FPSLREB Decisions
Decision Information
The employer alleged that the grievance at issue was filed outside the 25-day limit prescribed in the relevant collective agreement – it also alleged that the Board had no jurisdiction as the grievor filed the grievance when he was no longer an employee – the Board rejected the timeliness objection – section 95(2) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79) establishes that a timeliness objection may be raised with the Board only if the grievance was rejected for timeliness reasons at the first level of the grievance process at which the time limit was not met as well as at all subsequent levels – there was no mention of not having met the time limit at the first and third levels of the grievance process, only at the final level – accordingly, a timeliness objection could not be raised with the Board – the Board also rejected the jurisdictional objection – the employer’s argument was premised on the fact that the grievor retired and then filed his grievance – although he is a former employee, the grievance related to events that occurred while he was still an employee, including an allegation that the employer’s actions caused him to retire early.
Employer objections dismissed.
Decision Content
Date: 20220831
File: 566-34-44801
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Labour Relations Act
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Between
Kalim Kokozaki
Grievor
and
Canada Revenue Agency
Employer
Indexed as
Kokozaki v. Canada Revenue Agency
In the matter of an individual grievance referred to adjudication
Before: Edith Bramwell, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: Dejan Toncic, Professional Institute of the Public Service of Canada
For the Employer: Nicholas Gualtieri
REASONS FOR DECISION
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I.
Objections to the grievance referred to adjudication
[1] The grievor, Kalim Kokozaki, referred an individual grievance to the Federal Public Sector Labour Relations and Employment Board (“the Board”) pertaining to the interpretation or application of the collective agreement between the Canada Revenue Agency (“the CRA” or “the employer”) and the Professional Institute of the Public Service of Canada (“the bargaining agent”) (expiry date: December 21, 2022; “the collective agreement”). On June 23, 2022, the employer submitted two objections with respect to the referral. It alleges that the matter was filed outside the 25-day limit prescribed to file a grievance under the collective agreement. It also alleges that the Board has no jurisdiction as the grievor filed the matter while he was no longer an employee of the CRA. On July 7, 2022, the bargaining agent submitted its response to the employer’s objections and requested that they be dismissed. On July 25, 2022, the employer responded, maintaining its objections.
II.
Analysis
A.
The timeliness objection
[2] Section 95(2) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79) establishes that an objection to timeliness may be raised with the Board only if the grievance was rejected for timeliness reasons at the first level of the grievance process at which the time limit was not met, as well as at all subsequent levels. The bargaining agent stated there was no mention of not having met the time limit for filing the grievance at levels 1 and 3 of the grievance process, only at the final level, which is uncontested. Accordingly, an objection based on timeliness could not be raised with the Board.
[3] The Board rejects the employer’s timeliness objection.
B.
The jurisdiction objection
[4] The employer’s additional objection, about the Board’s jurisdiction, concerns the grievor’s status as a former employee and the application of s. 206(2) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the FPSLRA”), which reads as follows:
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[Emphasis in the original]
[5] The Federal Court of Appeal, interpreting a similar provision in the former Public Service Staff Relations Act (R.S.C., 1985, c. P-35) in The Queen v. Lavoie, [1978] 1 F.C. 778 (C.A.), held that very clear wording is required to deprive an individual of his or her right to grieve, including to deprive a former employee of a right to grieve matters that occurred while he or she was an employee (see Lavoie, at 783). The adjudicators in Glowinski v. Treasury Board (Department of Industry), 2007 PSLRB 91, and Kidd v. National Research Council of Canada, 2010 PSLRB 73, applied Lavoie and found that the same reasoning applied to s. 206(2) of the Public Service Labour Relations Act, as the FPSLRA was named at those times, which was worded then the same as it is now.
[6] More recently, in Canada (Attorney General) v. Santawirya, 2019 FCA 248 at para. 20, the Federal Court of Appeal confirmed that “... if the material facts transpired while the aggrieved person was employed then the Board has jurisdiction regardless of whether that person is still employed when he or she files a grievance.” The jurisdictional question to be asked when dealing with a former employee is whether the events that gave rise to the matter being grieved took place while the person was still an employee (see Kidd, at paras. 30 to 33; and Santawirya, at paras. 11 and 19 to 21).
[7] The employer’s argument in this case is premised on the fact that the grievor retired as of January 19, 2021, and then filed his grievance. Although he is a former CRA employee, the employer does not dispute that this grievance relates to events that occurred while he was still an employee. The grievance and the decisions that the parties submitted indicate that among other things, the grievance pertains to the employer’s actions when it initiated an investigation that the grievor alleges caused him to retire before his intended retirement date.
[8] As such, the Board rejects the employer’s objection to its jurisdiction to hear the grievance.
[9] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
III.
Order
[10] The employer’s objections are dismissed.
August 31, 2022.
Edith Bramwell,
a panel of the Federal Public Sector
Labour Relations and Employment Board