FPSLREB Decisions

[1]   The grievor was an AV-4 Team Leader employed by the Canada Customs and Revenue Agency (CCRA) in Calgary, Alberta. Ms. McConnell had been absent from work due to medical reasons since January 31, 2000, and on August 23, 2002, the employer sent a letter signed by Reid Corrigall, Director of the Calgary Tax Service Office, to the grievor, advising her that effective September 4, 2002, CCRA was planning to terminate her employment, citing medical incapacity. As per the letter, the grievor's employment was terminated on that date, and, according to the grievance, the Record of Employment indicates that the reason for the termination is illness or workplace injury.

[2]   The grievor referred her grievance to the Public Service Staff Relations Board (the Board) on November 6, 2002, and the Notice of Reference to Adjudication (Form 14) was received by the Board on November 12, 2002. The Form 14 indicates that the grievor presented her grievance at the final level of the grievance process on September 22, 2002, and as of the date of referral, had not yet received a reply to her grievance. In section 15 of the Form 14, the grievor indicated that she was referring her grievance to adjudication in accordance with subparagraph 92(1)(b)(ii) of the Public Service Staff Relations Act (PSSRA).

[3]   Included in the referral documents sent by the grievor was a letter dated November 6, 2002, requesting that the Board "not schedule any mediation nor a hearing at this time, as there are other quasi-judicial and judicial processes in progress, which may duplicate any actions of this board". The grievor requested that the matter be placed in abeyance until the conclusion of these other outstanding processes.

[4]   A copy of the letter dated November 6, 2002, along with the Form 14 and the statement of grievance, were sent to the employer, with a request that the employer advise the Board of its position with respect to the grievor's request that her grievance be held in abeyance.

[5]   The employer's response is dated November 15, 2002, and states that the Board is without jurisdiction to hear the grievance for two reasons: 1. Ms. McConnell's grievance was currently being dealt with through the internal grievance process and she had therefore not exhausted this process prior to referral, as required by subsection 96(1) of the Act; 2. The grievance fell outside the purview of paragraph 91(1)(c) of the PSSRA since the CCRA is a separate employer. The employer therefore requested that the Board reject the referral to adjudication.

[6]   A copy of the employer's letter of November 15, 2002, was sent to the grievor by the Board on November 29, 2002, and she was asked to submit her response on the issue of jurisdiction by no later than December 17, 2002. On December 19, 2002, she advised the Board that due to travel plans, she was unavailable to respond to the employer's objection to jurisdiction until after January 24, 2003, and she requested an extension of time to reply, which request was granted.

[7]   The grievor's response to the employer's objection on jurisdiction is dated February 6, 2003, and was received by the Board on February 11, 2003. With respect to the employer's allegation that she had not yet exhausted the internal grievance process prior to referring her grievance to the Board, the grievor included a copy of the final level response from the employer dated January 17, 2003. Ms. McConnell therefore stated that the employer's objection on this issue was "a moot point". With regard to the employer's second argument, the grievor pointed out that paragraph 91(1)(c) did not exist and that the employer's argument was therefore "invalid". She also stated that she had confirmed with representatives from two bargaining agents that "the PSSRB has final authority over all disciplinary matters resulting in termination in spite of CCRA being a separate employer".

[8]   In response to this correspondence, the employer advised the Board, in a letter dated February 17, 2003, that:

there was a typographical error quoting Section 91(1)(c) of the Public Service Staff Relations Act (PSSRA). Reference should have been made to Section 92(1)(c) of the Act which identified that, in the case of a separate employer, only disciplinary action resulting in termination of employment, suspension or a financial penalty may be referred to adjudication. As Ms. McConnell's termination of employment was non-disciplinary in nature, the Employer maintains that the Board lacks jurisdiction with regard to this matter."

A copy of this letter was sent to the grievor by the Board on February 27, 2003.

[9]   In a letter dated December 4, 2003, the grievor wrote to the Board but only to request that an adjudication hearing be scheduled. The employer responded to the grievor's request for a hearing and in its letter dated December 22, 2003, reiterated its objection to the Board's jurisdiction to hear the grievance and requested that the Board rule on the objection prior to any hearing in the matter. According to the employer, Ms. McConnell was grieving her termination of employment, for reasons of incapacity, under section 51(1)(g) of the Canada Customs and Revenue Agency Act (CCRA Act), and the Board therefore lacked jurisdiction to hear the grievance. Paragraph 51(1)(g) of the CCRA Act provides as follows:

51.(1) Notwithstanding subsections 11(2) and (3) and section 12 of the Financial Administration Act, the Agency may, in the exercise of its responsibilities in relation to personnel management,

(g) provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than for breaches of discipline or misconduct, of persons employed by the Agency and establish the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part..

The grievor, in a letter to the Board dated January 7, 2004, also requested that the Board determine the issue of jurisdiction in advance of any adjudication hearing. The grievor stated that she preferred to have the issue dealt with in writing on the basis of the correspondence already received by the Board from the two parties involved.

[10]   On January 12, 2004, the grievor wrote to the Board in response to CCRA's letter of December 22, 2003. In her letter, Ms. McConnell states:

I make no such reference to the Canada Customs and Revenue Agency Act and indicate that it is CCRA who has fired me for incapacity. It is not I who is grieving termination for reasons of incapacity.

With respect to the employer's argument on paragraph 92(1)(c) of the Public Service Staff Relations Act, the grievor wrote:

On form 14 as part of my grievance submission to the PSSRB I have grieved my termination under section 92(b)(1). This termination is an act of discipline.

She therefore maintained that the Board has jurisdiction over the matter and advised that she wanted the jurisdictional question to be resolved as soon as possible.

[11]   On February 5, 2004, the Board wrote to the parties and advised them that the Board would entertain the parties' written submissions, including any factual allegations, on the question of whether the termination was disciplinary or non-disciplinary in nature.

[12]   The grievor's submission was received by facsimile on February 6, 2004, and is a copy of her letter to the Board dated February 6, 2003. Reference to the contents of these submissions is found at paragraph 7 of this decision. These submissions were in turn sent to the employer, and the employer's submissions, dated March 2, 2004, were received by the Board the following day. A copy of the employer's submissions was sent to the grievor, both by the employer and by the Board.

[13]   In its submissions, the employer recounts that the grievor had been absent from work for medical reasons since January 31, 2000, and that in August 2002, it decided to terminate her employment for cause: "your incapacity to perform your duties due to illness." In September of 2001, Dr. Jorundson of the Occupational Health and Safety Agency advised CCRA that, based upon medical reports, the grievor should not work for the Agency. He also stated that given the grievor's recent threats of violence, he intended to ask for a further medical examination. This second physician also concluded that the grievor should not work for the Agency. Subsequently, in November 2001, Dr. Jorundson advised the employer that the grievor could not work for the Agency in any location, although she was capable of working for another organization. In order to clarify the grievor's medical condition, the Agency requested a further independent medical examination to evaluate her condition, which examination was conducted on April 12, 2002, by a specialist from the Calgary Health Authority. In its letter of August 23, 2002, the employer advised the grievor that:

To date, the Agency has not been provided with any information with respect to this examination, nor a copy of the specialist's medical report.

This same letter went on to state:

An employer has a right and an obligation to ensure that employees are medically fit to return to the workplace and to perform the duties of his/her position. As you have failed to release information that would assist in determining whether you are fit to return to the workplace and to perform the duties of your position, and have failed to cooperate in resolving this matter, I can only conclude, based upon the medical information that the Agency has in its possession, that you are unfit to return to the workplace to perform the duties of your substantive position. In addition, I have no evidence, at this time that would lead me to believe you could return to work in the foreseeable future.

The employer then advised her that her employment would be terminated under the authority of paragraph 51(1)(g) of the CCRA Act.

[14]   Also included in the employer's submissions was a copy of the Agency's Conflict Management System and, in particular, the Guidelines for Submitting and Processing a Request for an Independent Third Party Review (ITPR). The ITPR process was established by the Agency pursuant to subsection 54(1) of the CCRA Act which reads as follows:

54(1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.

This process is therefore one which provides for the independent third-party review of terminations due to incapacity.

[15]   The employer, in its submissions, argued that only paragraph 92(1)(c) of the PSSRA could apply to Ms. McConnell's grievance, given that paragraph 92(1)(a) applies only to grievances relating to the interpretation and application of a collective agreement and that paragraph 92(1)(b) applies only to employees of departments or portions of the public service specified in Part I of Schedule I to the PSSRA or designated by an order pursuant to subsection 92(4) of the PSSRA. The employer also argued that subsection 51(1) of the CCRA Act (reproduced above at paragraph 9) confirms that Ms. McConnell's termination is not subject to paragraphs 11(2)(f) or (g) of the Financial Administration Act.

[16]   The employer further argued that in the case of non-disciplinary terminations, once the employer tenders credible evidence pointing to some cause for termination valid on its face, the Board loses jurisdiction and the grievance should be dismissed. The employer points to the letter of termination as proof of the non-disciplinary nature of the grievor's termination and its submissions reiterate the medical evidence regarding the grievor's fitness to work. Finally, it submits that the grievor, who bears the onus of proof, has submitted neither evidence nor argument that CCRA's termination of her employment constitutes a disguised termination for disciplinary reasons. In fact, the employer points out, her written submissions on the jurisdictional issue confirm that the Agency fired her for incapacity.

[17]   The grievor requested an extension for the submission of her reply and was granted an extension until March 31, 2004.

[18]   On March 15, 2004, the Board received a letter from the grievor, requesting simply that this matter be placed in abeyance until further notice. The employer was sent a copy of the request and in a letter dated March 25, 2004, the employer replied, strongly objecting to the request. The employer noted that the grievance had been referred to adjudication over 16 months earlier and that CCRA had immediately asked that the grievance be dismissed for lack of jurisdiction. Nevertheless, the matter had remained in abeyance for over a year, until Ms. McConnell requested that the Board schedule a hearing date and render a decision on the issue of jurisdiction, indicating that she was eager to proceed. The grievor's latest request, the employer pointed out, provided no reasons for the request and the employer argued that the existing delay had already prejudiced CCRA and that any further delay could seriously prejudice its ability to deal with the matter. The employer also reiterated its position that the Board lacked jurisdiction to deal with this matter in any event.

[19]   The matter was referred to the Board and the grievor was given a further extension until April 16, 2004, to submit her response to the employer's submissions. She was advised that failing submission, the matter would be decided on the basis of the material on file at that time. As the Board received no further submissions on the issue, the employer and grievor were advised that the matter had been referred to the Board and would be determined on the basis of the material before it.

Reasons for Decision

[20]   The question to be determined in this decision is whether or not an adjudicator of the PSSRB has the jurisdiction to hear the grievance filed by the grievor contesting her termination of employment from CCRA.

[21]   Section 92 of the Public Service Staff Relations Act sets out the circumstances under which a grievance can be referred to adjudication and decided by an adjudicator. Ms. McConnell's grievance was presented up to an including the final level of the grievance process and the grievance has not been dealt with to the satisfaction of the grievor, given that her grievance was rejected at the final level of the grievance process. The grievor has therefore met the condition precedent for a referral to adjudication as set out in subsection 92(1) of the PSSRA. The employer initially raised an objection regarding the adjudicability of the grievance based on the fact that it had not been presented up to and including the final level of the grievance process at the time of referral. However, the employer's final level response was provided to the grievor following the referral to adjudication and the employer has not reiterated this objection since that time. I therefore understand that the employer has abandoned this objection to the Board's jurisdiction and has instead decided to pursue only the issue of the characterization of the termination as non-disciplinary in nature. Having determined that the grievor has met the preconditions for referral set out in subsection 92(1), I must now turn my attention to the application of paragraphs 92(1)(a), (b) and (c) to this grievance.

[22]   Paragraph 92(1)(a) of the PSSRA clearly does not apply to the case at hand since the grievance mentions no article of the collective agreement which is alleged to have been violated and the Form 14 completed by the grievor indicates that the referral to adjudication is made under subparagraph 92(1)(b)(ii) only, not subsection 92(1)(a).

[23]   Paragraph 92(1)(b) cannot apply to the present grievance, either, since Ms. McConnell is not "an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I" (the Canada Customs and Revenue Agency is an employer specified in Part II of Schedule I) "or designated pursuant to subsection (4)" (the Agency has not been so designated). As an employee of a separate employer, Ms. McConnell is unable to refer her grievance to the PSSRB under the auspices of paragraph 92(1)(b). I therefore find that the grievor cannot avail herself of paragraph 92(1)(b) in order to refer her grievance to adjudication before the PSSRB. As set out above, she is an employee of a separate employer.

[24]   Paragraph 92(1)(c) can only apply if I find that the grievor's termination resulted from disciplinary action taken against her by the employer. The employer has maintained that the termination was strictly non-disciplinary in nature, while the grievor has maintained the opposite.

[25]   The employer raised its preliminary objection, contesting the jurisdiction of the Board to hear this grievance, very shortly after the referral of the grievance. In accordance with prior Board decisions, as well as a decision of the Federal Court of Canada, the grievor bears the onus of demonstrating that her termination was in fact a disguised disciplinary discharge: Flynn v. Treasury Board (National Defence) PSSRB File No. 166-2-29015 (1999) (QL), Canada (Attorney General) v. Leonarduzzi (2001), 205 F.T.R. 238 (FCTD), Bratrud v. Office of the Superintendent of Financial Institutions 2004 PSSRB 10, Thibault v. Treasury Board (Solicitor General of Canada - Correctional Service), Board File No. 166-2-26613 (1996) (QL); Hamelin v. Treasury Board (Solicitor General - Correctional Service) Board File No. 166-2-19440 (1991)(QL).

[26]   The Federal Court of Canada in Attorney General of Canada v. Leonarduzzi, [2001] 205 F.T.R. 238, found that in cases such as this one, the employer need not establish a prima facie case nor just cause, but simply some evidence that the termination was related to employment issues and not for any other purpose. In the file before me, the employer has, in various documents, outlined in a general manner the facts upon which it relied in terminating the grievor's employment. I therefore conclude that the employer has discharged its initial burden, such as it is, and has submitted some credible evidence pointing to some cause for termination. The onus now shifts to the grievor to demonstrate that the employer's actions were a sham or subterfuge.

[27]   What evidence is there that the discharge was in fact a disguised disciplinary discharge? The grievor has, unfortunately, provided the Board with absolutely no evidence to this effect. Indeed, her correspondence with the Board contains several assertions that her discharge was disciplinary in nature, but nothing more. The grievor has failed to provide the Board with even one fact which would support her allegation and therefore the referral of this grievance to adjudication.

[28]   I must therefore come to the conclusion that an adjudicator is without jurisdiction to hear this matter. The grievance is therefore dismissed.

Yvon Tarte,
Chairperson

Ottawa, June 1, 2004.