FPSLREB Decisions

File: 166-2-25703 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN PAUL J.A. WHITE Grievor and TREASURY BOARD (Transport Canada)

Employer

Before: Rosemary Vondette Simpson, Board Member For the Grievor: Paul-Émile Chiasson, Counsel For the Employer: Dora Benbaruk and Denis Bouffard, Counsel Heard at Ottawa, Ontario, January 17 and June 13, 1995.

Decision Page 1 DECISION Mr. Paul J.A. White commenced his employment with Transport Canada in June, 1967. He submitted a resignation on June 11, 1993, effective on June 21, 1993. This resignation was accepted by his employer.

His grievance dated February 11, 1994 reads as follows: I, Paul J.A. White, employed with Transport Canada since June 21, 1967. On June 10, 1993, I was asked by Suzanne Tining, Director General, Commercial Development and Marketing, Transport Canada, and Cheryl Read, Director, Personnel-Airports NCR, Transport Canada, either to submit my resignation or I would be dismissed. I did submit my resignation on June 11, 1993, effective on June 21, 1993.

I was hospitalized for stress and psychiatric illness after my termination from June 29, 1993 to August 3, 1993.

On August 6, 1993, Mr. Victor M. Barbeau, Assistant Deputy Minister-Airports Group Transport Canada, explaining the circumstances of my resignation and requesting my resignation be withdrawn and that I be reinstated in my position and placed on sick leave.

By letter of November 25, 1993, I received a letter from Victor M. Barbeau, Assistant Deputy Minister Airports Group Transport Canada he rejected my request to withdraw my resignation.

I hereby allege that my resignation was a forced resignation and I was constructively dismissed from my employment as of November 25, 1993.

Grievance I hereby grieve my unlawful termination pursuant to Section 9(1)(a)(i) of the Public Service Staff Relations Act.

Redress That my resignation of June 11, 1993 be withdrawn, that I be reinstated in my position and paid all back wages and permitted to submit my application for sick leave.

(Note: While there were some variations between the copy of the grievance submitted by the grievor with the reference to adjudication and the copy provided by the employer, there were no significant differences between the two copies.

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I sent a letter to

Decision Page 2 The section of the Act quoted under the hearing “Grievance” is intended to be 92(1)(b)(ii).)

Objections to my jurisdiction to hear this grievance were raised by counsel for the employer.

The employer’s position was that the employer in good faith accepted a request from the grievor to resign and had no reason to believe that the letter of resignation was made involuntarily.

The grievor, Mr. Paul J.A. White, was called to testify. He attempted to give evidence but after giving some details of his employment history, the positions he held and the duties he performed, he became ill. The hearing had to be adjourned.

The next attempt to have a hearing on the issues was June 13, 1995. At that time the grievor and his counsel urgently requested an adjournment to obtain further materials that they were awaiting under an Access to Information request. After submissions by the parties, the adjournment was granted until receipt of these materials.

Before another hearing was scheduled, Mr. Denis Bouffard, counsel for the employer, by letter dated December 8, 1995, wrote to the Board as follows: According to our file, the above-mentioned hearing was adjourned sine die by Adjudicator, Ms. Simpson, at the request of the Grievor on June 13, 1995.

Since then, every attempt to settle this matter has come to no avail.

I further learned from Mr. Chiasson, Mr. White’s lawyer, that it was not their intention to continue with this grievance before the P.S.S.R.B.

Consequently, the Employer has asked me to request that this grievance be dismissed for lack of jurisdiction or be re- scheduled as soon as possible since any further delay would seriously prejudice the Employer’s evidence.

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Decision Page 3 The Board then sent the following letter to Mr. Chiasson, counsel for the grievor. This letter, dated December 13, 1995, reads as follows: Further to Mr. Bouffard’s letter dated December 8, 1995 which was copied to you, the matter was brought to Mrs. Simpson’s attention and I was directed to communicate the following to you:

1) Is it your intention to continue this matter before this Board?

2) If the answer to the above is affirmative, please indicate your availability for a hearing during the month of April, May and June 1996. If however, it is not your intention to proceed before this Board then we should be notified that the matter is withdrawn.

3) If this matter proceeds to a hearing, the parties would have to be in a position to present all their evidence and arguments. The adjudicator would consider bifurcating the hearing in order to deal with the question of jurisdiction if this approach was agreed to by both parties.

Please provide the Board with your response by no later than December 21, 1995.

Mr. Chiasson wrote back on December 14, 1995 as follows: This letter is in reply to your letter of December 13, 1995, and our discussion of even day, regarding the above mentioned matter.

In my opinion, an unfair burden is placed upon an employee, who, though not represented by an union, is attempting to have his/her grievance heard on the merits of the case, only to discover, after having presented all the evidence, that the Board hearing the matter lacks jurisdiction to deal with the merits of the grievance. The preparation and presentation of evidence for a single employee is an extremely costly process. When the matter is rejected on an issue of jurisdiction, the employee must proceed again in a forum having jurisdiction to hear the matter.

When dealing with preliminary matters, Mrs. Simpson indicated that the P.S.S.R.B. had no jurisdiction over Section 26 of the Public Service Employment Act. Mr. White’s grievance is a resignation, not a disciplinary matter. Mr. White has never been disciplined. He resigned under Section 26 of the Public Service Employment Act.

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Decision Page 4 In his letter of December 8, 1995, Mr. Bouffard indicated that this grievance may be dismissed due to lack of jurisdiction. If it is the Board’s position that it has no jurisdiction to hear the merits of Mr. White’s resignation, then I believe it would only be fair to all parties that the grievance be dismissed on that basis.

The granting of such a request would permit Mr. White to proceed before an appropriate board, which holds the necessary jurisdiction to deal with the matter of resignation on its merits. The tribunal would also have the authority to deal with whether the Employer acted fairly by having requested a resignation; has followed all its internal policies relating to resignation, and whether the Grievor received independent advice before submitting his resignation. The P.S.S.R.B. jurisdiction applies to disciplinary matters which fall under Section 91 of the Act. In whatever forum we intend to access, we have no intention of discussing whether Mr. White’s alleged fraudulent acts were worthy of disciplinary measures, since he has never been disciplined and it is not an issue.

Some may argue that resignation is, in fact, a disciplinary matter. Usually, a tribunal with competent jurisdiction in labour relations would have the authority to deal with a resignation and disciplinary matter on its merits. Under the Public Service Staff Relations Act and the Public Service Employment Act, a distinction is made between a disciplinary measure and a resignation. The latter falls under the Public Service Employment Act and is outside the jurisdiction of the P.S.S.R.B.

The Federal Court of Canada has rendered decisions that whenever a statute provides for an administrative procedure, that procedure must be followed. By withdrawing the grievance, the Employer could allege that the matter has been dealt with and therefore it is res judicata. Also, there could be a strong argument on the issue of limitation period. By rejecting this grievance on the grounds of lack of jurisdiction, which seems apparent, Mr. White would be able to argue that the matter was rejected for lack of jurisdiction, should someone attempt to argue that the matter must be referred to the P.S.S.R.B., as provided by the Act.

On behalf of Mr. White, I do not oppose the dismissal of this matter, as suggested by the counsel of the Employer, on the basis of lack of jurisdiction. I am, however, prepared to make a further formal submission should the adjudicator be prepared to entertain such submission.

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Decision Page 5 Mr. Gilles Brisson, Manager of Operations at the Board, wrote back to Mr. Chiasson on December 18, 1995 as follows: This is to acknowledge receipt of your letter dated December 14th in relation to the above-cited matter.

Before I submit the matter to Mrs. Simpson for direction, it would be appreciated if you would provide the Board with further clarification concerning the last paragraph of your letter. You indicate that ...

On behalf of Mr. White, I do not oppose the dismissal of this matter, as suggested by the counsel of the Employer, on the basis of lack of jurisdiction. I am, however, prepared to make a further formal submission should the adjudicator be prepared to entertain such submission.

You must advise the Board if you wish to formally submit arguments on the question of jurisdiction. If such is the case, then the Board will give the parties the opportunity to do so. If, on the other hand, you wish the adjudicator to render a decision on the question of jurisdiction based on the material already submitted, then you should also advise the Board accordingly. A reply by January 8, 1996 would be appreciated.

In response, Mr. Chiasson replied by letter of January 3, 1996 that he was prepared to provide further submissions on the element of jurisdiction if the adjudicator desired; however, he stated that he believed the Board was in a position to render a decision on the element of jurisdiction with “...the information that has been provided before and the various correspondences the Board has on file on the subject”. Mr. Chiasson was then advised by Mr. Brisson, by letter of January 16, 1996, that the matter had been referred to me for determination.

Reasons for Decision In his letter of December 14, 1995, Mr. Chiasson indicated inter alia that he did not oppose the dismissal of this matter on the basis of lack of jurisdiction. He then stated that he was “...prepared to make a further formal submission should the adjudicator be prepared to entertain such a submission”. In this regard I would point

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Decision Page 6 out that I was prepared at all times to receive any submission, subject to relevancy, that the grievor wished to make.

This grievance has been before the Board since April 29, 1994, a period of almost two years. The first hearing was opened on January 17, 1995, more than one year ago. Very little evidence has been presented.

In light of my determination on the jurisdictional issue, it is not necessary for me to make a ruling on the issue of timeliness.

The grievor has acknowledged that he resigned from the Public Service pursuant to section 26 of the Public Service Employment Act (PSEA), effective June 21, 1993. In his grievance he alleges that he was coerced into resigning and as such his resignation was an unlawful termination. On the other hand, the employer maintains that the resignation was valid and as such an adjudicator has no authority to entertain the grievance.

During the course of the hearing I indicated that my authority as an adjudicator was limited to the matters set out in section 92 of the Public Service Staff Relations Act (PSSRA). I also indicated that a resignation and a termination are not one and the same and that an adjudicator has no authority per se to deal with a resignation under section 26 of the PSEA. I further indicated that where a grievor acknowledges that he resigned from the Public Service, but alleges that he was coerced into doing so, the onus rests with the grievor to establish that what on its face appears to be a resignation, was in fact an improper termination. It is only where the grievor satisfies this onus that one could argue that an adjudicator would have the authority to make a determination on the merits of the grievance.

In the instant case I am satisfied that the limited testimony of the grievor did not discharge the onus of proving that the form of resignation was in actual substance a termination of his employment by the employer. In the absence of evidence to the contrary, I must accept that the resignation of the grievor was properly made under section 26 of the PSEA. As such, it is not a matter that may be referred to adjudication under subsection 92(1) of the PSSRA.

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Decision Page 7 For the above reasons, I must dismiss the grievance for want of jurisdiction.

Rosemary Vondette Simpson, Board Member

OTTAWA, February 21, 1996.

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