at Toronto, Ontario,
May 30, 2017.

REASONS FOR DECISION

I. Complaint before the Board

1        Jennifer Myles (“the complainant”) is employed by the Canada Revenue Agency and is a member of the Audit, Financial, and Scientific (AFS) bargaining unit, which is represented by the Professional Institute of the Public Service of Canada (“the Institute” or PIPSC). The complainant is also a member of the Institute.

2        On December 9, 2016, at 4:10 p.m., the Public Service Labour Relations and Employment Board (“the PSLREB”) received by fax a complaint from the complainant made under s. 190(1)(g) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the PSLRA”) against the respondents. On January 25, 2017, the respondents filed their response to the complaint. On Wednesday, March 15, 2017, the complainant filed a reply to that response.

3        The matter was scheduled to be heard from May 30 to June 1, 2017, in Toronto, Ontario, at the same time as another of her complaints, which was also made against Debi Daviau and others. On May 26, 2017, the PSLREB’s secretariat advised the parties that the issue of the complaint’s timeliness would be addressed at the outset of the hearing.

4        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 name of the PSLREB and the title of the PSLRA, the Public Service Labour Relations and Employment Board 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 Act (“the Act”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Regulations (“the Regulations”).

5        At the outset of the hearing I asked for submissions on timeliness. At that time, I advised the parties that I was aware of three earlier complaints, dated December 7th, 8th and 9^th, 2016, sent into the PSLREB by the complainant.

6        Section 57 of the Regulations provides that complaints made under s. 190 of the Act are to be filed using a particular form, Form 16, which requires completing 8 or 10 (as the case may be) sections and allows for additional pages to be attached if need be. The 10 sections require the following information:

1. The complainant’s identity and contact information.
2. The identity of the organization or the persons being complained about and its or their contact information.
3. The part of the Act under which the complaint is being made.
4. A concise statement of each act, omission, or other matter complained of, including dates and the names of the persons involved.
5. The date that the complainant knew of the act, omission, or other matter giving rise to the complaint.
6. If a complainant is alleging an unfair labour practice prohibited by s. 188(b) or (c) of the Act, and if the employee organization has established a grievance or appeal procedure, the complainant is to provide the date on which the grievance or appeal was presented in accordance with any procedure established by the employee organization.
7. If a complainant is alleging an unfair labour practice prohibited by s. 188(b) or (c) of the Act, and if the employee organization has established a grievance or appeal procedure, the complainant is to provide the date on which the employee organization provided him or her with a copy of the decision made in that grievance or appeal procedure.
8. The steps taken by or on behalf of the complainant to resolve the action, omission, or other matter giving rise to the complaint.
9. The corrective action being sought by the complainant under s. 192(1) of the Act.
10. Other matters that the complainant may feel are relevant to the complaint.

7        Form 16 ends with a place for the complainant to sign and date the complaint.

A. The December 7 complaint

8        On December 7, 2016, the Board received from the complainant a Form 16 complaint (“the December 7 complaint”) naming as respondents the Institute, Ms. Daviau, Eddie Gillis, Isabelle Roy, and the Board of Directors of the PIPSC.

9        At section 4 of the December 7 complaint, the complainant alleged the following:

PIPSC and its executives committed unfair labour practice in violation of ss. 188 (b) (c), (d) and (e) of the Public Service Labour Relations Act (s.C.2003. c. 22. s. w: “the Act”). as well as continuous Bullying and Harassment due to Race.

[Sic throughout]

10        Section 5 of the December 7 complaint stated that the date on which the complainant knew of the act, omission, or other matter giving rise to the complaint was September 8, 2016. Section 6 stated that the date on which a grievance or appeal was presented in accordance with the procedure established by the employee organization was April 11, 2016. In addition, in handwriting in that section, the complainant wrote: “PS Additional Details to Follow.”

11        Section 7 of the December 7 complaint stated that the date on which the employee organization provided the complainant with a copy of the decision on the appeal or grievance referred to in section 6 was September 8, 2016.

12        Section 8 of the December 7 complaint stated the steps taken by or on behalf of the complainant to resolve the action, omission, or other matter giving rise to the complaint as follows: “I appealed the decision to ban me from participating in union activities and to removed [sic] me from 2 elected positions for 3 years (6 years) I have exhausted all internal option [sic] available to me.”

13        Section 9 of the December 7 complaint stated that the corrective actions sought by the complainant under s. 192(1) of the Act were the following: “Reinstate me to the position of Branch President, and Elected position of Ontario Regional Executive. compensate me for pain and suffering. Public apology form Debbie Daviau [sic throughout].”

14        Section 10 of the December 7 complaint stated as follows in reference to other matters relevant to the complaint: “This harassment began with the President of PIPSC Debbie Daviau canceled my Stewardship without due process. This continued for 2 years and further ban me from for any election in PIPSC. This Blatant exclusion has cause me undue stress [sic throughout].”

15        The December 7 complaint appears to have been signed by the complainant on November 20, 2016.

16        The December 7 complaint had attached a seven-page synopsis of the complaint, entitled: “Jennifer Myles VS PIPSC Filed December 5, 2016 [emphasis in the original].”

B. The December 8 complaint

17        On December 8, 2016, the complainant faxed the Board a second Form 16 complaint (“the December 8 complaint”) that is very similar to the December 7 complaint and that named as respondents the PIPSC, Ms. Daviau, Mr. Gillis, and Ms. Roy. The reference to the Institute’s board of directors was removed.

18        At section 4 of the December 8 complaint, the complainant alleged that the named respondents had bullied, harassed, and discriminated against her and that the discipline rendered against her was arbitrary, discriminatory, and in bad faith.

19        Section 5 of the December 8 complaint stated that the date on which the complainant knew of the act, omission, or other matter giving rise to the complaint was March 29, 2016.

20        Section 6 of the December 8 complaint stated that the date on which a grievance or appeal was presented in accordance with the procedure established by the employee organization was April 9, 2016, and in section 7, the complainant stated that the date on which the employee organization provided her with a copy of the decision on the appeal or grievance referred to in section 6 was September 9, 2016. It appears that she signed this complaint on December 7, 2016.

21        The December 8 complaint had attached an eight-page synopsis of it, entitled: “Filed December 8, 2016 Jennifer Myles-Complainant AND Debbie Daviau, Eddie Gillis, & Isabel Roy- Professional Institute of the Public Service of Canada [emphasis in the original]”. The attachment is similar to the one on the December 7, complaint but is not exactly the same.

C. The first December 9 complaint

22        On December 9, 2016, via fax at 2:36 p.m., the complainant sent the Board a third Form 16 complaint (“the December 9 complaint No. 1”) naming as respondents the PIPSC, Ms. Daviau, Mr. Gillis, and Ms. Roy. This complaint appears to be exactly the same as the December 8 complaint, except at section 4, where, in addition to the typed text, added after the phrase, “Bullied, Harrassed [sic] and discriminated against me”, was the following handwritten text: “185 (B) C, D), (E). Due to my Race”. And after the phrase, “Discipline was arbitrary, discriminatory, malicious and in bad faith”, the following handwritten text was added: “Due to Race and political Reasons.”

23        The balance of the December 9 complaint No. 1 is the exact same as the December 8 complaint, including the eight-page synopsis attached to it, except where the complainant added in handwriting the following:

• at the top of the second page of the synopsis, at the end of the first paragraph that ends on that page: “185 (b) (c ) (d) (e );” and
• at the very end of the last page of the synopsis: “Signed Jennifer Myles Dec 07, 2016.”

24        The complainant stated the following on her fax cover sheet to the Board for the December 9 complaint No. 1: “Please Replace Previously Received Packages of Fax.”

D. The second December 9 complaint

25         On December 9, 2016, at 4:10 p.m., the complainant faxed the Board a fourth Form 16 complaint (“the December 9 complaint No. 2”), which is the complaint under review in this decision, naming as respondents the same respondents set out in the December 8 complaint and the December 9 complaint No. 1. The wording of section 4 of the December 9 complaint No. 2 is almost exactly that of the December 9 complaint No. 1, except that the addition in handwriting at the end of the first allegation contained in the December 9 No. 1 complaint is printed, as is “185(b) (c), (d) (e)”; however, the second handwritten addition found at section 4 of the December 9 complaint No. 1 is not found on the December 9 complaint No. 2.

26        At section 5 of the December 9 complaint No. 2, the complainant sets out the date on which she knew of the act, omission, or other matter giving rise to the complaint as September 9, 2016. This is different from the December 9 complaint No. 1, which states it as March 29, 2016.

27        At section 6 of the December 9 complaint No. 2, the complainant sets out the date on which a grievance or appeal was presented in accordance with the procedure established by the employee organization as April 9, 2016, which is the same as that set out in the December 9 complaint No. 1.

28        Sections 7, 8, and 9 of the December 9 complaint No. 2 are identical to the December 9 complaint No. 1. However, in section 10 of the December 9 complaint No. 2, which asks for “other matters relevant to the complaint”, the complainant wrote the following: “The institute discriminated against me due to my race and due to political reason [sic].”

29        The December 9 complaint No. 2 was signed by the complainant on December 9, 2016. While the signature differs from the one on the December 9 complaint No. 1, it still appears to be the same person’s signature, which is that of the complainant.

30        Finally, the eight-page synopsis attached to the December 9 complaint No. 2 is exactly the same as the one attached to the December 8 complaint and differs from the December 9 complaint No. 1 only in that the handwritten additions to the synopsis of the December 9 complaint No. 1 are not on the December 9 complaint No. 2.

31        While the complainant directed many allegations against the respondents, the essence of all of her complaints is that on March 29, 2016, the Institute disciplined her and removed her from all her positions with it and stated that she would not be allowed to run for any positions with it for three years from that date. She confirmed at the hearing on May 30, 2017, that the date on which she filed an appeal to this disciplinary decision was April 9, 2016, and that the date on which she learned of a decision on the appeal was September 8, 2016. However, she received a copy of the appeal decision on September 9, 2016.

32        On December 9, 2016, the Board’s registry contacted the complainant. The Board’s file has two notes, one handwritten, and one typewritten. The handwritten note states that it was made on December 9, 2016, that a call was made to the complainant, and that a voice message was left at 3:10 p.m. The typewritten note indicates that she did call back on December 9, 2016, but does not indicate when. While the note references a discussion on that afternoon and does reference the complainant wanting to replace her previous two complaints, she and the Board’s registry could possibly have been speaking at cross purposes. Given that there is no time recorded for the call, it could be that she sent the Board’s registry both the December 9 complaint No. 1 and the December 9 complaint No. 2 and that her reference to replacing the two previous complaints meant the December 8 complaint and the December 9 complaint No. 1.

33        A review of the records of the Board’s registry indicated that while the December 8 complaint, the December 9 complaint No. 1, and the December 9 complaint No. 2 were all faxed to the Board, the December 7 complaint was received by mail and was an original.

34        As of December 9, 2016, the Board’s registry had yet to open a file, despite that the December 7 complaint appeared to be in order.

35        On December 12, 2016, the Board’s registry received via mail the original and a copy of the December 9 complaint No. 2.

36        On December 19, 2016, the Board’s registry wrote to the complainant and the respondents and attached a copy of the December 9 complaint No. 2, acknowledging its receipt by fax (on December 9, 2016) and by mail (on December 12, 2016). It was given Board File No. 561-34-823.

37        On January 25, 2017, the respondents, via their legal counsel, filed a 15-page response to the December 9 complaint No. 2. On January 27, 2017, the Board’s registry wrote to the complainant by email, fax, and registered mail, advising her that she had to provide her position with respect to the respondents’ response no later than February 17, 2017.

38        On February 4, 2017, at 10:05 p.m., the complainant emailed the Board’s registry, and copied the respondents’ legal counsel, a request for an extension until March 15, 2017, to reply to the respondents’ response of January 25, 2017. The request was granted, which was communicated to the parties via email on February 6, 2017, at 1:03 p.m.

39        On Wednesday, March 15, 2017, at 3:45 p.m., the complainant emailed the Board’s registry a three-page reply to the respondents’ response.

II. Reasons

40        Paragraph 190(1)(g) of the Act states as follows:

190 (1) The Board must examine and enquire into any complaint made to it that

…

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

41        Subsections 190(2), (3), and (4) of the Act state as follows:

(2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

(3) Subject to subsection (4), no complaint may be made to the Board under subsection (1) on the ground that an employee organization or any person acting on behalf of one has failed to comply with paragraph 188(b) or (c) unless

(a) the complainant has presented a grievance or appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given ready access;

(b) the employee organization

(i) has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to the complainant, or

(ii) has not, within six months after the date on which the complainant first presented their grievance or appeal under paragraph (a), dealt with the grievance or appeal; and

(c) the complaint is made to the Board not later than 90 days after the first day on which the complainant could, in accordance with paragraphs (a) and (b), make the complaint.

(4) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by an employee organization to comply with paragraph 188(b) or (c) that has not been presented as a grievance or appeal to the employee organization, if the Board is satisfied that

(a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; or

(b) the employee organization has not given the complainant ready access to a grievance or appeal procedure.

42        While s. 190(1) of the Act sets out for complainants the basis on which a complaint may be made, ss. 190(2) and (3) set out a 90-day time limit within which a complaint may be filed under s. 190. The basis for the complaint determines when the time limit begins. The Board cannot extend it.

43         Subsection 190(2) of the Act states that a complaint made under s. 190 must be made within 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint; however, s. 190(2) is fettered by stating that it is subject to ss. 190(3) and (4).

44        Subsection 190(3) states that it is subject to s. 190(4).

45        Both ss. 190(3) and (4) refer to ss. 188(b) and (c). Section 188 addresses unfair labour practices by employee organizations, their officers or representatives, or persons acting on their behalf.

46        This complaint names as respondents the Institute and its officers or representatives Ms. Daviau, Mr. Gillis, and Ms. Roy. As such, for timeliness, the complaint must be looked at while taking into account what is set out in ss. 188 and 190(3) and (4).

47        Subsection 190(3) of the Act provides that the period in which to file a complaint related to ss. 188(b) or (c) of the Act is not later than 90 days after the first day on which the complainant could have filed a complaint depending on the steps taken by the complainant and the employee organization (in this case the Institute) under ss. 190(3)(a) and (b).

48        Paragraphs 190(3)(a) and (b) provide for the potential grievance and appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given access. Paragraph 190(3)(b) is broken down into two subparagraphs. When read together, they state that the 90-day time limit to file a complaint begins to run from the earlier of two dates, depending on the action of the employee organization.

49        The first potential date is if the employee organization deals with the grievance or appeal within six months of the date on which the complainant first presents his or her grievance or appeal in accordance with the procedure established by the employee organization. The second potential date is if the employee organization does not deal with the grievance or complaint within those first six months.

50        If there is an employee organization process allowing for a grievance or appeal, and a decision is rendered within 6 months of the date on which the complainant presented the grievance or appeal, then the 90-day time limit to file a complaint under s. 190 of the Act runs from the date of the decision in the grievance or appeal process that the complainant finds unsatisfactory. If there is no decision within those first 6 months, the 90-day time limit runs from the first day outside the first 6 months. Those six months begin on the date the complainant files his or her grievance or complaint.

51        An example of calculating the time is as follows. If a complainant filed a grievance or appeal pursuant to an employee organization procedure on March 31 (that day being any business day not a Saturday or holiday), then the six-month period would encompass April through the end of September. If no decision is rendered on the complainant’s grievance or appeal by September 30 (again, assuming that day is not a Saturday or holiday), then the 90-day period starts running on October 1 (again assuming that it is not a Saturday or holiday). If a decision was rendered within the April 1 to September 30 time frame, then the 90-day period runs from the date of the unsatisfactory decision.

52        A simple reading of the section as a whole clearly indicates that the 90 days would start after the date determined in s. 190(3)(b)(i) has occurred. It is hardly likely that a complainant would know that the time limitation was running if he or she was not communicated the decision that he or she found unsatisfactory. Therefore, when a decision is made within the first 6 months, for the calculation of the 90-day time limit, a complainant has to have been communicated the decision with which he or she takes issue. If not, then by default, the 90-day limit would start running on the day after the 6 months have run out.

53        Over three days, the complainant sent the PSLREBfour complaints, all of which in essence made the same allegations against the same respondents. The differences were the following:

• the dates on which the complainant alleged she knew of the matters that eventually gave rise to the complaint;
• the dates on which she filed a grievance or appeal pursuant to a process established by the Institute;
• the dates on which she received a decision she found unsatisfactory on her grievance or appeal process; and
• some of the relief she requested.

54        All four complaints sent to the PSLREB set out dates within the six-month time frame established in s. 190(3) of the Act. The 90-day time limit within which a complaint must be filed under s. 190 runs from a reading of ss. 190(3)(b)(i) and (c). Therefore, s. 190(3)(b)(ii) is not relevant.

55        The December 7 complaint identified the date on which the complainant knew of the act, omission, or other matter giving rise to the complaint as September 8, 2016; the date on which a grievance or appeal was presented in accordance with the procedure established by the Institute as April 11, 2016; and the date on which she was provided with a decision on the grievance or appeal as September 8, 2016.

56        The December 8 complaint identified the date on which the complainant knew of the act, omission, or other matter giving rise to the complaint as March 29, 2016; the date on which a grievance or appeal was presented in accordance with the procedure established by the Institute as April 9, 2016; and the date on which she was provided with a decision on the grievance or appeal as September 9, 2016.

57        The December 9 complaint No. 1 identified the date on which the complainant knew of the act, omission, or other matter giving rise to the complaint as March 29, 2016; the date on which a grievance or appeal was presented in accordance with the procedure established by the Institute as April 9, 2016; and the date on which she was provided with a decision on the grievance or appeal as September 9, 2016.

58        The December 9 complaint No. 2 identified the date on which the complainant knew of the act, omission, or other matter giving rise to the complaint as September 9, 2016; the date on which a grievance or appeal was presented in accordance with the procedure established by the Institute as April 9, 2016; and the date on which she was provided with a decision on the grievance or appeal as September 9, 2016.

59        Section 1 of the Regulations defines “initiating document” and identifies a complaint under s. 190 of the Act as one. Section 2 states that subject to ss. 3, 47, 51, and 55, all initiating documents shall be filed with the PSLREB or the chairperson by filing them in duplicate with the executive director.

60        Subsection 3(1) of the Regulations states that if an initiating document is faxed to the executive director, the original of the document and a copy shall be sent to the executive director as soon as possible. Subsection 3(2) states that the initiating document sent by fax is deemed received on the date of the fax transmission if the original and a copy are sent in accordance with subsection (1).

61        The December 9 complaint No. 2 was received via fax at the PSLREB on December 9, 2016 (which was a Friday). The original was received by the PSLREB on the next business day, December 12, 2016. According to the December 9 complaint No. 2, the date on which the complainant states she filed a grievance or appeal was April 9, 2016. The December 9 complaint No. 2 also provided that on September 9, 2016, a copy of the employee organization’s decision on her grievance or appeal (filed on April 9, 2016) was provided to her. The December 9 complaint No. 2 had to be filed not later than 90 days after September 9, 2016, which was December 8, 2016. As this complaint was received on December 9, 2016 it is untimely.

62        However, the complainant had sent the PSLREB the December 9 complaint No. 1. But that complaint is also out of time for the same reason as the December 9 complaint No. 2, as the information in the December 9 complaint No. 1 is the same with respect to the date on which the complainant received the PIPSC’s decision with respect to her grievance or appeal, namely, September 9, 2016.

63        The December 8 complaint was received via fax at the PSLREB on December 8, 2016 (which was a Thursday). According to that complaint, the date on which the complainant states she filed a grievance or appeal was April 9, 2016. The December 8 complaint also provided that on September 9, 2016, a copy of the employee organization’s decision on her grievance or appeal (filed on April 9, 2016) was provided to her. The December 8 complaint had to be filed not later than 90 days after September 9, 2016, the last day of which was December 8, 2016. As the December 8 complaint was received on December 8, 2016, pursuant to the Regulations, it would be considered received within the time limit if within a reasonable period, the complainant sent in the original and a copy. She did not send the original complaint and a copy as per the Regulations. As such, the December 8 complaint cannot be said to have been filed on time.

64        The Board’s registry opened only one file, in which the December 9 complaint No. 2 was identified as the complaint at issue. It was sent to the respondents for their response, which they provided. In turn, the complainant replied to that response.

65        The fax cover sheet for the December 9 complaint No. 1 stated as follows: “Please Replace Previously Received Packages of Fax.” A review of the records of the Board’s registry indicated that before the December 9 complaint No. 1 was faxed, only the December 8 complaint had been faxed. The word “Packages” is not accurate as only one package was received by the Board.

66        There are two notes from staff in the Board’s file, one handwritten and one typewritten. The handwritten note shows that it was made on December 9, 2016, and states that a call was made to the complainant and that a voice message was left for her at 3:10 p.m. The typewritten note indicates that she called back on December 9, 2016, but does not indicate when. While it references a discussion from that afternoon and mentions that she wanted to replace the two previous complaints, she and the Board’s registry could possibly have been speaking at cross purposes. Given that no time is noted for the call, it could be that she had sent to the Board’s registry both the December 9 complaint No. 1 and the December 9 complaint No. 2, and her reference to replacing the two previous complaints meant the December 8 complaint and the December 9 complaint No. 1.

67        While the Board’s registry understood from the discussion with the complainant that the December 9 complaint No. 1 was to replace the December 7 complaint and the December 8 complaint, it is possible that this is not what she meant.

68        This presents a somewhat unique administrative problem. The December 7 complaint appears to have been filed with the Board’s registry within the time limits and pursuant to the Regulations. As such, all things being equal, a file should, in the normal course, have been opened; however, due to the onslaught of the several faxed similar complaints over a very short period, the only file that was opened and dealt with was the file for the December 9 complaint No. 2.

69        While there is some evidence that the complainant might have wished to replace the December 7 complaint with the December 9 complaint No. 1, it is insufficient to reach this conclusion on a balance of probabilities. As such, under s. 12 of the Act,I order that a file be opened for the December 7 complaint, that the December 7 complaint be sent to the respondents within 10 days of this decision, and that a case conference be convened within a reasonable time after the issuance of this decision.

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

IV. Order

71        The complaint is dismissed.

72        A new complaint file shall be opened, the basis of which is the December 7 complaint.

73        The Board’s registry shall forward to the respondents, within 10 days of this decision, a copy of the December 7 complaint.

74        A case conference shall be convened as soon as reasonably possible after the December 7 complaint is sent to the respondents.

October 2, 2017