Date: 20210421

File: 566-02-10066 and 11535

 

Citation: 2021 FPSLREB 44

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

MICHELINE HANNA

Grievor

 

and

 

TREASURY BOARD

(Department of the Environment)

 

and

 

DEPUTY HEAD

(Department of the Environment)

 

Respondents

Indexed as

Hanna v. Treasury Board (Department of the Environment)

In the matter of an individual grievance referred to adjudication

Before: Ian R. Mackenzie, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Fiona Campbell, counsel

For the Respondents: Marc Seguin, counsel

Decided on the basis of written submissions,

filed February 22, and March 4, 10, and 18, 2021.

REASONS FOR DECISION

I. Introduction

[1] Micheline Hanna (“the grievor”) was employed at the Department of the Environment (“the employer”) as an evaluation manager in its Audit and Evaluation Branch, classified at the EC-06 group and level. She filed two grievances, one against the termination of her employment for unsatisfactory performance, and the other alleging the employer’s failure to meet its duty to accommodate under the collective agreement.

[2] In a decision issued on December 17, 2020, the Federal Public Sector Labour Relations and Employment Board (the “Board”) allowed both grievances (see Hanna v. Treasury Board (Department of the Environment), 2020 FPSLREB 116). The Board retained jurisdiction for 60 days following the date of that decision. On February 22, 2021, the employer requested that the Board assess the issue of mitigation of the grievor’s damages from the last day of the hearing until the decision was issued. The last hearing day for those grievances was February 9, 2017. The grievor opposed that request.

[3] I was not the panel of the Board that issued decision 2020 FPSLREB 116. The Chairperson of the Board assigned me as a panel of the Board to rule on the employer’s request.

[4] The employer has also filed an application for judicial review of decision 2020 FPSLREB 116 with the Federal Court of Appeal. I take judicial notice that that application for judicial review raised the following grounds:

(a) The Board breached the principles of natural justice and procedural fairness by failing in these circumstances to invite further submissions on the appropriate remedy given the considerable delay between the hearing and the decision;

(b) The Board erred in law and made an unreasonable decision by failing to apply the principles of mitigation in determining the appropriate remedy, and in doing so, departed from arbitral consensus without good reason;

(c) Paragraphs 18.1(4), (b), (c) and (f) of the Federal Courts Act; and/or

(d) Such other grounds as counsel may advise and this Court may permit.

 

II. The Board’s order in decision 2020 FPSLREB 116

[5] The Board’s order in decision 2020 FPSLREB 116 reads as follows in its entirety:

[540] I order the following:

a. that within 60 days of the date of this decision, the employer reinstate the grievor’s sick leave credits for the period of May 29 to October 14, 2014;

b. that within 60 days of the date of this decision, the employer compensate the grievor fully with respect to any pay or benefits lost during the period of May 29 to October 14, 2014, less the customary deductions;

c. that the grievor is reinstated at the EC-06 group and level, with pay and without loss of benefits, as of June 12, 2015;

d. that within 60 days of the date of this decision, the employer reimburse the grievor her salary at the EC-06 group and level as of June 12, 2015, less the customary deductions;

e. that upon the grievor’s presentation of receipts, the employer reimburse her expenses incurred for dental and psychotherapy fees not covered by the employer’s insurance plans, to the extent of the coverage to which she would have been entitled had she not been terminated;

f. that within 60 days of the date of this decision, the employer reinstate the grievor’s salary at the EC-06 group and level and her benefits as of the date of the reimbursement ordered at paragraph 540(d) of this decision;

g. that within 60 days of the date of this decision, with respect to Board file number 566-02-10066, the employer pay the grievor special compensation in the amount of $5000 pursuant to s. 53(3) of the CHRA; and

h. that within 60 days of the date of this decision, with respect to Board file number 566-02-11535, the employer pay the grievor damages for pain and suffering in the amount of $6000 pursuant to s. 53(2)(e) of the CHRA.

i. that within 90 days of this decision, the employer reinstate the grievor to a position for which she is qualified at the EC-06 group and level, or the equivalent, and that it comply with any medically documented accommodation that she may require.

[541] I order the employer to add interest yearly to the amounts owed under paragraph 540(b), calculated at the annual rate based on the Bank of Canada’s official rate (monthly data). Interest began to accrue on October 14, 2014.

[542] I order the employer to add interest yearly to the amounts owed under paragraph 540(d), calculated at the annual rate based on the Bank of Canada’s official rate (monthly data). Interest began to accrue on June 12, 2015.

[543] I order the employer to add interest yearly to the amounts owed under paragraph 540(e), calculated at the annual rate based on the Bank of Canada’s official rate (monthly data). Interest began to accrue one month following the date on which each expense was incurred.

[544] The Board remains seized for 120 days following the date of this decision, with respect to the calculation of any amounts owed under paragraphs 540 to 543.

[545] I order sealed Dr. Hébert’s report dated September 11, 2014,

and marked as Exhibit G-21, tab 25.

 

III. The employer’s request and the grievor’s response

[6] The employer requested that the Board “reconsider” mitigation efforts to determine the amounts owing in back pay, more specifically between the end of the hearing and the date decision 2020 FPSLREB 116 was issued. Although the employer initially cast its request as one for reconsideration i.e., it “… requests that the Board reconsider its order with respect to the appropriate backpay owed”, it later clarified that it requested that the Board take jurisdiction over the implementation of its order to determine “… the appropriate amount of backpay owed”. The “amounts owed” in paragraphs 540 to 543 of the order that are at issue in the employer’s request relate to the period after the end of the hearing in February 2017.

[7] In its request, the employer stated that the Board did not invite submissions from either party on damages after the hearing and before decision 2020 FPSLREB 116 was issued, and that this aspect of its order was contrary to procedural fairness and the principles of natural justice. The employer requested an opportunity for both parties to make submissions on the appropriate amount related to back pay. The employer also submitted that the Board “was reasonably required to have considered the possible application of the principles of mitigation when assessing an appropriate backpay owed”.

[8] The grievor submitted that the “calculation of the amounts owed” set out in decision 2020 FPSLREB 116 related only to issues such as whether the correct salary rate was used and whether the correct number of years, months and days were included. It does not give the Board the power to change its decision about what back pay is owed based on mitigation or anything else. The grievor noted that when the Board made its order about back pay, it was fully aware of the mitigation evidence at the hearing, as well as the length of time that had passed since the hearing. The Board then chose to order the employer to pay full back pay from June 12, 2015; it did not request submissions from the parties about mitigation. The grievor also submitted that the issues raised by the employer about procedural fairness, delays and prejudice could only be determined by the Federal Court of Appeal.

IV. Reasons

[9] The Board has no general jurisdiction over the implementation of an adjudication decision: see s.234 of the Federal Public Sector Labour Relations Act (S.C. 2013, c.22, s.2). Once a decision is issued, the Board has no remaining jurisdiction, other than what is set out in its order. The retained jurisdiction in the order in this case is set out in paragraph 544 of decision 2020 FPSLREB 116 as follows:

The Board remains seized for 120 days following the date of this decision, with respect to the calculation of any amounts owed under paragraphs 540 to 543.

 

[10] The “amounts owed” that the employer requested that the Board examine in this case are the amounts set out in paragraph 540 (c) and (d) of decision 2020 FPSLREB 116. In particular, the employer would like the Board to consider mitigation of damages for the period from the last day of the hearing (February 9, 2017), until the date of the decision (December 17, 2020).

[11] The issue raised in the employer’s request is whether the Board’s retained jurisdiction includes the authority to consider mitigation efforts between the last day of the hearing and the day in which decision 2020 FPSLREB 116 was issued. In other words, what is the scope of the Board’s retained jurisdiction, in light of the phrase “… with respect to the calculation of any amounts owed” in paragraph 544 of the Board’s decision and “less the customary deductions” in paragraph 540(d) of that same decision?

[12] The employer argued that the alleged failure of the Board to consider the grievor’s efforts to mitigate her losses is an issue of procedural fairness and natural justice. Issues of procedural fairness and natural justice are usually addressed through a judicial review. In fact, the employer relied on these issues as grounds for a judicial review in its application to the Federal Court of Appeal.

[13] The scope of the jurisdiction retained by the Board in decision 2020 FPSLREB 116 is limited by the express words in its order. I find that the jurisdiction that was retained was limited to the calculation of a retroactive salary payment, excluding any accounting for mitigation.

[14] The Board ordered “reimbursement of salary at the EC-06 group and level as of June 12, 2015, less the customary deductions”. The order in decision 2020 FPSLREB 116 did not define “customary deductions” and it did not need to because the ordinary use of this term does not include a deduction for mitigation efforts. The term “customary deductions” is generally understood in the labour relations community as statutory and contract-based deductions such as income tax, Canada Pension Plan contributions, Employment Insurance contributions, pension plan contributions, union dues, health insurance premiums, dental insurance premiums, and long-term disability insurance premiums and the like. A deduction of amounts (either other earned income or a discount because of a failure to mitigate) related to mitigation efforts is not “customary”; it is a special deduction that is considered when an appropriate remedy is sought for the specific circumstances of a case.

[15] The scope of the Board’s authority to address issues arising after a decision has been issued will depend on the wording of the order by which the Board retained jurisdiction. In Canada (Attorney General) v. Haydon, 2018 FCA 88, the Federal Court of Appeal determined that the employer’s judicial review application was premature based on the framing of the retention of jurisdiction by an adjudicator as follows:

… I did not hear submissions from the parties on the appropriate remedy should the termination grievance be allowed and a lesser penalty substituted. I will leave the issue of the appropriate remedy to the parties to resolve. I will retain jurisdiction for 120 days in case the parties are unable to reach an agreement.

 

[16] Based on this framing of retained jurisdiction, the Federal Court of Appeal concluded at paragraph 6:

The administrative process will therefore not be complete until the adjudicator has exercised or declined to exercise the jurisdiction that he retained. Depending on what the adjudicator decides concerning the scope of that jurisdiction and its appropriate exercise, the issues raised by the Attorney General in this application may fall away, leaving no need for judicial determination.

…

 

[17] In decision 2020 FPSLREB 116, the framing of the retention of jurisdiction is much narrower than in Haydon. The adjudicator in Haydon left the issue of the appropriate remedy to the parties to resolve. This broad retention of jurisdiction gave scope to the adjudicator to resolve issues relating to the mitigation of damages, which he did in Haydon v. Deputy Head (Department of Health), 2019 FPSLREB 26. However, in decision 2020 FPSLREB 116, the Board provided for a narrow retention of jurisdiction “with respect to the calculation of any amounts owed” under the order. The “amounts owed” related to the grievor’s reinstatement with pay as of June 12, 2015, with reimbursement for her salary as of that date, “less the customary deductions”. I find that this framing of the retention of jurisdiction does not include the jurisdiction to address the mitigation issues raised by the employer in its request.

[18] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[19] The employer’s request that a panel of the Board determine mitigation from the last day of the hearing until the date of the decision 2020 FPSLREB 116 is denied.

April 21, 2021.

Ian R. Mackenzie,

a panel of the Federal Public Sector Labour Relations and Employment Board