FPSLREB Decisions

Heard at Ottawa, Ontario,
December 17, 2018,
and decided on the basis of written submissions
filed September 19 and October 4 and 18, 2018.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1         Paul Alexander (“the grievor”) was employed by the Treasury Board (TB or “the employer”) as an epidemiologist, classified EC-05, at the Centre for Communicable Diseases and Infection Control of the Public Health Agency of Canada (PHAC). By letter dated May 14, 2014 (“the May 14 letter”), Krista Outhwaite, the PHAC’s acting deputy head and associate deputy minister, terminated the grievor’s employment effective that day.

2         On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the PSLREB”) to replace the former Public Service Labour Relations Board (“the PSLRB”) 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. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

3         The employee grieved his termination in May 2016 and referred it to the PSLREB for adjudication in June 2016.

4         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 PSLREB and the titles of the PSLREBA,the PSLRA, and the Public Service Labour Relations Regulations (SOR/2005-79)to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act (“the Act”), and the Federal Public Sector Labour Relations Regulations (“the Regulations”).

5         The hearing in this matter was scheduled to proceed from Monday, December 17, to Friday, December 21, 2018. It began as scheduled. The employer attended with its legal representative and witness, while neither the grievor nor his legal counsel appeared.

6         The employer called one witness, Olivier Meilleur, a labour relations (LR) officer with Health Canada and the PHAC. He testified that although he had not been involved in the termination of the grievor’s employment, he was familiar with the grievor’s LR file since he had become involved with it in 2016.

II. Summary of the evidence

A. Background

7         On February 7, 2014, the grievor filed a grievance against the deputy head of the PHAC (file 566-02-9676), which the Board’s predecessor, the PSLREB, dealt with in a decision dated July 22, 2015 (see 2015 PSLREB 64) following written submissions dated November 25 and December 19 and 23, 2014. The grievor had that decision judicially reviewed. It was dismissed following a hearing of the Federal Court of Appeal (FCA) on April 28, 2016 (see 2016 FCA 132). In both cases, the grievor was represented by the same counsel who represented him in this grievance.

8         In 2015 PSLREB 64, the grievor advanced an argument that he had been constructively dismissed. The employer objected to the PSLREB’s jurisdiction to hear the matter. At paragraphs 41, 42, and 45 to 47, the Adjudicator stated as follows:

41 Leaving aside the question of whether the doctrine of constructive dismissal is applicable in the federal public service, which is considered in Hassard, it is clear that at its core, it concerns an allegation that there has been a termination of employment arising from a fundamental breach of the employment contract.

42 The grievance before me contains no allegation that the grievor’s employment was terminated; nor is such an allegation implicit in it. The employer’s response at the second level of the grievance process also contained no suggestion that it understood the grievance to involve an allegation that the grievor’s employment had been terminated. Furthermore, the employer made it clear that the grievor was free to return to work without any condition that he submit to a fitness-to-work assessment. Given those facts, I find that the allegation of constructive dismissal was raised for the first time in the reference to adjudication and that, therefore, even if the doctrine has relevance in the federal public service, I do not have the jurisdiction to consider it.

…

45 The grievor did not present any evidence or argument when invited to provide either particulars or submissions in support of his position beyond the bare assertion that the matter required an oral hearing. He did not contest the version of the facts presented by the employer, and he did not respond to its objection to jurisdiction. The onus was on him to do so.

46 Because the grievor failed to meet his onus, I find that I have an insufficient basis on which to conclude that he was subject to a disciplinary action under paragraph 209(1)(b) of the PSLRA. Therefore, I cannot find that I have jurisdiction to hear the grievance.

47 Both the grievor and the employer referred to a termination of the grievor’s employment some months after the grievance before me was filed. That matter is not part of this grievance and must be grieved and referred to adjudication in accordance with the PSLRA and the Public Service Labour Relations Regulations (SOR/2005-79).

9         In its decision dismissing the judicial review application, the FCA stated at paragraph 2 as follows:

… 2. To the extent the concept of constructive dismissal is relevant within the federal public service, this issue was raised for the first time in the reference to adjudication. It followed that the adjudicator did not have jurisdiction to consider this issue.

B. Termination of employment

10        The relevant portions of the May 14 letter state in part as follows:

…

A fact-finding teleconference was scheduled for May 9, 2014 in order to discuss your on-going [sic] inappropriate communications with management and your continued failure to report to work as instructed by management. As you chose not to attend this teleconference, nor have a representative attend on your behalf, I regret that you have left me with no other choice but to make a decision without the benefit of your input.

You have been instructed by management on numerous occasions, in writing and verbally, to cease and desist from sending disrespectful e-mails. Nevertheless, you have continued to send highly offensive e-mails to management, the most recent being on April 25, 2014, April 26, 2014 and May 8, 2014. These communications included several references to your “rectum” as well as grossly offensive comments directed towards the Assistant Deputy Minister of the Infectious Disease Prevention and Control Branch … .

…

You were notified in writing on at least three occasions (February 27, March 5 and March 7, 2014) that you were expected back at work in Ottawa on April 1, 2014. You communicated on March 14 and 17, 2014 your intention not to return to work in your substantive position. You were therefore instructed, in writing, to report to work on at least five occasions (March 25, April 10, 11, 16, and 23, 2014). Despite the clear and unambiguous direction to you to return to work, you have not done so to date.

These incidents demonstrate blatant insubordination… The following disciplinary measures have been imposed on you for similar acts of misconduct:

1. Letter of reprimand on February 27, 2014.
2. Letter of reprimand on February 28, 2014.
3. 1-day suspension on March 6, 2014.
4. 3-day suspension on March 12, 2014.
5. 5-day suspension on March 20, 2014.
6. 5-day Financial Penalty on April 8, 2014.
7. 15-day Financial Penalty on April 16, 2014.
8. 20-day Financial Penalty on April 25, 2014.

While management has endeavored to correct your behaviour through disciplinary measures (in keeping with the principle of progressive discipline), you continue to believe that it is your prerogative to challenge management in a manner that has been identified as disrespectful, unprofessional, uncooperative and amounts to gross insubordination.

Furthermore, you have been warned in writing on more than ten occasions that continued failure to follow management’s directions would result in further, more severe disciplinary action up to and including termination of your employment. Despite this, you have continued to disregard management’s instructions. This ongoing lack of integrity, professionalism, respect and cooperation that is expected of all public servants has rendered your employment relationship with the Public Health Agency of Canada unviable.

In view of the above, and in accordance with the authority vested in me under section 12(1)(c) of the Financial Administration Act, I hereby terminate your employment for cause, effective May 14, 2014.

…

Please be advised that you have the right to submit a grievance concerning this letter within twenty-five days of today’s date in accordance with the terms of your collective agreement.

…

11        The evidence disclosed that the grievor filed grievances against the 1- and 3-day suspensions and the 5-day financial penalty that were imposed on him. However, he did not refer any of them to the Board (or its predecessors) for adjudication.

12        The grievor delivered the following document to the employer on May 12, 2016, almost two years after the May 14 letter:

GRIEVANCE OF

PAUL ALEXANDER

1. On April 28^th, 2016 the Federal Court of Appeal dismissed my application for judicial review wherein I asserted that the Adjudicator’s decision dismissing my initial grievance was in error for several reasons including the refusal to consider the acts and omissions of the employer as amounting to a constructive dismissal of my employment.
2. During the course of the litigation of that grievance I expressly sought to challenge my dismissal through my Notice of Motion dated December 19^th, 2014 in the following words: “The Grievor has provided the employer with notice of his intention to grieve the purported dismissal which they rely upon – in the event that such a step is necessary – but they have unreasonably withheld their consent and the bargaining agent had previously withdrew its support of the Grievor.”
3. I hereby grieve my dismissal as being wrongful, unjust and otherwise contrary to law and request my immediate reinstatement with full back pay and benefits.
4. In the event that leave is required to extend the time to bring this grievance I hereby request the employer’s consent for this purpose as I so requested previously.

May 12^th, 2016

[Signed by the grievor]

[Emphasis in the original]

13        On June 13, 2016, the employer replied to the grievance at the third and final level of the grievance process, stating as follows:

…

This is in response to the grievance presented on May 12, 2016, regarding the termination of your employment on May 14, 2014 in which you are requesting to be reinstated with full back pay and benefits.

As per Article 40 of the collective agreement for Economics and Social Science Services, an employee may present a grievance not later than the twenty-fifth day after the date on which he or she first became aware of the action or circumstances giving rise to the grievance. As your grievance was filed after the twenty-fifth date, and as you are no longer an employee with the right to grieve, your grievance is untimely and accordingly rejected on that basis.

By copy of this letter, your lawyer is advised of my decision.

…

Cc:     Ernest Guiste

14        On June 28, 2016, the Board received from Mr. Guiste (the grievor’s counsel) a “Notice of Reference to Adjudication of an Individual Grievance” (Form 21) under s. 89(1)(a)(ii) of the Regulations, which included the following:

• that the grievor’s authorized representative was Mr. Guiste;
• that the date on which the grievance was presented at the first level of the grievance process was May 16, 2016;
• that the date on which the employer provided its decision at the final level of the grievance process was June 14, 2016; and
• that Mr. Guiste had signed it.

15        The Form 21 also had handwriting on it stating that the following were attached:

• an email of June 14, 2016, enclosing the grievance response (two pages);
• the grievance dated May 12, 2016, with a “Notice of Motion and Grievor’s submissions” attached; and
• the FCA’s reasons for judgment of April 28, 2016.

16        The attached documents, referred to as the Notice of Motion and Grievor’s submissions, stated as follows:

[The Notice of Motion:]

TAKE NOTICE THAT the Grievor brings the following preliminary motion before the Adjudicator for adjudication on a full evidentiary record.

RELIEF SOUGHT:

1. An Order that the issue of jurisdiction raised by the employer and the issue of abuse of process raised by the Grievor be adjudicated together after a full evidentiary hearing;
2. An Order curing any procedural irregularity in the Grievor’s assertion of his legal rights;
3. Such further and other relief as the Panel may see as just and not contrary to the interests of justice and the public interest.

The Grounds for the Motion are:

1. The question of jurisdiction in this case cannot be properly adjudicated in a vacuum and requires a full evidentiary hearing;
2. The decision of the Grievor’s bargaining agent to not only support the employer on the question of the medical referral but to effectively “wash their hands” of their duty to represent the Grievor when coupled with the unreasonableness and unlawfulness of the employer’s conduct up to and following their purported dismissal makes the treatment of this Grievor an abuse of process;
3. The Grievor has provided the employer with notice of his intention to grieve the purported dismissal which they rely upon – in the event that such a step is necessary – but they unreasonably withheld their consent and the bargaining [sic] had previously withdrew its support of the Grievor;
4. The issues involved and the consequences to the Grievor call for a high level of procedural fairness.

The following documentary evidence will be relied upon:

1. The grievances filed by the Grievor;
2. E mail [sic] correspondence between the parties;
3. Viva voce evidence from the Grievor and others;
4. Such further evidence that the Panel may consider relevant.

…

December 19, 2014

…

[The grievor’s submissions:]

IN THE MATTER OF grievances referred to adjudication pursuant to the Public Service Staff Relations Act.

Paul Alexander

and

HEALTH CANADA

GRIEVOR’S SUBMISSIONS

1. The question of jurisdiction raised by the employer involves considerations of both fact and law.
2. For example, the question of whether or not a constructive dismissal could arise under the subject statutory scheme has yet to be conclusively determined. IT IS SUBMITTED THAT where a bargaining agent effectively abandons a Grievor in circumstances as in this case that a constructive dismissal has occurred and an employee ought not be faulted for not filing a timely “dismissal grievance”.
3. In addition, the question of whether or not the employer’s actions amounted to discipline in requesting the medical assessment, suspending and ultimately purporting to dismiss the Grievor for cause involve questions of both fact and law and can not be adjudicated in a vacuum.
4. The question of whether or not the employer has received effective notice of the Grievor’s intention to grieve his “dismissal” involves findings of fact and as it stands there is a serious dispute on these facts which calls for adjudication.

Legal Authorities:

1. Grover v. National Research Council of Canada 2005 PSLRB 150
2. E mail dated Feb. 19 from Karen Brook advising of “no representation by bargaining agent [sic].

…

[Emphasis in the original]

17        A review of file 566-02-9676 (the case involving the 2015 PSLREB 64 decision) disclosed that the grievor’s written submissions in that matter were due on December 19, 2014, and were in fact the Notice of Motion and Grievor’s submissions that were attached to the Form 21 that referred the May 16, 2016, grievance to the Board for adjudication.

18        That review also revealed an email sent on May 21, 2014, at 3:49 p.m., from Mr. Guiste to the PSLRB, the grievor, and, allegedly, Carol-Anne Dessureault at Health Canada. However, it is clear that the email address for her was incorrect by one letter, which meant that she likely did not receive it. The email stated as follows:

…

The worker was constructively dismissed by the acts and omissions of the employer and his bargaining agent condoned the employer’s actions.

The employer locked the worker out of the workplace and stopped his pay.

The bargaining agent although fully aware did nothing.

The employer recently purported to dismiss the worker – notwithstanding his proper claim of constructive dismissal.

The worker submits that the tribunal has jurisdiction to deal with the matter and the employer’s submission on this point is without merit.

…

19        The grievor was governed by a collective agreement that the TB and the Canadian Association of Professional Employees entered into for the Economics and Social Science Services group that was signed on October 15, 2012, and that expired on June 21, 2014 (“the collective agreement”). Article 40 is entitled “Grievance Procedure”, and its relevant portions state as follows:

…

Individual Grievances

40.07 An employee who wishes to present a grievance at any prescribed level in the grievance procedure shall transmit this grievance to the employee’s immediate supervisor or local officer-in-charge who shall forthwith:

1. forward the grievance to the representative of the Employer authorized to deal with grievances at the appropriate level,

          and

2. provide the employee with a receipt stating the date on which the grievance was received by the Employer.

…

40.12 An employee may present a grievance to the first (1^st) level of the procedure in the manner prescribed in clause 40.07, not later than the twenty-fifth (25^th) day after the date on which the employee is notified orally or in writing or on which the employee first becomes aware of the action or circumstances giving rise to the grievance.

…

40.16 The decision given by the Employer at the final level in the grievance procedure shall be final and binding upon the employee unless the grievance is a class of grievance that may be referred to adjudication.

40.17 Where it appears that the nature of the grievance is such that a decision cannot be given below a particular level of authority, any or all the levels, except the final level, may be eliminated by agreement of the Employer and the employee, and, where applicable, the Association.

40.18 Where the Employer demotes or terminates an employee for cause pursuant to paragraphs 12(1)(c), (d) or (e) of the Financial Administration Act, the grievance procedure set forth in this Agreement shall apply except that:

1. the grievance may be presented at the final level only;
2. notwithstanding paragraph 40.03(c), the Deputy Head cannot appoint a representative to hear the grievance and to render a decision.
3. the twenty (20) day time limit within which the Employer is to reply at the final step may be extended to a maximum of forty (40) days by mutual agreement of the Employer and the appropriate representative of the Association.

…

40.22 Reference to Adjudication

**

1. An employee may refer to adjudication, in accordance with the provisions of the Public Service Labour Relations Act and Regulations, 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:

   …

   (b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

[Emphasis added]

…

20        A letter that the PHAC sent to the Board and copied to Mr. Guiste that was undated and that the Board received on August 2, 2016, stated as follows:

This is further to your letter of July 6, 2016 regarding the above-noted reference to adjudication. The employer respectfully submits that this grievance is untimely.

The employee filed his grievance on May 12, 2016 regarding his termination of employment on May 14, 2014 and requested to be reinstated with full back pay and benefits.

The date on which the alleged violation or misinterpretation occurred was May 14, 2014.

Article 40.12 of the Economics and Social Science Services collective agreement clearly sets the time limits to present a grievance and reads as follows:

An employee may present a grievance to the first (1st) level of the procedure in the manner prescribed in clause 40.07, not later than the twenty-fifth (25th) day after the date on which the employee is notified orally or in writing or on which the employee first becomes aware of the action or circumstances giving rise to [sic] grievance. The grievance was filed beyond the time limits in the collective agreement. The employer rejected the grievance for this reason at all levels of the grievance process.

Consequently, the employer respectfully submits that an adjudicator appointed to hear a reference to adjudication under section 209 of the Public Service Labour Relations Act is without jurisdiction to hear this matter as the grievance is untimely.

…

21        The Board received no response from either the grievor or Mr. Guiste to that letter, containing the employer’s objection.

22        In a letter dated December 7, 2016, which the Board received by fax on February 9, 2017, at 3:13 a.m., Mr. Guiste stated, “Can you provide an update since your last letter of August 16^th, 2016.” On February 9, 2017, at 10:12 a.m., the Board’s registry replied to Mr. Guiste by email, stating as follows:

…

I acknowledge receipt of your letter received by fax asking for an update on the above-noted file.

At this moment, I can confirm that this matter is in the queue of cases waiting to be scheduled. While I cannot approximate when the matter will be scheduled, what I can tell you is that the Board has already released its schedules up to and including the month of May 2017.

…

23        In another letter, also dated December 7, 2016, but that the Board received by fax on April 17, 2018, at 11:30 a.m., Mr. Guiste wrote as follows:

…

I understood that this matter was to proceed to adjudication. My client is suffering and requires a hearing as soon as possible. If there is something which is causing this delay which we can assist with kindly let me know.

…

24        On July 26, 2018, the Board’s registry wrote to the parties, including Mr. Guiste, stating as follows:

…

The Board has scheduled its hearing of the above-mentioned matter from December 17 to 21, 2018 in Ottawa, Ontario.

Please note that the above-noted dates are considered “final”. It is understood that the parties will advise their witnesses immediately of the dates of the hearing.

It is the parties’ responsibility to advise the Board whether they will require simultaneous interpretation at a hearing. If no request has been made four weeks before the hearing date, it may be impossible to provide this service. If neither party requests simultaneous interpretation, the hearing will proceed in the language indicated on the file.

…

[Emphasis in the original]

25        On September 19, 2018, in a 10-page submission with 7 attached documents, counsel for the employer requested that the grievance be dismissed without an oral hearing, based on the following:

• the grievance was not timely;
• no application for an extension of time to file a grievance had been made; and
• there was no reason to hold an oral hearing.

26        On October 4, 2018, Mr. Guiste responded to that request as follows:

The following shall constitute the Grievor’s response to the employer’s request that he be denied an oral hearing. The Grievor requests that it be denied and that the matter be adjudicated on a full evidentiary record.

On-Going [sic] Litigation:

Natural justice and fairness demands that the Grievor’s termination be adjudicated on a full evidentiary record for the following reasons and accordingly the employer’s request ought to be properly denied:

1. The Grievor has been consistent in his claim that he was constructively dismissed on account of the employer and his bargaining agent’s acts and omissions with respect to his reasonably held belief regarding the “toxic work environment” which they sought to compel him to work in;
2. The parties have been in active litigation on the point and consequently the issue of notice and timeliness is rendered moot in the particular circumstances of this case as the employer had and continues to have notice;
3. The employer can point to absolutely no prejudice;
4. This act by the employer is part of an ongoing pattern and practice raised by the Grievor when he asserted constructive dismissal;
5. The Grievor repeats and relies upon his previously made submissions on this point yet again.

I trust that this is satisfactory.

…

27        On October 12, 2018, the Board’s registry wrote to the parties, stating as follows:

Further to my email of October 9, 2018, this matter was referred to the Board and I have been directed to advise the parties as follows:

The grievor appears to only address the employer’s position with respect to an oral hearing on jurisdiction. The grievor is requested to provide its position on the balance of the employer’s letter of September 21, 2018, by no later than October 22, 2018.

…

[Emphasis in the original]

28        On October 18, 2018, at 11:24 a.m., Mr. Guiste emailed the Board and copied counsel for the employer, stating as follows:

The following shall constitute the Applicant’s submissions on the substantive issue:

Novel Issue:

The issue raised on the Applicant’s dismissal is a novel issue. The question of whether and in what circumstances a worker covered by a collective agreement may avail themselves of the protections provided by the concept of constructive dismissal is new and evolving in our law. What ever law we have to date is inconsistent with the right of a worker to refuse unsafe work and to reasonably disobey orders or directions that may put their health or well-being in danger.

Full Evidentiary Record:

A proper adjudication of the Applicant’s complaint requires a full hearing of all of the evidence in order to properly adjudicate the questions raised. Disecting the matter will cause irreparable harm to the Applicant.

No Prejudice:

There is in fact no prejudice to the employer to proceed in this fashion. There is grave prejudice to the Applicant to do otherwise. To allow the employer’s request would effective deprive the Applicant of a remedy at law in circumstances where the employer and his bargaining agent were at a “consensus ad idem” to effectively deprive him of his statutory rights.

All of which is respectfully submitted:

…

[Sic throughout]

29        On October 23, 2018, the Board’s registry wrote to the parties, stating as follows:

I acknowledge receipt of Mr. Guiste’s email of October 18, 2018. This matter was referred to the Board and I have been directed to advise the parties as follows:

The hearing days of December 17 to 21, 2018, shall be used to address the employer’s objection with respect to timeliness.

The merits of the grievance shall not be dealt with save and except their relevance to the timeliness issue and the criteria set out in the decision Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1.

The parties should be prepared to address any issues with respect to timeliness including any evidence necessary.          

…

30        On November 21, 2018, the “Notice of Hearing” in this matter was sent to the parties. The grievor’s was sent to Mr. Guiste. In addition to setting out that the hearing was scheduled for December 17, 2018, at 9:30 a.m., at the Board’s offices in Ottawa, Ontario, continuing up to and including December 21, 2018, it stated as follows:

PLEASE NOTE THAT IT IS THE RESPONSIBILITY OF THE PARTIES’ REPRESENTATIVES TO ADVISE THEIR CLIENTS OF THE DATE, TIME AND LOCATION OF THE ABOVE-MENTIONED HEARING.

AND FURTHER TAKE NOTICE that if you fail to attend the hearing or any continuation thereof, the Board may dispose of the matter on the evidence and representations placed at the hearing without further notice to you.

…

[Emphasis in the original]

31        On November 21, 2018, Mr. Guiste contacted the Board’s registry and spoke to the Case Management Officer responsible for the file, enquiring as to what was necessary to request a change of venue for the hearing. He was instructed that he had to make a request for the change to the Board.

32        On December 10, 2018, at 9:36 a.m., the Board’s registry emailed the parties and advised them that the hearing had been shortened from the original schedule of five days to three-and-a-half days, to end at noon on December 20, 2018. It emailed them an “Amended Notice of Hearing” reflecting that change. The balance of the information in the amended notice was the same as on the original notice.

33        On December 10, 2018, at 10:30 a.m., Mr. Guiste emailed the Board’s registry, stating as follows: “We require an adjournment. I will prep materials if necessary.” The Board’s registry replied by email that same morning at 10:48 a.m., stating as follows:

…

I acknowledge receipt of Mr. Guiste’s email of December 10, 2018, requesting a postponement in the above noted matter.

Mr. Guiste, you are reminded that you are obligated to copy the respondent on all future subsequent documents filed with the Board in accordance with section 7 of the Regulations. As a courteousy [sic], I have forwarded your request to the respondent however in future you are reminded that you are obligated to do so in accordance with section 7 of the Regulations.

The grievor’s counsel is requested to please provide further detail surrounding this request for postponement before this matter can be referred to the Board for consideration.

…

34        Mr. Guiste replied at 11:49 a.m., stating, “Receipt acknowledged with thanks. I am very sorry. I was on my cell. I will follow-up [sic] soon.”

35        Nothing further was heard from Mr. Guiste until he sent an email on Friday, December 14, 2018, at 4:25 p.m., which stated as follows:

…

My client has to be in town due to the health status of a family member. He therefore at this time is not able to travel out of town to attend a hearing in Ottawa.

In the circumstances – it would be much appreciated if the hearing can be conducted in Toronto or via teleconference.

I regret any inconvenience.

…

36        On December 10, 2018, at 4:51 p.m., counsel for the employer responded, stating as follows:

The Employer does not consent to this last-minute request for a change in venue. The Notice of Hearing in this matter was sent to the parties on November 21 , 2018, with an amended Notice of Hearing sent to the parties by email on Monday, December 10, 2018. As the Board is fully aware, these dates are considered Final. Furthermore, the parties are reminded in these notices that failing to attend the hearing may lead to the Board disposing of the matter on the evidence and representations placed at the hearing.

We also note that counsel to the grievor requested an adjournment with little explanation or justification, earlier this week. Despite the Board’s request for additional “detail surrounding this request for postponement”, this subsequent adjournment request has been filed after the Board’s close of business, on the day prior to the start of the hearing, with very little explanation to substantiate the request.

Furthermore, the Board made it clear in its earlier communications to the parties that the hearing scheduled for Monday will be used, only, to deal with the employer’s objection with respect to timeliness.

The Employer will be in attendance at the Board’s offices, at 9:30 am Monday morning, ready to proceed with its timeliness objection in relation to this matter.

…

[Emphasis in the original]

37        Mr. Guiste replied as follows:

It is regrettable that you would decline to accommodate a very reasonable request in all of the circumstances.

I respectfully request that you reevaluate [sic] your very harsh decision.

…

38        Section 9(1) of the Regulations states as follows:

9(1) Subject to subsection (2), if a document is received by the Board after 4:00 p.m. Ottawa local time, the date of receipt of the document is deemed to be the next day that is not a Saturday or a holiday.

39        The Board’s registry did not see the emails of December 10, 2018, from Mr. Guiste and counsel for the employer until Monday, December 17, 2018, at which point they were forwarded to me with a request for instructions. I instructed that the request would be dealt with at the outset of the hearing, which was scheduled to begin at 9:30 a.m.

40        At 9:30 a.m., I attended the hearing at the location set out in the Notice of Hearing and the Amended Notice of Hearing. Attending were counsel for the employer, his witness, Mr. Meilleur, and other employer representatives seated in the hearing room. Neither the grievor nor Mr. Guiste attended.

41        Counsel for the employer objected to postponing the hearing and requested that I address the employer’s timeliness objection.

42        In addition to the material already provided on September 19, 2018, Mr. Meilleur testified briefly and entered into evidence the relevant portions of the collective agreement and eight letters outlining previous misconduct by the grievor and discipline rendered. Mr. Meilleur testified that only three of the instances of discipline had been the subject matter of grievances and that none of them had been referred to the Board or its predecessor for adjudication.

43        The letters outlining that past discipline were dated February 26 and 28, 2014, March 6, 12, and 19, 2014, and April 8 and 15, 2014, and one final letter was undated but based on its content would have been dated April 24, 2014, or later. All the letters contain a line that references that a fact-finding teleconference had been scheduled and had taken place and that the grievor had chosen not to participate in it. The termination letter also referred to a fact-finding teleconference that he had chosen not to participate in.

C. The FCA’s decision in 2016 FCA 132

44        As noted, the grievor had the decision in 2015 PSLREB 64 judicially reviewed, and it was dismissed in 2016 FCA 132. In the factum filed in that judicial review application, as part of his application, the grievor alleged that the PSLREB should have addressed his termination of employment (on May 14, 2014), which is the subject of this grievance. Those portions of his factum that address that issue are as follows:

1. In the “Preliminary Statement”, where he outlines the four errors made in 2015 PSLREB 64, the third error was as follows:

3.       the Adjudicator erred in refusing jurisdiction on the claim of constructive dismissal and in the characterization of the employer’s conduct as non-discipline and merely administrative in the face of the following facts:

…

iii          the Applicant asserted that if it was necessary to grieve his subsequent dismissal he wished to do so but the employer refused consent to consider his grievance.

2. In “Part 1- Statement of Facts”, at paragraph 17, the grievor stated as follows:

17.     The Adjudicator’s Decision does not spell out why the Applicant’s following asserted facts were not accepted and did not amount to discipline:

…

4.         The employer refused to their consent to deal with the “purported dismissal”.

III. Summary of the arguments

A. For the employer

45        The employer referred to its written argument in its application delivered on September 19, 2018. It relied on Brassard v. Treasury Board (Department of Public Works and Government Services), 2013 PSLRB 102, Callegaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 110, Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2008 PSLRB 31, Copp v. Treasury Board (Department of Foreign Affairs and International Trade), 2013 PSLRB 33, Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68, Lawrence v. Canada Revenue Agency, 2007 PSLRB 65, Martin v. Treasury Board (Department of Human Resources and Skills Development), 2015 PSLREB 39, Reid-Moncrieffe v. Deputy Head (Department of Citizenship and Immigration), 2014 PSLRB 25, and Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1.

46        The employer also submitted that the misconduct that resulted in the termination of the grievor’s employment was a continuation of similar misconduct that had resulted in suspensions and financial penalties being imposed on him. It referred me to the doctrine of the culminating incident set out in Brown and Beatty, Canadian Labour Arbitration,4^th Ed., at paragraph 7:4310, and Wyborn v. Parks Canada Agency, 2001 PSSRB 113.

IV. Reasons

47        For the reasons that follow, I find that

1. the grievance is untimely;
2. the request to change the venue is denied;
3. no adjournment (postponement) will be granted;
4. no extension of time will be granted; and
5. the grievance is dismissed.

A. Timeliness

48        Among other things, article 40 of the collective agreement provides that an employee may file a grievance at the first level of the grievance process not later than the 25^th day after the date on which the employee is notified orally or in writing, or on which the employee first becomes aware, of the action or circumstances giving rise to the grievance. With respect to a grievance against a termination of employment, the same 25-day limit applies, except that the employee is limited to filing it at the final level of the grievance process, in essence bypassing all other levels.

49        The grievor was terminated on May 14, 2014. While it is unclear exactly on what date he received the May 14 letter, it is clear from a review of file 566-02-9676 and decision 2015 PSLREB 64 that certainly, he was aware that the employer had terminated his employment, because of the following:

• His counsel wrote an email on May 21, 2014, at 3:49 p.m., referring to it as follows:

  …

  The employer recently purported to dismiss the worker – notwithstanding his proper claim of constructive dismissal.

  …

• His counsel’s written submissions on December 19, 2014, referred to it as follows:

  …

  The Grievor has provided the employer with notice of his intention to grieve the purported dismissal which they rely upon - in the event that such a step is necessary - but they have unreasonably withheld their consent and the bargaining [sic] had previously withdrew its support of the Grievor;

  …

• At paragraph 47 of 2015 PSLREB 64, the Adjudicator stated as follows:

  [47] Both the grievor and the employer referred to a termination of the grievor’s employment some months after the grievance before me was filed. That matter is not part of this grievance and must be grieved and referred to adjudication in accordance with the PSLRA and the [Regulations] (SOR/2005-79).

50        Clearly, in his actions in file 566-02-9676 (decision 2015 PSLREB 64), the grievor referred to his termination. The Adjudicator noted as much in that decision at paragraph 47, specifically stating that the grievor (and employer) referred to a termination of the grievor’s employment some months after the grievance was filed. That termination is the one set out in the May 14 letter, and it is the subject of this grievance. The grievor referred to it again in his submissions to the FCA in his judicial review application.

51        The grievor filed his grievance against the termination of his employment on or about May 12, 2016. Coincidentally, that was 14 days after the FCA dismissed his judicial review application. In the factum filed in his judicial review application, the grievor referred to the termination, stating as follows:

• In the Preliminary Statement, where he outlines the four errors made in 2015 PSLREB 64, the third error was as follows:

  3. the Adjudicator erred in refusing jurisdiction on the claim of constructive dismissal and in the characterization of the employer’s conduct as non-discipline and merely administrative in the face of the following facts:

  …

  • iii. the Applicant asserted that if it was necessary to grieve his subsequent dismissal he wished to do so but the employer refused consent to consider his grievance.

• In Part 1- Statement of Facts, at paragraph 17, the grievor stated as follows:

  17. The Adjudicator’s Decision does not spell out why the Applicant’s following asserted facts were not accepted and did not amount to discipline:

  …

  • 4. The employer refused to their consent to deal with the “purported dismissal”.

52        Therefore, I find that the grievor was aware of the termination of his employment by May 21, 2014, and that if there was any confusion, it was certainly put to rest by December of 2014, as his legal counsel referred to it in his submissions to the PSLREB in what would become the decision in 2015 PSLREB 64.

53        Given that the grievance was filed on May 16, 2016, and that the grievor knew of the termination sometime between May 14 and May 21, 2014, his grievance was 22 to 23 months untimely and therefore was not filed within the 25-day time limit set out in article 40 of the collective agreement.

B. Change of venue

54        On July 26, 2018, the parties were advised in writing that the hearing in this matter was scheduled for Ottawa for the week of December 17, 2018. While the grievor’s address on file was in Markham, Ontario, his work location was Ottawa, as referenced in documents filed with the Board.

55        Between July 26 and November 21, 2018, the grievor made no mention of, let alone requested, a change to the hearing venue to somewhere other than Ottawa. On November 21, 2018, no request for a change of venue was received; it was merely an inquiry from Mr. Guiste about process. Between November 21 and December 14, 2018, no such request was received. On Monday December 10, 2018, Mr. Guiste wrote to the Board, stating simply as follows: “We require an adjournment. I will prep materials if necessary.” The Board’s registry replied to Mr. Guiste that same morning via email 18 minutes later, stating as follows:

…

I acknowledge receipt of Mr. Guiste’s email of December 10, 2018, requesting a postponement in the above noted matter.

Mr. Guiste, you are reminded that you are obligated to copy the respondent on all future and subsequent documents filed with the Board in accordance with section 7 of the Regulations. As a courteousy [sic], I have forwarded your request to the respondent however in future you are reminded that you are obligated to do so in accordance with section 7 of the Regulations.

The grievor’s counsel is requested to please provide further detail surrounding this request for postponement before this matter can be referred to the Board for consideration.

…

[Emphasis added]

56        Mr. Guiste acknowledged that reply approximately one hour later by stating simply, “Receipt acknowledged with thanks. I am very sorry. I was on my cell. I will follow-up [sic] soon.” Despite the Board’s registry instructing Mr. Guiste that he should make a request to the Board with more information and reminding him to copy the employer’s representative, and despite Mr. Guiste stating that he would follow up soon, the Board’s registry received nothing until an email on Friday December 14, 2018, at 4:25 p.m., in which Mr. Guiste simply wrote the following:

…

My client has to be in town due to the health status of a family member. He therefore at this time is not able to travel out of town to attend a hearing in Ottawa.

In the circumstances – it would be much appreciated if the hearing can be conducted in Toronto or via teleconference.

…

57        There are two serious problems with the grievor’s request, which are not necessarily mutually exclusive. They are 1), its timing, and 2), the information in it.

58        With respect to individual grievances, the Board schedules hearings in urban settings closest to the work location at which they were filed. In most circumstances, that practice causes no issues as all those intimately involved in the grievance are located either in or nearby the hearing location. However, on occasion, a grievor might have moved away from the area of the work location. That can present a challenge because of where the witnesses are located. In this case, the grievor appears to have worked in Ottawa; however, at some point, his address of record became Markham. While he might have moved away from Ottawa, his work location remained there, and the events that led to the discipline likely would have occurred there. That being the case, it is highly likely that the witnesses relevant to the hearing would still be there.

59        It is up to the party seeking to change a hearing location to make the request to the Board and to seek the change as early as possible. Clear, cogent, and compelling reasons should be brought forward such that the other party (or parties) to the hearing can consider the request and determine whether they wish to consent to or oppose it. The Board can then determine, based on as much information possible, the best hearing location.

60        In this case, the only information that was provided with respect to the request to change the hearing locale was a suggestion that the grievor could not travel to Ottawa because of a health issue of a family member; nothing more. He could and should have provided more detail as to his relation to the family member and as to how that person’s health issue affected his ability to attend the hearing.

61        It is insufficient for a party that has been aware of both the hearing date and location for almost five months to wait until the very cusp of the start of the hearing to ask for a change of venue, while providing little or no information.

C. Request to adjourn or postpone

62        On Friday, December 14, 2018, at 4:25 p.m., Mr. Guiste emailed the following:

…

My client has to be in town due to the health status of a family member. He therefore at this time is not able to travel out of town to attend a hearing in Ottawa.

In the circumstances – it would be much appreciated if the hearing can be conducted in Toronto or via teleconference.

…

63        Section 9(1) of the Regulations provide that a document received by the Board after 4:00 p.m. Ottawa local time is deemed to be received the next day that is not a Saturday or a holiday. “Document” is not defined by the Act,the Regulations, or the Interpretation Act (R.S.C., 1985, c. I-21). It is also not defined in the Federal Courts Act (R.S.C., 1985, c. F-7), the Federal Courts Rules (SOR/98-106), or the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

64        However, the word is defined in the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which are made under the Courts of Justice Act. Rule 1.03 addresses definitions, and “document” is defined as: “includes data and information in electronic form”. “Electronic” is also defined in those rules, as follows:

… includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means, and “electronically” has a corresponding meaning . . . .

65        In addition, I note that the provisions of the Canada Evidence Act, (R.S.C., 1985, c. C-5) setting out rules about the treatment of “electronic documents” (ss. 31.1 to 31.5) make it clear that electronic communications, such as emails, are considered to be a form of document.

66         “Document” is also defined in Black’s Law Dictionary, 8^th Ed., as, “Something tangible on which words, symbols, or marks are recorded.” The Canadian Oxford Dictionary, 2^nd Ed., defines it as “1a piece of written or printed matter that provides a record or evidence of events … ; 2Computing a file, esp. a text file.”

67        In addition, courts have increasingly begun treating electronic communications such as emails like any other type of document (see, for instance, Pierre v. Canada (Border Services Agency), 2016 FCA 124 at paras 13-15).

68        Therefore, I find that an email meets the definition of a document, so, pursuant to s. 9(1) of the Regulations, the grievor’s email request dated December 14, 2018, at 4:25 p.m., was received by the Board’s registry on December 17, 2018. If I am incorrect in this interpretation, then in any event neither I nor someone in the Board’s registry saw his request until the morning of December 17, 2018.

69        While the grievor’s counsel sent a brief email on December 10, 2018, stating simply that the grievor required an adjournment, he provided no other information. The Board’s registry responded 28 minutes later and instructed him to provide more information. An hour later, the grievor’s counsel replied and stated that he would follow up soon. Nothing arrived from him until the email on Friday, December 14, 2018, at 4:25 p.m., asking for a change in venue.

70        The request that the Board received was not for an adjournment or postponement of the hearing but for a change in venue. The only information that counsel for the grievor provided was that an unknown family member of the grievor was unhealthy, so the grievor could not attend the hearing in Ottawa. That information was too little, too late.

71        At the hearing, counsel for the employer stated that at no time did he ever speak with counsel for the grievor; nor did counsel for the grievor leave him any voice messages.

72        The grievor and his counsel were well aware of the hearing date, time, and location, and they provided almost no information as to why the hearing should not proceed. At the very least, even if the grievor was unable to attend, it does not explain the absence of his legal representative who, one would assume, had reserved the entire week to deal with this matter.

73        In Fletcher v. Treasury Board (Department of Human Resources and Skills Development),2007 PSLRB 39, the PSLRB was faced with a request for a postponement from a grievor’s representative. The grievor had failed to attend the hearing of her grievance against the termination of her employment and had provided no excuse for not attending. The Board stated that it is well recognized in arbitral jurisprudence that an employer has a legitimate interest in the timely resolution of a dispute. It also stated that one of the interests at play in adjudication hearings is the general public interest when considering requests for dismissal on the ground of abandonment. That public interest was characterized at paragraph 36 as follows:

[36] … It is the general public interest in an efficient administration of justice that avoids undue delays, promotes the final resolution of conflict and is respected by the parties. This interest becomes a concern in this case, to the extent that the grievor appears not to have cooperated with the efforts to provide her a hearing and to have disregarded the Chairperson’s notices and instructions. To some extent, a decision to grant a further postponement in this context could be read by others as rewarding behaviour that undermines a well-functioning dispute resolution process.

74        I agree with the comments in Fletcher,and they are applicable in the context of this matter.

D. Extension of time

75        For the reasons set out earlier in this decision, the grievance is untimely. Despite this, the Regulations provide for extending the time to present a grievance.

76        Section 61(b) of the Regulations states as follows:

Extension of time

61 Despite anything in this Part, the time prescribed by this Part or provided for in a grievance procedure contained in a collective agreement for the doing of any act, the presentation of a grievance at any level of the grievance process, the referral of a grievance to adjudication or the providing or filing of any notice, reply or document may be extended, either before or after the expiry of that time,

1. by agreement between the parties; or
2. in the interest of fairness, on the application of a party, by the Board or an adjudicator, as the case may be.

77        The Board and its predecessors have established extensive jurisprudence with respect to s. 61 of the Regulations for when a grievance is untimely and the employer has objected to it. Schenkman sets out the well-established test that has been applied in circumstances in which an application has been made to extend the time to file a grievance.

78        The employer dealt with the grievance at the final level of the grievance process on June 13, 2016. It dismissed the grievance solely on the basis of it being out of time, as set out in article 40 of the collective agreement. When the grievor referred the grievance to the Board for adjudication, the employer objected on the basis of timeliness.

79        In July, the grievance was scheduled for an oral hearing for the week of December 17 to 21, 2018, at the Board’s hearing rooms in Ottawa. At that time, the parties were notified that the hearing dates were final. On September 19, 2018, the employer requested in writing that the grievance be dismissed. It based its objection to the Board’s jurisdiction on the timeliness issue that had already been raised at the final level of the grievance process and upon the referral to the Board for adjudication.

80        On October 4, 2018, in responding to the employer’s application to dismiss the grievance, the grievor merely responded to that portion that dealt with dispensing with an oral hearing. It did not address the issue of the timeliness of the grievance whatsoever and did not even request an extension of time. The grievor just referred to his previous assertions that he had been constructively dismissed (the claim dismissed in 2015 PSLRB 64 (that decision was affirmed in 2016 FCA 132). The only point he made with respect to timeliness was an allusion to the previous litigation; he alleged that it was ongoing, which somehow made the issues of notice and timeliness moot. It did not.

81        At my direction, the Board’s registry wrote to the parties, pointing out that the grievor had addressed only the issue of the employer’s objection with respect to an oral hearing and requesting that he address the balance of the objection. In this respect, counsel for the grievor wrote to the Board’s registry on October 18, 2018. Yet again, he did not respond to the employer’s application to dismiss; instead, he referred to the alleged constructive dismissal.

82        Despite giving two opportunities in writing to address the application, the Board wrote to the parties on October 23, 2018, and advised them that the hearing days scheduled for December 17 to 21, 2018, would be used to address the employer’s timeliness objection.

83        Despite all those steps to get the grievor to attend the hearing, not only did he not attend, but also, neither did his legal counsel. Despite all the opportunities to address the employer’s timeliness objection, the grievor not only failed to address it, but he also failed to request an extension of time, as contemplated by the Regulations.

84        Even if I give the grievor the benefit of the doubt and somehow imply that he requested an extension of time under the Regulations, there is absolutely no evidence in any of the material before the Board that satisfies the Schenkman criteria.

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

V. Order

86        The request for a change of venue of the hearing location is denied.

87        No adjournment or postponement of the hearing will be granted.

88        The grievance is out of time.

89        No extension of time will be granted.

90        The grievance is dismissed.

February 19, 2019.