FPSLREB Decisions

[1]   This decision deals with the issue of whether the Public Service Staff Relations Board (Board) should exercise its powers pursuant to section 84 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993 (Regulations) to dismiss, for want of jurisdiction, a grievance filed by Mr. Douglas Lowther.

Facts

[2]    The grievor, Douglas Lowther, was employed as a Correctional Officer (CX-1) by the Correctional Service of Canada, until his employment was terminated for non-disciplinary reasons, effective August 12, 2002.

[3]    Mr. Lowther grieved his termination of employment on August 29, 2002. In its final level response on March 27, 2003, the employer stated:

A thorough review of your leave without pay for medical reasons file was conducted. Not only has Health Canada's assessment of your present medical status determined that you are unfit to return to work as a Correctional Officer but, there has been no indication that you will be fit to return to any gainful employment within the foreseeable future.

As explained in previous correspondence, leave without pay cannot be granted for an indefinite period of time. After careful consideration had been given to all aspects of your medical condition, you were presented with the options available to employees faced with the termination of a lengthy leave without pay situation.

You did not avail yourself of any of these options and as a result you were issued a termination of employment for non-disciplinary reasons letter. Consequently, I am convinced that your leave without pay situation has been properly and fairly dealt with, and in consideration of the corrective actions you have requested, your grievance is denied.

[4]    The matter was referred to adjudication on September 17, 2003.

[5]    In addition to referring his grievance, Mr. Lowther also filed a complaint with the Canadian Human Rights Commission. The complaint, dated October 3, 2003, alleged that "Correctional Service Canada discriminated against me by refusing to accommodate my disability and by terminating my employment, contrary to section 7 of the Canadian Human Rights Act" (CHRA).

[6]    On November 26, 2003, the employer sent a letter to the Board, objecting to the jurisdiction of an adjudicator to hear Mr. Lowther's grievance. In support of its objection the employer stated that:

Mr. Lowther's grievance dated August 2002, makes no reference to discrimination because of disability. Mr. Lowther added the element of discrimination that his employment was terminated because of disability only in his complaint to the Canadian Human Rights Commission dated October 3, 2003, where he requests corrective action under the Canadian Human Rights Act.

In view of the foregoing and given that Mr. Lowther availed himself of the administrative procedure under the CHRC and, that this complaint is presently being dealt with by CHRC, the Employer requests that this reference to adjudication be dismissed, as it is a matter that is beyond the jurisdiction of the Board as it is covered by the administrative procedure for redress under the Canadian Human Rights Act.

[7]    In response, the grievor asked the Board to follow Adjudicator Guindon's decision in Cherrier v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 37, and to convene a formal hearing on the matter. In particular, the grievor highlighted paragraph 47 of Cherrier, which states:

[para47]   I cannot accept the argument of counsel for the employer by which the adjudicator assigned by the PSSRB is automatically ousted from jurisdiction to hear a grievance when the CHRC seizes itself of a complaint for the purposes of investigation pursuant to subsection 41(1) of the CHRA. The decisions and judgments cited in the instant case clearly show that an adjudicator must evaluate the nature and the scope of the redress used by the grievor to determine whether a human rights element is at the heart of the grievance and whether there is a conflict or overlap between the grievance and another administrative procedure of redress provided for in some other federal Act. The fact that the CHRC proceeded with an evaluation of the complaint filed with it and that it decided to deal with that complaint, pursuant to its incorporating legislation (CHRA), cannot oust the adjudicator assigned to the grievance from his responsibilities to determine his jurisdiction pursuant to his own incorporating legislation (PSSRA).

[8]    The Board requested that the parties submit written arguments on the employer's objection.

Position of the Parties

[9]    The bargaining agent filed its written submissions on February 20, 2004. They read in part as follows:

.

      For the record we submit that Mr. Lowther's grievance is most certainly one that can be referred to adjudication pursuant to section 92.

      Section 92 in plain English allows referrals of the interpretation or application of a collective agreement. Section 37 of the collective agreement expressly prohibits discrimination.restriction etc. by reason of physical disability. Mr. Lowther after a leg amputation has been shamelessly terminated by C.S.C. which finds comfort in Health Canada's position. With the collective agreement and the CHRA Mr. Lowther's position is protected by the Canadian Charter of Rights at section 15, and the employer has a duty to accommodate. All of this leads to the conclusion that Mr. Lowther's grievance most certainly could be referred to adjudication pursuant to section 92 of the PSSRA.

[10]    The employer filed its written submissions on March 15, 2004, which stated in part:

.it is the employer's position that it is clear on the face of the record that the grievor is claiming that he was terminated on account of his physical disability and that is also the essence of his complaint to the Canadian Human Rights Commission. A copy of the complaint was sent with my letter of November 13, 2003.

Counsel for the grievor has raised the Cherrier case (166-2-31767). It is not being submitted that an adjudicator is automatically ousted from jurisdiction to hear a grievance when the CHRC seizes itself of a complaint for the purposes of investigation pursuant to subsection 41 (1) of the CHRA. As stated by the adjudicator in that case an adjudicator must evaluate the nature and scope of the redress used by the grievor to determine whether a human rights element is at the heart of the grievance and whether there is a conflict or overlap between the grievance and another administrative procedure of redress provided for in some other federal Act. However, it is submitted that it is evident on the material that the grievor was terminated on account of disability leading to his inability to perform his duties. Therefore, since a human rights element is at the heart of the grievance and this very matter can also be addressed by the CHRC, this is a matter that should not be the subject of a grievance under section 91 of the Act.

It should also be noted that in Cherrier, no witnesses were heard and the matter was determined solely on the basis of documents submitted. Likewise it is respectfully submitted no useful purpose will be served by holding a formal hearing and that the Board has sufficient information to decide this matter on the basis of the written material and submissions.

Reasons for Decision

[11]    The employer has requested that the Board exercise its authority under s. 84 of the Regulations to dismiss the instant grievance. Section 84 provides:

84. (1) Subject to subsection (2), but notwithstanding any other provision of these Regulations, the Board may dismiss a grievance on the ground that it is not a grievance that may be referred to adjudication pursuant to section 92 of the Act.

      (2) The Board, in considering whether a grievance should be dismissed pursuant to subsection (1), shall

(a) request that the parties submit written arguments within the time and in the manner specified by the Board;
or

(b) hold a hearing.

[12]    In Gascon v. Treasury Board (Solicitor General - Correctional Service) 2000 PSSRB 68, the Board set out its threshold test for making a determination under section 84. In that case, the Board found, at paragraph 15, that if there is an "arguable case" that the grievance is one that may be referred to adjudication, it would be inappropriate to dismiss a grievance under section 84.

[13]    In order to determine whether a grievance may be referred to adjudication, one must consider sections 91 and 92 of the Public Service Staff Relations Act (PSSRA). These sections provide:

91. (1) Where any employee feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award, or

(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii), in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

[14]    In this case, on the face of the record, the matter is clearly one which cannot be the subject of a grievance. While Mr. Lowther makes no mention of any reason related to human rights for his termination in his grievance, he made such an allegation in his complaint to the Canadian Human Rights Commission. As set out above, the grievor has alleged in that complaint that Correctional Service Canada discriminated against him by "refusing to accommodate" his disability and "by terminating his employment, contrary to section 7 of the Canadian Human Rights Act". Furthermore, his representative, in his written submissions to the Board, clearly links the grievor's termination with a failure of the employer to accommodate, arguing that "[w]ith the collective agreement and the CHRA Mr. Lowther's position is protected by the Canadian Charter of Rights at section 15, and the employer has a duty to accommodate".

[15]    In light of the wording of the grievor's complaint with the CHRC, as well as the submissions of his representative, I find that at the heart of the grievance lies an issue related to human rights: did the employer fail to accommodate the grievor's disability and terminate Mr. Lowther on the basis of his disability? This is a matter which is expressly provided for in the CHRA. Sections 3 and 7 of the CHRA read as follows:

3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.

[16]    The CHRA also provides for a right to complain about discrimination on the basis of disability. Sections 4 and 39 and subsection 40(1) of the CHRA provide for the following:

4. A discriminatory practice, as described in sections 5 to 14.1, may be the subject of a complaint under Part III and anyone found to be engaging or to have engaged in a discriminatory practice may be made subject to an order as provided in sections 53 and 54.

39. ...a "discriminatory practice" means any practice that is a discriminatory practice within the meaning of sections 5 to 14.1.

40. (1) ...any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.

[17]    Furthermore, the Federal Court of Appeal decided in Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 (C.A.), that the CHRA complaint process constitutes an administrative procedure for redress for the purposes of subsection 91(1) of the PSSRA.

[18]    This same issue was considered by the Board in Kehoe v. Treasury Board (Human Resource Development Canada) 2001 PSSRB 9. In that case, the Board stated at paragraph 22:

In the circumstances of the case at hand, as Ms. Kehoe's grievance raises issues which can be pursued through the complaint process set out in the CHRA, and in light of the decision which the Federal Court of Appeal rendered in Boutilier (C.A.), supra, I find that, on the face of the record before the Board, Ms. Kehoe's grievance is not one which may be presented pursuant to subsection 91(1) of the Act and, as such, cannot be referred to adjudication pursuant to subsection 92(1). I further find it appropriate to have recourse, in this case, to the process set out in section 84 of the Regulations.

[19]    It is clear from the record that the essential nature of Mr. Lowther's grievance relates to a matter for which another administrative procedure for redress is available - that is, the procedure provided for under the CHRA. Accordingly, as reasoned in Kehoe, supra, this is not a matter which may be the subject of a grievance under s. 91. It follows that the grievor cannot make an arguable case that the grievance is one that may be referred to adjudication.

[20]    For the reasons set out above, the employer's application under section 84 of the Regulations is allowed. Mr. Lowther's grievance is hereby dismissed for want of jurisdiction.

Yvon Tarte,
Chairperson

Ottawa, July 16, 2004.