FPSLREB Decisions

Jurisdiction - Bereavement leave - Discrimination - Sexual orientation - employer denied grievor's request for bereavement leave following the death of his male partner on the ground that the relevant provisions of the collective agreement restricted that entitlement to common law spouses who were of the opposite sex - grievor claimed that this violated the No Discrimination provision of the collective agreement as well as the Canadian Human Rights Act as it constituted discrimination on the ground of sexual orientation - grievor submitted that employer should interpret the definition of common law spouse without reference to the requirement that the spouses must be of the opposite sex - although employer subsequently granted the leave which he requested, the grievor wished to proceed with the hearing into the reference to adjudication of his grievance - adjudicator noted that the jurisprudence recognized his entitlement to do so as a settlement cannot be imposed unilaterally - employer alleged that adjudicator had no jurisdiction to entertain the grievance as the Canadian Human Rights Act (CHRA) provided another administrative procedure for redress within the meaning of subsection 91(1) of the Public Service Staff Relations Act (PSSRA) - employer referred to the decision of the Federal Court, Trial Division, in Chopra v. Canada (Treasury Board) (1995), 100 F.T.R. 226 in support of that position - adjudicator concluded that she had jurisdiction as the essential character of the grievance related to the interpretation and application in relation to the grievor of various provisions of the collective agreement - the discrimination issue was simply incidental and related to the grievor's claim for bereavement leave - the adjudicator concluded therefore that there was no administrative procedure for redress provided in or under the CHRAsince neither the Canadian Human Rights Commission (CHRC) nor the Human Rights Tribunal had the jurisdiction to interpret and apply the provisions of the collective agreement - that authority rested with the Public Service Staff Relations Board and adjudicators appointed under the PSSRA - furthermore, a complainant under the CHRAcannot compel the CHRC to accept his complaint and refer it to the Human Rights Tribunal - the CHRC is only obliged to comply with the rules of procedural fairness in investigating a complaint - on the other hand, an adjudicator appointed under the PSSRA must entertain a grievance raising a violation of the collective agreement in relation to the grievor provided it has the support of the relevant bargaining agent - the adjudicator distinguished the grievor's situation from that in Chopra where the substance of the grievance related to stand alone systemic discrimination - moreover, the substance of Mr. Chopra's grievance related to appointments and promotions which are subjects not within the jurisdiction of the PSSRB or an adjudicator appointed under the PSSRA - rather these subjects fall under the Public Service Employment Act - adjudicator concluded that restricting the definition of common law spouse to employees of the opposite sex constituted discrimination on the ground of sexual orientation - furthermore the relevant jurisprudence established that sexual orientation is one of the prohibited grounds of discrimination under the CHRA and that the provisions of that statute are paramount over inconsistent statutory provisions and, by necessary implication, over inconsistent provisions of a collective agreement - adjudicator concluded that the definition of common law spouse in the collective agreement was contrary to the jurisprudence, the CHRA and the No Discrimination provision of the collective agreement - therefore, such a definition must be applied as though the discriminatory provision were not there - to do so is not a violation of subsection 96(2) of the PSSRA but rather constitutes the application and recognition of the law of the land - grievor was entitled to the bereavement leave which he requested following the death of his same sex partner - however, adjudicator determined that it would not be appropriate for her to order the employer to cease taking such a technical approach to the interpretation of the collective agreement in future - adjudicator also took judicial notice of the fact that employer has now adopted a policy to grant this leave to same sex partners. Grievance allowed in part. Cases cited: Egan v. Canada (1995), 124 D.L.R. 609 (S.C.C.); Chopra v. Canada (Treasury Board) (1995), 100 F.T.R. 226; Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.); Sagkeeng Alcohol Rehab Centre Inc. V. Abraham et al. (1994), 79 F.T.R. 53; Byers Transport Ltd. V. Kosanovich 1995 3 F.C. 354; Lorenzen (166-2-23963 & 24000); Slattery 1994 2 F.C. 574 (F.C.A.); Varma v. Canada Post Corp. (F.C.T.D. Court file T1694); Vogel v. Manitoba (1995), 6 W.W.R. 513 (Man C.A.); Leshner v. Ontario (1992), 16 C.H.R.R. D/184; Neilson v. Canada (Human Rights Commission) 95 CLLC 230021 (F.C.T.D.); Canada (Attorney General) v. Druken 1989 2 F.C. 24 (F.C.A.); Winnipeg School Division No. 1 v. Craton et al. 1985 2 S.C.R. 150.