FPSLREB Decisions
Decision Information
The complainant challenged the implementation of the COVID-19 vaccination policy that required employees to provide an attestation of their vaccination status – the complainant claimed that the policy and attestation requirement created a loyalty conflict between his personal values and his commitment to serve Canadians and protect their fundamental rights – the complainant alleged that the Royal Canadian Mounted Police retaliated against him for exercising his right to grieve those issues – the Board found that the complainant did not present an arguable case of retaliation by his employer – nothing indicated that retaliation occurred after he exercised his rights – imposing vaccination and ignoring his loyalty conflict did not follow but preceded the grievances being filed.
Complaint dismissed.
Decision Content
File: 561-02-45554
Federal Public Sector
Labour Relations Act
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(Royal Canadian Mounted Police)
Marleau v. Treasury Board (Royal Canadian Mounted Police)
In the matter of a complaint under section 190 of the Federal Public Sector Labour Relations Act
Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Daniel Normandin
For the Respondent: Lyne Poulin, Treasury Board of Canada Secretariat
Decided on the basis of written submissions,
filed January 17 and 27 and February 7, 2023.
[FPSLREB Translation]
REASONS FOR DECISION
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FPSLREB TRANSLATION
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I. Complaint before the Board
[1] Mikaël Marleau (“the complainant”) is an investigator with the Royal Canadian Mounted Police (RCMP). On July 18, 2022, he made a complaint with the Federal Public Sector Labour Relations and Employment Board (“the Board”) challenging the steps taken in the fight against the COVID-19 pandemic.
[2] In October 2021, the complainant’s legal employer, the Treasury Board, implemented the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (“the Policy”), which included the obligation for employees to provide the employer with an attestation of their vaccination status.
[3] Employees who refused the vaccination and the attestation could be placed on leave without pay. The complainant objected to the imposition of the attestation requirement because of what he termed his loyalty conflict. In his complaint, he stated that he was not requesting accommodation on religious, medical, or other grounds.
[4] According to the complainant, the Policy and the attestation requirement created a conflict between his personal values and his commitment to serve Canadians and protect their fundamental rights.
[5] To support his complaint, he cited several statutes and regulations, including the Canadian Charter of Rights and Freedoms (“the Charter”), s. 2 of which protects freedom of thought and opinion and s. 7 of which protects the right to security and integrity of the person, and the RCMP’s Code of Ethics, which sets out at its paragraph 3.1 respect for the law and individuals’ rights.
[6] The complaint was made with the Board under s. 190(1)(g) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), which provides for making a complaint against the employer when it commits an unfair labour practice under s. 185. The legislative provisions’ details will be revisited in the discussion of the parties’ arguments.
[7] On November 15, 2022, the respondent replied with an objection to the Board’s jurisdiction. It stated that the complaint is not admissible because it does not meet the definition of an unfair labour practice complaint under the Act.
[8] Since the facts underlying the complaint are not disputed, the Board proposed to the parties to address the respondent’s objection through written arguments. This decision deals only with that objection and not with the complainant’s stated loyalty conflict.
II. Summary of the arguments
A. The respondent’s objection
[9] The complainant filed grievances against compulsory vaccination and the failure to address his objection to the vaccine based on his loyalty conflict.
[10] According to the respondent, this complaint has no legal basis. It was made under s. 185 of the Act, which reads as follows:
[Emphasis in the original]
[11] Sections 187 and 188 of the Act deal with unfair labour practices by bargaining agents and do not apply to this case. Section 189(1) is about employees’ representation rights, which the complaint does not involve. The relevant parts of ss. 186(1) and (2) read as follows:
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[12] The respondent cited Musolino v. Canada Revenue Agency, 2022 FPSLREB 47, in which the Board dismissed an unfair labour practice complaint about the vaccination Policy because it was not an unfair labour practice under the Act.
[13] According to the respondent, there is no correspondence between the complaint and ss. 186(1) and (2) of the Act; therefore, the Board does not have jurisdiction to hear it. The appropriate way to challenge terms and conditions of employment is via a grievance, which the complainant has already done.
B. The complainant’s response
[14] The complainant agreed that the complaint was made under s. 190(1)(g) of the Act and argued that it is a question of an unfair labour practice under s. 185. I have reproduced as follows a few paragraphs from his submissions:
[Translation]
...
The “unfair labour practice” condemned by Constable Marleau is directly related to his dispute with the RCMP - following pressure from the administration for him to be vaccinated under a requirement from Commissioner Brenda Lucki. In her requirement, Commissioner Lucki even refers to the Values and Ethics Code for the Public Sector to force her members to make her a “true attestation”. Constable Marleau identifies with that Code because it protects certain fundamental values, including his dignity and integrity under the CCRF [the Charter].
...
C. The respondent’s reply
[15] In its reply, the respondent noted that the complainant still did not demonstrate how the text of s. 185 of the Act applies to his complaint and reiterated that the recourse against an employment condition is a grievance.
D. The complainant’s final reply
[16] In his final reply, the complainant clarified that the complaint was made under ss. 186(2)(a)(iii) and (iv) of the Act. To ease reading this decision, those provisions read as follows:
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[17] The complainant dismissed Musolino as being not applicable to this case and cited several Board decisions in which its jurisdiction was challenged under s. 209 of the Act.
[18] According to the complainant, the Board has complete jurisdiction to hear the complaint.
[19] The complainant submitted that the respondent in this case is truly the RCMP, not the Treasury Board. He then described how the RCMP has been called out in decisions and reports for its unhealthy labour relations culture.
[20] The complainant argued that the Charter, which has primacy over all other laws, must necessarily apply in this case to protect his freedom of expression with respect to the duty of loyalty inherent in the employment contract. The Board should consider this argument without question.
[21] Therefore, the complainant appeared to conclude that the Board has the authority to hear the complaint.
III. Analysis
[22] The complainant strongly insisted that the respondent is the RCMP, not the Treasury Board. I have no difficulty accepting that the RCMP is at the origin of his dispute with his employer. The organization of the federal government must be understood. The Treasury Board is the legal employer (see the definition of “employer” in s. 2(1) of the Act). Human resources delegation means that the RCMP or others acting on its behalf may make certain decisions with respect to the complainant (see Part I of the Financial Administration Act (R.S.C., 1985, c. F-11)).
[23] I would also like to address what defines the Board’s jurisdiction. It is an administrative tribunal, which may exercise its jurisdiction only within the limits of its enabling statute.
[24] The complaint was made under ss. 186(2)(a)(iii) and (iv) of the Act. Those provisions are intended to prevent the employer from retaliating against an employee for, among other things, filing a grievance or exercising his or her rights under Parts 1, 2, or 2.1 of the Act. Section 191(3) of the Act provides that the written submission of a complaint alleging a violation of s. 186(2) is evidence of the violation and that therefore the party that denies the violation must prove otherwise. However, before the employer can be asked to prove that it has not violated the prohibitions, the complainant must rely on one of the circumstances set out in s. 186(2) and must present an arguable case of a violation of that provision (see Quadrini v. Canada Revenue Agency, 2008 PSLRB 37). However, even taking the complainant’s allegations as true, nothing indicates that retaliation occurred after he exercised his rights under the Act.
[25] The complainant exercised the recourse provided by the Act by filing grievances against his conditions of employment. The actions that he alleged that the employer made, which were imposing vaccination and ignoring his loyalty conflict, did not follow the grievances being filed; they preceded the filings. He did not describe how those actions might have been retaliatory, motivated by a right of recourse being exercised, either by refusing to employ him, suspending him, or making unlawful distinctions against him. Similarly, although he referred to reports and decisions that discussed the RCMP’s labour relations issues, those facts are unrelated to the violations of the Act that he alleged took place. Therefore, similar to the situation in Musolino, he made no allegations or arguments to demonstrate how the employer violated ss. 186(2)(a)(iii) and (iv) of the Act.
[26] The complainant submitted that the employer’s action breached his Charter rights. The Board agrees that legislation must be applied while respecting Charter values, as the Supreme Court of Canada has repeatedly stated. The problem in this case is that he did not demonstrate how the cited provisions apply. If Charter rights were violated, he did not explain how that related to ss. 186(2)(a)(iii) and (iv) of the Act. The Board has no residual jurisdiction to consider the employer’s actions simply with respect to the Charter. At the risk of repeating myself, the Board may act only within the framework of its enabling statute (see R. v. Conway, 2010 SCC 22).
[27] The cited provisions have narrow wording that does not protect against any infringement of the rights and freedoms guaranteed by the Canadian constitution but that does protect only against reprisals for exercising rights under the Act.
[28] The complainant cited a number of decisions in which the employer challenged the Board’s jurisdiction, incorrectly in the Board’s opinion and, in some cases, in the Federal Court of Appeal’s opinion (see Féthière v. Deputy Head (Royal Canadian Mounted Police), 2016 PSLREB 16; Alexis v. Deputy Head (Royal Canadian Mounted Police), 2020 FPSLREB 9; Nasrallah v. Deputy Head (Department of Human Resources and Skills Development), 2012 PSLRB 12; and Canada (Attorney General) v. Heyser, 2017 FCA 113).
[29] In all those decisions, the provision at issue was s. 209 of the Act, which defines the grievances that may be referred to adjudication. The reasoning applicable to grievances is not transferable to complaints because the conditions of application are not the same. When the case law recognized the Board’s jurisdiction after the employer challenged it, it did so by interpreting s. 209 of the Act. That interpretation cannot be applied to complaints situated in another part of the Act under very different provisions.
[30] With respect to complaints made under s. 190(1)(g), their scope is limited under the Act’s terms for a specific purpose: to prevent a specifically defined unfair labour practice.
[31] The complainant might consider that not considering his loyalty conflict was, in his opinion, an unfair labour practice. However, once again, an administrative tribunal such as the Board exercises its jurisdiction only within the limits of its enabling statute. I cannot extend the definition of “unfair labour practice” to include a situation that the Act simply does not provide for.
[32] The respondent’s objection was stated in terms of the Board’s jurisdiction. The Board concludes that the complainant’s allegations, even if taken as true, could not establish a violation of ss. 186(2)(a)(iii) and (iv) of the Act. Therefore, the complaint is dismissed.
[33] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
IV. Order
[34] The complaint is dismissed.
FPSLREB Translation
a panel of the Federal Public Sector Labour Relations and Employment Board