FPSLREB Decisions

REASONS FOR DECISION

I. Complaint before the Board

1        On February 12, 2018, Peter Gilkinson (“the complainant”) faxed a complaint to the Federal Public Sector Labour Relations and Employment Board (“the Board”) against the Professional Institute of the Public Service of Canada (“the respondent”). The original was received by mail on February 15, 2018. The complainant alleged that the respondent had committed an unfair labour practice by applying its standards of discipline to him in a discriminatory manner, contrary to s. 188(c) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), which reads as follows:

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

(a) ...;

(b) ...;

(c) 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;

...

2        The respondent requested further particulars, which were provided on April 4, 2018. On April 6, 2018, it responded to the particulars and requested that the complaint be summarily dismissed. The complainant replied to this request on April 17, 2018.

3        For the reasons that follow, the Board dismisses the complaint.

II. Summary of the submissions

A. For the complainant

4        The complainant alleged that he had been removed from his position as Chair of the Finance Committee, within the respondent’s governing structure, because a finding of harassment had been made against him following a request he made for information as the Chair of the Finance Committee.

5        The action was discriminatory because the Board of Directors, on which he sits, is split into two groups, the control group, which has power, and the minority group, of which he is a part, which does not have power. His particulars include the following allegation:

...

The group with voting control, includes the President and the President has significant control over the discipline process.

Members of the control group are treated with special favour when it comes to matters of discipline and members of the minority group are treated much worse than the control group.

...

B. For the respondent

6         The respondent requested that the complaint be summarily dismissed for two reasons: it is time-barred, and the complainant has failed to comply with s. 190(3) of the Act.

7        The complainant exercised his right to appeal the imposition of discipline through the respondent’s internal appeal mechanism. He received a response to his appeal on November 16, 2017. According to the date stamp on his complaint, it was filed with the Board only on February 15, 2018, which was one day beyond the mandatory 90-day time limit set out in s. 190(2) of the Act.

8        Although the complainant appealed his discipline by way of the internal appeal process, his appeal did not include the apparent ground for his complaint before the Board, namely, that the President exercised control to interfere in the disciplinary process. Since the complainant did not avail himself of the internal appeal system to dispute the President’s alleged discriminatory control, he could not come before the Board with this issue, as this is contrary to s. 190(3) of the Act, which reads as follows:

190 (3) Subject to subsection (4), no complaint may be made to the Board under subsection (1) on the ground that an employee organization or any person acting on behalf of one has failed to comply with paragraph 188(b) or (c) unless

1. the complainant has presented a grievance or appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given ready access;
2. the employee organization
   1. has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to the complainant, or
   2. has not, within six months after the date on which the complainant first presented their grievance or appeal under paragraph (a), dealt with the grievance or appeal; and
3. the complaint is made to the Board not later than 90 days after the first day on which the complainant could, in accordance with paragraphs (a) and (b), make the complaint.

9        Therefore, the respondent asks that the complaint be summarily dismissed.

C. The complainant’s reply

10        According to the complainant, a proper count of days shows that he was within the 90-day limit.

11        As to the internal process not having been exhausted, the complainant submits that his attempts to be heard were not heeded. He did bring up the apparent interference of the respondent’s president in the complaint process, only to be told that it was “conjecture as opposed to evidence”, and the issue was not addressed in the decision on his appeal.

III. Reasons

12        I will address the two grounds on which the respondent relies to have the complaint dismissed summarily. In the end, I dismiss the complaint, not for the respondent’s reasons, but rather for want of jurisdiction.

13        The respondent’s objection to timeliness cannot stand. If the 90-day period started on November 16, 2017, as the respondent stated, then it expired on February 14, 2018. The complainant faxed his complaint to the Board on February 12, 2018. Section 3(2) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79; “the Regulations”) provides as follows: “The initiating document sent by fax is deemed to be received on the date of the fax transmission ...”, as long as the original is provided as soon as possible. The original was received and date-stamped on February 15, 2018. The date stamp is not the date of receipt under the Regulations.

14        The respondent’s argument on the appeal mechanism cannot stand either. The respondent provided a copy of the appeal decision. The context of the appeal is laid out in the following terms: “The Appellant’s complaint was that the President had interfered with his ability to Discharge [sic] his duties as Chair of PIPSC’s Finance Committee.” I find therefore, on a balance of probabilities, that the complainant raised his allegations within the respondent’s internal appeal mechanisms.

15        This does not mean that any recourse lies before the Board.

16        Parliament has given the Board a very narrow jurisdiction to interfere in the internal affairs of employee organizations. The only grounds on which the Board can interfere in disciplinary actions by an employee organization against its members are discrimination or the denial of rights protected by the Act. The complainant alleges discrimination. There must be some indication, if all the facts that are alleged were true, that the employee organization would have discriminated against him.

17        Discrimination is not defined in the Act. However, the French version of the Act speaks of “distinctions illicites”, or illegitimate distinctions, to translate discrimination. Black’s Law Dictionary defines discrimination as “differential treatment”; the Concise Oxford Dictionary defines the verb discriminate as “to make an unjust distinction in the treatment of different people”.

18        In Bremsak v. Professional Institute of the Public Service of Canada, 2009 PSLRB 103, the Board considered the meaning of “discriminatory” in s. 188(c) in the following manner:

85. With regards to the matter of discrimination I consider this to be the hallmark of the prohibition in paragraph 188(c). I say this because it is not every disciplinary action or every imposition of a penalty that is prohibited; the action or penalty has to be in the context of the employee organization’s standards of discipline, and the action or penalty must be taken or applied “in a discriminatory manner” to come within the prohibition in paragraph 188(c). The Supreme Court of Canada has provided some guidance in understanding the nature of discrimination in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4. After considering different definitions under human rights legislation and previous judgments, the court commented on discrimination in the context of employment as follows:

...

48. At the heart of these definitions is the understanding that a workplace practice, standard, or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics. The goal of preventing discriminatory barriers is inclusion. It is achieved by preventing the exclusion of individuals from opportunities and amenities that are not based on their actual abilities, but on attributed ones. The essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.

49. What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

...

86. In the context of administrative justice and labour relations, a broad interpretation of discrimination within the bounds of the legislation is appropriate, and the Board must consider not only the “... result of the application of disciplinary standards but also the basis for their application and the manner in which they have been applied.” Further, in Daniel Joseph McCarthy, [1978] 2 Can LRBR 105; cited in Beaudet-Fortinat paragraph 84, the following was stated:

...

In our opinion the word 'discriminatory' in this context means the application of membership rules to distinguish between individuals or groups on grounds that are illegal, arbitrary or unreasonable. A distinction is most clearly illegal where it is based on considerations prohibited by [human rights legislation]; a distinction is arbitrary where it is not based on any general rule, policy or rationale; and a distinction may be said to be unreasonable where, although it is made in accordance with a general rule or policy, the rule or policy itself is one that there is no fair and rational relationship with the decision being made ...

87. In my view, those comments can be applied to considerations of discrimination under paragraph 188(c) of the Act. The goal of preventing discrimination under that provision is inclusive and is achieved by preventing bargaining agents from excluding employees from the activities of an employee organization based on attributed rather than actual abilities. The essence of the protection is to prevent illegal, arbitrary or unreasonable barriers. ...

...

19        Discrimination, then, involves an illegitimate distinction based on irrelevant grounds. In this case, the complainant has not shed any light on the nature of the distinction he alleges. No grounds are invoked. Rather, a conflictual situation has arisen.

20        The fact that the complainant perceives a “control group” and a “minority group” does not raise any ground of discrimination that would allow the Board to intervene in the disciplinary actions of the respondent. Rather, the allegations concern an alleged power struggle between competing groups in the respondent’s Board of Directors. Even if all the facts on which the complainant relies are true, there is no arguable case that the respondent discriminated against him, within the meaning of s. 188(c) of the Act.

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

IV. Order

22        The complaint is dismissed.

August 3, 2018.