FPSLREB Decisions

[1]    The hearing on January 5, 2004, dealt only with the preliminary objections sent to the Public Service Staff Relations Board (the Board) by the parties prior to the hearing.

[2]    The employer raised the following objections: (a) the grievance was improperly referred to adjudication, since it had not been presented and a reply had not been received at the final level when the grievance was referred; (b) the bargaining agent did not authorize the reference; (c) the adjudicator lacks jurisdiction because the job was a specified period appointment; and (d) the adjudicator lacks jurisdiction to consider the reasons put forward by the grievor, which would fall rather within the jurisdiction of the Canadian Human Rights Commission (CHRC).

[3]    Given the nature of the objections and in accordance with the recommendation of Linden J. in Boutilier, [2000] 3 F.C. 27: "An Adjudicator must, therefore, grapple with these jurisdictional matters before or during hearings but, hopefully, most of them can be resolved at the commencement of the grievance proceedings", the parties were invited to present their arguments relative to the objections and they filed documentary evidence; no witness was heard. The hearing was then adjourned pending a decision on these preliminary matters.

The Facts

[4]    The National Research Council of Canada (NRC) offered Ms. Yolette Sincère a job as a Technical Officer (TO-2) with the Animal Cell Technologies and Purification Processes group, Bioprocess Platform, on October 2, 2000 (Exhibit G-4). The six-month contract, which was to end on April 6, 2001, was renewed a first time from April 9, 2001, to March 28, 2002 (Exhibit G-3). On February 5, 2002, her contract was again extended from March 28, 2002, to March 28, 2003 (Exhibit G-2).

[5]    Ms. Sincère was informed in a letter dated January 7, 2003 (Exhibit G-1), that her contract would end on March 28, 2003, as stipulated in her extension letter of February 5, 2002. The letter (Exhibit G-1) reads as follows:

[Translation]

Further to your letter of offer dated February 5, 2002, we would like to remind you that your employment with the Animal Cell Technologies and Purification Processes group, Bioprocess Platform, ends on Thursday, March 28, 2003.

Of course, if a job in your field becomes available in the meantime, we will contact you.

If you have not banked the time required for the Code 1020 December Shutdown and have already taken that leave, the time will be recovered from your last payment.

You need to complete and update your data entry in the Human Resources time management module to obtain your final payment from Pay and Benefits.

You should go to Human Resources on the morning of March 28, 2003 (or a few days before), to fill out the departure forms.

The National Research Council offers job-search training to help you find another job. If you have not yet taken that training, please contact Suzie Durocher, who will help you make the necessary arrangements. Note that you need to obtain your supervisor's prior approval.

On behalf of the Institute, I would like to thank you for your contribution to the team and I wish you every success in the future.

[6]    The grievor presented a grievance at the first level, i.e. to the Director General Michel Desrochers, on March 7, 2003. The grievance reads as follows:

[Translation]

The employee (Yolette Sincère) feels aggrieved by the application of a dismissal (article 16.2) and article 16 caused by discrimination and sexual harassment (articles 50 and 51).

Corrective action requested

Renewal of my contract in an environment free from harassment or discrimination.

[7]    This grievance was heard at the first level on April 11, 2003.

[8]    Having received no reply at the first level, Ms. Sincère presented her grievance at the second level, i.e. to NRC Vice-President Peter A. Hackett, (Exhibit G-5) on April 17, 2003. The grievance presented at this level was worded differently from the initial grievance:

[Translation]

The employee (Yolette Sincère) feels aggrieved by the application of a suspension, caused by discrimination and sexual harassment.

Corrective action requested

Renewal of my contract in an environment free from harassment and discrimination.

[9]    The amendment eliminating any reference to the collective agreement was apparently made following discussions and agreement between Ms. Sincère and her union representative. Ms. Sincère confirmed at the hearing that she intended to proceed on the basis of her grievance as presented on April 17, 2003, and not on the basis of the provisions of the collective agreement. Counsel for the employer agreed and withdrew her objection that the bargaining agent did not authorize the reference.

[10]    Ms. Sincère presented the same grievance at what she thought was the final level, i.e. to NRC President Arthur Carty, (Exhibit G-7) on May 20, 2003.

[11]    As set out in the record, Ms. Sincère referred the grievance to adjudication on August 27, 2003, under paragraph 92(1)(c) of the Public Service Staff Relations Act (PSSRA). She indicated that the reason was that she had received no reply at the final level.

[12]    The employer informed Ms. Sincère of the first-level reply on November 17, 2003. It referred to an in-depth investigation into the grievor's allegations of harassment and discrimination made at the grievance hearing on April 11, 2003. The text of the reply follows:

[Translation]

This is my reply at the first level of the internal grievance process to your grievance presented on March 7, 2003.

On October 27, 2003, I submitted to you for review and comment a copy of the preliminary report on the investigation into the allegations of harassment and discrimination that you made at your grievance hearing on April 11, 2003. You had until November 4, 2003, to comment on the report or ask for an extension.

Since you did not reply before the deadline or ask for an extension, I concluded that you did not intend to take part in this final stage of the investigation process. I therefore asked the investigators to finalize the report on the basis of the information available.

I examined the investigation report and have concluded that your allegations are unfounded. If the alleged events did indeed take place, what your co-workers did and said was intended in a humorous and/or friendly way and not at all to harass you about your ethnic origin or the colour of your skin. Although I am not sure of your reasons for interpreting the events the way you did, I am of the opinion that your grievance and the allegations contained in it are completely groundless.

In light of the investigation findings, I am convinced that you enjoyed a healthy work environment free from harassment and discrimination. For these reasons, your grievance is denied.

[13]    Counsel for the employer filed with her preliminary objections in the Board file a copy of Ms. Sincère's complaint to the Canadian Human Rights Commission (CHRC) filed on September 18, 2003 (File 20030162). Ms. Sincère alleges that: [translation] "[t]he National Research Council of Canada acted in a discriminatory manner against me and treated me unfairly while I was in its employ, because it dismissed me and did not provide a work environment free from harassment because of my colour (Black) [sic] and my gender (female), thereby violating sections 7 and 14 of the Canadian Human Rights Act."

[14]    The employer informed the Board of its intention to raise preliminary objections in a letter to the Board dated December 19, 2003. The grievor, who was represented neither by the bargaining agent nor by counsel, was given an opportunity to reply to the contentions in writing.

I      The grievance was improperly referred to adjudication

[15]    The only objection that will be dealt with here is that the grievance was improperly referred to adjudication, since the parties agreed not to proceed on the basis of the collective agreement, and the fact that the bargaining agent did not authorize the reference is no longer an issue, as mentioned above.

Arguments

[16]    According to the employer, the grievance had not been presented at the final level and should not have been referred to adjudication before the grievor had received a reply at the final level. Filing the grievance at the various levels is not sufficient.

[17]    Because the document contained serious allegations, the employer considered it advisable to postpone replying to the grievance in order to conduct an investigation into the allegations of harassment and discrimination.

[18]    In a letter dated August 21, 2003, Ms. Mary McLaren, Director General, Human Resources Branch, (Exhibit G-8), notified Ms. Sincère that the employer was waiting for the final results of the investigation into her allegations of harassment and discrimination before replying at the first level. The investigation apparently took place in July.

[19]    The employer added that there was a defect as to form in that Ms. Sincère did not use the proper form to present her grievance.

[20]    The grievor explained that she had presented and forwarded her grievance within the deadlines prescribed by the collective agreement and the PSSRA. She did not agree to the employer's request to extend the deadline for replying to her grievance. She even asked the employer to halt the investigation because she had submitted a grievance, in accordance with the NRC's harassment policy. She should therefore not have to suffer the consequences of the fact that the employer did not meet the deadlines. Ms. Sincère saw that as bad faith and a manoeuvre to delay things. She relied on sections 74 and 76 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993.

Reasons

[21]    Before going further in this case, it should be determined whether, in the present circumstances, the grievance was improperly referred to adjudication and if so, is that fatal to it. At best, there seems to have been some confusion in the way the grievance was handled in this case, and counsel for the employer admits that.

[22]    The grievor says she received contradictory information about the grievance process from NRC officials and union representatives. The change in the wording of the grievance and the parallel investigation could also have been confusing.

[23]    With respect to the form of Ms. Sincère's grievance as presented on April 17, 2003, this is not a fatal element, since the form used leaves no doubt as to the nature of the document. Subsection (5) of section 71 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, stipulates: "A grievance of an employee is not invalid by reason only that it is not presented in the form approved by the Board under section 70."

[24]    In the circumstances and considering the deadlines set out in the collective agreement and the Board Regulations, as well as the fact that the employer cannot extend the deadlines unilaterally, I consider that the grievance was referred to adjudication properly, and I will now deal with the matters raised with respect to my jurisdiction.

II      Adjudicator's jurisdiction: arguments of the parties

[25]    Two issues have been raised that call into question the adjudicator's jurisdiction. They are in a way interrelated. First, the employer maintains that the adjudicator has no jurisdiction to hear this grievance because the only reason Ms. Sincère's employment ended was that her contract ran out. Second, the alleged reasons fall within the jurisdiction of the CHRC. Under section 91 of the PSSRA, the Board has jurisdiction in these matters only if the CHRC refers the grievance to it under section 41(1)(a) or 44(2)(a) of the Canadian Human Rights Act, when it considers that the complainant has not exhausted the available grievance process.

(a)      Specified period employment

[26]    The employer says the grievor was certainly not dismissed but rather her contract normally and foreseeably came to an end. It says that it can show it found no fault with Ms. Sincère's performance; it took no disciplinary action against her. It is simply a matter of her contract coming to an end.

[27]    The employer relies on subsection 92(3) of the PSSRA and draws a parallel with section 25 of the Public Service Employment Act, which states: "An employee who is appointed for a specified period ceases to be an employee at the expiration of that period." According to the employer, the same principle should apply to NRC employees.

[28]    In support of its arguments, the employer cites Lecompte (Board file 166-2-28452), Hanna (Board file 166-2-26983), Dansereau v. National Film Board, [1979] 1 F.C. 100, Beaulieu v. Canada (1998), F.C.J. 301, Savic (2001 PSSRB 104), Marta (2001 PSSRB 31) and Pieters (2001 PSSRB 100), in which it is recognized that the adjudicator has no jurisdiction to hear a case contesting the end of specified period employment unless it has been established that a disciplinary measure was the real reason.

[29]    There is therefore no reason to consider the reasons why the contract was not renewed, since the grievor does not allege that the reason was a disguised disciplinary measure but claims that her employment was not renewed as it should have been because she rebuffed her supervisor's and co-worker's improper advances.

[30]    The adjudicator does not have the authority to provide the remedies the grievor is requesting, namely, renewal of her employment contract and the assurance of a work environment free from harassment and discrimination.

[31]    Ms. Sincère maintains that her contract should have been renewed automatically and that the letter of January 7, 2003, constitutes a dismissal. She alleges that the employer acted in bad faith and abused its position. She intends to demonstrate that she was dismissed because she refused to give herself sexually to her supervisor and rebuffed the advances of a co-worker. She relies on section 24 of the Public Service Employment Act, which stipulates that "[t]he tenure of office of an employee is during pleasure, subject to this Act and any other Act and the regulations thereunder and, unless some other period of employment is specified, for an indeterminate period."

[32]    Since she alleges she was dismissed, she considers the adjudicator to have jurisdiction under paragraph 92(1)(c) of the PSSRA, the NRC being a separate employer under Part II of Schedule 1 of the PSSRA.

(b) Reasons of discrimination and harassment

[33]    According to the employer, the reasons put forward by Ms. Sincère in support of this grievance are basically the same as those put forward in her complaint to the CHRC and fall within that body's jurisdiction. Her complaint to the CHRC, as cited above, reads as follows:

[Translation]

The National Research Council of Canada acted in a discriminatory manner against me and treated me unfairly while I was in its employ, because it dismissed me and did not provide a work environment free from harassment because of my colour (Black) [sic] and my gender (female), thereby violating sections 7 and 14 of the Canadian Human Rights Act.

[34]    Therefore, Ms. Sincère has another "administrative procedure for redress" available to her, as specified in subsection 91(1) of the PSSRA.

[35]    In support of this argument, counsel for the employer cites the Federal Court in Boutilier (supra):

Parliament also chose, by virtue of subsection 91(1) of the Public Service Staff Relations Act, [page 41] to deprive an aggrieved employee of the qualified right to present a grievance in circumstances where another statutory administrative procedure for redress exists. Accordingly, where the substance of a purported grievance involves a complaint of a discriminatory practice in the context of the interpretation of a collective agreement, the provisions of the Canadian Human Rights Act apply and govern the procedure to be followed. In such circumstances, the aggrieved employee must therefore file a complaint with the Commission. The matter may only proceed as a grievance under the provisions of the Public Service Staff Relations Act in the event that the Commission determines, in the exercise of its discretion under paragraphs 41(1)(a) or 44(2)(a) of the Canadian Human Rights Act, that the grievance procedure ought to be exhausted.

[36]    The Board has regularly followed this principle in Kehoe (Board file 166-2-29657), Audate (Board file 166-2-27755), Djan (2001 PSSRB 60) and Cherrier (2003 PSSRB 37).

[37]    Ms. Sincère relies on the conclusions of Djan (supra) that an adjudicator has the jurisdiction to hear and determine a grievance despite the grievor's possible access to the CHRC at a later date, since the CHRC cannot refuse to consider a complaint merely because it has been considered by another tribunal. In her opinion, this confirms that the Board has jurisdiction to hear her grievance. However, there is an important distinction between this case and Ms. Djan's in that Ms Djan received a discretionary decision from the CHRC under section 41 of the Canadian Human Rights Act charging her to exhaust the grievance process.

[38]    In the grievor's case, there is no link between the complaint file with the CHRC and the grievance before the Board.

Reasons

[39]    Under paragraph 92(1)(c) of the PSSRA, an adjudicator has the authority to consider a disciplinary measure that led to dismissal: "(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty. the employee may, subject to subsection (2), refer the grievance to adjudication."

[40]    The employer maintains that Ms. Sincère was not dismissed and the record gives no indication that she was the subject of a disciplinary measure. She simply stopped being an employee of the NRC when her contract expired. The employment contract and renewals from October 2, 2000, to March 28, 2003, indicate clearly that Ms. Sincère's contract was for a specified period. The letter of February 5, 2002, gives a detailed description of the conditions of employment offered to Ms. Sincère and clearly specifies that the employment was for a specified period. The grievor signed the conditions of employment on March 28, 2001. The letter of January 7, 2003, does not therefore constitute a letter of dismissal.

[41]    The grievor does not contest the terms of the contract but maintains that her tenure of office is, "unless some other period of employment is specified, for an indeterminate period." in accordance with section 24 of the Public Service Employment Act. However, although I do not have to decide on the application of the Public Service Employment Act in this case, I will point out that Ms. Sincère's contract did clearly specify "some other period of employment."

[42]    At the hearing, Ms. Sincère confirmed that the real reasons her contract was not renewed are related to acts of harassment and discrimination of which she was apparently the victim, and abuse of position and bad faith on the part of the employer. She maintains that the adjudicator has jurisdiction to hear her grievance under paragraph 92(1)(c), since she considers the alleged reasons for her dismissal to be disciplinary measures.

[43]    This matter has been submitted to the Board in similar cases and several decisions have been rendered. In Marta, Hanna, Dansereau, Pieters, Savic, and Lecompte (supra), as well as Eskasoni School Board/Eskasoni Band Council v. MacIsaac (1986), 69 N.R. 315, it was determined that when employment comes to an end as a result of the operation of the terms of a contract and not as a result of a decision of the employer independent of the terms of the contract, it cannot be said that what occurred was a "termination" as the word is used in section 92 of the PSSRA. The Federal Court of Appeal maintained this interpretation in James Francis Burchill v. Attorney General of Canada, [1981] 1 F.C. 109.

[44]    The adjudicator would have jurisdiction if the reasons why the contract was not renewed had disciplinary elements or elements independent of the contract. This is where the whole issue of the Board's jurisdiction over matters of human rights comes into play, since reasons related to human rights are the only ones alleged by the grievor.

[45]    The record shows reasons of discrimination and harassment are the very pith and substance of the grievance. The allegations in the grievance are exactly the same as those that Ms. Sincère submitted to the CHRC; one simply needs to read the grievance and the CHRC complaint. She makes no mention of any disciplinary measure and the employer says it found no fault with Ms. Sincère's performance.

[46]    At the hearing, Ms. Sincère reiterated that she intended to demonstrate that her contract was not renewed because she rebuffed the advances of Mr. Kamen, her supervisor, and of Mr. Carpentier and that she was a victim of discrimination. She presented no argument that her contract should have been automatically renewed or that she should have been offered another job at the NRC.

[47]    The Board's previous decisions are clear on this matter. When alleged discrimination or harassment is the fundamental issue at play, the adjudicator has no jurisdiction, since remedy can be sought from the CHRC. In Kehoe (supra), the Chairperson of the Board, Yvon Tarte, declined jurisdiction in the following words:

The only logical conclusion to which one may come when examining Ms. Kehoe's grievance is that its essence relates to fundamental human rights issues, i.e. discrimination and harassment on the basis of disability. These issues are not merely accessory to the grievance, but rather form its very pith and substance. When one tries to determine the scope of the grievance while making abstraction of those issues, all that remains is an unparticularized allegation of constructive dismissal.

[48]    Therefore, as in the preceding case and in Audate (supra), I must determine, as did Mr. Tarte, that I do not have the necessary jurisdiction to hear this case, since Ms. Sincère's grievance "depends on a ruling of discriminatory practice by the employer, based on one or more of the prohibited grounds of discrimination under the CHRA" (Audate, paragraph 27).

[49]    Counsel for the employer asked the Board to stay the hearing of the present case pending a decision by the CHRC under section 41 of the Canadian Human Rights Act, to which Ms. Sincère was opposed. Because the grievance is dismissed for want of jurisdiction on the basis of paragraph 92(1)(c), given the nature of the employment contract (specified period), this request is moot and the way is clear for Ms. Sincère. She can now proceed with the complaint to the CHRC without fear that it will refer her case back to the Board using its discretionary power.

Sylvie Matteau,
Deputy Chairperson

OTTAWA, January 23, 2004.

P.S.S.R.B. Translation