Date: 20220209

File: 566-02-43646

 

Citation: 2022 FPSLREB 8

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

 

Duane Macdonald

Grievor

 

and

 

DEPUTY HEAD

(Department of Public Works and Government Services)

 

Respondent

Indexed as

MacDonald v. Deputy Head (Department of Public Works and Government Services)

In the matter of an individual grievance referred to adjudication

Before: David Olsen, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Himself

For the Respondent: Chantal Hamilton, Treasury Board Secretariat

Decided on the basis of written submissions,
filed October 12 and November 24, 2021.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1] On February 7, 2014, Duane MacDonald (“the grievor”), who at all material times was employed by the Treasury Board in an AS-03 position to work at the Department of Public Works and Government Services (“the employer”) at its Pay Centre in Miramichi, New Brunswick, filed a grievance, under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2), against a written reprimand and its discriminatory nature.

[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 sections 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 section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

[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, the Public Service Labour Relations Act and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board, the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act and the Federal Public Sector Labour Relations Regulations.

[4] For ease of reading, the word “Board” will be used in this decision to refer to the Public Service Staff Relations Board, the Public Service Labour Relations Board, the Public Service Labour Relations and Employment Board and the Federal Public Sector Labour Relations and Employment Board. Further, the word “Act” will be used to refer to the Public Service Staff Relations Act, the Public Service Labour Relations Act and the Federal Public Sector Labour Relations Act. Finally, the term “Regulations” will be used to refer to the P.S.S.R.B. Regulations and Rules of Procedure, 1993, the Public Service Labour Relations Regulations and the Federal Public Sector Labour Relations Regulations.

[5] On October 12, 2021, the grievor referred his grievance to adjudication as relating to disciplinary action resulting in termination, demotion, suspension, or financial penalty under s. 209(1)(b) of the Act.

[6] On November 24, 2021, the employer objected to the Board adjudicating the grievance, alleging that it was not referrable to adjudication, it was out of time, and the grievor lacked bargaining agent representation. The employer requested that the grievance be dismissed in a summary fashion.

[7] I have concluded that this matter may be decided on the basis of the record and the parties’ submissions, without a hearing.

II. Summary of undisputed facts

[8] The grievor’s AS-03 position was as a coach of new employees at the employer’s Miramichi Pay Centre. He was a unionized employee, represented by the Public Service Alliance of Canada (“the bargaining agent”), and, at all applicable times, the terms and conditions of his employment were governed by the collective agreement concluded by the bargaining agent and the Treasury Board on January 29, 2009, for the Program and Administrative Services Group bargaining unit (“the collective agreement”).

[9] On January 30, 2014, he was given a written reprimand.

[10] On February 7, 2014, the grievor filed a grievance, which a representative of his bargaining agent also signed.

[11] The grievance reads in part as follows:

...

The Union [sic] wishes to grieve the written corrective action issued to Mr. MacDonald by his manager ... on January 30, 2014. We [sic] believe that Mr. MacDonald has been discriminated against and that if it had been a different coach in the same situation it would have been handled differently and more leniency given....

...

 

[12] The employer’s decision at the third level of the grievance process, dated February 28, 2014, noted as follows: “At the grievance hearing, you requested that we add ‘Canadian Human Rights, Section 7’ as basis for the grievance and you confirmed that you were claiming discrimination under the grounds of gender.”

[13] The employer denied the grievance.

[14] The grievance was heard at the final level of the grievance process.

[15] On March 2, 2016, the bargaining agent’s representative wrote to the grievor to advise him of the disposition of the grievance. He also enclosed a copy of the employer’s final-level decision.On October 12, 2021, the grievor referred his grievance to adjudication under the current s. 209(1)(b) of the Act, which deals with grievances relating to disciplinary action resulting in termination, demotion, suspension, or financial penalty. There is no indication on record that his bargaining agent approved the reference to adjudication. The bargaining agent is not representing the grievor at adjudication.

[16] On the same date that he referred his grievance to adjudication, October 12, 2021, the grievor provided notice to the Canadian Human Rights Commission that his grievance raised issues involving the interpretation or application of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA). He described the acts of discrimination as involving disability and family status. He claimed that the employer disciplined him because he was a man and that it never would have done so were he a woman.

[17] The Canadian Human Rights Commission has not notified the Board that it intended to make submissions regarding the issues raised in the grievor’s notice of October 12, 2012.

III. Summary of the arguments

A. For the employer

1. Objection to the Board hearing and determining the grievance

[18] On November 24, 2021, the employer objected to the Board hearing and determining the grievance on three grounds, timeliness, the grievance is not adjudicable, and no bargaining agent support.

a. Timeliness

[19] The final-level grievance decision was rendered on February 1, 2016. At all application times, the Regulations required that the grievance must be referred to adjudication no later than 40 calendar days after receiving the final-level decision. The reference to adjudication is more than 51⁄2 years out of time.

b. The grievance is not adjudicable

[20] At all relevant times, section 209(1)(b) of the Act required that a grievance must be related to a disciplinary action resulting in termination, demotion, suspension, or financial penalty. This grievance relates to a written reprimand and is not adjudicable.

c. No bargaining agent support

[21] To the extent that the grievor asserts that he was discriminated against on the grounds of family status, sex, and disability and that this constituted a breach of the collective agreement, the referral is not approved or supported by the bargaining agent, as required under s. 209(1)(a) of the Act. Moreover, its signature does not appear on the referral to adjudication.

B. For the grievor

[22] On November 24, 2021, the grievor replied to the employer’s objections, stating as follows: “In order to refer this grievance to CHRC, I needed to exhaust the grievance process. I believe this now does this. I will refer the grievance on to the CHRC.”

[23] Shortly after that and on the same date, the grievor provided an additional reply that states as follows:

...

1) It was [the grievor’s supervisor] who lied to [the Assistant Deputy Minister] that altered the outcome of my grievance 4th level response and had he not lied, I would still be working.

2) It was the employer who held up the ATIP process where ATIP had to request on multiple occasions for the documents from the employer. It was these documents that were finally received that proved beyond measures that the employer lied to [the Assistant Deputy Minister], wronged me and violated my human rights and employment contract that I was not made aware of until after the 40 days had passed. Had the union and I had these documents in a timely fashion, we could have met the timelines and raised the issue of abuse of process by the employer basically. I could not meet the timelines even if I wanted to after the 4th level hearing without the knowledge I now have on the background contained within these documents.

3) I have been suffering with a severe disability since this traumatic experience in my life on account of the employer and unfortunately for my health, I could not bring this matter forward much before now. If medical documents are required to prove this, please advise.

4) Covid has shown the country that working from home is a possibility and at the time of my grievance process, the denial to do just that, was objected to by the employer. Again, had it not been for the refusal of the employer, I would still be working.

5) The employer is stating that I did not suffer any financial harm on account of the discipline letter and that therefore this is not adjudicable. I wish to refer the employer that I am not working and only receiving 70% of my salary at the time of my retirement. I was 43 years old when forced to retire on account of the actions fraudulently by my employer. I will prove within the documents I have received from the employer and as well as DVD’s where phone calls were recorded and shared without my permission ....

...

[Sic throughout]

 

IV. Analysis

[24] I will deal with the employer’s objections in the following order: adjudicability, no bargaining agent support, and timeliness.

A. Adjudicability

[25] Section 209 of the Act deals with references to adjudication. At all relevant times, its relevant sections read in part as follows:

209(1) An employee ... 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

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

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

 

[26] At all relevant times, section 209(2) read as follows:

(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.

 

[27] At all relevant times, section 210(1) provided this:

210 (1) When an individual grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

 

[28] As distinct from provisions in private-sector collective agreements, where there are no statutory limitations with respect to arbitrating grievances, the Act, back to 1967, has strictly limited the categories of grievances that may be referred to adjudication.

[29] In the circumstances of this case, for the grievor to refer his grievance to adjudication, it had to fall within the ambit of either of the two categories set out in ss. 209(1)(a) and (b) of the Act, as follows:

(a) a grievance with respect to the interpretation or application in respect of the employee of a provision of the collective agreement or an arbitral award; or

(b) a grievance with respect to disciplinary action resulting in termination, demotion, suspension, or a financial penalty.

 

[30] Although the right to grieve matters set out in s. 208 is quite broad, including, among other things, if an employee feels aggrieved by the interpretation or application of a provision of a statute or regulation, direction, or other instrument made or issued by the employer that the deals with terms and conditions of employment or as a result of any occurrence or matter affecting his or her terms and conditions of employment, these matters are excluded from the purview of third-party adjudication, and as provided in s. 214 of the Act, the decision on the grievance made at the final level of the grievance process is final and binding for all purposes of the Act, and no further action under the Act may be taken on it.

[31] The distinction exists since the early days of the Act, as noted in Segodnia v. Treasury Board (Department of National Revenue) (Customs and Excise), PSSRB File Nos. 166-02-23 and 24 (19680123) at p. 2, as follows:

... It is evident that Parliament could have given a broad mandate to adjudicators to hear and decide all matters which can be made the subject of grievances. Instead the legislation specifically limits adjudication to grievances involving either the administration of the collective agreement, or disciplinary action, although an employee has a right to grieve where his interests are affected “by the interpretation or application ... of a provision of a statute, or of a regulation, by-law, direction or other instrument ... dealing with the terms and conditions of employment....”

 

1. The written reprimand

[32] Decision makers have consistently held that written reprimands not involving a financial penalty are not adjudicable under the provisions of s. 209(1)(b) of the Act and its previous iterations.

[33] However, in one early case, an adjudicator ruled in a preliminary decision that a letter of reprimand was adjudicable under then s. 91(1)(b) of the Act, relying upon an article in the applicable collective agreement, which provided that discipline should be for just cause. See Baril v. Treasury Board (Post Office Department), PSSRB File No. 166-02-2943 (19771216).

[34] The employer in that case applied to the Federal Court for a writ of prohibition to prohibit the adjudicator from proceeding to consider the grievance on the merits. Mr. Justice Marceau granted the writ, determining that the statutory jurisdiction of adjudicators was confined to those forms of disciplinary action specified at that time in s. 91(1)(b) of the Act. He stated in part as follows in Attorney-General of Canada v. Lachapelle (1978), [1979] 1 F.C. 377:

...

... In enacting this provision Parliament clearly intended to limit and define the cases in which an employee, whether or not he was a member of a union, would be entitled to submit his grievance to this method of adjudication .... It is clear that Parliament did not intend all grievances to require the intervention of an official adjudicator in addition to the levels of the ordinary procedure. ... it dealt with cases of disciplinary action in which individual interest is clearly predominant. By expressing itself as it did, Parliament appears to me to have intended to begin with an overall consideration of all grievances involving disciplinary action against individuals and then to eliminate all but those dealing with disciplinary action entailing discharge, suspension or a financial penalty....

...

2. The application to the facts of this case

[35] The employer argues that the grievor received a letter of written reprimand dated January 30, 2014, that he was not terminated, demoted, or suspended without pay, and that he did not suffer a financial penalty, as required by s. 209(1)(b) of the Act, and as such, the nature of the grievance means that it could not be referred to adjudication.

[36] The grievor responds that the employer states that he did not suffer any financial harm on account of the discipline letter; therefore, this grievance is not adjudicable. He argues that he is not working and that he has been receiving only 70% of his salary since his retirement. He states that he was 43 years old when he was forced to retire on account of his employer’s fraudulent actions.

[37] The grievor’s referral to adjudication recites that he was put off work by his doctor and that when he returned, he was met with many discriminatory workplace situations. He then states the grounds on which he was discriminated against. He alleges that in Miramichi, he suffered discrimination on the basis of sex, disability, family status, and marital status.

[38] He then refers to the fact that he wished to keep working but in Moncton, New Brunswick. He sought an accommodation, presumably on the basis of a disability, to work from home, which initially was denied but ultimately was approved. However, his position was reduced to an AS-02. He then alleges that had he continued working, it is likely that his supervisor would have terminated his employment. He decided to medically retire.

[39] From the context, it is apparent that these events and the alleged discrimination occurred after the grievor was given a written reprimand and after he had returned to work from a medical absence. He outlines his difficulties obtaining an accommodation and the possibility that had he continued working, it was likely that his supervisor would have terminated his employment, so he decided to medically retire. I can find no arguable case of a disciplinary action resulting in a financial penalty in this case. I am not persuaded that a nexus could be established between the letter of reprimand and any alleged financial penalty. Any financial loss that the grievor might have suffered as a result of his decision to medically retire does not equate to a financial penalty for the purpose of s. 209(1)(b) of the Act.

[40] The statutory provisions and the case law are clear that an adjudicator does not have jurisdiction to hear and determine a disciplinary grievance involving a written reprimand. I conclude that I do not have jurisdiction to consider the grievor’s grievance insofar as it relates to the written reprimand.

B. No bargaining agent support

[41] As noted, the employer takes the position that to the extent that the grievor asserts in his referral to adjudication that he was discriminated against on the grounds of sex, gender, family status, and disability and that these grounds constituted a breach of the collective agreement, the referral is not approved or supported by the bargaining agent, contrary to the requirements of s. 209(1)(a) of the Act, and the Board should not hear and determine these allegations.

[42] From the overview, it was observed that for an individual employee in the grievor’s circumstances to refer a grievance to adjudication, the grievance must fall within the ambit of either of the two categories set out in ss. 209(1)(a) and (b) of the Act. I have already dealt with the application to the facts of this case of s. 209(1)(b) relating to the written reprimand.

[43] The other category relates to grievances with respect to the interpretation or application in respect of the employee of a collective agreement or an arbitral award.

[44] Reference was made in the overview to s. 209(2) of the Act, which provides that before referring a grievance related to the interpretation or application in respect of the employee of the collective agreement or an arbitral award, the employee must obtain his or her bargaining agent’s approval to represent him or her in the adjudication proceedings.

[45] In another early case, Dooling v. The Treasury Board (Department of Labour), PSSRB File No. 166-02-308 (19710112), the circumstances involved Mr. Dooling, with the bargaining agent’s approval, referring his grievance to adjudication. Yet, on the day before the hearing, the bargaining agent withdrew its support. Nevertheless, Mr. Dooling sought to proceed with his case on his own, without the bargaining agent’s representation. He argued that the grievance was his property, not the bargaining agent’s, and that the bargaining agent could not withdraw its consent to represent him in the absence of his concurrent consent.

[46] Referring to then s. 91 of the Act, which is in substance identical to the current s. 209, an adjudicator determined as follows at pages 11 and 12:

...

... The bargaining agent must screen all grievances relating to the interpretation of collective agreements, since these involve questions of policy affecting the employees collectively. I conclude that there must be a continuing willingness on the part of the bargaining agent to represent the grievor, and that the legislator wished the bargaining agent to be present at the hearing and to represent the individual employee in cases involving the interpretation of the collective agreement.

What then is the consequence of the withdrawal by the bargaining agent of its consent to the reference and its willingness to represent the grievor? In such a case it seems to me that the grievance must fail, at it ceases to be adjudicable....

...

 

[47] At current s. 226(2)(a), the Act provides as follow, since 2005, with respect to the powers of adjudicators and the Board:

226 (2) An adjudicator or the Board may, in relation to any matter referred to adjudication,

(a) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act that are related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied in the collective agreement, if
any ....

 

[48] In Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2013 PSLRB 115, an employee excluded from collective bargaining and thus not covered by a collective agreement filed a grievance alleging disciplinary action. She claimed that the workload related to her position was excessive and that she had been subject to harassment. In addition, she raised human-rights issues, alleging that her employer had failed to accommodate her and that she had been subjected to discrimination under a ground prohibited by the CHRA.

[49] An adjudicator dismissed Ms. Chamberlain’s grievance on the basis that her employer’s actions did not relate to disciplinary action. The adjudicator did not deal with the human-rights issue. On judicial review, the Federal Court remitted that issue back to the adjudicator to determine whether Ms. Chamberlain’s allegations of breaches of the CHRA were adjudicable under the Act.

[50] The adjudicator determined that s. 226(1)(g) did not attribute jurisdiction to an adjudicator with respect to grievances that raise stand-alone CHRA violations and that it would apply only to a grievance that was first properly referred to adjudication under s. 209(1)(a), if interpreting and applying the CHRA were required to resolve the issues raised in the grievance.

[51] Ms. Chamberlain applied to the Federal Court for judicial review of the adjudicator’s new decision. The Federal Court dismissed the application; see Chamberlain v. Canada (Attorney General), 2015 FC 50. The Court stated at paras. 40 and 41 as follows:

[40] ... Parliament also chose to limit the types of grievances that employees could refer to adjudication. Section 209 of the PSLRA circumscribes and limits the types of grievances that can be referred to adjudication ....

[41] Section 209 does not encompass individual grievances filed by employees who are not covered by a collective agreement and which raise stand-alone CHRA violation issues. In my view, section 209 is the only provision of the PSLRA that attributes jurisdiction to a grievance adjudicator. Section 226 does not create another category of grievances that can be referred to adjudication....

1. Application to the facts of this case

[52] The grievance filed on February 7, 2014, by the grievor was also signed by a bargaining agent representative. It states in part that the grievor wishes to grieve the written corrective action, that the grievor was discriminated against, and that had a different coach been in the same situation, it would have been handled differently, and more leniency would have been given.

[53] During the grievance process, the employer noted the grievor’s request to add s. 7 of the CHRA as a basis for the grievance and confirmed that the grievor claimed discrimination under the ground of gender.

[54] When the grievance was dismissed at the final level, the bargaining agent’s representative wrote to the grievor to advise him of the disposition of the grievance.

[55] On October 12, 2021, the grievor referred his grievance to adjudication under s. 209(1)(b) of the Act, which deals with grievances relating to disciplinary action.

[56] In the Board’s e-filing form, in response to the question, “Do you intend to raise an issue of discrimination?”, the grievor responded by selecting the button indicating “Yes” and by selecting a number of grounds, including sex, marital status, family status, and disability.

[57] The reference to adjudication is not signed by a bargaining agent representative.

[58] The employer submits that the grievor appears to include an argument that he was discriminated against and that this was a breach of his collective agreement. Grievances alleging collective agreement breaches require bargaining agent support when filed and at adjudication.

[59] As it seems undisputed that the bargaining agent does not approve or support the referral, the grievor has no standing to proceed to adjudication without the support and representation of his bargaining agent in a matter challenging the interpretation or application of the collective agreement.

[60] The grievor did not respond to or attempt to rebut this argument.

[61] I conclude that the grievor has not met the condition precedent of obtaining his bargaining agent’s approval to represent him in the adjudication proceedings before referring his grievance to adjudication and that he has no standing to refer to adjudication his allegation of violation of the collective agreement.

[62] I further find that, in the absence of jurisdiction over the written reprimand, the grievor cannot refer to adjudication an allegation of a violation of the CHRA as a stand-alone issue. The grievor cannot expect the Board to exercise the powers set out in s. 226(2)(a) of the Act in the absence of any dispute referrable to adjudication pursuant to s. 209(1).

C. Timeliness

[63] In light of my determination that the grievance cannot proceed to adjudication under either s. 209(1)(a) or 209(1)(b) of the Act, even were I to determine that the grievance was referred to adjudication in a timely manner, it would not assist the grievor.

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

(The Order appears on the next page)

 

V. Order

[65] The grievance is dismissed.

February 9, 2022.

David Olsen,

a panel of the Federal Public Sector

Labour Relations and Employment Board