FPSLREB Decisions
Decision Information
The complainant made two complaints against the respondent under s. 133 of the Code, alleging that she was terminated as a reprisal for exercising her rights – approximately three weeks before the termination, she filed a notice of occurrence in which she complained of harassment and discrimination by her supervisor – the respondent argued that the termination was based on long-standing performance issues and denied any reprisal – as a preliminary matter, the respondent asked the Board to dismiss both complaints as they were made outside the 90 days prescribed by the Code – the complainant argued that the time for making a complaint did not start to run until several months after her termination, when she discovered evidence that her supervisor had allegedly forged her performance improvement plans for a number of years – the Board found that the complainant knew or ought to have known about the action or circumstances giving rise to her complaint when she was terminated – the respondent’s termination letter clearly put her on notice that her performance had been of concern for “several years” – since it was her view that her performance had been an issue for only five months, she knew or ought to have known then that the termination was an act of alleged reprisal.
Complaints dismissed.
Decision Content
Date: 20230130
Citation: 2023 FPSLREB 11
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Between
Milan Bhasin
Complainant
and
National Research Council of Canada
Indexed as
Bhasin v. National Research Council of Canada
In the matter of a complaint made under section 133 of the Canada Labour Code
Before: Ian R. Mackenzie, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Herself
For the Respondent: Mireille Lycan, National Research Council of Canada
Decided on the basis of written submissions,
filed October 25, November 4, 13, 25 and 29, and December 3, and 8, 2022.
REASONS FOR DECISION
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I.
Complaints before the Board
[1] Milan Bhasin (“the complainant”) made a complaint under s. 133 of the Canada Labour Code (R.S.C., 1985, c. L-2; “the Code”), alleging a reprisal in her termination of employment from the National Research Council of Canada (“the respondent”) on September 8, 2022 (Board file no. 560-09-45666). The respondent objected to this complaint on several grounds, including timeliness. I determined that the issue of the complaint’s timeliness could be addressed through written submissions. I considered the written submissions on file, as well as providing the complainant and the respondent with an opportunity to make further submissions.
[2] In her complaint, the complainant also alleged a breach of the Canadian Human Rights Act (CHRA) (R.S.C., 1985, c. H-6), and the relevant collective agreement. This decision only relates to the timeliness of the allegations under the Code.
[3] On December 3, 2022, the complainant made a second reprisal complaint under the Code (Board file no. 560-09-46213) against the respondent. She requested that this complaint be consolidated with her previous complaint. The Federal Public Sector Labour Relations and Employment Board (“the Board”) agreed. The respondent was advised of the second reprisal complaint, but no reply was sought as it relates to the same circumstances, repeats the same allegations, and provides details related only to the complainant’s efforts to obtain further documents from the respondent.
[4] The Code provides for a time limit for making a complaint of “… not later than ninety days after the date on which the complainant knew, or in the Board’s opinion ought to have known …” of the circumstances giving rise to the complaint; see s. 133(2).
[5] This decision addresses only the timeliness of both complaints. I have not made any findings on the merits of the allegations raised in the complaint.
II.
Context of the complaints
[6] The Code prohibits employers from retaliating against employees for having engaged their Code-protected rights (s. 147), as follows:
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A.
The first complaint
[7] The complainant stated in her complaint to the Board that she had complained of harassment and discrimination by her supervisor in February of 2022 and that the respondent’s harassment specialist advised her to submit a “Notice of Occurrence” (“the notice”). The complainant states that she submitted the notice, with allegations, on March 10, 2022, and that her employment was terminated on March 30, 2022. She also submits that, before her employment was terminated, she told her supervisor that she had filed the notice. The respondent states that the notice was filed only on June 27, 2022, approximately three months after the date of termination (March 30, 2022). However, the complainant asserts that the harassment specialist asked her to resubmit her original notice with more details, which is what she did, on June 27, 2022.
[8] The respondent submits that the complainant’s employment was terminated based on longstanding performance issues. The complainant states that she was on a performance improvement plan for approximately five months before the termination. The letter of termination reads, in part, as follows:
…
As you are aware, the issues of your performance and failure to meet the requirements of your position have been discussed between you and your supervisors over an extended period of time. In fact, your performance for the past several years has not met the level of performance required ….
I am satisfied that NRC has provided you with adequate time to improve your work performance, precise goals, coaching, support and all other reasonable opportunities to demonstrate your ability to perform the duties. I am also satisfied that you have been made aware of the consequences of your continued performance short-comings [sic]. Despite all of NRC’s efforts, you have failed to demonstrate the required improvements and results in your performance. Given that your performance has not improved even with all of these extensive measures, I am satisfied that there is no prospect for the required improvement in the foreseeable future.
…
[9] A grievance against the termination of the complainant’s employment was filed, and she was represented by her bargaining agent, the Research Council Employees’ Association (RCEA). In the final-level grievance reply, issued on June 13, 2022, Lakshmi Krishnan, Vice President, Human Health Therapeutics, noted that the complainant’s performance improvement plans showed that shortcomings in her performance “… were being addressed with [her] for many years.” In her complaint, the complainant states that she told Ms. Krishnan that she had been on a performance improvement plan for only five months, not “many years”. The complainant has alleged that her performance improvement plans for previous years were “forged” by her supervisor. In her submissions to the Board, the complainant states that she first became aware of the allegedly forged documents in an email from the respondent of June 15, 2022.
B.
The second complaint
[10] The second complaint also alleges that the complainant’s employment was terminated as a reprisal. In it, she includes further details of the alleged reprisal that she noticed after receiving documents pursuant to an access to information and privacy request. The list that she provided in her complaint includes further details about the performance improvement plans and omissions of the supervisor. She also alleges that comments she provided in response to her performance review in 2020 were not included in the respondent’s records. The complainant also makes allegations against the labour relations advisor, including a failure to put documents on file and the advisor’s statement that she could not file a grievance related to some of her concerns about the documents disclosed to her.
III.
Summary of the arguments
[11] The respondent submitted that the complainant knew or ought to have known of the circumstances giving rise to the first complaint at the time of her termination of employment, March 30, 2022. The complaint was made on September 8, 2022, which was more than 90 days after the date of the termination of her employment.
[12] The complainant asserted that her supervisor “… had forged false [performance improvement plans] for many years …”. In addition, she alleged that her supervisor omitted some of her work in her yearly performance reviews and her replies to the performance improvement plans and that two of the performance improvement plans were missing. She submitted that these were acts of retaliation and that they were a direct contribution to her termination of employment.
[13] The complainant submitted that although the Director General and not her supervisor made the decision to terminate her employment, it was based on the forged performance improvement plans.
[14] The complainant submitted that she became aware of the forged performance improvement plans only on June 15, 2022. She submitted that only then was she aware that her termination of employment was a reprisal.
[15] The respondent submitted that on March 30, 2022, the complainant knew that her employment was being terminated due to her performance issues, and she knew or ought to have known that her supervisor had provided information leading to that decision.
[16] The respondent submitted, therefore, that the complainant knew or ought to have known on March 30, 2022, of the action or circumstances giving rise to this complaint.
[17] In her second complaint, the complainant submitted that the information obtained after her access to information request showed that her supervisor and the labour relations advisor omitted and manipulated documents relevant to her case and that these acts of reprisal led to her termination of employment.
IV.
Reasons
[18] In her complaints to the Board and in her submissions, the complainant alleged that the respondent violated the Code, the Canadian Human Rights Act (R.S.C., 1985, c. H-6), and the relevant collective agreement. The complaint before me addresses only the Code-related allegations.
[19] I did not seek submissions from the respondent on the complainant’s second complaint, made on December 3, 2022, which makes the same reprisal allegations arising out of the termination of her employment. The respondent was provided a copy of the second complaint. Although there is more information related to the substance of the allegation of improper information on the complainant’s file with the respondent, no new allegations were made relevant to the issue of the complaints’ timeliness.
[20] The time limit for making a complaint under s. 133 of the Code is 90 days from the date of the alleged reprisal or from the date on which the complainant ought to have known of the circumstances giving rise to the alleged reprisal. In applying this requirement to the facts, the Board is required to define “the complaint” and determine its essential nature; see Boshra v. Canadian Association of Professional Employees, 2009 PSLRB 100 at para. 23 (upheld by the Federal Court of Appeal in 2011 FCA 98 (see paras. 40 and 41)).
[21] Although there are some facts in dispute in this complaint, none of those facts in dispute are relevant to the issue before me: when did the complainant know, or should have known, of the circumstances giving rise to her complaint of reprisal?
[22] There is no dispute that the complainant’s employment was terminated on March 30, 2022. If I accept that as the date on which she knew or ought to have known the circumstances giving rise to the complaints, they are untimely and must be dismissed. However, if I accept the complainant’s argument that she was only aware of the alleged reprisal as of June 15, 2022, the first complaint is timely.
[23] The second complaint is untimely, whatever date is used, as it was filed on December 3, 2022, more than 90-days after June 15, 2022. The second complaint is therefore dismissed because it is untimely.
[24] As in the predecessor Board’s decision in Boshra, at para. 23, I find it helpful to determine the essential nature of the first complaint through a careful examination of how the complainant described the actions or circumstances that gave rise to her complaint, as well as examining closely the letter of termination.
[25] The complaints focus on the performance improvement plans prepared by her supervisor and allege that he forged those documents in retaliation for her harassment complaint against him. However, in the first complaint, she also states that the supervisor did this “… as he knew [she] had complained against him so in retaliation he terminated [her] …” and that this was a reprisal. Near the end of the complaint, the complainant makes the following statement:
…
In my case, I had made my complaint for workplace discrimination and harassment under s. 133(1) of the Code by filing the notice of occurrences and s. 147 prohibits [sic] employer from laying me off or terminating me for this cause. The forged false PIP’s [performance improvement plans] were submitted by [the supervisor] in retaliation as I had filed the notice of occurrences against him. There is a direct link between the filing of notice under s. 133 and forging of the false PIP’s ….
…
[26] Although the complainant focuses on the alleged forgeries as well as omissions by her supervisor, the essential nature of the complaint is the termination of her employment as an alleged reprisal for the complainant exercising her rights under the Code, specifically, filing the notice against her supervisor in February 2022. She confused the discovery of evidence to support an allegation with the allegation itself. She argued that her termination of employment was done in retaliation for having submitted the notice. However, she knew or ought to have known that the respondent relied on her performance over an extended period at the time of the termination of her employment (March 30, 2022). The letter of termination clearly stated this:
· issues of performance and her failure to meet the requirements of her position had been discussed “… over an extended period of time”;
· her performance “for the past several years” had not met the required level;
· she had been provided with adequate time to improve her work performance; and
· she was made aware of the consequences of her continued performance shortcomings.
[27] The termination letter clearly put the complainant on notice that her performance had been of concern for “several years”. The allegation that some performance improvement plans were forged or that the respondent did not have the full picture did not change the underlying circumstances that led to the complaint — the termination of employment based on poor performance. When she received the letter of termination, the complainant knew that the respondent based its decision to terminate her employment on performance issues over “several years”. Since her view was that her performance had been an issue only for five months and not “several years”, at the time of receiving the letter of termination, she would have known, or ought to have known, at that time that the termination of employment was an act of alleged reprisal. The time limit for filing a complaint therefore commenced on March 30, 2022.
[28] Although the subsequent information that she obtained from the respondent might have provided support for her allegation of reprisal, the essential nature of her complaint was known, or ought to have been known, at the time of the termination of employment.
[29] Therefore, I find that the first complaint is also untimely.
[30] The respondent’s objection is allowed, and the complaints are dismissed.
[31] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V.
Order
[32] The complaints are dismissed.
January 30, 2023.
Ian R. Mackenzie,
a panel of the Federal Public Sector
Labour Relations and Employment Board