FPSLREB Decisions

[1]    Marcel Asselin is employed with the Canadian Food Inspection Agency (CFIA). On June 19, 2002, he was absent from work to attend a hearing of the Commission des lésions professionnelles du Québec (CLPQ).

[2]    Mr. Asselin believes that he is entitled to leave with pay to appear as a witness in accordance with clause 15.01 of the collective agreement entered into on May 27, 2002, between the CFIA and the Professional Institute of the Public Service of Canada with respect to the bargaining unit for the Veterinary Medicine (VM) group. The employer disagrees and believes that the grievor must request annual or compensatory leave.

[3]    There were several exchanges of correspondence between the parties and then, in December 2002, the grievor filed a grievance. The grievance was referred to adjudication in September 2003 and the hearing was held in September 2004.

[4]    At the start of the hearing, the parties agreed to submit a joint statement of facts (Exhibit F-1).

[5]    No testimony was heard. However, in addition to the statement of facts, the following documents were adduced in evidence:

F-2  -	Notice of inquiry and hearing from the CLPQ summoning Mr. Asselin to appear on December 20, 2001;
F-3  -	Notice of inquiry and hearing from the CLPQ summoning Mr. Asselin to appear on June 19, 2002;
F-4  -	Letter from the employer indicating that Mr. Asselin's request for leave must be submitted as annual leave or compensatory leave;
F-5  -	Letter from the employer reiterating that Mr. Asselin's request for leave must be submitted as annual leave or compensatory leave;
F-6  -	Pay stub showing a deduction for leave without pay, June 19, 2002;
F-7  -	Letter from the bargaining agent sending the employer Mr. Asselin's request for leave;
F-8  -	Copy of the Request for Leave and Report of Absence completed by Mr. Asselin for June 19, 2002.

The facts

[6]    According to the joint statement of facts submitted by the parties (Exhibit F-1), the facts are as follows:

[TRANSLATION]

[...]

1-      The grievor, Marcel Asselin (hereafter the employee), is a VM-02 veterinarian employed by the Canadian Food Inspection Agency (hereafter the employer) in a veterinarian-inspector position in the Meat Hygiene Division;

2-      At the time in question, the employee was a member of the Veterinary Medicine (VM) bargaining group and was covered by the collective agreement between the Professional Institute of the Public Service of Canada and the Canadian Food Inspection Agency;

3-      On May 29, 2000, the employee applied to the CSST to have his health condition recognized as a "recurrence, relapse or aggravation" (RRA) of a previous employment injury. In a decision dated September 28, 2000, the CSST accepted the employee's claim;

4-      The employer requested a review of the CSST's decision. In a decision rendered on August 10, 2001, the Administrative Review Branch (ARB) upheld the initial decision;

5-      On September 11, 2001, the employer filed an objection with the Commission des lésions professionnelles asking it to overturn the previous decisions by the CSST and to find that the employee had not suffered a recurrence, relapse or aggravation of the employment injury;

6-      On September 20, 2001, the Commission des lésions professionnelles (hereafter the CLP) sent the parties a notice of investigation and hearing;

7-      On February 26, 2002, the parties were informed that the hearing would take place on June 19, 2002;

8-      The hearing was held before the CLP on June 19, 2002;

9-      On June 19, 2002, the employee was absent from work.

10-      The employee was represented by Valérie Charrette at this hearing and was called to give his testimony;

11-      In a letter dated October 2, 2002, the employer reiterated its request to the employee for him to submit a request for leave form for June 19, 2002. The employer specified that the type of leave that had to be requested was annual leave or compensatory leave;

12-      In the same letter, the employer explained that failure to submit a request for leave for June 19, 2002 prior to October 18, 2002 would force the employer to consider this absence as leave without pay and that, consequently, the employer would be required to deduct from the employee's pay the wages he had been paid for June 19, 2002;

[...]

Arguments of the parties

[7]    The grievor claims that he was summoned to the hearing before the CLPQ and that he in fact testified.

[8]    He refers to the following PSSRB decisions: Brown v. Treasury Board (National Defence) , PSSRB File No. 166-2-15432 (1986) (QL); Bernard v. Treasury Board (Employment and Immigration Canada) , PSSRB File No. 166-2-19000 (1989) (QL); Hedley v. Treasury Board (Employment and Immigration Canada) , PSSRB File No. 166-2-14744 (1985) (QL).

[9]    Given that Mr. Asselin was summoned before the CLPQ and that he testified, he is entitled to benefit from clause C15.01 of the collective agreement and can obtain leave with pay.

[10]    For its part, the employer argues that it was in the grievor's interest to attend the hearing before the CLPQ and that, in fact, he did not go as a witness but as a party to the dispute.

[11]    In support of its arguments, the employer refers to PSSRB decisions Brière v. Treasury Board (Solicitor General) , PSSRB File No. 166-2-15157 (1986) (QL); Guenot v. Canada (Treasury Board) , PSSRB File No. 168-2-111 (1976) (QL).

Reasons for Decision

[12]    While the decisions cited by the parties provide some insight into the concepts of subpoenas and summons, it is my personal belief that it is useful to examine the collective agreement and to refer to the provisions relating to leave in their entirety in order to interpret each one.

[13]    An examination of the leave clauses relating to hearings, investigations and disputes reveals the following information.

[14]    The signatories to the collective agreement are very familiar with the concepts of party, complainant or witness and refer to these terms specifically.

[15]    Article C20 - Leave for Staff Relations Matters/Public Service Staff Relations Board, concerning leave for matters related to the Public Service Staff Relations Board (PSSRB), refers to leave granted to an employee who makes a complaint (subclause C20.01(a)) and, separately, to an employee called as a witness.

[16]    Subclause C20.06(a) provides leave for an employee who is a party to an adjudication and, separately, grants leave to a witness called by an employee who is a party to an adjudication.

[17]    In other cases of hearings, the collective agreement does not mention the party to the dispute but refers simply to being called by subpoena or summons as a witness.

C15.01 Leave with pay shall be given to every employee, other than an employee already on leave without pay, on education leave, or under suspension who is required:

[...]

(c)	by subpoena or summons to attend as a witness in any proceeding held:

(i)	in or under the authority of a court of justice or before a grand jury;
(ii)	before a court, judge, justice, magistrate or coroner;
(iii)	before the Senate or House of Commons of Canada or a committee of the Senate or House of Commons otherwise than in the performance of the duties of the employee's position;
(iv)	before a legislative council, legislative assembly or house of assembly, or any committee thereof that is authorized by law to compel the attendance of witnesses before it;
or
(v)	before an arbitrator or umpire or a person or body of persons authorized by law to make an inquiry and to compel the attendance of witnesses before it.

[18]    Given the fact that the clauses are interpreted in relation to each other, the only interpretation to give to subclause C15.01(c) is that the fundamental reason for the employee's absence must come from the fact that he is required to be absent because he is subpoenaed as a witness before an investigator or a court of justice.

[19]    In this instance, the case is related to an employment injury. The collective agreement provides for some leave for an injury on duty (Article C17 - Injury-on-duty Leave) but does not stipulate anything concerning the issue of appearing before a court. In this case, it is necessary to refer to the general provisions regarding a witness subpoenaed before a court of justice.

[20]    The employer referred to the decision in Guenot (supra) . That case involves a reference concerning a question of law and the PSSRB upheld the adjudicator's decision, stating that the right to leave applies to an employee required to attend as a witness by subpoena or summons. The same decision reiterates the comments of the adjudicator in Evans v. Treasury Board (Post Office) , PSSRB File No. 166-2-605 (1972), who found that the employee is entitled to leave with pay, even if he may be an interested party in the proceedings or he is called to testify.

[21]    That part of the decision is not necessarily applicable to the instant case because the wording of the collective agreement applicable in Evans (supra) is quite different from the wording of Article C15 - Court Leave with Pay. In effect, in Evans (supra) , we refer to the following clause:

[...]

"Leave ... with pay shall be granted to every employee ... who is required to serve on a jury; or to attend as a witness by subpoena or summons or by providing satisfactory proof of having attended as a witness in any of (the listed proceedings)."

In that case, the employee had two options: he was required to be subpoenaed as a witness or to provide proof that he attended as a witness.

[22]    The case before us is quite different. The employee claims that he was required to be absent from work because he was required, by subpoena or summons, to attend a proceeding as a witness.

[23]    Mr. Asselin adduces as proof that he was required to attend the hearing on June 19, 2002, by the notice from the CLPQ and adds that he in fact testified at the hearing.

[24]    We must determine whether the above information is evidence that he was required to attend as a witness.

[25]    The examination of the notice adduced by Mr. Asselin shows that it refers to sections 429.15 and 429.17 of the Quebec Act Respecting Industrial Accidents and Occupational Diseases (QAIAOD).

[26]    These articles are worded as follows:

Section 429.15.

If a duly summoned party does not appear at the time fixed for the hearing without having provided a valid excuse for his absence, or chooses not to be heard, the board may nonetheless proceed with the hearing of the matter and make a decision.

Section 429.17.

The parties may be represented by the person of their choice.

[27]    The documents adduced in evidence by the grievor do not show that he was required to attend as a witness but, quite the contrary, that these documents are addressed to a party to the dispute, because the party may be represented, which is not the case for a witness.

[28]    It is clear that the collective agreement does not provide for an absence with leave with pay for a party to a dispute, except in the case of a grievance or a complaint before the PSSRB. When an employee has a dual role of both party and witness, it is important that clause C15.01 be interpreted in a restrictive manner to avoid doing indirectly what cannot be done directly by granting leave with pay indirectly to a party to a civil or other suit.

[29]    Accordingly, the employee must show that, if there was no requirement to attend as a witness to a hearing, he would not have been absent from his work.

[30]    In the instant case, Mr. Asselin adduced evidence to the contrary, justifying his absence by a notice to appear as a party to the dispute. It appears clear that he had an interest in being present to support his case.

[31]    The fact that he testified at the hearing is merely a related incident that happened during his absence to attend a dispute to which he is a party.

[32]    The documentary evidence adduced by the employee at the hearing shows that he was called as a party to the dispute, which differs from clause C15.01 regarding the requirement to attend as a witness.

[33]    For these reasons, I dismiss the grievance.

Jean-Pierre Tessier
Board Member

OTTAWA, February 11, 2005

P.S.S.R.B. Translation