FPSLREB Decisions

Decided on the basis of written submissions
filed October and November 2016 and June and July 2017.

REASONS FOR DECISION

I. Introduction

1        This decision concerns a series of preliminary objections relating to files of the Federal Public Sector Labour Relations and Employment Board numbered 560-24-71, 561-24-456, 458 to 460, 470, 495, 496, and 502, and 566-24-5137 (“the 10 outstanding files”).

2        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) as that Act read immediately before that day.

3        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

4        In a decision issued on March 7, 2014, Baun v. Statistics Survey Operations,2014 PSLRB 26 (“the termination decision”), I upheld the termination of the employment of Bonnie Gale Baun (who will be referred to throughout as “the grievor”, even though in some of the 10 outstanding files, she is the complainant), who was employed as a part-time field interviewer by Statistics Survey Operations (“the employer”). The termination was the culmination of a series of events beginning with her administration of a “Programme for International Student Assessment” (PISA) test at a high school in Kelowna, British Columbia, in May 2009. Events that occurred during the administration of the test led the employer to request a fitness-to-work (FTW) evaluation before permitting the grievor to continue to work in the field. The employer concluded that she did not consent to the FTW evaluation, and it issued a letter terminating her employment on August 26, 2009.

5        In the termination decision, I determined that I was without jurisdiction to decide the grievor’s grievance challenging the termination on the grounds that it had been an administrative and not a disciplinary action.

6        In a separate decision dated December 7, 2010, Baun v. National Component, Public Service Alliance of Canada,2010 PSLRB 127, another adjudicator dismissed two complaints that stated that the National Component, Public Service Alliance of Canada (“the bargaining agent”), had failed to provide fair representation for the grievor.

7        As there was considerable overlap in the allegations behind the 10 outstanding files, and as counsel for the employer raised preliminary objections that were similar in nature, it was decided to address the preliminary objections as a group. An attempt was made to hold a hearing in Kelowna covering all the objections. For several reasons, it proved impossible to continue with the oral hearing, and I directed the parties to make written submissions. I received the final submissions in July 2017.

8        Counsel for the employer provided a written submission accompanied by a book of authorities and later provided a rebuttal submission.

9        The grievor provided a written submission as well as 450 pages of documentation. It is somewhat difficult to describe this package succinctly; it included pages of evidentiary material, passages from Board decisions, statutory provisions, and extracts from documentation issued by the employer. Unfortunately, the grievor did not clearly match the documentation to each outstanding file; she simply indicated that the 450 pages proved her point. Nevertheless, I went through the documentation before rendering this decision.

10        In addition to the written material, the grievor submitted a digital tape recorder containing recordings that she made of her interactions with staff at the high school where she conducted the PISA test and of subsequent meetings at which representatives of the employer and of her bargaining agent were present. In the termination decision, beginning at paragraph 114, I outlined reasons for not admitting tape recordings of the meetings with the employer.

11        In her submissions on the outstanding files, the grievor urged me to consider the contents of the recordings as they related to her interactions with staff at the high school in May 2009. I have concluded that the reasons given in the termination decision for being wary about admitting this kind of evidence still apply. That means that aside from concerns about the reliability of a tape recording in a technical sense, there are strong policy reasons for not admitting a recording that a party to a conversation made surreptitiously. In addition, I have concluded that evidence concerning the events that transpired in 2009 has no relevance to the employer’s procedural and technical objections to proceeding with the 10 outstanding files. Therefore, I have not listened to the tape recordings, and I will not consider them part of the record on which I base this decision. Consequently, the tape recordings will be returned to the grievor.

12        I would make two other general observations. The first has to do with one of the recurring themes in the grievor’s submissions, which is that under the employer’s policies with respect to determining FTW, she should have been exempt, as a contractor, and therefore that the employer never had any right to request an FTW assessment. Although this issue is not directly relevant to the employer’s objections, it does represent an effort by the grievor to undermine the entire basis for the termination, to which many of the allegations in the 10 outstanding files are related. The evidence at the hearing leading to the termination decision clearly showed that the grievor was a term employee, under the direction of supervisors and managers representing the employer, and not a contract employee.

13        The second general observation concerns the grievor’s continuing characterization of other parties and counsel to these proceedings as liars, including witnesses that had testified in relation to the termination decision. As I indicated in the termination decision beginning at paragraph 9, I do not find this a helpful characterization of the contributions of others. I reiterate that I have seen no evidence that witnesses or counsel in the termination decision did anything other than give good-faith accounts of the events as they perceived them. My conclusion is the same with respect to the parties and counsel in the present case.

14        Although as I noted earlier, there is much commonality in the nature of the objections and in the facts that ground the allegations in the 10 outstanding files, I will deal with each one separately and in the order set out in counsel for the employer’s original written submissions of October 13, 2016.

II. The complaints and grievances, by Board file number

A. File 560-24-71

15        The grievor filed a complaint dated April 26, 2010, under s. 133 of the Canada Labour Code (R.S.C., 1985, c. L-2; “the Code”), alleging that the employer had taken action against her, in violation of s. 147 of the Code, which reads as follows:

147 No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

1. has testified or is about to testify in a proceeding taken or an inquiry held under this Part;
2. has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or
3. has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

16        The grievor argued that the employer terminated her because she had brought occupational health and safety concerns to its attention, so the termination was an infraction under the Code.

17        Counsel for the employer argued that the provisions of s. 147 of the Code are not applicable; therefore, s. 133 of the Code cannot be used to found a complaint in the way used by the grievor. There was no inquiry initiated under Part II of the Code, as contemplated in s. 147(a), and she had not provided information to any official investigating the situation, which is the basis for s. 147(b). Nor had she had taken formal steps to invoke the enforcement of Part II, as required in s. 147(c).

18        Counsel for the employer also argued that s. 147 is based on the employer taking disciplinary action or imposing a penalty. The findings made in the termination decision, which were that the termination was in fact an administrative rather than a disciplinary action, preclude the application of this section.

19        The grievor’s argument was that she had in fact exercised her right to refuse unsafe work when she reported to her superiors that she had experienced harassment and bullying at the hands of school officials during her administration of the PISA test. She had made it clear that she would not agree to return to the school because of the treatment she had received.

20        As counsel for the employer pointed out, the right to refuse unsafe work is an employee right that must be asserted within a specific framework and that invokes the investigative and corrective powers of government officials provided in the Code. There must be a clear communication of a refusal to perform unsafe work. Although the grievor might have perceived the environment at the high school as inhospitable, and she does seem to have made clear her intention not to return there, she did not explicitly point to the provisions of the Code in this connection. According to the May 30, 2010, letter, the grievor indicated as follows: “I reported no health matters to my employer”. In the present matter, she had left a voicemail after leaving the school for her supervisor stating that she had felt “intimidated” by the staff at the school. The employer submitted that the voicemail did not constitute a work refusal within the meaning of the Code. In addition, it submitted that based on the complaint form and the grievor’s clarifying letter of May 30, 2010, this matter does not fall under ss. 133 and 147 of the Code. Instead, the employer stated, the grievor took issue with its request for health information, and her perception that there had been a violation of her privacy.

21        I find well founded the employer’s objection based on the inapplicability of ss. 133 and 147 of the Code to the grievor’s circumstances. There is no evidence that she availed herself of s. 128 of the Code. She did not communicate to the employer in a timely manner that a danger existed that justified her refusal to perform her work (see Alexander v. Treasury Board (Department of Health), 2007 PSLRB 110).

22        Finally, counsel for the employer argued that the complaint was out of time and referred to s. 133(2) of the Code, which reads as follows:

133 (2) The complaint shall be made to the Board not later than ninety days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

23        When counting the 90 days, a complainant must take into consideration all calendar days following the date on which he or she knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint. This means that all weekends and holidays are counted in that 90-day period. If the 90th day falls on a weekend or holiday, the complaint must be filed on the next day following that weekend or holiday.

24        The “circumstances” giving rise to the complaint, according to the grievor’s argument, were the conditions she encountered in the school on May 8, 2009, and her report of them to the employer between then and mid-May. Alternatively, the “action” that gave rise to the complaint may be seen as the employer’s decision to terminate her employment on August 26, 2009. Using either of these times is not helpful to the grievor in meeting the time requirements set out in s. 133(2), since the complaint was not filed until April 2010. Although the Code confers power on the Canada Industrial Relations Board to modify time limits under it, including Part II, in appropriate circumstances, there is no concomitant power granted to this Board (see Larocque v. Treasury Board (Department of Health), 2010 PSLRB 94). Therefore, I am bound by the time limit specified in s. 133(2), and I must find that the complaint is not timely.

25        In addition, counsel for the employer argued that the corrective action requested by the grievor is either outside the Board’s jurisdiction, moot, or res judicata (previously determined) because the termination grievance was dismissed in the termination decision. Given that I have concluded that s. 133 of the Code does not apply in this case and that the complaint is untimely, it is not necessary for me to address the issue of remedy.

26        Based on the foregoing, I conclude that this complaint must be dismissed.

B. File 561-24-456

27        The grievor filed this complaint, to which the employer is the respondent. It is dated April 26, 2010, under s. 190(1)(g) of the Act, which reads as follows:

190 (1) The Board must examine and inquire into any complaint made to it that

...

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

28        Section 185 and other relevant sections read as follows:

185 In this Division, unfair labour practice means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

186 (1) No employer, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall

1. participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization; or
2. discriminate against an employee organization.

(2) No employer, no person acting on the employer’s behalf, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall

1. refuse to employ or to continue to employ, or suspend, lay off, discharge for the promotion of economy and efficiency in the Royal Canadian Mounted Police or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person
   1. is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization,
   3. has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2 or 2.1,
   4. has made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or
   5. has exercised any right under this Part or Part 2 or 2.1;
2. impose, or propose the imposition of, any condition on an appointment, or in an employee’s terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Part or Part 2 or 2.1; or
3. seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from
   1. testifying or otherwise participating in a proceeding under this Part or Part 2 or 2.1,
   2. making a disclosure that the person may be required to make in a proceeding under this Part or Part 2 or 2.1, or
   3. making an application or filing a complaint under this Part or Division 1 of Part 2.1 or presenting a grievance under Part 2 or Division 2 of Part 2.1....

187 No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

Unfair labour practices — employee organizations

188 No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

1. except with the consent of the employer, attempt, at an employee’s place of employment during the employee’s working hours, to persuade the employee to become, to refrain from becoming, to continue to be or to cease to be a member of an employee organization;
2. expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;
3. take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;
4. expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or 2.1 or having refused to perform an act that is contrary to this Part or Division 1 of Part 2.1; or
5. discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has
   1. testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2 or 2.1,
   2. made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or
   3. exercised any right under this Part or Part 2 or 2.1.

Unfair labour practices — persons

189 (1) Subject to subsection (2), no person shall seek by intimidation or coercion to compel an employee

1. to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be, a member of an employee organization; or
2. to refrain from exercising any other right under this Part or Part 2 or 2.1.

29        In the complaint, the grievor names the employer as the respondent. Under the heading asking her to provide a concise statement of the nature of the complaint, she wrote as follows:

Employer and school [several individuals are named] continue to accuse me of having a mental disorder and a health problem. I agreed to do a medical for the employer. I do not agree to give all health information prior to May 8 2009 to my employer. The forms were never explained. There was not [sic] act. I have been falsly [sic] accused....

30        As corrective action, the grievor requested “[a] court order to remove the lies from my health records, written apologies from my supervisor, my employer and my union. Expunge all records. Reinstatement of job and benefits with full retroactive pay.”

31        Counsel for the employer argued that none of the Act’s provisions reproduced earlier can be the basis of the complaint as articulated by the grievor. After considering each of them in turn, I agree with this assertion.

32        Subsection 186(1) prohibits an employer from participating in or interfering with the formation or administration of an employee organization or discriminating against such an organization. The grievor has not alleged such interference or discrimination in this complaint, and in any case, she does not have the standing to assert such a claim, as inherently, it must be made by the organization.

33        Subsection 186(2) does prohibit an employer from discharging employees in certain circumstances, but it is concerned with employer actions that are motivated by a wish to discourage employees from joining or participating in an employee organization. In this case, there has never been any suggestion that the employer failed to recognize the grievor’s right to be represented by a bargaining agent. Although her bargaining agent did eventually withdraw from representing her, she does not allege that this was attributable to any action of the employer.

34        Sections 187 and 188 both contain prohibitions of certain actions on the part of employee organizations. Since the complaint names the employer as the respondent, these sections can have no application.

35        Like s. 186(2), s. 189(1) prohibits conduct aimed at discouraging employees from participating in bargaining agent activity, and none of the grievor’s allegations suggests that this was a factor in the termination of her employment.

36        In my view, none of those provisions can be used to support the grievor’s complaint, as they all focus on actions by an employer, a bargaining agent, or others to undermine the rights of employees to participate in bargaining agent activity or the representational status of a bargaining agent.

37        Counsel for the employer also argued that this complaint did not comply with the time limit set out in subsection 190(2) of the Act, which reads as follows:

190 (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

38        Counsel argued that the “action or circumstances giving rise to the complaint” were either the events at the high school around May 8, 2009, or the process leading to the termination, which occurred on August 26, 2009.

39        It is clear from the evidence outlined in the termination decision and the findings in that decision that the issues referred to in this complaint were known to the grievor during the time frame from May to August 2009, including the reports from school staff, the request for an FTW assessment, and the discussions that took place about what she was required to provide in the way of medical information.

40        In her submissions, the grievor refers to the levels of the process for handling her grievances. Determinations at the later levels of some of these processes apparently occurred as late as the fall of 2010. I agree with the employer’s submissions that the fact that her allegations were being considered through different channels at a later time is not relevant to the time limit set out in s. 190(2) of the Act. The grievor knew of the subject matter of the allegations made in the complaint in the period from May to August 2009, which is the period that would trigger the calculation of the time limit. I find that the complaint is out of time.

41        Consequently, I find that this complaint must be dismissed.

C. File 561-24-458

42        This file is somewhat complicated, as several additional grievance forms are appended to the main complaint form. The employer is the respondent in this file. The main complaint cites s. 190(1)(e) of the Act, which reads as follows:

190 (1) The Board must examine and inquire into any complaint made to it that

...

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award) ....

43        This complaint refers to a lengthy list of lapses by both the employer and the bargaining agent, many of them related to dates between February and September 2009. There is a reference to a complaint made under the employer’s harassment policy that was purportedly filed in February 2010. The complaint under s. 190(1)(e) was dated April 28, 2010. The corrective action sought was described as follows: “New policies and enforcement of the Act by PLRB [sic]. Anything the Board sees fit. To be made whole. Enforcement of the harassment policy.”

44        One of the grievances appended to the complaint was dated August 14, 2009, and signed by a representative of the bargaining agent. The grievance read as follows:

I grieve against the employer’s violation of article I and all other relevant articles of the collective agreement, the TB harassment policy and all other relevant policies and legislation and jurisprudence through various actions including: my suspension with pay without cause, attempts to force a health assessment on me without cause; alleging complaints against me without evidence of same; carrying out meetings and investigations against me based on hearsay; failure to provide me required information to carry out a health assessment: ignoring the health assessment I provided; and delaying the process and my wrongful suspension thus increasing my stress level.

45        As corrective action, the grievance listed the following:

1. That I be permitted to return to work immediately
2. That any records related to this incident be removed from all files and be destroyed in the presence of my union rep
3. That I receive a written apology from the employer
4. That I be made whole

46        The second grievance appended to the complaint was dated September 30, 2009, and was again signed by a representative of the bargaining agent. The grievance read as follows: “I grieve the violation by the employer of article 19 of the C.A. section 4-6 of the employee handbook, and guidelines on the SSO incident report form.” The corrective action requested was as follows: “That the incident report arising from the May 8 2009 incident at KSS school be forwarded to me and my union reps immediately.”

47        The third grievance form, also dated September 30, 2009, and signed by a bargaining agent representative, read as follows: “I grieve the employers [sic] refusal to provide me with the letter dated June 4th 2009 that the employer refers to.” The corrective action requested was as follows: “That the employer provide me with a copy of the letter dated June 4 2009.”

48        All three grievances seem to have been referenced in the main complaint.

49        Paragraph 190(1)(e) refers to a failure to implement the provisions of a collective agreement under s. 117 or a failure to implement provisions of an arbitral award under s. 157. These provisions read as follows:

117 Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement

1. within the period specified in the collective agreement for that purpose; or
2. if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set.

...

157 Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.

50        Counsel for the employer argued that the complaint does not and cannot establish a case for redress under s. 190(1)(e). The grievor did not point to any failure on the part of the employer to recognize the relevant collective agreement within the time limit set out in s. 117; nor was any reference made to an arbitral award that might be at issue under s. 157.

51        Although the body of the complaint and the appended grievances contain numerous allegations, they all must be placed in the context of the overriding allegation that the employer violated s. 190(1)(e). As can be seen from the quoted passages, s. 117 sets out time limits to implement a collective agreement, and s. 157 performs a similar function in the case of an arbitral award.

52        The Board described the scope of s. 190(1)(e) as follows in Gibbins v. Canada Revenue Agency, 2015 PSLREB 17 at para. 81:

[81] Paragraph 190(1)(e) allows for the filing of a complaint where the allegation is made that an employer or employee organization has failed to comply with section 117 or 157 of the PSLRA. Section 117 of the PSLRA is found in Part 1, Labour Relations, Division 7, Collective Bargaining and Collective Agreements, Negotiation of Collective Agreements, Duration and Effect. This section requires the parties to the collective agreement to implement the collective agreement within specific timelines. For its part, section 157 of the PSLRA is found in Part 1, Labour Relations, Division 9, Arbitration, Implementation. This section requires the parties to implement the arbitral award within specific timelines. Again, since this complaint has nothing to do with collective bargaining for a collective agreement or the implementation of a collective agreement or arbitral award by either the employer or the bargaining agent, it is not available to the complainant upon which to base her complaint.

53        I agree with that analysis and find that the grievor could not found her complaint on s. 190(1)(e).

54        With respect to the material in the first grievance appended to the complaint, the employer also argued that the part of it on enforcing the collective agreement could not be referred to adjudication without the bargaining agent representing the grievor. The relevant provisions of the Act read as follows:

...

209 (1) An employee who is not a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

1. the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

...

(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

...

55        The grievor indicated that her bargaining agent gave her permission to go forward on her own and that when she asked for its support, there was no response. She submitted that there is no documentation stating that she cannot go ahead with her grievances, only documentation stating that she has her bargaining agent’s permission to go forward on her own.

56        Although at the time the grievance was filed, the bargaining agent apparently supported the allegation that the collective agreement had been violated, it subsequently withdrew its support. I agree that this precludes considering any grievance based on interpreting or applying the collective agreement.

57        With respect to allegations in the first grievance concerning the withholding of information or violations of employer policies, the allegation in the second grievance that employer policies and guidelines had been violated, and the demand for documentation in the third grievance, counsel for the employer argued that these are not among the issues that an employee is entitled to refer to adjudication under s. 209 of the Act, and therefore, they cannot be the subject of an adjudication hearing. A reading of ss. 209(1) and (2) of the Act shows that they refer to issues that an employee may refer to adjudication without the bargaining agent’s approval to represent him or her; they are limited to certain instances of termination, demotion, suspension, financial penalty, or deployment without the employee’s consent in some circumstances. Therefore, the allegations of policy violations and information withholding are precluded from adjudication under s. 209(1).

58        I have concluded that this analysis is correct. Subsection 209(1) permits an employee to proceed to adjudication in the absence of bargaining agent representation, and this right is limited to certain specified issues. Many of the issues raised in the main complaint in this file fall within the scope of s. 209(1)(a) and therefore are not adjudicable without bargaining agent representation.

59        In this complaint, the grievor referred to a complaint under the employer’s harassment policy that she had made in February 2010. I should note that the policy lays out a distinct procedure — separate from the adjudication process — in which an adjudicator like me, appointed under the Act, does not play any role.

60        With respect to the grievor’s allegations in the first grievance appended to the complaint concerning the request for a medical assessment and a determination of her employment status, I agree with counsel for the employer that those issues were fully addressed in the termination decision. I would also note that the letter of June 4, 2009, referred to in the third grievance appended to the complaint, was in fact dated June 8 and had been provided to her, as indicated in the summary of the evidence in the termination decision.

61        Counsel for the employer also argued that the complaint was made outside the time limit set out in s. 190(2) of the Act. The complaint was dated April 28, 2010, and, with the exception of the harassment complaint I commented on in the preceding paragraph, the period in which the events cited took place ended in September 2009. Although the grievor, the employer, and the bargaining agent took a number of procedural steps after this, the “actions or circumstances” on which the complaint was based all occurred more than 90 days before the complaint was filed, and the grievor was aware of all those developments.

62        In Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78 at para. 55, the Board made the following comment concerning s. 190(2):

[55] That wording is clearly mandatory by its use of the words “must be made no later than 90 days after the events in issue”. No other provision of the PSLRA gives jurisdiction to the Board to extend the time limit prescribed in section 190(2). Consequently, subsection 190(2) of the PSLRA sets a boundary, limiting the Board’s power to examine and inquire into any complaint that an employee organization has committed an unfair labour practice within the meaning of section 185 (under paragraph 190(1)(g)) of the PSLRA) and that is related to actions or circumstances that the complainant knew, or in the Board’s opinion ought to have known, in the 90 days previous to the date of the complaint.

63        The Board has consistently adhered to this interpretation of s. 190(2) in recent cases, such as Gibbins. Therefore, the objection to the timeliness of the complaint is well founded.

64        Based on the foregoing, I find that this complaint must be dismissed.

D. File 561-24-459

65        This file is related to a further complaint under s. 190(1)(g) of the Act. This provision permits making a complaint on the ground that someone has committed an unfair labour practice as defined in s. 185.

66        Both the respondent and the bargaining agent are the respondents in this file. However, on September 1, 2010, the Board directed that this complaint against the bargaining agent be held in abeyance pending the completion of the complaint against the employer. The employer had expressed interest in entering into mediation. When it became apparent that mediation would not proceed, the file was returned to the Board’s registry to be scheduled for a hearing, but the timelines were not reactivated for the bargaining agent.

67        I note that in the bargaining agent’s July 2010 response to the complaint, it submitted that the complaint was filed outside the time limit. The employer made that same objection in this case. Therefore, I am of the view that there is no prejudice to the bargaining agent in proceeding with this complaint because the timeliness issue will be addressed in this decision.

68        The complaint, dated April 28, 2010, stated as follows:

I faxed a harassment form to the employer and the union on Feb 04, 2010. Neither the employer nor the union investigated. I have one year to lodge a complaint. I have never spoke [sic] to the person on this complaint therefore the complaint is bogus.

69        From her submissions, the allusion to a “bogus” complaint refers to a report that surfaced during the multi-party fact-finding telephone conversations involving employer and bargaining agent representatives and the grievor. The evidence summarized in the termination decision indicated that when the employer was trying to decide whether her conduct on May 8, 2009, was out of character, it referred to respondent relations reports, which are made by members of the public who have been in contact with interviewers working on behalf of the employer.

70        In this context, two reports were identified, apparently about contact with the grievor. In one case, the person making the report had asked that the grievor not be allowed to return. The termination decision indicates that Shari Armstrong, the grievor’s direct supervisor, recollected the events surrounding this complaint in the following way, at paragraph 39:

[39] ... Ms. Armstrong said she did remember talking about one complaint with the grievor, but said she did not remember any talk of the complainant making a death threat against the grievor; of course, that would have had to have been taken seriously, but she had not known of any death threat being made. Her recollection was that the wife of the respondent had been upset because her husband had told the grievor not to come. Ms. Armstrong said that the wife had been quite reasonable when they talked on the phone.

71        In the complaint associated with file 561-24-459, the grievor said that her records showed that she had not had contact with the person at the address of the report writer. It is also clear from her submissions that she thought that the employer should have done more to investigate this complaint, to make sure there was no danger to the grievor.

72        It is somewhat difficult to follow her argument in this context. On the one hand, in the harassment complaint, she faulted the employer for not doing more to investigate and protect her from what she described as a “death threat”. On the other hand, if her position is that she had no contact with occupants at the address where the respondent relations report originated, it is hard to see how any threat could have been directed at her.

73        With respect to this complaint, counsel for the employer argued that s. 190(1)(g) of the Act was not available to the grievor as the basis for a complaint. Earlier in this decision, in connection with file 561-24-456, I summarized counsel’s submissions on this point, and it is not necessary to repeat the argument. Suffice it to say that I agree that the grievor could not found a complaint on s. 190(1)(g), as that provision is directed at conduct aimed at discouraging employee participation in employee organizations, and it does not apply to the circumstances she described in the complaint.

74        Counsel for the employer further argued that the issue of harassment on May 8 and 9, 2009, raised by the grievor in the complaint, is moot given the outcome of the proceedings for the termination decision. According to the employer, the termination decision addressed the events of that issue, and the grievor had every opportunity to put forward all related matters at the hearing. The employer further submitted that the issues of the alleged failure to “investigate the harassment” are res judicata (a matter that has already been decided), since they were dealt with in the termination decision. The grievor’s complaint refers to a harassment complaint that was filed in February 2010, after she ceased to be an employee.

75        The principle of res judicata means that a party should not be allowed to relitigate matters that have been settled by a final decision. The reasons behind it are that judicial resources should not be misspent in repeated litigation and that the coherence of the system needs to be preserved, which would be threatened by potentially contrary decisions.The Supreme Court of Canada established a three-fold test in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, to determine whether a matter is res judicata, as follows: 1) the same issue has been decided or the cause of action is the same; 2) the decision was final; and 3) the parties or their privies are the same in both proceedings. Even if those conditions are met, the decision maker must still decide whether res judicata should operate.

76        I find that the criteria of res judicata have been met since the harassment issue has already been dealt with in the termination decision, that decision was final, and the parties were the same as in this case. Therefore, the issue cannot and should not be relitigated.

77        I should note that the complaint includes allegations that the bargaining agent failed to investigate the respondent relations matter appropriately. The question of the adequacy of the bargaining agent’s representation of the grievor and the legitimacy of its decision to withdraw representation were fully addressed in 2010 PSLRB 127, and it is not necessary to comment on those allegations any further.

78         Counsel for the employer also submitted that the complaint was untimely. I agree. The circumstances giving rise to her complaint occurred between May 2009 and August 2009, more than 90 days before the complaint was filed.

79        Consequently, I find that this complaint must also be dismissed.

E. File 561-24-460

80        This file also concerns a complaint made under s. 190(1)(g) of the Act, to which the employer is the respondent. The complaint states as follows: “Employer failed to write an incident report for harassment on May 8 2009 and May 9 2009 as per my request ...”. In her submissions, the grievor indicated that she had submitted a request for an incident report, a specific form in which an incident is recorded and an indication is given of what action is required.

81        The corrective action requested was as follows:

Reinstatement with full pay up to the date of resolution of this incident. A written apology from all school teachers and my supervisor, Data Collection manager, Human Resources Manager. Removal from my files and all government databases. Removal from my doctors [sic] files.

82        In the termination decision, at paragraph 95, the employer evidence on this request was outlined as follows:

[95] Mr. Wong said he did recall some discussion of a request from the grievor for an incident report concerning the events of May 8, although he could not recall when that took place. His understanding of the general process was that a request for an incident report would usually be dealt with by a field interviewer’s senior interviewer. However, he said that anyone in the chain of responsibility could respond to such a request. Mr. Wong conceded that, in normal circumstances, a senior interviewer should respond to a request for an incident report without judging the circumstances. In this case, as he recalled the discussion of the request for an incident report, human resources advisors advised that the request had been overtaken by the sequence of fact-finding and efforts to obtain medical information that had been initiated on May 11.

83        It is not necessary to reiterate counsel for the employer’s argument concerning the applicability of s. 190(1)(g), as it was combined with the argument made in relation to file 561-24-459. Again, I am of the view that s. 190(1)(g) cannot apply, as the grievor’s allegations are not about any efforts the employer made to discourage anyone from participating in bargaining agent activities.

84        Counsel for the employer further argued that the substance of the grievor’s rationale for requesting an incident report — her experience with the school officials on May 8, 2009 — was fully canvassed in the termination decision and that no further aspects of this interaction could be explored in any proceeding under this complaint.

85        Given that the contents of any incident report would relate to the events of May 8, 2009, and given the nature of the corrective action the grievor sought in this complaint, I have concluded that the argument that these issues are res judicata has merit and that no new issue could be explored in any further proceeding on this point.

86        Counsel for the employer also argued that this complaint was out of time. It is dated April 28, 2010, and the Board received it on April 29, 2010. The events specified in it occurred between May 8 and September 30, 2009.

87        Earlier in this decision, I discussed the application of s. 190(2) of the Act, which sets a limit for filing a complaint under s. 190 of 90 days from the date of the events that gave rise to the complaint. I noted that no other provision of the Act gives the Board the authority to extend this time limit. Therefore, I must find that the complaint is out of time.

88        Based on the foregoing, I conclude that this complaint must be dismissed.

F. File 561-24-470

89        This is another complaint, dated June 9, 2010, made under s. 190 of the Act. In this one, the grievor cited ss. 190(1)(b), (c), (d), (e), and (g).

90        The employer is the respondent in this file. Pursuant to the Board’s direction of September 1, 2010, the bargaining agent was removed as a respondent to this complaint because it had already been included in files 561-24-454 and 455, which were dealt with in 2010 PSLRB 127.

91        Paragraph 190(1)(b) refers to compliance with s. 106, which reads as follows:

106 After the notice to bargain collectively is given, the bargaining agent and the employer must, without delay, and in any case within 20 days after the notice is given unless the parties otherwise agree,

1. meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and
2. make every reasonable effort to enter into a collective agreement.

92        Paragraph 190(1)(c) refers to compliance with s. 107, which reads as follows:

107 Unless the parties otherwise agree, and subject to subsection 125(1), after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

1. if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or
2. if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

93        Paragraph 190(1)(d) reads as follows and refers to compliance with s. 110(3), which appears under the heading, “Two-tier Bargaining”:

190 (1)The Board must examine and inquire into any complaint made to it that

...

(d)the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

...

110 (3) The parties who elect to bargain collectively under subsection (1) must, without delay after the election,

1. meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and
2. make every reasonable effort to reach agreement on the terms and conditions of employment in question.

94        Earlier in this decision, in connection with file 561-24-458, s. 190(1)(e) was reproduced, along with s. 117 and 157, which are referenced in s. 190(1)(e). Paragraph 190(1)(g), which leads to a number of defined unfair labour practices under s. 185, was reproduced in connection with file 561-24-456.

95        In stating the substance of her complaint, the grievor refers to forms that were submitted to the employer and the bargaining agent on May 13 and 16, 2010, and alleges that the employer refused to receive them and that the bargaining agent failed to provide representation in pursuing the matters outlined in them. She also states that the employer’s refusal was tied to the fact that in her words, the “Employer fired me April 25, 2010.” The corrective action sought is mediation of the grievances referred to in the forms or, in the event of unsuccessful mediation, their adjudication.

96        Counsel for the employer argued that none of the components of s. 190 cited by the grievor has any application to the allegations made in the complaint. I agree.

97        With respect to the application of ss. 190(1)(e) and (g), the analysis set out in the earlier discussion for files 561-24-458 and 456 applies equally to this complaint. Paragraph 190(1)(e) is focused on enforcing collective agreement and arbitral awards, neither of which is at issue here, and s. 190(1)(g) deals with efforts to discourage employees from exercising their rights to participate in bargaining agent activity.

98        Paragraphs 190(1)(b), (c), and (d) allude to provisions that contain quite specific rules for conducting the process of collective bargaining; none of these provisions has any relevance to the grievor’s situation.

99        Counsel for the employer also argued that the developments that formed the basis of the allegations in the complaint had been addressed in other ways. In the complaint, the grievor refers to her “termination” taking place on April 25, 2010. This is somewhat puzzling as the termination of her employment took place on August 26, 2009, although the processes through which her grievances and complaints were considered continued through this period and indeed for some time. Nonetheless, the employer argued that the circumstances surrounding the termination of her employment were fully addressed in the termination decision and must be considered res judicata. It should also be noted that the bargaining agent advised her in January 2010 that it was withdrawing as her representative; all the issues related to her representation by the bargaining agent were dealt with in 2010 PSLRB 127 and must also be considered res judicata.

100        Consequently, I find that this complaint must be dismissed.

G. File 561-24-495

101        This is another complaint, dated November 2, 2010, made under s. 190 of the Act. Both the employer and the bargaining agent are the respondents in this file. The complaint cites ss. 190(1)(a) through (g). Most of those provisions have been reproduced earlier in this decision. Paragraph 190(1)(a) refers to a failure to observe s. 56, which reads as follows:

56 After being notified of an application for certification made in accordance with this Part or Division 1 of Part 2.1, the employer is not authorized, except under a collective agreement or with the consent of the Board, to alter the terms and conditions of employment that are applicable to the employees in the proposed bargaining unit and that may be included in a collective agreement until

1. the application has been withdrawn by the employee organization or dismissed by the Board; or
2. 30 days have elapsed after the day on which the Board certifies the employee organization as the bargaining agent for the unit.

102        This provision is commonly referred to as a “statutory freeze” provision, and it obliges an employer to observe existing terms and conditions of employment during the period when a bargaining agent is seeking certification. Counsel for the employer argued that this has no application to the issues raised in the complaint.

103        Paragraph 190(1)(f) alludes to compliance with s. 132, which has since been repealed. At the time, it read as follows:

132 Unless the parties otherwise agree, every term and condition of employment applicable to employees in a bargaining unit in respect of which a notice to bargain collectively is given that may be included in a collective agreement and that is in force on the day the notice is given remains in force in respect of any employee who occupies a position that is identified in an essential services agreement and must be observed by the employer, the bargaining agent for the bargaining unit and the employee until a collective agreement is entered into.

104        This provision appears to impose a similar statutory freeze on the terms and conditions of employment of any employee who is named in an essential services agreement, and counsel for the employer again argued that this had no relevance to the circumstances described in the complaint by the grievor.

105        In the complaint, the grievor again raised the respondent relations issue that had come up in the fact-finding discussions in May of 2009, involving a contact at a time the grievor said she had not been on duty. She alleged that the matter of what she characterized as a “death threat” had never been properly investigated. The complaint named as respondents the employer, the bargaining agent, and the member of the public who had made the report. It should be noted that I have no jurisdiction over the member of the public who made the respondent relations report. I can make orders only against the party complained of, which under s.190(1) of the Act, can be only an employer, a bargaining agent, an employee organization, a deputy head, or an employee employed in the public service.

106        In her written submissions, the grievor indicated that the employer was not actively enforcing the collective agreement with respect to health and safety. According to her, it had not bargained in good faith with the bargaining agent and had not implemented the articles of the collective agreement.

107        The bargaining agent indicated that to the minimal extent that the complaint addresses events in which it was involved, those matters were dealt with conclusively in 2010 PSLRB 127. Therefore, it submitted that the matter is res judicata. It was also of the view that the vast majority of the allegations raised do not implicate or involve it, either directly or indirectly.

108        The bargaining agent also submitted that the allegations are untimely. I agree that the complaint was not filed within the time set out in s. 190(2) of the Act. The circumstances giving rise to the complaint occurred between May 2009 and August 2009, more than 90 days before the complaint was filed.

109        Counsel for the employer again argued that the provisions of the Act associated with s. 190 are not applicable to the circumstances outlined by the grievor in the complaint. I agree and observe that the addition of ss. 190(1)(a) and (f) did nothing to strengthen the grievor’s position.

110        Consequently, the complaint is dismissed.

111        Counsel for the employer also argued that the remedy requested by the grievor — the implementation of the employer’s harassment policy — lies outside the Board’s jurisdiction. Given that I have dismissed the complaint, it is not necessary to address the issue of remedy.

H. File 561-24-496

112        Dated December 31, 2010, this is a further complaint under s. 190(1)(g) of the Act, to which the employer and the bargaining agent are the respondents. In the complaint, the grievor alleges that the bargaining agent failed to represent her at one stage of the grievance process in October 2010 and that both the employer and the bargaining agent failed to investigate the “death threat” contained in the respondent relations report of February 2009 (on the date of the event reported, it will be recalled that the grievor said that she was not scheduled to work).

113        The section under “corrective action sought” reads as follows:

It is discriminatory to fire someone for reporting a health and safety violation. Full reinstatement [with] pay benefits, health records expunged and personell [sic] files expunged, an apology from SD 23 and its staff.

114        Counsel for the employer again argued that s. 190(1)(g) does not apply to the circumstances laid out by the grievor in the complaint. It is not necessary to reiterate the analysis set out in relation to file 561-24-456. The reasons given earlier in this decision for dismissing that complaint apply equally here. Nothing in the grievor’s allegations creates a foundation for invoking provisions that are intended to protect the rights of employees to associate with trade unions.

115        Counsel for the employer also argued that the remedies requested and the issues surrounding the termination of the grievor’s employment, including the significance of the particular respondent relations report she referred to in this complaint, were fully disposed of in the termination decision. I find this argument well founded. The remedies and issues were in fact addressed in the termination decision.

116        The bargaining agent reiterated that to the minimal extent that the complaint addresses events in which it was involved, these matters were dealt with in 2010 PSLRB 127. Therefore, it submitted that the matter was res judicata. It also indicated that the vast majority of the allegations raised do not implicate or involve it, either directly or indirectly. I find that the issue of its representation was indeed fully dealt with in 2010 PSLRB 127.

117        Note that the grievor repeated her request for apologies from the school division and its staff, and I repeat that as set out in my analysis of file 561-24-495, this Board has no jurisdiction over those third parties.

118        Counsel for the employer further argued that the complaint was out of time. The relief requested by the grievor clearly relates to the events surrounding the termination of her employment, which occurred on August 26, 2009, and the complaint was not filed until the end of December 2010. As counsel argued in relation to other complaints under s. 190 of the Act, the 90-day time limit in s. 190(2) is firm, and the Board does not have the power to modify it. Based on the information before me, I find that this complaint is untimely.

119        Based on the foregoing, I find that the complaint must be dismissed.

I. File 561-24-502

120        This complaint, dated November 2, 2010, and received by the Board on November 10, 2010, again cites ss. 190(1)(a) to (g) of the Act. Both the employer and the bargaining agent are the respondents in this file. The grievor alleges the following: “Employer accused me of being sick May 2009 - Nov 2010 Aug 31 - 2009 – Employer fired me based on being sick. Employer refused my Doctors [sic] evaluation and Health unit assessment showing I was fit to work in August 2009.”

121        As corrective action, the grievor asked for the following: “Reinstatement [with] pay and benefits and application of - All applicable Sections of Canada Labour Code PSLR Code [sic], Health Canada, Human Rights, Harassment Policy and any other legislation that is applicable to this matter”.

122        It is not necessary to reiterate the arguments made by counsel for the employer concerning the applicability of these provisions of the Act to the allegations made by the grievor. As with files 561-24-456, 458 to 460, 470, 495, and 496, I have concluded that the provisions of s. 190(1) do not apply to the grievor’s situation but are intended to protect the associational rights of employees and the process of collective bargaining between the employer and the bargaining agent. Subsection 190(1) cannot form the basis of a complaint of this kind.

123        Counsel for the employer argued that in any case, the issues raised in the complaint were thoroughly addressed in the termination decision. My view is that this argument is correct; all the issues concerning the termination, including the status of a medical assessment that took place after the termination letter had been issued, were addressed in the termination decision and must be considered res judicata.

124        The bargaining agent also indicated that to the minimal extent that the complaint addresses events in which it was involved, these matters were dealt with in 2010 PSLRB 127.

125        Both counsel for the employer and for the bargaining agent also argued that the complaint is out of time because it is related to the events surrounding the termination of the grievor’s employment, which occurred in August 2009, more than 90 days before November 2, 2010. The grievor submitted that since the employer had agreed to extend the time limits, her complaint was timely.

126        It is not clear what the grievor was referring to when she specified the date of “Nov. 2010” in the complaint, unless it was a stage of the grievance handling process for her termination. The substance of the complaint is a further protest about the basis of the termination itself, and it is clear that the complaint was filed more than 90 days after that.

127        The grievance process is initiated when an employee presents a grievance to his or her immediate supervisor or the person identified as the first-level responder to a grievance in the department or agency. It is important to note that employers may have specific grievance procedures; therefore, the number of levels in the grievance process may differ from one employer to another. However, each level will include specific time frames for filing and for responding. While the grievance makes its way through the different levels of the grievance process, the employer has the discretion to extend the time frames. It is important to note that this process does not involve the Board and that an employer’s decision to extend timelines during a grievance process does not affect the timelines established by s. 190(2) of the Act for filing a complaint with the Board or by s. 90(1) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79)for referring a grievance to adjudication.

128        The extension from the employer to which the grievor referred might have been provided during the grievance process. That extension had no bearing on the Board’s complaint process. Consequently, the complaint is untimely.

129        I should note that the bargaining agent was also named as a respondent to this complaint but that no specific allegations were made with respect to any of its actions. It indicated that it was of the view that the vast majority of the allegations raised do not implicate or involve it, either directly or indirectly.

130        I find that this complaint must also be dismissed.

J. File 566-24-5137

131        In this file, the grievor referred her notice of reference to adjudication on November 4, 2010. She signed the form and attached four grievances, dated August 14, 2009 and September 30, 2009, all of which were signed by a bargaining agent representative. Recall that the bargaining agent withdrew its representation of the grievor in January of 2010, before any of the grievances had reached the final stages of the grievance process. The grievor submitted that the bargaining agent gave her permission to go forward on her own. The employer is the respondent in this file.

132        In the first grievance, she makes the following claims:

I grieve against the employer’s violation of my termination by dismissal based on all articles of the collective agreement and the Canadian Human Rights Code [sic]. My employer has discriminated against me by alleging a ground of mental or physical disability (perceived) by treating me in an adverse differential manner, by failing to accommodate me and by terminating my employment contrary to the sections of the Canadian Human Rights Act. The employer based this decision on hearsay. I faxed the consent forms on Aug 25/09 signed involuntarily. This has increased my financial and personal stress level.

133        As corrective action, the grievor listed the following:

1. That I be permitted to return to work immediately.
2. That all records in any form be corrected.
3. That any records related to the incident be removed from all files in any form.
4. That I receive full compensation for pay, damages, health care, pension, and dental losses.
5. That I receive a written apology from all management and my employer.
6. That I be made whole.

134        The second grievance stated as follows: “I grieve the employers [sic] refusal to provide me with the letter dated June 4^th 2009 that the employer refers to.”

135        The third grievance read as follows: “I grieve the violation by the employer of article 19 of the C.A. section 4-6 of the employee handbook and guidelines on the SSO incident report form.”

136        Her fourth grievance is the same as the one referenced at paragraph 44 of this decision, in which she alleged violations of the collective agreement and of employer policies. She also referred to her suspension with pay and the health assessment.

137        The second and third grievances were also appended to the complaint in file 561-24-458, and I have already commented on them briefly earlier in this decision. However, they were addressed as a group in the grievance handling process, and counsel for the employer made arguments about all three. Note that the grievor gave notice to the Canadian Human Rights Commission (CHRC), whose Director of Litigation Services indicated that, in a letter dated December 20, 2010, he did not intend to make submissions on the grievances.

138        With respect to the first grievance, it is not clear whether the grievor made a separate application to the CHRC alleging breaches of the Canadian Human Rights Act (R.S.C., 1985, c. H-6). The Board has no control or jurisdiction over processes initiated in other tribunals.

139        The substance of the grievance concerns the employer’s decision to terminate the grievor’s employment. Somewhat confusingly, she states that the termination was based both on a wrongful perception that there was a reason to be concerned about her health and on an unwillingness to accommodate her. In any case, the basic concerns expressed in the grievance relate to the termination decision.

140        Counsel for the employer argued that the termination issues raised in this grievance were addressed in the termination decision. I agree that the issues, including whether it was reasonable for the employer to have a concern about the grievor’s state of health, were fully canvassed in that decision, and there are no outstanding issues that could be addressed in a further proceeding.

141        As to the second grievance, I have already noted in the discussion of file 561-24-458 that the reference to a letter dated June 4, 2009, was an error. The letter that was the subject of the reference was dated June 8, and a copy of it had been sent on two occasions to the grievor. Indeed, paragraph 84 of the termination decision has a quotation from the grievor’s response to that letter. Thus, there is no subject matter to which this grievance can be attached.

142        The third and fourth grievances allege violations of some collective agreement provisions and of certain employer policies, as well as the grievor’s suspension with pay and the health assessment. When the grievances were filed, the bargaining agent was representing the grievor, but that representation was withdrawn in January 2010. As I noted in the analysis associated with file 561-24-458, there are limitations on the issues that can be pursued to adjudication by an employee. Although these issues include termination of employment — and the circumstances surrounding the termination were thoroughly dealt with in the termination decision — an employee cannot pursue issues requiring the interpretation or application of collective agreements or other allegations concerning violations of policies by an employer without the bargaining agent’s approval to represent him or her in the adjudication proceeding. The bargaining agent is not the grievor’s representative in this file. Therefore, the third and fourth grievances cannot be the subjects of an adjudication proceeding. Furthermore, the suspension and health assessment issues were addressed in the termination decision.

143        The grievor indicated that the bargaining agent gave her permission to go forward on her own. That permission was not akin to a bargaining agent’s approval to represent an employee, which is found in s. 209(2) of the Act. Bargaining agent representation is required when dealing with matters concerning the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award (see s. 209(1)(a) of the Act). Given that the bargaining agent withdrew its representation of the grievor, there is a possibility that it would have told her that she could continue on her own with her termination grievance, which could be the permission she referred to. As indicated earlier, an employee does not need to be represented by his or her bargaining agent when referring a termination grievance to adjudication. I reiterate that the issue of the grievor’s termination has already been dealt with in the termination decision.

144        The grievances must be dismissed.

III. Summary of rulings, by Board file number

145        I have found that all the objections with respect to timeliness, res judicata, and standing raised by counsel for the employer and the bargaining agent are well founded.

A. File 560-24-71

146        This complaint must be dismissed on the following grounds:

• the provisions of the Code on which the complaint is based are inapplicable to the circumstances described by the grievor; and
• the complaint was not filed within the time limits specified in the Code.

B. File 561-24-456

147        This complaint must be dismissed on the following grounds:

• s. 190 of the Act and the related provisions cited by the grievor as the basis for the complaint are inapplicable to the circumstances she described; and
• the complaint was not filed within the time limit set out in s. 190(2) of the Act;

C. File 561-24-458

148        This complaint must be dismissed on the following grounds:

• s. 190(1)(e) of the Act and the other provisions referenced in that section are inapplicable to the circumstances described by the grievor;
• many of the issues raised in the grievances appended to the complaint could not be pursued to adjudication under s. 209 of the Act without the bargaining agent’s approval to represent the grievor;
• the other issues raised in the grievances appended to the complaint were fully addressed in the termination decision; and
• the complaint was not filed within the time limit set out in s. 190(2) of the Act.

D. File 561-24-459

149        This complaint must be dismissed on the following grounds:

• s. 190(1)(g) of the Act and the related provisions cited in the complaint are not applicable to the circumstances described by the grievor;
• the issues as they relate to a harassment complaint were addressed in the termination decision;
• the issue of bargaining agent representation was fully addressed in 2010 PSLRB 127; and
• the complaint was not filed within the time limit set out in s. 190(2) of the Act.

E. File 561-24-460

150        This complaint must be dismissed on the following grounds:

• s. 190(1)(g) of the Act and the related provisions cited in the complaint are not applicable to the circumstances set out by the grievor;
• the circumstances described as the basis for the complaint were fully addressed in the termination decision and must be considered res judicata; and
• the complaint was not filed within the time limit set out in s. 190(2) of the Act.

F. File 561-24-470

151        This complaint must be dismissed on the following grounds:

• s. 190 of the Act and the related provisions cited in the complaint are not applicable to the circumstances set out by the grievor; and
• the allegations the grievor made in the complaint were fully addressed in the termination decision and must be considered res judicata.

G. File 561-24-495

152        This complaint must be dismissed on the following grounds:

• s. 190 of the Act and the related provisions cited in the complaint are not applicable to the circumstances described by the grievor; and
• the complaint was not filed within the time limit set out in s. 190(2) of the Act.

H. File 561-24-496

153        This complaint must be dismissed on the following grounds:

• s. 190(1)(g) of the Act does not apply to the circumstances described by the grievor;
• the issues surrounding the termination of the grievor’s employment and the requested related remedies were fully addressed in the termination decision and must be considered res judicata;
• the issues related to the bargaining agent’s representation were fully addressed in 2010 PSLRB 127 and must be considered res judicata;
• the complaint was not filed within the time limit specified in s. 190(2) of the Act.

I. File 561-24-502

154        This complaint must be dismissed on the following grounds:

• ss. 190(1)(a) to (g) of the Act and the related provisions cited in the complaint are not applicable to the circumstances described by the grievor;
• the allegations made in the complaint relate to the decision to terminate the grievor’s employment; all these issues were thoroughly canvassed in the termination decision and must be considered res judicata; and
• the complaint was not filed within the time limit specified in s. 190(2) of the Act.

J. File 566-24-5137

155        These four grievances must be dismissed on the following grounds:

• the issues raised in the first grievance relate to the decision to terminate the grievor’s employment; these issues were fully dealt with in the termination decision and must be considered res judicata;
• the second grievance was based on the mistaken identification of a document, which never existed;
• the third grievance relates to issues that an employee cannot pursue to adjudication under s. 209 of the Act; and
• the fourth grievance relates to issues that an employee cannot pursue to adjudication under s. 209 of the Act, and the suspension and health assessment issues were determined in the termination decision and must be considered res judicata.

156        For all of the above reasons, the Board makes the following order:

IV. Order

157        The complaint under s. 133 of the Code in file 560-24-71 is dismissed.

158        The complaint under s. 190(1)(g) of the Act in file 561-24-456 is dismissed.

159        The complaint under s. 190(1)(e) of the Act in file 561-24-458 is dismissed.

160        The complaint under s. 190(1)(g) of the Act in file 561-24-459 is dismissed.

161        The complaint under s. 190(1)(g) of the Act in file 561-24-460 is dismissed.

162        The complaint under s. 190(1)(b), (c), (d), (e), and (g) of the Act in file 561-24-470 is dismissed.

163        The complaint under s. 190(1) (a) through (g) of the Act in file 561-24-495 is dismissed.

164        The complaint under s. 190(1)(g) of the Act in file 561-24-496 is dismissed.

165        The complaint under s. 190(1)(a) through (g) of the Act in file 561-24-502 is dismissed.

166        The grievances in file 566-24-5137 are dismissed.

June 26, 2018.